a. "Products and Services" means the heat treating products and services performed by Eastern Metal Treating, Inc. ("EMT") to the customer ordering or requesting such Products and Services (the "Customer").
b. "Work Order" means any oral or written request, release or order for Products and Services, including any formal Purchase Order issued by a Customer.
c. "Goods" means all Customer products and property which EMT has or will perform the Products and Services per the EMT Terms and Conditions of an Order.
2. Shipping, Pick up and Delivery, Condition of Goods.
a. Delivery of Goods is contingent on EMT receiving with the Work Order complete and detailed current specifications (including any prints or drawings) satisfactory for production with sufficient and agreed upon lead time for EMT to perform the Order.
b. All Goods are shipped F.O.B. EMT's location except in instances where EMT provides pick up and delivery services. The party undertaking risk of loss is solely responsible for all shipping and delivery charges and shall maintain adequate insurance with reputable carriers covering the replacement value of such Goods in transit. Risk of loss of any Goods in transit shall pass upon delivery to the F.O.B. point.
c. Customer will inspect all Goods processed by EMT immediately upon receipt and will notify EMT of any objections to the Goods or the Services within three (3) working days after receipt of the Goods. If Customer does not object or refuses the opportunity to inspect the Goods, it is deemed the Customer to have accepted the Products and Services as conforming to specification and otherwise meeting its requirements.
3. Change Orders, Order Cancellations.
a. No order that has been placed with and accepted by EMT may be changed or cancelled by Customer (in whole or in part) unless EMT agrees to such change or cancellation in writing prior to scheduled processing. Changes will result in a delay in the scheduled delivery date and a change in price and will be as agreed to by Customer and EMT.
b. Upon any cancellation (in whole or in part) including any cancellation for breach, Customer will pay all costs and expenses (including overhead and administrative expenses) incurred by EMT on the Order up to the effective date of cancellation.
4. Pricing; Payment.
Prices are as quoted by EMT and are subject to change upon notice to Customer. Payment is due within thirty (30) days after the date of invoice. EMT reserves the right, without any liability whatsoever to Customer or any other person or entity, to suspend performance, refuse to accept additional releases or orders, stop delivery of Goods in transit, decline to deliver except for cash, require payment prior to shipment, and/or restrict or modify payment terms whenever Customer's account is delinquent or, in EMT's sole judgment, EMT has reason to doubt Customer's solvency, financial condition or ability to pay.
5. Force Majeure.
EMT will not be liable for its inability to perform hereunder due to any contingency beyond its reasonable control, including without limitation, power outages or failures, natural gas service interruptions, acts of God, fire, flood, inability to obtain material at reasonable prices, equipment or transportation failure, governmental laws or regulation, accidents, labor disputes or shortages, or other similar matters. In the event of a force majeure event, EMT will notify Customer and will attempt to minimize the duration of any impact on its ability to perform under an Work Order due to such force majeure event.
6. Warranty, Liability, Indemnification.
a. Given the uncertainties inherent in all the heat treating processes, Customer acknowledges and accepts that EMT's liability under any Work Order shall be as provided for as is typical and standard in the commercial heat treating industry which have been adopted by EMT and which are united herein by this reference. Customer understands that while all care and due diligence with scientific methods taken by EMT, many unforeseen hazards and events can occur, often beyond the scope of our control. The Customer therefore agrees and accepts that EMT’s liability and/or reimbursement shall not exceed the amount of heat treating cost for Products and Services done on any and all Goods. The Customer agrees and accepts that this limitation of liability is not an exculpatory clause. The above applies to all Products and Services performed by EMT unless otherwise agreed to in writing. In the event that EMT prevails in any legal action brought by or on behalf of Customer against EMT, Customer shall pay all fees, expenses and costs of EMT incurred as a result of such legal action, including its legal, professional, court and other fees and expenses.
b. Customer will defend, indemnify and hold EMT harmless from any and all third party claims brought against EMT relating in any way to the manufacturing, sale, processing, distribution or use of the Goods or the provision of the Services if the Goods have been subjected to further processing, assembly or work after heat treating.
a. Governing Law; Venue. This contract has been made in, and will be construed and enforced in accordance with the laws of The State of Connecticut without regard to its principles of conflicts of laws. Customer and EMT consent to the exclusive jurisdiction of the state and federal courts of Connecticut for any actions, suits or other proceedings arising out of, or related to, the enforcement of either party's rights hereunder. EMT and Customer agree not to commence any action suit or proceeding in any other court and hereby irrevocably and unconditionally waive any objection to the laying of venue in any such court. The Uniform Commercial Code expressly does not apply to any Work Order, Offer to Sell or any Services sold hereunder.
b. Entire Agreement, Acceptance, Modification. Unless otherwise agreed to in writing by EMT, the Terms and Conditions contained herein and on any of EMT's standard forms constitute EMT's entire offer to sell the Products and Services to the Customer ("Offer to Sell"), constitute the entire agreement between EMT and the Customer with respect to the subject matter thereof, and supersede all prior or current communications and agreements. These Terms and Conditions shall apply to all orders and releases received from Customer. Customer's acceptance of EMT's Offer to Sell and EMT's performance of the Work Order (in whole or in part) are expressly limited to, and conditioned upon, Customer's acceptance of these Terms and Conditions, which may not be changed or waived except in a writing signed by both parties. Without limitation on the foregoing, EMT's performance on an Work Order shall not be considered acceptance of any counter-offer or terms provided by Customer and EMT will not be bound by, hereby objects to, and rejects, any additional provision or any provision at variance with these Terms and Conditions or any other part of EMT's Offer to Sell that may appear in Customer's purchase order, standard terms and conditions, acknowledgments, form agreements, supplier or quality manuals, notices or in any other document or communication from Customer to EMT, or any updates or amendments thereto. These Terms and Conditions may only be modified by a writing signed by the General Manager of EMT.
c. Survival. The provisions of Sections 6 and 7 will survive the expiration or termination of this contract.
d. Severability. In case any one or more of the provisions or parts of a provision contained herein are, for any reason, held to be invalid, illegal or, such invalidity, illegality or unenforceability will not affect any other provision or part of a provision hereof, but these Terms and Conditions will be reformed and construed as if such invalid or illegal or unenforceable provision or part of a provision had never been contained herein and such provision or part will be reformed so that it would be valid, legal and enforceable to the maximum extent permitted while retaining as much as possible the original intent of the provision.
e. Independent Contractors. Customer and EMT are independent contracting parties and nothing in the Work Order or EMT's Offer to Sell will make either party the employee, partner, joint venturer, agent or legal representative of the other for any purpose. Neither the Work Order, nor the Offer to Sell, grants either party any authority to assume or to create any obligation on behalf of or in the name of the other. Each party understands that the other manufactures products or provides services for sale to a wide variety of customers and that nothing in these Terms and Conditions precludes either party from selling its products to customers or competitors of the other.
f. Confidentiality. Customer shall keep confidential and shall not publish or disclose to any third party any information, photographs, data or process, drawings, or specifications connected with the business of EMT or any of it’s clients or customers which shall come or have come into their possession or to their knowledge in or by reason of the performance of the Goods without the prior written agreement of EMT. Customer agrees, if required by EMT to sign an appropriate form of secrecy. The obligations under this Claus shall continue for a period of three (3) years following the completion of performance of this Agreement or the termination of this Agreement for any reason. This Agreement does not constitute a transfer of any ownership interest in the Confidential Information to Customer nor a license under any of EMT’s present of future patent rights. Disclosure of such Confidential Information shall be at the sole and exclusive option of EMT. Except as set out in that certain License Agreement between the Parties, within ten (10) days after EMT’s written request, Customer agrees to return or certify the destruction of all written materials including designs, specifications, schedules, reports, notes, and samples which were received by Customer from EMT and all copies, analyses and drawings based thereon. The obligations of this Agreement as to confidentiality and non-disclosure shall not apply to the extent that the Confidential Information disclosed by EMT was known to Customer or becomes available to the public through no fault of Customer. Confidential Information disclosed by EMT shall not be deemed to be available to the public nor to be in Customer’s possession merely because the specific Confidential Information is generally included within broader information available to the public or in Customer’s possession unless such Confidential Information is or can be separately segregated.
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