1. PRICES. Prices quoted by WARNER POWER are subject to change without notice after 30 days from the date of quotation. Prices do not include federal, state, or local sales, use, excise or other taxes, (whether enacted now or later). Wherever applicable, any taxes will be added to the invoice as a separate charge to be paid by the Purchaser.
2. DELIVERY AND ACCEPTANCE. Unless otherwise stated on the face hereof, delivery will be made F.O.B. WARNER POWER’s plant with shipping charges to be paid by Purchaser. Unless Purchaser shall have selected a carrier within ten (10) days prior to shipping, WARNER POWER shall select a carrier, but WARNER POWER shall not thereby assume any liability in connection with shipping nor shall the carrier be construed to be an agent of WARNER POWER. Risk of loss shall pass to Purchaser upon WARNER POWER’s delivery of the goods to the carrier. Purchaser hereby grants to WARNER POWER a security interest in the products as security for the performance by Purchaser of all its obligations hereunder together with the right, without liability, to repossess to products with or without notice in the amount of default of any such obligation. Purchaser’s acceptance shall occur upon delivery, unless Purchaser advises WARNER POWER in writing within (10) ten days from receipt of the products by Purchaser that the products do not conform to WARNER POWER’s specifications.
3. CANCELLATION OF ORDERS. All orders shall be deemed final, and Purchaser shall have no right to cancel any order, upon WARNER POWER sending a written acknowledgment of the order to Purchaser. In the event that Purchaser does cancel an order after WARNER POWER has sent an acknowledgment, Purchaser shall be billed at WARNER POWER’s standard rates for the costs of all labor, overhead, materials, shipping, and all other expenses incurred by WARNER POWER in fulfilment of the order, pursuant to the terms in Section 5.
4. PAYMENT FOR WORK OUTSIDE SCOPE OF ORDER. In the event that Purchaser, after placing an order, requests modifications to the scope of the order or requests work not originally included in the order, Purchaser shall be billed at WARNER POWER’s standard rates for the costs of all labor, overhead, materials, shipping, and all other expenses including engineering design costs incurred by WARNER POWER in satisfying the request pursuant to the terms in Section 5.
5. TERMS OF PAYMENT. Standard payment terms are net 30 days from date of invoice to all firms with an acceptable credit rating as determined by WARNER POWER. If the financial condition of the Purchaser at any time is such as to give WARNER POWER reasonable doubt concerning Purchaser’s ability to pay, WARNER POWER reserves the right to require full or partial payment in advance of shipment or to ship the order C.O.D. Invoices shall be issued as shipments are made. If shipments are delayed by Purchaser, invoices shall be issued on the date when WARNER POWER is ready to make shipment. Interest at the rate of one and one-half percent (1 1/2%) per month will be charged on balance due after thirty (30) days. WARNER POWER shall be entitled to recover from Purchaser all of its costs and expenses (including attorneys’ fees) in enforcing its rights to payment or its security interest under this contract.
6. GRANT OF SECURITY INTEREST.Purchaser hereby grants to the WARNER POWER, to secure the payment and performance in full of the Purchaser’s obligations to WARNER POWER hereunder, a security interest in and pledges and assigns to the WARNER POWER the following properties, assets and rights of Purchaser, consisting of all corporate and business assets, properties and rights of Purchaser wherever located, whether now owned or hereafter acquired or arising, and all proceeds, products, and accessions thereof (the “Collateral”): (a) Accounts (including health care insurance receivables), (b) Chattel Paper (whether tangible or electronic), (c) Commercial Tort Claims, (d) Deposit Accounts, (e) Documents, (f) Equipment, (g) Fixtures, (h) General Intangibles (including payment intangibles), (i) Instruments (including promissory notes), (j) Investment Property (including all securities), (k) Inventory, (l) Letter-of-Credit Rights (whether or not the Letter-of-Credit is evidenced by a writing), (m) Money (including contract rights or rights to the payment of money), (n) Supporting Obligations, (o) to the extent not listed above as original collateral, proceeds and products of the foregoing. Purchaser further authorizes WARNER POWER to file a UCC-1 financing statement in the appropriate state office or take any other action necessary to perfect the security interest described herein.
6. CONTINGENCIES. WARNER POWER shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of WARNER POWER or WARNER POWER’s suppliers, including, by way of illustration but not limitation, war, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material, or machinery or technical failure where WARNER POWER has exercised ordinary care in the prevention thereof.
7. SUBSTITUTIONS AND MODIFICATIONS OF PRODUCTS. WARNER POWER may modify the specifications and material content of products designed by WARNER POWER provided that the modifications do not adversely affect the performance of the products.
8. WARRANTIES. Unless WARNER POWER otherwise states in writing, WARNER POWER guarantees Purchaser for a period of one (1) year from the date of shipment that all products manufactured by it shall be free from defects in material and workmanship under normal use and service when properly installed and operated in accordance with WARNER POWER’s written instructions and recommendations. During such warranty period, WARNER POWER shall at its option replace or repair, free of charge, any product covered by this warranty which shall be returned to the original shipping point, transportation charges prepaid, if upon examination such product proves to be defective in material or workmanship. Purchaser shall contact WARNER POWER and obtain the necessary authorization and shipping instructions. All shipping costs shall be the responsibility of Purchaser. If after inspection WARNER POWER determines that the product is not defective, Purchaser shall pay the cost of all tests and inspections performed on said product. If in WARNER POWER’s sole judgment repair or replacement is commercially impracticable or impossible, WARNER POWER shall refund to Purchaser that portion of the contract price paid to WARNER POWER for the defective item.
EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE OR ON THE FACE HEREOF, WARNER POWER DISCLAIMS ALL WARRANTIES ON PRODUCT, INCLUDING WITHOUT LIMITATION ANY SOFTWARE SOLD OR FURNISHED HEREUNDER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The stated express warranties are in lieu of all obligations or liabilities on the part of WARNER POWER for damages, including but not limited to special, indirect or consequential damages arising out of or in connection with the use or performance of the products, whether Purchaser’s claim is based on negligence, strict liability, contract or otherwise. WARNER POWER assumes no liability for expenses of removing any defective product or part or for installing the repaired product or replacement.
9. PATENTS. If notified promptly in writing of any action (and prior claims relating to such action) brought against the Purchaser, based on a claim that the product infringes a United States patent, WARNER POWER will defend such action at its expense and will pay the costs and damages awarded in any such action, provided that WARNER POWER shall have the sole control of the defense of any such action and all negotiations for its settlement or compromise. In the event that a final injunction shall be obtained against the Purchaser’s use of the product or any of its parts by reason of infringement of a United States patent WARNER POWER will at its option and its expense either procure for the Purchaser the right to continue using the product, replace or modify the same so that they become non-infringing or grant the Purchaser a credit for such product as depreciated and accept their return. The depreciation shall be an equal amount per year over the lifetime of the product as established by WARNER POWER. WARNER POWER shall not have any liability to the Purchaser under any provision of this clause if any patent infringement or claim thereof, is based upon (i) the use of the product in combination with other products and devices which are not made by WARNER POWER, or (ii) the use of the product in practicing any process, or (iii) the furnishing to the Purchaser of any information, data, service or applications assistance, the Purchaser shall hold WARNER POWER harmless against any expenses, judgment or loss for infringement of any patents or trademarks which results from WARNER POWER’s compliance with the Purchaser’s designs, specifications and instructions. No costs or expenses shall be incurred for the account of WARNER POWER without the written consent of WARNER POWER. In no event shall WARNER POWER’s total liability to the Purchaser under, or as a result of compliance with the provisions of this paragraph exceed the aggregate sum paid to WARNER POWER by the Purchaser for the allegedly infringing product. The foregoing states the entire liability of WARNER POWER with respect to infringement of patents by the product or any part thereof or by its operation.
10. APPLICABLE LAW. The validity, performance and construction of this contract shall be governed by the laws of the State of New Hampshire.
11. NON WAIVER. All WARNER POWER rights and remedies, whether evidenced hereby or by any other contract, instrument or paper, shall be cumulative. It is expressly understood that in the event either party shall on any occasion fail to perform any term(s) of this contract and the other party shall not enforce that term(s), the failure to enforce on the occasion shall not prevent enforcement on any other occasion.
12. MODIFICATIONS. This contract constitutes the entire agreement between the parties relating to the sales of the products and no addition to or modification of any provision of this contract shall be binding upon WARNER POWER unless made in writing and signed by a duly authorized officer of WARNER POWER. Any term or condition of any order or other communication from Purchaser which in any way differs from or adds to these terms and conditions (except Purchaser’s terms specifying quantity and shipping or billing instructions) will not become part of the contract between the parties unless WARNER POWER expressly consents to such terms in writing. WARNER POWER’s failure to object to any term or condition contained in any order or other communication from Purchaser shall not be a waiver of the provisions hereto.
13. SOFTWARE AND FIRMWARE. No title to or ownership of any computer software, firmware or parts thereof (“software”) is transferred to Purchaser. WARNER POWER grants to Purchaser a personal non-transferable and non-exclusive license to use such software solely with the products provided to Purchaser under this contract. Purchaser agrees that it shall not sell, lease or otherwise transfer such software and that it shall not provide, disclose or otherwise make it available to any third party. Purchaser agrees that it shall not copy the same except as otherwise expressly authorized in writing by WARNER POWER.
14. TECHNICAL INFORMATION. The articles covered by this contract utilize proprietary designs and information of WARNER POWER protected for WARNER POWER’s benefit by patent, copyright and/or other forms of legal protection. Purchaser agrees that it will not, during the performance of such contract or at any time thereafter, disclose to, or use for the benefit of, anyone else, or use for it its own benefit except in connection with the use of the particular articles covered by this contract, any developments, techniques, information, data, designs, devices, specifications, drawings, trade secrets or other information pertaining to this contract, the articles covered thereby, or WARNER POWER’s methods or manufacturing processes which have been or may be disclosed or furnished by WARNER POWER to Purchaser. Unless otherwise agreed to in writing, WARNER POWER retains for itself all proprietary rights in and to all engineering designs, manufacturing details, tooling and data related to the products that it manufactures.