The sale of any service and incidental goods ordered by the Customer is expressly conditioned upon the terms and conditions contained or referred to herein. Any additional or different terms and conditions set forth in the Customer's purchase order or similar communication are objected to and will not be binding upon Hapeman Electronics unless specifically assented to in writing by Hapeman Electronics’ authorized representative. Authorization by the customer, whether written or oral, to furnish services and incidental goods will constitute acceptance of these terms and conditions.
1. SERVICE DEFINITIONS
a. INSTALLATION/REPAIR/MAINTENANCE is any combination of planning, management, labor, tools and incidental goods to move, install, assemble, repair, modernize start-up, and/or maintain equipment.
b. FIELD ENGINEERING is engineering and technical guidance, advice and counsel based upon Hapeman Electronics current engineering, manufacturing, installation and operating practices as related to work performed by others.
c. JOB MANAGEMENT any combination of planning, scheduling, monitoring, selection of crews, as specified in the contract documents, but does not include responsibility for supervision of labor or for the quality or acts of craft labor.
d. TRAINING is an instructional course prepared and provided by personnel proficient in the subject matter.
e. ENGINEERING STUDY/INSPECTION/TEST is system design and analysis of equipment or systems by competent, experienced personnel using special techniques, instruments or devices with the objective of reporting opinions or recommendations relating to the current condition and future serviceability of the equipment or system.
a. Hapeman Electronics warrants to the Customer that goods and services sold will be free from defects in material, workmanship and title and will conform to any mutually agreed upon specifications. If any failure to meet this warranty appears within one year from the date of shipment of the goods or completion of the services, on the condition that Hapeman Electronics be promptly notified in writing thereof, Hapeman Electronics will correct any such failure by reperforming any defective portion of the services furnished and supplying conforming goods. If the contract covers installation, repair or maintenance, Hapeman Electronics will correct the failure by reperforming any defective service, and either repairing or replacing (at its option) any defective goods furnished and any damage to the equipment upon which the service was performed resulting from defective service. If reperformance is not practicable, Hapeman Electronics will furnish without charge services in an amount essentially equal to those which, in Hapeman Electronics’ sole judgment, would have been required for reperformance. If the contract covers job management, Hapeman Electronics’ sole obligation will be to replace the job manager for the balance of the job. If the contract covers training, Hapeman Electronics’ sole obligation will be to replace the assigned instructor and reperform the training.
b. The preceding paragraph a. sets forth the exclusive remedy for all claims based on failure or, or defect in, goods or services sold hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. The foregoing warranty is exclusive and is in lieu of all other warranties whether written, oral, implied or statutory.
AS TO ALL GOODS SOLD, NO IMPLIED STATUTORY WARRANTY OR MERCHANTABILITY OR OF FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
a. Hapeman Electronics warrants that the goods sold hereunder, and any part thereof, shall be delivered free of any rightful claim of any third party for infringement of any United States patent. If promptly notified in writing and given authority, information and assistance, Hapeman Electronics shall defend, or may settle, at its expense, any suit or proceeding against the Customer based on a claimed infringement which would result in a breach of this warranty, and Hapeman Electronics shall pay all damages and costs awarded therein against the Customer due to such breach. In case any goods are in such suit held to constitute such an infringement and the use for the purpose intended of said goods is enjoined, Hapeman Electronics shall, at its expense and option, either procure for the Customer the right to continue using said goods, or replace same with noninfringing goods, or modify same so they become noninfringing, or remove the goods and refund the purchase price (less reasonable depreciation for any period of use) and any transportation costs separately paid by the Customer. The foregoing states the entire liability of Hapeman Electronics for patent infringement.
b. The preceding paragraph a. shall not apply to any goods specified by the Customer and not of Hapeman Electronics manufacture, or manufactured to the Customer’s design, or to the use of any goods furnished hereunder in conjunction with any other goods in a combination not furnished by Hapeman Electronics as part of the transaction. As to any goods, or use in such combination, Hapeman Electronics assumes no liability whatsoever for patent infringement and the Customer will hold Hapeman Electronics harmless against any infringement claim arising therefrom.
4. EXCUSABLE DELAYS
a. Hapeman Electronics shall not be liable for delay due to: (1) causes beyond its reasonable control, or (2) acts of God, acts of the Customer, prerequisite work by others, acts of civil or military authority, government priorities, fires, strikes or other labor disturbances, floods, epidemics. war, riot, delays in transportation or car shortages, or (3) inability to obtain or delay in obtaining, due to causes beyond its reasonable control, suitable labor, materials, or facilities. In the event of any such delay, the time of performance shall be extended for a period equal to the time lost by reason of the delay.
b. In the event Hapeman Electronics is delayed by acts of the Customer or by prerequisite work by other contractors or suppliers of the Customer, Hapeman Electronics shall be entitled to an equitable price adjustment in addition to extension of the time of performance.
5. SALES AND SIMILAR TAXES
In addition to the price specified herein, the Customer shall pay, or reimburse Hapeman Electronics for, the gross amount of any present or future sales, use, excise, value-added or other similar tax applicable to the price, sale or furnishing of any services or goods hereunder, or to their use by Hapeman Electronics or the Customer, or the Customer shall provide Hapeman Electronics with evidence of exemption acceptable to the taxing authorities.
6. PAYMENTS AND FINANCIAL CONDITION
a. Pro rata payments shall become due as shipments are made or as work is completed. If Hapeman Electronics consents to delayed shipments of goods, payment shall become due on the date when Hapeman Electronics is prepared to make shipment. All payments shall be made without set-off for claims arising out of other sales by Hapeman Electronics.
b. If the financial condition of the Customer at my time does not justify continued performance on the terms of payment previously Agreed upon, Hapeman Electronics may require full or Partial payment in advance or shall be entitled to terminate the contract and receive termination charges. In the event of bankruptcy or insolvency of the Customer or in the event any proceeding is brought against the Customer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Hapeman Electronics shall be entitled to terminate the contract at any time during the period allowed for filing claims against the estate and shall be entitled to payment for its termination charges.
c. For work performed in Hapeman Electronics shops, Hapeman Electronics, at its option, may retain possession of goods ordered or serviced under the contract if its charges for such goods or services are not paid within 90 days following completion of the work and invoicing the Customer, and Hapeman Electronics may, upon not less than seven days written notice by certified mail to The Customer at the Customer’s last known address, sell the goods at public or private sale and apply the net proceeds to Hapeman Electronics’ charges.
7. CHANGES, DELETIONS AND EXTRA WORK
The Customer, without invalidating the contract, may make changes by altering, adding to or deducting from the general scope of the work, the contract price being adjusted accordingly. All such work shall be extension under the conditions of the contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change. The charge for any such extra work or change shall be determined in one or more of the following ways: (I) by mutually agreed firm lump sum price, or (2) by unit prices specified in the contract or agreed upon, or (3) by cost and negotiated percentage of cost or fixed fee.
8. LIMITATIONS OF LIABILITY
a. Hapeman Electronics’ liability on all claims of any kind, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, for all losses or damages arising out of, connected with, or resulting from the contract, or from the performance or breach thereof, or from any goods or services covered by or furnished under the contract or any extension or expansion thereof (including remedial warranty efforts), shall in no case exceed the greater of either (1) $5,OOO or (2) the contract price of a lump sum contract or the price of work completed if the contract is being performed on a cost type basis. Except as to title to any goods furnished, all such liability shall terminate upon the expiration of the warranty period specified in the article entitled “Warranty".
b. In no event, whether based on contract, indemnity, warranty, tort(including negligence), strict liability or otherwise, shall Hapeman Electronics, its employees and suppliers be liable for special, incidental, exemplary or consequential damages including but not limited to, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased power, cost of substitute equipment, facilities or services, downtime costs, or claims of customers of the Customer for such damages and the Customer will indemnify Hapeman Electronics, its employees and suppliers against any such claims from the Customer's customers. If the goods or services being provided by Hapeman Electronics will be furnished by the Customer to a third Party by contract or relate to a contract between the Customer and a third party, the Customer shall obtain from such third party a provision affording Hapeman Electronics and its suppliers the protection of this and the preceding paragraph 8.a.
c. When any goods, services, or both, furnished hereunder are to be used or performed on or in connection with any nuclear installation or activity, Hapeman Electronics, its employees and suppliers shall have no liability, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, for my nuclear damage, injury or contamination to any property located at the site, and the Customer will indemnify Hapeman Electronics, its employees and suppliers against any such liability. In addition, the Customer shall furnish an agreement of indemnification as contemplated by Section 170 of the Atomic Energy Act of 1954, as amended, and nuclear liability insurance from ANI and MAELU, or both, pursuant to Section 170 of said Act. Any of Hapeman Electronics’ material or equipment which becomes radioactive at the work site, shall at Hapeman Electronics’ option, be purchased by the Customer. Any nuclear decontamination necessary for Hapeman Electronics’ performance(including remedial warranty efforts) shall be performed by the Customer without cost to Hapeman Electronics. In addition, at nuclear sites, Hapeman Electronics will not be liable to the customer for any damage to property of the Customer to the extent that the Customer has ANI if MAELU insurance coverage for such loss.
d. In no event shall Hapeman Electronics be liable for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects inherent in the design of goods serviced (unless such discovery or repair is normally discoverable by tests expressly specified in the scope of work under this contract) or caused by the use of goods by the Customer against the advice of Hapeman Electronics. If Hapeman Electronics furnishes the Customer with advice or assistance concerning any products or systems which is not required pursuant to the contract, the furnishing of such advice or assistance will not subject Hapeman Electronics to any liability whether in contract, indemnity. warranty tort(including negligence), strict liability or otherwise.
9. DELIVERY AND TITLE PASSAGE
Delivery of goods will be made FOB at the point of shipment to the Customer. Title shall pass to the Customer on a pro rata basis when equipment is placed in the hands of a carrier at the point of shipment, or as service work is performed. It is expressly understood and agreed, however, that the passage of title shall not be construed by Hapeman Electronics as a release from Hapeman Electronics’ responsibility to fully carry out its obligations under the contract.
a. The delegation or assignment by either party of any or all of its duties or rights hereunder without the other party's prior written consent shall be void, provided, however, that Hapeman Electronics may subcontract work to one or more subcontractors.
b. Any information, suggestions or ideas transmitted by the Customer to Hapeman Electronics are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by a duly authorized representative of Hapeman Electronics.
c. Hapeman Electronics shall comply with all applicable state and federal laws, including but not limited to, the Fair Labor Standards Act of 1938, as amended, the Occupational Safety and Health Act of 1970 (OSHA), laws related to nonsegregated facilities and equal employment opportunity (including the seven paragraphs appearing in Sec. 202 of Executive Order 11246, as amended), and all standards, rules, regulations, and orders issued pursuant to such state and federal laws.
11. COMPLETE AGREEMENT
The contract contains the complete agreement between the parties, and no modification, amendment, recision, waiver or other change will be binding on Hapeman Electronics unless assented to in writing by Hapeman Electronics’ authorized representative. Any oral or written representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on Hapeman Electronics. The invalidity, in whole or part, of any of the forgoing articles or paragraphs of the contract will not affect the remainder of such article or paragraph or any other article or paragraph of the contract.
12. SPECIAL CONDITIONS
a. For TRAINING SERVICE add the following to Article 10.: any audio or visual recording of the Training Service is prohibited unless Hapeman Electronics grants advance permission in writing.
b. For ENGINEERING STUDY/INSPECTION/TEST SERVICE add the following to the end of paragraph a. of Article 2.: Hapeman Electronics does not warrant the accuracy of, or performance results of, any conclusions or recommendations provided, nor that any desired objective will result from the service performed.