ATC Terms and Conditions
1. General. The products described in this Catalog are sold by American Technical
Ceramics Corp. or any of its subsidiaries (“ATC”) subject to the terms and conditions
contained in any express written contract between ATC and the purchaser of such
products (the “Purchaser”) and, to the extent not inconsistent with any term or
condition in such contract, the following terms and conditions. To the extent any
such contract is silent with respect to any matter addressed in these terms and
conditions, these terms and conditions shall apply. In the absence of an express
written contract between ATC and the Purchaser, these terms and conditions shall
constitute the sole terms and conditions of the sale of any products by ATC to the
Purchaser, and any sale is expressly conditioned upon acceptance by the Purchaser
of these terms and conditions. Submission of a purchase order in and of itself shall
be deemed to be acceptance in full of these terms and conditions. Any additional
or different terms contained in or referred to in any Request For Quotation, purchase
order or other document provided by the Purchaser are hereby expressly objected
to by ATC.
2. Availability. All products are offered subject to availability and prior
sale. ATC reserves the right not to sell any product to any person for any reason
(or for no reason). ATC may discontinue the manufacture or sale of any product,
or change the formulation or specifications of any product, at any time. In no event
shall ATC be obligated to purchase products from any third party to enable it to
deliver products to the Purchaser, nor shall ATC be liable for any damages or claims
as a result of the unavailability of any product, including, without limitation,
incidental, consequential or punitive damages.
3. Price; Terms. ATC will provide prices for products upon request. Quotations
are valid for 30 days from the date provided unless revised, withdrawn or extended
by ATC prior to the expiration of such 30-day period. Unless otherwise expressly
stated by ATC in writing to the contrary, all prices quoted by ATC are exclusive
of all freight, storage, taxes, duties, packaging, handling, shipping, insurance
and other charges. Without limiting the foregoing, unless specifically stated by
ATC in writing to the contrary, prices do not include the cost of customer specified
testing.
Unless otherwise specifically stated by ATC in writing, payment shall be required
within 30 days after shipment. Late payment shall be subject to a monthly charge
equal to the lesser of 1-½% or the maximum amount permitted by law. Whether or not
orders have already been accepted by ATC, ATC reserves the right to require payment
on delivery or in advance if credit satisfactory to ATC has not been established.
The Purchaser agrees to indemnify ATC and to hold it harmless from and against any
and all damages, claims, costs and expenses, including, without limitation, legal
fees and expenses, which may be incurred by ATC to collect any overdue balances.
4. Shipping and Delivery; Title and Risk of Loss. Unless otherwise specifically
stated by ATC in writing, products shall be delivered ExWorks (as defined in the
latest edition of Incoterms published by the International Chamber of Commerce)
at ATC’s premises. Title and risk of loss shall pass to the Purchaser upon delivery
by or on behalf of ATC as aforesaid. The means of transport shall be selected by
the Purchaser. If the Purchaser does not designate the means of transport, it shall
be selected by ATC. Claims for damage or loss while products are in transit must
be made against the carrier. The Purchaser shall have the burden of proving when
damage or loss occurred.
Estimated delivery information represents ATC’s good faith estimates and ATC shall
not be responsible for any delay in delivery for any reason whatsoever.
5. Rejected Products. The Purchaser shall notify ATC within five days of
receipt of any products which do not meet with the specifications for such products
at the time of shipment. The Purchaser shall obtain ATC's authorization prior to
returning any rejected products. ATC may refuse to accept delivery of any products
returned without such authorization. ATC reserves the right to inspect rejected
products prior to accepting their return.
6. Tooling. Where applicable, charges listed for tooling are based on the
production of product in the quantities quoted by ATC. Orders for greater or smaller
quantities of product may necessitate additional tooling or new tooling. Unless
changes are made in design, specifications or order quantities for product, the
tooling charge will be made on the first order only. Tooling-related items are kept
in repair and necessary replacements are made without additional charge. ATC retains
title to all tooling-related items. Tooling-related items will not be preserved
for longer than three years from the date of the last order of product, unless special
arrangements are made. Tooling charges will be billed at the time of initial shipment
of product.
7. Warranties. ATC warrants to the Purchaser that, at the time of shipment,
the products shipped will conform to ATC’s standard specifications therefor (or
such other specifications as are expressly agreed upon by ATC and the Purchaser
in writing), and will be free from defects in material and workmanship. ATC’s obligation
under this warranty is limited to the repair or replacement of nonconforming products
within 90 days from the date of shipment or, at ATC’s option, crediting the Purchaser
for an amount not to exceed the sales price of such nonconforming products. This
warranty does not include items that have been misused, improperly applied, altered,
improperly stored or improperly installed.
THE WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHERS, EITHER EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NO PERSON IS AUTHORIZED TO CREATE, UNDERTAKE OR ASSUME FOR ATC
ANY OTHER OBLIGATION OR LIABILITY IN CONNECTION WITH THE SALE OF ITS PRODUCTS. NO
CLAIMS OF ANY KIND AGAINST ATC, WHETHER BASED UPON NEGLIGENCE, TORT, CONTRACT, WARRANTY
OR ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE AGGREGATE PURCHASE PRICE OF THE
PRODUCTS IN RESPECT OF WHICH SUCH CLAIMS ARE MADE. IN NO EVENT SHALL ATC BE LIABLE
FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INSTALLATION COSTS OR OTHER COSTS
OF ANY NATURE AS A RESULT OF THE MANUFACTURE OR SALE OF ANY OF ITS PRODUCTS, WHETHER
USED IN ACCORDANCE WITH INSTRUCTIONS OR NOT.
8. Disclaimer on Technical Advice. It is expressly understood that any technical
advice furnished by ATC with reference to the use of its products is given gratis
and ATC assumes no obligation or liability for the advice given or results obtained,
all such advice being given and accepted at the Purchaser’s risk. Without limiting
the generality of the foregoing, the Purchaser assumes all risk and liability for
the results obtained from the use of any products in combination with other articles
or material or in the practice of any process, whether in terms of operating cost,
general effectiveness, success or failure, regardless of any oral or written statements
made by ATC with respect to the use of such products by way of technical advice
or otherwise.
9. Cancellations. Cancellation of accepted orders will result in a charge
to the Purchaser in accordance with ATC’s cancellation policy as same shall be in
effect from time to time. Copies of such policy are available upon request. Unless
otherwise expressly agreed to by ATC in writing with respect to a specific order,
and without limiting any other rights and remedies available to ATC, any portion
of a standing order as to which the Purchaser has not requested delivery within
180 days after acceptance by ATC may be deemed by ATC to have been cancelled by
the Purchaser and subject to a cancellation charge.
10. Force Majeure. ATC will not be liable for its failure to perform hereunder
due to contingencies beyond its reasonable control, including, but not limited to,
acts of God, fires, floods, wars, terrorism, sabotage, riots, civil strife, accidents,
labor disputes, lockouts or shortages (whether or not such are within ATC’s ability
to settle), any governmental laws, rules, regulations, ordinances, action or inaction
(whether valid or invalid, including, but not limited to, priorities, requisitions,
allocations and price adjustment restrictions), delay or inability to obtain supplies,
raw materials, energy, products, equipment or transportation, and any other similar
or different contingency.
11. Compliance with Law. The Purchaser is responsible for complying with
all applicable laws, rules and regulations of the United States of America and any
other jurisdiction relating to the purchase and movement of, and payment for, the
products covered hereby.
12. Governing Law; Jurisdiction; Waiver of Jury Trial. All rights and obligations
of the parties shall be governed by the laws of the State of New York, without giving
effect to rules governing conflicts of law. It is the express intent and agreement
of the parties that neither (i) the United Nations Convention for the International
Sale of Goods, (ii) the 1974 Convention on the Limitation Period in the International
Sale of Goods (the “1974 Convention”), nor (iii) the Protocol amending the 1974
Convention at Vienna, April 11, 1980, apply to these terms and conditions. Neither
course of performance, course of dealing or usage of trade shall be used to interpret,
construe, qualify, explain or supplement these terms and conditions. The Purchaser
hereby submits to the non-exclusive jurisdiction of the courts of the State of New
York and any Federal Court sitting in such State and agrees to bring any and all
suits, actions and proceedings arising out of the sale of any product by ATC to
the Purchaser or these terms and conditions in such courts.
The Purchaser hereby waives, to the fullest extent permitted by law, any objection
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought by ATC in any court of competent jurisdiction and any claim that
any such suit, action or proceeding has been brought in an inconvenient forum. Both
parties hereby waive trial by jury.
AMERICAN TECHNICAL CERAMICS CORP.
July 1, 2003
ATC has made every effort to have this information as accurate as possible. However,
no responsibility is assumed by ATC for its use, nor for any infringements of rights
of third
parties which may result from its use. ATC reserves the right to revise the content
or modify its product line without prior notice. © 2001 American Technical Ceramics
Corp.
ATC # 001-992 Rev. B; 12/05
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