1. ORDER ACKNOWLEDGEMENT:
ICE Components, Inc. (“ICE Components”) acknowledges and accepts the order placed by the buyer (the “Buyer”) listed on the corresponding purchase order or other offer to buy received by ICE Components. The terms and conditions of sale contained herein (“Terms and Conditions”) apply to all sales by ICE Components. These Terms and Conditions may in some instances conflict with or add to the terms and conditions included with the purchase order or other procurement document issued by Buyer. In such case, Buyer’s acceptance of or payment for the products ordered from ICE Components (the “Products”) shall be deemed acceptance of these Terms and Conditions.
2. TERMS OF PAYMENT:
Terms of payment are net thirty (30) days from date of shipments unless otherwise stated on the sales order acknowledgement or quotation. Should there be a conflict, the terms of payment on the sales order acknowledgement shall take precedence. All invoices not paid when due will be subject to a late charge of 1.5% per month or the maximum rate permitted by law, whichever is less. If payment is by letter of credit, all costs of collection shall be charged to Buyer’s account. All payments will be in United States dollars. In the event ICE Components is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorneys’ fees and costs of suit in addition to any other payments.
3. TAXES AND OTHER CHARGES:
Prices do not include any present or future export packing charges, handling, shipping or insurance charges, inspection fees, consultant fees, import or export duties, brokerage fees, taxes or levies (including but not limited to, value added, property, sales, use privilege, excise or similar taxes) applicable to the manufacture or sale of any product, whether imposed by the United States or any state or local governmental entity of the United States or imposed by the government of any other country. All such taxes or charges, when applicable, shall be paid by Buyer unless Buyer provides a proper certificate of tax exemption or agreed otherwise in writing by ICE Components.
4. SHIPMENT AND DELIVERY:
ICE Components will ship by the method it deems most advantageous. Products shall be shipped in standard commercial packaging. Delivery will be made F.C.A. Marietta, Georgia, U.S.A. Title to all Products shall pass to Buyer upon delivery thereof by ICE Components to a local carrier, which shall act as Buyer’s agent, and upon such delivery by ICE Components Buyer shall be responsible for and bear the entire risk of loss or damage to the Products.
5. SECURITY INTEREST:
The Buyer hereby grants ICE Components a purchase money security interest in all Products sold to Buyer and all proceeds there from in the amount of their purchase price as security for payment of the purchase price until all such Products have been paid for in full. Buyer hereby agrees to perform all acts necessary or appropriate to assist ICE Components in perfecting and maintaining such security interest.
The Buyer shall accept or reject Products within thirty (30) days of its receipt of each shipment. Failure to notify ICE Components in writing of nonconforming products within such period shall be deemed an unqualified acceptance of such Products by Buyer.
7. CANCELLATION BY BUYER:
Buyer may cancel any order only as follows: (A) Standard Products: Buyer may cancel any order (or part thereof) by giving ICE Components written notice not less than ninety (90) days prior to the originally scheduled delivery date. (B) Non-Standard Products: Buyer shall accept delivery of and pay for all such Products manufactured as of the date written notification of such cancellation is received by ICE Components. Rescheduling/cancellation charges for non-standard products: Buyer shall pay (i) for each item of Product in the work-in-process inventory, an amount equal to the product obtained by multiplying the percentage of completion by the unit purchase price, and (ii) for each and every item of Product in the cancelled order that is not in the work-in-process inventory, an amount equal to twenty percent (20%) of the unit purchase price, and (iii) any costs, charges, claims, demands, liabilities, losses, damages, or expenses of any kind and nature, including attorneys’ fees and expenses, that ICE Components is required to pay pursuant to any agreement with a vendor or other party as a result of Buyer’s order cancellation.
8. CANCELLATION BY ICE COMPONENTS:
ICE Components shall have the right to cancel any unfilled order without notice to Buyer if Buyer becomes insolvent, is adjudicated bankrupt, petitions or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business.
9. WARRANTY AND DISCLAIMER:
ICE Components warrants that the Products shall be free from defects in workmanship and materials for a period of one (1) year from the date of shipment to Buyer. This warranty does not apply to Products that have been subject to misuse (including ESD exposure), neglect, accident or modification or that have been soldered or altered during assembly and are not capable of being tested by ICE Components under normal test conditions. ICE Components’ sole obligation to Buyer or its customers for Products failing to meet this warranty shall be, at ICE Components’ option, to replace the nonconforming product or issue Buyer credit for the purchase price of the nonconforming product. Such remedy is only available to Buyer if (1) ICE Components has received written notice of the nonconformity, (2) after receiving written authorization from ICE Components Buyer has returned, at Buyer’s expense, the nonconforming product to ICE Components, and (3) ICE Components has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse by Buyer or its customer. Any replacement product shall carry only the unexpired term of warranty that was applicable to the returned product. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ICE COMPONENTS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION OR USE OF ITS PRODUCTS AND ICE COMPONENTS MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS NOT SOLD BY ICE COMPONENTS. ICE COMPONENTS SHALL NOT BE LIABLE FOR DAMAGES DUE TO DELAYS IN DELIVERY OR USE AND SHALL IN NO EVENT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING FROM CONTRACT, TORT OR NEGLIGENCE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF GOODWILL, OVERHEAD OR OTHER LIKE DAMAGES.
10. TECHNICAL ASSISTANCE:
ICE Components’ warranty shall not be enlarged and no obligation or liability shall arise out of ICE Components’ rendering of technical advice or assistance in connection with the products sold hereunder.
11. LIMITATION OF LIABILITY:
ICE COMPONENTS’ LIABILITY UNDER OR FOR BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE REFUND OF THE PURCHASE PRICE LESS REASONABLE RENTAL FOR PAST USE. IN NO EVENT SHALL ICE COMPONENTS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY THE BUYER. IN NO EVENT SHALL ICE COMPONENTS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE.
The Buyer shall indemnify, hold harmless and defend ICE Components from and against any and all suits or proceedings at law or in equity, and any and all liability, loss or damage arising out of or in connection with any claim by any person, firm or corporation of unfair competition, infringement or contributory infringement of any patents, trademarks, copyrights, or other intellectual property rights of third parties or personal injury based upon damages suffered as a result of negligence or defects in the design related to products sold hereunder arising from: (1) ICE Components’ manufacture of Products in accordance with Buyer’s designs or specifications, (2) Buyer’s modification of any Products sold hereunder, or (3) use of any Product in combination with products not supplied by ICE Components.
Unless otherwise expressly agreed in writing by ICE Components, Buyer shall obtain no interest in or title to any mask or other tooling used in the production of any ICE Components product.
14. CONFIDENTIAL INFORMATION:
No information shall be deemed to be given or received in confidence by either party unless it is covered by a separate written agreement.
Delivery and shipment dates are estimates only, and ICE Components does not guarantee delivery or shipment on or by such dates. ICE Components will make reasonable efforts to observe its dates indicated for delivery or other performance. However, ICE Components shall not be liable in any way because of any delay in performance hereunder due to unforeseen circumstances or to causes, beyond its control, including, without limitation, strike, lockout, embargo, riot, war, act of terrorism, fire, act of God, accident, failure or breakdown of components necessary to order completion, subcontractor, supplier or Customer caused delays, inability to obtain labor, materials or manufacturing facilities, or compliance with any law, regulation or order. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution. When such circumstances or causes have been remedied, ICE Components will make and Customer shall accept performance hereunder. ICE Components shall be entitled to an extension of time for commercially reasonable delays. ICE Components reserves the right, in its sole discretion, to determine manufacturing location, allocate inventories and current productions and substitute suitable materials, when, in its opinion, such allocation or substitution is necessary or legally required due to such circumstances or causes. As used herein, “performance” shall include, without limitation, fabrication, assembly, shipment, delivery, testing and warranty repair or replacement as applicable.
16. APPLICABLE LAW:
The sale of Products by ICE Components to Buyer pursuant to this agreement shall be governed by and construed pursuant to the laws of the State of Georgia, U.S.A, excluding any conflicts or choice of law rule that might otherwise refer construction or interpretation hereof to the substantive law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
17. DISPUTE RESOLUTION:
Any controversy or dispute between the parties relating to or arising out of the interpretation or performance of this agreement shall be settled in Marietta, GA, by binding arbitration under the rules of the American Arbitration Association by one or more arbitrators appointed in accordance with such rules; the arbitrators also apportioning the costs of the arbitration. No party shall, in connection with any proceedings held pursuant to this paragraph, be required to furnish any bond. Should either party hereto fail to appear to be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitration may nevertheless render a decision in the absence of said party and such decision shall have the same force and effect as if the absent party had been present, whether or not it shall be adverse to interests of said party. Any award rendered hereunder may be entered for enforcement, if necessary, in any court of competent jurisdiction, the party against whom enforcement is sought bearing the expenses (including attorneys’ fees) of enforcement.
The failure by ICE Components to enforce at any time any of the provisions of these Terms and Conditions, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of these Terms and Conditions or any part thereof, or the right of ICE Components thereafter to enforce each and every such provision. ICE Component’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of any provision herein.
If any provision of these Terms and Conditions is held invalid or unenforceable by any court of competent jurisdiction, the other provisions herein will remain in full force and effect. Any provision herein held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
20. EXCLUSIVE REPRESENTATION:
Because ICE Components derives substantial goodwill from its suppliers from sales and repeat sales to its buyers; Buyer agrees that ICE Components is the exclusive representative of any supplier for which ICE Components has supplied products to Buyer. The Buyer agrees that it will not directly or indirectly solicit any such supplier for Products without written consent from ICE Components. The Buyer further agrees that for a twelve (12) month period following its last order with ICE Components it will not directly or indirectly solicit any such supplier without first obtaining written consent from ICE Components. In the event of a breach of this covenant by Buyer, ICE Components shall be entitled to the greater of actual compensatory, punitive and other damages or liquidated damages as referenced herein. Liquidated damages shall be determined on the basis of fifteen (15) percent of the total cost of each order that Buyer obtains through a supplier during the twelve (12) month period set forth herein above.
21. EQUAL EMPLOYMENT OPPORTUNITY/AFFIRMATIVE ACTION:
Pursuant to CFR 16-14 Section 503 of the Rehabilitation Act of 1973, as amended, and implemented by 41 CFR Part 60-741; Section 2012 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, and as implemented by 41 CFR Part 60-250, the parties hereto agree not to discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, disability or disabled veteran or Vietnam Era Veteran status in regard to any position for which the employee or applicant is qualified. The parties hereto agree to take affirmative action to employ, advance in employment and otherwise treat qualified individuals without discrimination based upon any of the above factors.
22. LIFE SUPPORT POLICY:
ICE Components products are not authorized for use as critical components in Life Support devices or systems without the express written approval of the President of ICE Components. (1) Life Support devices or systems are devices or systems which are (a) intended for surgical implant into the body (b) support or sustain life and whose failure to perform when properly used in accordance with instructions for use provided in the labeling can be reasonably expected to result in a significant injury to the user. (2) A critical component is any component in a Life Support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system or to affect its safety or effectiveness.