1. All orders are subject to
acceptance or rejection in writing by Connector Microtooling Systems, Inc., a Texas corporation
("CMS"). No terms or conditions stated by the Purchaser shall be binding on CMS unless such terms
or conditions are expressly accepted in writing by CMS prior to commencement of performance
hereunder. The failure of CMS to specifically object to any or all terms and conditions suggested
by the Purchaser shall not be deemed an acceptance of any such terms and conditions which are in
conflict with, inconsistent with, or in addition to the terms and conditions set forth herein,
and the Purchaser, upon CMS’s commencement of performance hereunder, shall be deemed to have
withdrawn any such terms and conditions which conflict with, are inconsistent with, or are in
addition to the terms and conditions set forth herein. This order and the sale of the products
covered hereby ("Products") are subject to the following terms and conditions as well as those on
the face hereof:
2. Shipment: Stated prices are F.O.B. CMS’s
facility and are exclusive of all city, state, and federal taxes, freight, handling, and other
similar charges, payment of which shall be the sole responsibility of Purchaser. If CMS pays any
such tax or charge, Purchaser will reimburse same upon receipt of invoice. Purchaser is
responsible for storage charges in the event the Products are held by CMS at the request of
Purchaser pending shipping instructions.
3. Risk of Loss: All Products are
shipped at Purchaser’s risk, and CMS’s responsibility for damage to Products ceases when the
Products are delivered to the carrier, to Purchaser, or to Purchaser’s agent at CMS’s facility,
whichever occurs earlier ("Delivery").
4. Title: Title to the Products sold hereunder
will pass to Purchaser upon Delivery. Purchaser agrees, however, that CMS retains a purchase
money security interest in all Products sold by CMS to Purchaser, and to all products now or
hereafter acquired by Purchaser and to any proceeds thereof, until the purchase price and any
other charges due to CMS shall have been paid in full. Purchaser agrees to execute any financing
statements or other documents as CMS may request in order to protect CMS’s security interest.
Upon any default by Purchaser hereunder, CMS shall have all rights and remedies of a secured
party under the Uniform Commercial Code, which rights and remedies shall be cumulative of any
other common law or statutory rights CMS may have.
5. Delivery: CMS shall not be liable for any
failure or delay in the performance of orders or contracts, or in the delivery or shipment of
Products, or for any damages suffered by Purchaser by reason of such failure or delay, when such
failure or delay is, directly or indirectly, caused by, or in any manner arises from, fires,
floods, accidents, riots, acts of God, war, governmental interference, or embargoes, strikes,
labor difficulties, shortage of labor, fuel, power, materials, supplies, or transportation,
delays in deliveries by CMS’s suppliers or any other cause or causes (whether or not similar in
nature to any of those specified) beyond its control. CMS reserves the right to cancel without
liability any order, the shipment of which is or may be delayed for more than ninety (90) days by
reason of any cause or causes beyond its control as aforesaid. CMS reserves the right in its sole
discretion to allocate among purchasers or potential purchasers, or defer or delay the shipment
of any Product which is in short supply.
6. Payment: In the event any payments due
hereunder are not timely made, CMS may: (a) declare Purchaser’s performance in breach and
terminate any other order for default, (b) withhold future shipments under any order until
delinquent payments are made, (c) deliver future shipments under any order on a C.O.D. or cash in
advance basis even after the delinquency is cured, (d) charge interest on the delinquency at a
rate of 2% per month or the maximum rate permitted by law, if lower, for each month or part
thereof of delinquency in payment plus applicable storage charges, or inventory carrying charges,
or (e) combine any or all of the above rights and remedies as is practicable and permitted by
law. Nothing herein shall waive any other rights or remedies of CMS permitted by law or set forth
in this or any other order between Purchaser and CMS and all rights and remedies set forth herein
shall be considered cumulative with all other available rights and remedies.
7. Returns: All Products shall be deemed
accepted by the Purchaser unless, within twenty (20) days from Delivery, Purchaser shall notify
CMS in writing that such Products are damaged or defective. Any claims for shortages must be made
to CMS in writing within ten (10) days from Delivery. No returns will be accepted without prior
authorization from CMS.
8. Infringement: CMS has no obligation to
indemnify Purchaser against claims of infringement of any patent, trademark, copyright, trade
secret, or other proprietary right or information except to the extent CMS has received the
written indemnification of its supplier in the event of such claims being made against such
supplier’s products.
9. Government Contracts: In the event that
Purchaser’s order was placed under a contract with the United States Government, CMS agrees to be
bound by and comply with all contract provisions, statutes, and regulations (including, without
limitation, Defense Acquisition Regulations) applicable to such contract and the goods or
services to be provided hereunder by which, pursuant to law or regulation, it must be bound and
of which Purchaser has, at the time of order placement, placed CMS on notice. No provisions of
Purchaser’s contract with the government purchasing authority will be binding on CMS except as
expressly set forth in this paragraph.
10. Fair Labor Standards Act:
CMS certifies that the Products, to the extent produced by CMS, were produced in compliance with
all applicable requirements of the Fair Labor Standards Act of 1938, as amended, and of
regulations and orders of the United States Department of Labor issued thereunder.
11. Suitability: Tooling recommended by CMS may
or may not cover a user’s specific requirements. It is the responsibility of the Purchaser and
the end user to verify suitability for the required application.
12. Qualification Tests: Unless
specifically noted hereon, qualification tests and any test data are not included in the selling
price. Qualification tests may be performed by CMS and test data supplied at the specific request
and expense of the Purchaser.
13. Normal Use: Unless specifically
otherwise agreed in writing by CMS, this order does not involve any type of experimental,
developmental, or research work as one of its purposes, and the Products to be supplied hereunder
are not intended for use in life support systems, human implantation, or nuclear facilities or
systems.
14. Resale Restrictions: Any or all of the
Products may be subject to export or resale restriction or regulation, and Purchaser acknowledges
that it is familiar with, and will comply with, such regulations or restrictions, if applicable.
Any and all of the Products may have been imported. Country of origin information is as provided
to CMS by its suppliers only and is, where applicable, located on the Products themselves or the
suppliers’ packaging thereof.
15. Controlling Law: The construction,
interpretation, and performance of any agreements entered into and all transactions under such
agreements shall be governed by the laws of the State of Texas.
16. Venue: Tarrant County Texas shall be the
proper venue for any actions arising out of or because of the breach of any agreement entered
into with CMS.
17. Attorney’s Fees: Should CMS have to
initiate legal action to collect any amounts owed under any contract, or should CMS be sued by
Purchaser under any contract, then if CMS prevails in whole or in part, Purchaser agrees to pay
CMS’s attorney’s fees and all other related costs and expenses.
18. Severability: If any provision hereof is
held by a court of law to be illegal or unenforceable, the remaining provisions shall remain in
full force and effect. In lieu of such illegal or unenforceable provision, there shall be added
automatically as a part hereof a provision as similar in terms to such illegal and unenforceable
provision as may be possible, and be legal and enforceable.
19. Limited Warranty: CMS warrants its
Assemblies and Customized Products against defects in the normal utility thereof, which arise
solely from faulty assembly or customization by CMS for ninety (90) days after delivery thereof.
The term "Assemblies" means those Products assembled by CMS and "Customized Products" means those
Products which are modified or configured by CMS at Purchaser’s specific request. For Products
which are not Assemblies or Customized Products, and for components and materials utilized in
Assemblies and Customized Products, the warranty delivered to CMS by the manufacturer or other
supplier thereof shall be the sole warranty with respect thereto, and shall, to the extent such
assignment is permitted by the terms thereof, be assigned to Purchaser. Such warranty is
expressly in lieu of any other warranty, expressed or implied, of or by CMS. The foregoing
warranties, and Purchaser’s exclusive remedy hereunder, shall be limited at CMS’s election to any
one of (a) refund of Purchaser’s purchase price for such Products (without interest), (b) repair
by CMS or by persons designated by CMS of any Products found to be defective in violation of the
foregoing warranties, or (c) replacement of any such Product. Except as specifically set forth in
this paragraph,
THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND BY CMS OR ANY PERSON
WHO IS AN AGENT, EMPLOYEE, OR OTHER REPRESENTATIVE OR AFFILIATE OF CMS, EXPRESS OR IMPLIED, WITH
RESPECT TO THE CONDITION OR PERFORMANCE OF ANY PRODUCTS, THEIR MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE, OR WITH RESPECT TO ANY OTHER MATTER RELATING TO ANY PRODUCTS. CMS ASSUMES NO
RESPONSIBILITY OR LIABILITY WHATSOEVER FOR MANUFACTURERS’ OR SUPPLIERS’ PRODUCT SPECIFICATIONS OR
THE PERFORMANCE OR ADEQUACY OF ANY DESIGN, SPECIFICATION, OR PROGRAM PROVIDED TO CMS BY OR ON
BEHALF OF PURCHASER.
Purchaser acknowledges that except as set forth in this paragraph neither CMS
nor any other person has made, and Purchaser has not relied upon, any express or other warranty
or representation (including, without limitation, advertising materials, brochures, or other
descriptive literature) concerning any Products.
20. Limitation of Liability: Anything
to the contrary contained herein notwithstanding, CMS shall have no liability or obligation to
Purchaser or any other person for any claim, loss, damage, or expense of any kind caused in whole
or in part, directly or indirectly, by the inadequacy of any Products for any purpose,
deficiency, or defect of any Products, whether or not covered by any warranty, the use or
performance of any Products, any interruption or loss of service, delay in shipment, or any
special, direct, indirect, incidental, or consequential damage, however caused and including,
without limitation, personal injury or loss of business or profit, or other damage, whether or
not Purchaser shall have informed CMS of the possibility or likelihood of such or any other
damages. Purchaser agrees to indemnify and hold CMS harmless from any and all liability, loss,
costs, or damages described in the preceding sentence (except for the sole and exclusive remedy
set forth in the foregoing paragraph), and from claims by any party (including, without
limitation, claims by Purchaser’s customers, insurers, employees, contractors, subcontractors, or
agents, or their respective employees and workers’ compensation insurers) for personal injuries
or death or damage to property (tangible or intangible) arising out of the existence or use of
the Products or any defect in the Products, whether or not such liability, loss, cost, damage, or
claim is occasioned in whole or in part by any actual or alleged act or omission of CMS, its
representatives, employees, subcontractors, vendors, or suppliers, or by any defect in the
Products whether or not it is contended that CMS contributed thereto in whole or in part or was
responsible therefore by reason of a nondelegable duty.
21. Certification of Calibration/Inspection: Unless specified in writing at the time the Purchaser’s order is placed,
calibration/inspection documentation will not be provided. When so specified, there may be an
additional charge by the manufacturer for this service.
