TERMS AND CONDITIONS OF SALE
All sales of products by ATA Tools, Inc. (“SELLER”) shall be governed exclusively by these terms and conditions and the terms and conditions reflected on the face hereof and/or on any other documents referenced herein. SELLER rejects and objects to any terms or conditions put forward by buyer that add to or vary any such terms and conditions.
SELLER'S TERMS AND CONDITIONS OF SALE
(1) FORMATION OF CONTACT
An order is deemed by SELLER to be an offer to purchase, which SELLER may accept or reject in SELLER'S sole discretion, including, without limitation, for credit reasons. SELLER’s acceptance of an offer to purchase is binding on SELLER only if made by written instrument or, if not by written instrument, by shipment of the products ordered. SELLER’s acceptance is subject to SELLER’S TERMS AND CONDITIONS OF SALE as stated herein.
(2) COST OF DELIVERY, TAXES AND OTHER CHARGES
BUYER shall, in addition to the price, pay all costs of shipment and delivery of the products and all sales, use, excise or similar taxes, or other charges, which SELLER is required to pay, or to collect and remit, to any Government (national state or local) and which are imposed on, or measured by, the sale. Payment of such items shall be due on receipt of invoice.
(3) TRANSFER OF PROPERTY AND RISK OF LOSS
Products are sold EXW (Incoterms 2020) SELLER'S facility; provided that SELLER retains title to all products sold to BUYER until SELLER receives payment in full of all amounts due in connection with the sale thereof. Risk of loss, including, but not limited to the risk of loss, theft, damages or destruction, passes to BUYER EXW point of shipment.
BUYER shall pay invoices in full as they become due.
SELLER reserves the right, without liability to BUYER other than refund of any portion of the price paid, to discontinue deliveries of any product, the manufacture, sale and/or use of which in the opinion of SELLER, would infringe any letters patent, trade mark or industrial design or other intellectual property right now or hereafter issued, registered or existing and under which SELLER is not licensed.
(6) PRODUCT WARRANTY
SELLER may provide product specific written warranties, as set out in SELLER’s sales materials and/or as annexed hereto or referenced herein. In the absence of any such specific warranty for products sold hereunder, SELLER makes no warranty whatsoever for any product sold hereunder; SELLER makes no warranty of merchantability or that this product is suitable for any particular purpose and can make no other warranties, express or implied, other than those set forth above.
(7) DISCLAIMER OF WARRANTIES
The warranties set forth herein or in SELLER’S warranty documents with respect to a product are the only warranties made by SELLER in connection with the product and the transactions contemplated as a result of this sale. SELLER hereby disclaims any other warranties, express or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose. Products sold hereunder are sold only to the specifications specifically set forth by the SELLER in writing. SELLER’S sole obligation for a remedy to buyer shall be repair or replacement of non-conforming products, or at the option of SELLER, return of the product and refund of the purchase price. BUYER assumes all risk whatsoever as to the result of the use of the products purchased, whether used singly or in combination with other substances.
(8) LIMITATION OF LIABILITY
No claim by BUYER of any kind, including claims for indemnification, whether as to quality or amount of products delivered or for non-delivery of products, shall be greater in amount than the purchase price of the products in respect of which damages are claimed. In no event shall SELLER be liable to BUYER for any special, indirect, incidental, reliance, exemplary, or consequential damages or cover, or loss of profit, revenue or use, in connection with, arising out of, or as a result of, the sale, delivery, servicing, use or loss of use of the products sold hereunder, or for any liability of BUYER to any third party with respect thereto. BUYER shall inspect for nonconformity promptly upon receipt. Failure by BUYER to give SELLER written notice of claim within 30 days from date of delivery or, in the case of non-delivery from the date fixed for delivery, shall constitute a waiver by BUYER of all claims in respect of such products. Any action for breach of this contract (other than for non-payment of the purchase price) must be commenced within one year after the occurrence of the breach.
(9) EXCUSES FOR NONPERFORMANCE
If the manufacture, transportation, delivery, or receipt by either party of any products is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be liable to the other for default or delay in performing its obligations, except payment obligations. If by reason of any such event or cause, the quantities of the products covered hereby, or of any materials used in the production thereof, reasonably available to SELLER shall be less than its total needs for its own use and for sale, SELLER may allocate its available supply of any such products among its existing or prospective purchasers and/or its own departments, divisions and subsidiaries in such manner as SELLER deems proper, without thereby incurring liability for failure to perform this contract.
(10) RIGHTS OF SELLER
If, in SELLER'S judgment, BUYER'S credit shall become impaired at any time, SELLER may decline to make shipments hereunder except upon receipt of cash payments in advance or security or other proof of responsibility satisfactory to SELLER. If BUYER fails in any way to fulfill the terms and conditions hereof, SELLER may defer further shipments until such default is corrected. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to SELLER.
(11) LAW APPLICABLE
This contract between BUYER and SELLER is to be construed, and the respective rights and duties of BUYER and SELLER are to be determined, according to the laws of the State of Ohio, without regard to principles of choice of law.
This contract between BUYER and SELLER is not assignable or transferable by either party, except to its successor or to the transferee of all or substantially all the party's assets to which this contract relates.
(13) GOVERNMENTAL LAW AND REGULATIONS
SELLER and BUYER each agree, to the extent applicable to their respective obligations hereunder, to comply with laws, rules, regulations, executive orders, priorities, ordinances and restrictions now or hereafter in force, including but not limited to (a) the Fair Labor Standards Act of 1938, as amended; (b) Title VII of the Civil Rights Act of 1964, as amended; (c) The Age Discrimination in Employment Act of 1967, as amended; (d) the Foreign Corrupt Practices Act (and other similar legislation of foreign nations, such as the UK Bribery Act; SELLER specifically represents and warrants that it has not violated the FCPA and will not pay anything of value to any person to obtain or retain business in connection with the resale of SELLER’S products); (e) confidentiality and trade secret law (BUYER specifically represents and warrants it will not use the confidential or trade secret information of any third party in connection with or in relation to the sale of SELLER’S products); and (f) the rules, regulations and executive orders pertaining thereto.
If BUYER has and exercises a right to terminate any order, BUYER shall pay the costs incurred by SELLER up to the date of termination, including, but not limited to, the costs to manufacture the subject products or the costs to return or cancel any products ordered from a third party. If any order is cancelled by SELLER for BUYER's default, the agreed price remains due and payable to SELLER.
(a) No waiver by SELLER of any of term, condition or breach by BUYER shall constitute or be deemed to be a waiver of any other term, condition or breach of any other instance of noncompliance with the same term or condition or any other such breach, whether prior or subsequent thereto. No waiver shall be deemed to occur as a result of the failure of any party to enforce any contractual term or condition.
(b) Each provision hereof shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof shall be unenforceable, such provision shall be ineffective only to such extent, without otherwise invalidating such provision or any other provisions hereof. The paragraph headings are for convenience only and shall not be used in interpreting or construing these terms and conditions or any contract arising therefrom.
(c) BUYER shall have no right of setoff, and no deduction of amounts due from BUYER to SELLER shall be made without SELLER’s express written approval.