HARDINGE INC. TERMS AND CONDITIONS OF SALE FOR NEW PRODUCTS
All sales of Hardinge Products are subject to the following Terms and Conditions of Sale (the “Agreement”).
- Definitions. The word “Seller” as used herein shall mean Hardinge Inc. and the word “Buyer” shall mean the party to whom the Hardinge product is sold, collectively the “Parties”. The term “Product” means new machines, parts, collets, feed fingers and any other new equipment sold by Seller.
- Acceptance. All orders are subject to final acceptance by Seller. This Agreement, any additional “Supplement to Terms and Conditions of Sale,” and terms and conditions stated in the Seller’s quotation shall constitute the only agreement between the Seller and the Buyer. Any terms and conditions originating with the Buyer are hereby expressly rejected and shall not become part of the agreement between the Buyer and the Seller unless specifically accepted in writing by a duly authorized officer of the Seller. Seller reserves the right to hold shipment of telephone or oral orders until written confirmation has been received from Buyer. Buyer assumes full responsibility for inaccurate or incomplete data supplied on special orders.
- Prices. All prices are subject to change without notice at any time and are based in part on the applicability of the Terms and Conditions set forth herein. Should the Buyer desire other or different terms, the prices may be adjusted accordingly. Prices are F.O.B. point of shipment for equipment boxed, crated, or skidded for domestic shipment (export packing charges are extra). Prices are those in effect at the time the order is received at Seller’s plant, Elmira, New York 149021507.
IF BUYER SHOULD DELAY SHIPMENT BEYOND ORIGINAL CONTRACT DATE, THE PRICES CHARGED WILL BE THOSE IN EFFECT AT THE TIME THE SHIPMENT IS MADE. Seller reserves the right to cancel Buyer’s order in the event that (a) any government price regulation, schedule or ceiling prescribes a price lower than Seller’s price as established in the order acknowledgment, or in any way prevents Seller from purchasing or otherwise acquiring any commodity or service necessary to the performance of the order, or in any way prevents Seller from adjusting its prices when the cost of any such commodity or service is increased and, (b) in the event any major change in economic conditions renders Seller’s performance unprofitable.
- Taxes. Prices do not include any sales, use, excise, property or other such taxes that may be levied on the transaction by local, state, federal or foreign governments. Any taxes Seller is required to collect from Buyer will be added to the invoice or billed separately to the Buyer.
- Terms of Payment Domestic. Unless otherwise specified in the Seller’s quotation, the terms of payment will be net cash thirty (30) days from date of invoice and are subject to credit approval by Seller’s credit department. For machine orders, the terms of payment will be ten percent (10%) down upon receipt of the order by Seller with the balance due upon shipment from the Seller’s facility. An additional down payment or progress payments, as determined by the Seller, may be required for certain orders. The seller also retains the right to require a Uniform Commercial Code (UCC) Financing Statement for all machine purchases not fully paid for prior to shipment from sellers premise.
In cases where shipment of a completed Product is delayed at request of Buyer, Seller reserves right to issue the final invoice for the Product as of the date it becomes ready for shipment. Late charges at the rate of 1.5% per month (18% annually) may be charged on past due accounts.
Foreign. Unless otherwise specified in the quotation and upon Seller’s acceptance of the order, the terms of payment shall be as stated herein and through an irrevocable letter of credit, all payments to be made in U.S. Dollars. Letter of Credit to be established through and confirmed by a New York bank and shall provide for payment against Seller’s sight draft accompanied by a commercial invoice and Buyer’s forwarding agent’s receipt acknowledging delivery of equipment to a United States port and by such other documents, if any, as may be required by the governments involved. The seller also retains the right to require the applicable country equivalent of a United States Uniform Commercial Code (UCC) Financing Statement for all machine purchases not fully paid for prior to shipment from sellers premise.
- Production Estimates. Any projected Production figures and performance data are estimates based on Seller’s understanding of the machinability of material, amount of material to be removed, accuracy desired, available facilities, operator skill, and other specified factors affecting Production, and do not constitute a guarantee of Production.
- Delivery. The quoted delivery dates are approximate and a more specific date will be established upon the Seller’s acceptance of Buyer’s order. Delivery dates are subject to revision at any time due to causes beyond the Seller’s control. These would include, but not be limited to, delay in receipt of purchaser’s signed order or complete specifications, fire, shortages of material, transportation delays, strikes, failure of suppliers or subcontractors to meet delivery schedules, war, riots, acts of God, any action by any government agency, and any priority or rationing system imposed by authority of any government agency. Seller shall not be liable for any damages arising, in any way, from any late delivery or non- delivery.
Delivery to a common carrier or licensed trucker shall constitute tender of delivery, passing of title and risk of loss to the Buyer and all risk of loss or damage in transit shall be borne by the Buyer. In no event shall the Seller be held liable for damages or expenses caused by delays in delivery.
Seller reserves the right to stoppage in transit and to repossess equipment notwithstanding delivery to the carrier, until payment in full has been made to Seller. Buyer, by acceptance of the Products, grants a security interest to Seller in such Products until paid in full together with all of the rights and remedies of a secured party under the Uniform Commercial Code.
No claim relating to quantity, condition, loss or damage to the goods made by Buyer will be accepted by Seller unless Seller is given written notice of said claim within thirty (30) days after date of shipment.
- Buyer's material sent to Seller for modernization or repair or being returned pursuant to the provisions of Hardinge’s Warranty Policy or Patents Articles will be delivered by Buyer, at its expense, to the repair or manufacturing plant designated by Seller where the work is to be performed. Title to the Buyer's material will remain at all times with Buyer. Risk of loss or damage to material will transfer to Seller upon its arrival at the repair or manufacturing plant and will transfer back to Buyer upon its delivery to the carrier at the repair or manufacturing plant after the work is performed. When repair work is performed by Seller at Buyer's site, title and risk of loss or damage to the Buyer's material and other property shall remain at all times with the Buyer.
- Warranty, Disclaimer and Remedy. Warranty claims must be made pursuant to, and will be processed in compliance with, Hardinge’s Warranty Policy.
- Returns. Returns must be made pursuant to, and will be processed in compliance with, Hardinge’s Returns Policy.
- Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT, AND TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER ASSUMES ALL RISKS ASSOCIATED WITH THE POSSESSION, CONTROL AND/OR USE OF THE PRODUCT(S). UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY INCIDENT OR DAMAGES RESULTING FROM THE ABUSE, UNSAFE USE OR INABILITY TO USE THE PRODUCT(S); ANY ALTERATION OR MODIFICATION OF THE PRODUCT(S); FAILURE TO FOLLOW THE MANUFACTURER’S INSTRUCTIONS, WARNINGS, OR RECOMMENDATIONS FOR THE PRODUCT(S); FAILURE TO PROPERLY TRAIN AND INSTRUCT ANYONE USING THE PRODUCT(S); OR (e) FAILURE TO COMPLY WITH FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS APPLICABLE TO USE OF THE PRODUCT(S).
SELLER, AND ITS SUBCONTRACTOR(S) AND SUPPLIERS AT ANY TIER, SHALL NOT BE LIABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT OR SYSTEM, COST OF CAPITAL, COST OF TEMPORARY EQUIPMENT, CLAIMS OF CUSTOMERS OF THE BUYER, OR DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT NOT SUPPLIED BY SELLER UNDER THE CONTRACT. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY EXCEED THE TOTAL PURCHASE PRICE OF THE PRODUCT(S).
- Limitation of Action. Any action based upon an alleged breach of warranty must be commenced within twelve (12) months from the date that Buyer knew or should have known of the alleged defect or breach. Any other action against Seller must be commenced within twelve (12) months from the time the cause of action accrues unless the period for action shall be extended by Seller in writing. In the interpretation of this limitation of action for breach of Seller’s warranty it is expressly agreed that there are no warranties of future performance of the equipment that would extend the period of limitation herein contained for bringing an action. IT IS EXPRESSLY UNDERSTOOD THAT ANY EFFORT BY BUYER, SELLER OR AGENTS TO REPAIR ANY PRODUCT SHALL NOT EXTEND THE TWELVE (12) MONTH PERIOD OF LIMITATION UNLESS SELLER AGREES IN WRITING.
- Indemnification. Buyer agrees to indemnify and hold Seller harmless from any and all liability, loss or damages which Seller may suffer as a result of claims, demands, costs or judgments made against Seller arising out of any use whatsoever of the machinery and equipment sold pursuant to this Agreement, which liability, loss or damages, claims, demands or judgments are based upon or result from (a) any alteration or modification of the machinery or equipment by Buyer, Buyer’s officers, agents or employees; or (b) the failure of Buyer, Buyer’s officers, agents or employees to follow manufacturer’s instructions, warnings or recommendations which are communicated by Seller to Buyer in any form before, during or after the time of this sale; or (c) the failure of Buyer, Buyer’s officers, agents or employees to comply with federal, state, or local laws or regulations applicable to the use of such machinery or equipment, including but not limited to, the 1970 Occupational Safety and Health Act as amended; or (d) the failure of Buyer, Buyer’s officers, agents or employees to properly train and instruct anyone using such machinery or equipment.
- Cancellation. Cancellation. Upon written request from a Buyer to cancel all or part of an order, the Seller will stop all work as promptly as possible. Work that is complete on date of notification in writing to stop work or cancel shall be invoiced and paid in full. Buyer shall promptly instruct Seller as to the disposition of the unfinished Product and the Seller, if instructed, shall hold the Product for Buyer’s account. All costs of storage, insurance, handling, boxing or other costs in connection therewith shall be borne by the Buyer. For work that is not completed, a cancellation charge will be rendered.
Cancellations shall be assessed a minimum cancellation fee of 5% to cover the cost of order processing. However, larger and/or more complex orders may be charged in excess of 5% depending on complexity of the order. Cancellation charge will be computed on the basis of the Seller’s full cost (for all engineering work, all work in process and raw materials, all supplies and commitments made by the Seller in connection with the order), less such allowances as the Seller may be in a position to make for any standard components and for the balance of the material as scrap.
- Intellectual Property Rights. Seller retains for itself any and all intellectual property rights in and to all Product designs, engineering details and other data pertaining to any equipment designed in connection herewith and to all rights of discovery, invention or patent rights arising out of work done for Buyer. The Buyer expressly agrees that it will not assert any intellectual property rights therein, except the rights for itself and subsequent owners to use the equipment. Any prints, brochures, drawings or other information furnished to the Buyer by the Seller are intended solely for the confidential use by the Buyer and shall remain the intellectual property of the Seller, and shall not be used to the detriment of the Seller’s competitive position.
- Patent Indemnity. If any Product furnished by the Seller is rightfully claimed to infringe any U.S. patent issued at the time Buyer’s order is accepted, Seller agrees at its option: (1) to procure for Buyer the right to use the Product, or (2) to modify or replace the Product so as to avoid infringement, or (3) to accept redelivery of the Product and reimburse Buyer for the purchase price and any transportation expenses incurred by Buyer. Should any litigation be instituted against Buyer based on a claim that any Product in the condition received from Seller infringes any U.S. patent, Seller will undertake the defense thereof on Buyer’s behalf and pay any damages and costs awarded therein against Buyer, provided Seller is given prompt written notice and is furnished with copies of all demands, process and pleadings, and Buyer cooperates fully in giving Seller authority, information and assistance for such defense, as well as control over the defense and any negotiations with regard to settlement. THE FOREGOING REPRESENTS SELLER’S ENTIRE AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY CHARGE OF PATENT INFRINGEMENT AND IS IN LIEU OF ANY STATUTORY WARRANTY RELATING TO INFRINGEMENT. SELLER SHALL HAVE NO RESPONSIBILITY INSOFAR AS ANY PRODUCT IS MODIFIED BY BUYER OR IS MADE OR MODIFIED BY SELLER IN ACCORDANCE WITH BUYER’S ORDER AND BUYER SHALL INDEMNIFY SELLER IN ACCORDANCE WITH THIS INDEMNITY PROVISIONFOR ANY CLAIM WHICH ARISES OUT OF SELLER’S COMPLIANCE WITH BUYER’S SPECIFICATIONS. SELLER SHALL ALSO HAVE NO RESPONSIBILITY WITH REGARD TO ANY SETTLEMENT, ADMISSION OR PROMISE MADE BY BUYER WITHOUT SELLER’S PRIOR WRITTEN CONSENT, NOR SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING LOSS OF PROFITS, CLAIMED TO HAVE BEEN SUSTAINED BY BUYER OR ANY USER OF THE PRODUCT ARISING OUT OF ANY CLAIM OF INFRINGEMENT.
Seller is entitled to indemnity from certain of its suppliers, and the rights and options vested in Seller shall extend to such suppliers and may be exercised by them.
- Confidentiality Agreement. Buyer agrees to treat in confidence any information that may be received from Seller in connection with this Contract and designated by Seller as proprietary. Buyer shall have the limited right to use such Seller proprietary information for system maintenance and operations purposes and agrees not to disclose such Seller proprietary information to any third party without prior written consent from Seller. Buyer further agrees to make such Seller proprietary information available to its employees only on a need to know basis. Where consent is granted by Seller for disclosure of any of its proprietary information, Buyer shall require the recipient to execute a confidentiality agreement approved in advance by Seller.
- Reservation of Rights. Seller reserves the right to make subsequent improvements and changes in design in its Products without imposing any obligation to make such changes or improvements upon Products sold to the Buyer.
- Installation Costs. All costs associated with Product installation and/or erection shall be borne solely by Buyer.
- Unnecessary Delay. If the Buyer causes unnecessary delay to the Seller’s turnkey, installation process or warranty service calls, the Buyer shall be liable for all costs associated with Seller’s waiting time including, but not limited to, time and material costs, travel expenses and any other costs associated with Seller’s requirement to wait due to unnecessary delay. This cost shall be charged at the standard service or turnkey rates and shall be added to the first invoice sent to the Buyer following the occurrence of the unnecessary delay.
- Agreement to Arbitrate. Except as otherwise provided in this Agreement, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including (a) the formation, validity, binding effect, interpretation, performance, breach, or termination of this Agreement; (b) the arbitrability of the issues submitted to arbitration hereunder; and (c) non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in this Agreement, if any Dispute cannot be resolved through negotiations between the parties within 15 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the rules of the American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by us in Elmira, New York. United States. The arbitrator will apply the governing law set forth in in these Terms to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend the Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the substantially prevailing party’s costs, fees and expenses (including reasonable attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
- Exception to Arbitration. Buyer agrees that if Seller reasonably believes that Buyer has, in any manner, violated or threatened to infringe Seller’s IPR, then Buyer may seek emergency, preliminary or other appropriate interim relief in the federal or state courts located in Elmira, New York, United States.
- Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, include ng, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of New York, United States, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and the parties hereby disclaim the application thereof. Subject to the arbitration provision of this Agreement, each party will bring any action or proceeding arising from or relating to this Agreement exclusively in Elmira City Court for the Sixth Judicial District of New York, or the United States District Court for the Western District of New York, and you irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding.
- Assignment. Neither Party shall assign, transfer or convey its rights, title, interest, obligations or responsibilities hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
- Entire Agreement. These Terms and Conditions of Sale (and any Promissory Note and Security Agreement, if applicable) embody the entire agreement between Buyer and Seller. The Parties shall not be bound by or be liable for any statement, representation, promise, inducement or understanding of any kind or nature not set forth herein. No changes, amendments or modifications of any of these Terms or Conditions shall be valid unless reduced to writing and signed by both Parties.
- Canadian Sales. (1) Each reference to “United States port” could be deemed to be “Canadian port”; (2) Each reference to “Uniform Commercial Code” shall be deemed to be “Personal Property Security Act”; (3) Each reference to “forty eight (48) continental United States” shall be deemed to be “Canada”; (4) Each reference to “1970 Occupational Safety and Health Act” shall be deemed to be “applicable Canadian, Provincial, and Territorial occupational, safety, and health laws and regulations”; (5) Each reference to “United States Patent” shall be deemed to be “Canadian or United States Patents.”
- Mexican Sales. (1) Each reference to “United States port” shall be deemed to be “Mexican port”; (2) Each reference to “Uniform Commercial Code” shall be deemed to be “Codigo DeComerico”; (3) Each reference to “forty–eight (48) continental United States” shall be deemed to be “Mexico”; (4) Each reference to “1970 Occupational Safety and Health Act” shall be deemed to be “applicable Mexican, Territorial occupation, safety, and health laws and regulations”; (5) Each reference to “United States Patent” shall be deemed to be “Mexican or United States Patents.”
One Hardinge Drive
Elmira, New York 14902-1507 USA