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Terms and Conditions. Applicant agrees that each of the
following terms and conditions (the "Terms") will apply to all
goods and servicesrovided by Climax Portable Machine Tools, Inc.
("Climax"):. PRICES; INVOICES; QUOTATIONS. Prices are subject to
change without notice. Orders will be invoiced at the prices
prevailing athe time of shipment. The amount reflected in any
Climax invoice will be deemed accepted and conclusively binding
upon Applicant as anccount stated unless Applicant notifies Climax
in writing within 30 days after the date of such invoice. All
quotations are for delivery withhe United States and Canada and
will expire 30 days after the date of the quotation.
2. TERMS OF SALE, DELIVERY AND CREDIT. All orders are subject to
acceptance by Climax. All goods provided by Climax will beold FOB
(Ex Works) Climax's loading dock. All prices are exclusive of sales
taxes, shipping and handling, and Applicant will pay thoseaxes and
charges. Climax may deliver goods in installments, and in that case
Climax will separately invoice Applicant for those goods.
Climax may immediately terminate Applicant's ability, if any, to
purchase goods or services on credit at any time in Climax's sole
discretion.
. TERMS OF PAYMENT. Climax will not accept any new orders from
Applicant if Applicant is past due on any invoice, or if Applicant
isurrently on a credit hold. All goods sold and services provided
on open account will be due and payable 30 days after the invoice
date. Anyums not paid when due are subject to a service charge of
1.5% per month (18% per annum) or the maximum rate permitted by
law,
whichever is lower. Applicant will be ineligible for any
discount if it has an overdue balance. Failure to promptly pay any
invoice accordingo its terms will constitute a default by Applicant
under all outstanding invoices. If Applicant breaches any of its
obligations or anyepresentation is or becomes false in any material
respect, Climax may cancel Applicant's orders, refuse shipment,
stop delivery in transit,eclaim any goods for which payment has not
been made, cease providing services, and exercise all other legal
rights and remedies.
4. SECURITY AGREEMENT. To secure payment and performance of all
of Applicant's current and future obligations to Climax,Applicant
grants to Climax a security interest in all inventory and equipment
that Applicant has purchased or will at any time in the future
urchase from Climax and in all accounts, other forms of
receivables, documents, instruments, returns and general
intangibles that are relatedn any way to such inventory and
equipment.
5. LIMITED WARRANTY. Climax warrants that at the time of
shipment all new goods and all services will be free from defect
inmaterials and workmanship, and in addition, all new machines
provided by Climax will conform to any written specifications
signed byClimax, subject to variations and tolerance customary in
Climax's industry. Climax warrants that certified pre-owned goods
will be free fromdefect in materials and workmanship. Used goods
are sold AS IS and WITH ALL FAULTS, whether inherent, latent or
patent. CLIMAXMAKES NO OTHER WARRANTY, EXPRESS, IMPLIED OR
STATUTORY, AND CLIMAX EXPRESSLY DISCLAIMS THEWARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. This warranty
does not apply to any goodshat have been (a) subject to misuse,
neglect, abuse, accident or improper installation; (b) used
contrary to Climax's instructions; or (c)epaired or altered by
anyone other than Climax. This warranty is not assignable.
6. LIMITED REMEDY; LIMITATIONS ON DAMAGES; STATUTE OF
LIMITATIONS. IF ANY GOODS OR SERVICES FAILTO CONFORM TO THE LIMITED
WARRANTY DESCRIBED IN SECTION 5, CLIMAX WILL, AT ITS OPTION, AND
ASAPPLICANT'S EXCLUSIVE REMEDY, REPAIR OR REPLACE THOSE DEFECTIVE
GOODS AND REPERFORM THOSEDEFECTIVE SERVICES, OR REFUND APPLICANT'S
INVOICE PRICE, BUT ONLY IF APPLICANT PROMPTLY GIVES CLIMAXWRITTEN
NOTICE SPECIFYING IN DETAIL THE NONCONFORMITY OR DEFECT, BUT IN ANY
EVENT WITHIN THEFOLLOWING APPLICABLE WARRANTY PERIODS: (a) ONE YEAR
AFTER DELIVERY FOR NEW MACHINES; AND (b) 90DAYS AFTER DELIVERY FOR
NEW PARTS OR THE PERFORMANCE OF SERVICES, OR FOR CERTIFIED
PRE-OWNEDGOODS. IN THE CASE OF DEFECTIVE GOODS, APPLICANT MUST
RETURN THOSE GOODS TO CLIMAX IN ACCORDANCE
WITH SECTION 7 BELOW. CLIMAX WILL NOT BE LIABLE FOR ANY LOST
PROFITS, INTERRUPTION OF BUSINESS OR ANYSPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES SUFFERED OR SUSTAINED BY APPLICANT, WHETHER
ARISINGUNDER CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF CLIMAX HAS
BEEN ADVISED OF THE POSSIBILITY OFTHOSE DAMAGES. IN NO EVENT WILL
CLIMAX BE LIABLE TO APPLICANT FOR AN AMOUNT GREATER THAN THENVOICE
PRICE FOR THE GOODS OR SERVICES DESCRIBED IN THIS INVOICE. THESE
LIMITATIONS WILL APPLY EVEN IF
THE LIMITED REMEDY IN THIS SECTION FAILS OF ITS ESSENTIAL
PURPOSE.7. EXTENSION OF LIMITED REMEDY. Customer may purchase an
extension of the warranty period set forth in Section 6 applicableo
goods consisting of new machines for one or two additional years
(the "Extended Warranty"). Customer's purchase of an Extended
Warranty must be stated in the invoice in which the Customer
purchases the goods covered by the Extended Warranty, and does not
alter theimited remedy provided in Section 6 in any way other than
with regard to the time in which the written notice specifying the
nonconformityr defect must be submitted to Climax by Customer. If
Customer purchases an Extended Warranty, and if any goods covered
by the
Extended Warranty fail to conform to the limited warranty
described in Section 5, Customer must promptly give Climax written
noticepecifying in detail the nonconformity or defect prior to the
expiration of the Extended Warranty.
8. CANCELLATION AND RETURN POLICY.If an order is cancelled by
Applicant prior to parts being ordered by Climax for the
goods,Applicant will pay a cancellation fee equal to 5% of the
invoice price. If an order is cancelled by Applicant after material
has been purchased ormanufacturing has begun, Applicant will pay a
cancellation fee equal to 10% of the invoice price. If an order is
cancelled by Applicant after the goods haveeen manufactured,
Applicant will pay a cancellation fee equal to 20% of the invoice
price. Climax will have the right to cancel orders in the event
of
Applicant's delinquency in payment as aforesaid, for any acts or
omissions of Applicant that delay Climax's performance, or in the
event of Applicant'sankruptcy or insolvency. Climax will not accept
returns of custom made goods. Climax must pre-approve all other
returns. Any goods returned by
Applicant must be in the same condition as when delivered.
Applicant will pay all return freight charges. If Applicant returns
defective goods, Climax willeimburse those freight charges.
Applicant will pay a restocking charge equal to 20% of the invoice
price for any returned goods other than defective goods.
9. INSPECTIONS. Any inspection of goods agreed to by the parties
will be made at Climax's plant or other source of supply and must
bemade before shipment. Any goods not rejected by Applicant before
shipment will be deemed accepted. In all other circumstances,
Applicantmust notify Climax in writing of any claim for shortages,
errors or obvious defects within 15 days after Applicant's receipt
of the goods.0. FORCE MAJEURE. If a delivery date is specified,
that date will be extended to the extent that delivery is delayed
by reason of fire,lood, sabotage, war, riot, strike, labor dispute,
natural disaster, material shortages, power failure, machinery
breakdowns, delay of carriers, orny other event beyond Climax's
reasonable control.
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1. SAFETY. Applicant will cause each person who receives or uses
Climax's goods to read and comply with all safety instructions
providedy Climax, including all product safety notices, warnings,
instructions and training materials, manuals, video tapes or
similar materialscollectively, the "Safety Documentation").
Applicant will instruct each user in the proper use of the goods
and implement and enforce theafety provisions in the Safety
Documentation. Applicant will be solely responsible for complying
with local, state and federal or provincialaws, codes or
regulations relating to safety of the workplace where the goods are
used.2. OWNERSHIP. Climax, and not Applicant, owns all rights in
and to any patents, know-how, inventions, discoveries and
improvements,nd all technical information, drawings, data, ideas,
designs, formulae, processes, procedures, works of authorship,
Confidential Informationdefined below) and all other intellectual
property rights in any way associated with the goods, and reserves
all rights with respect to thatntellectual property.3.
CONFIDENTIALITY. If Climax and Applicant have executed a separate
agreement governing the exchange of confidential information, that
separategreement will govern the exchange of all Confidential
Information between the parties. If Climax and Applicant have not
executed a separate agreementoverning the exchange of Confidential
Information, then this Section 13 will govern Climax's Confidential
Information disclosed to Applicant.
13.1 The term "Confidential Information" means all technical and
non-technical information provided by or on behalf of Climax to
Applicant, orbserved by Applicant during visits to or in
interactions with employees or agents of Climax, regarding Climax
or any of its affiliates, including withoutmitation patents and
patent applications; trade secrets; proprietary information; ideas;
samples; media; techniques; sketches; drawings; works of
authorship;
models; inventions; know-how; processes; apparatuses; equipment;
algorithms; software programs; software source documents; formulae
related to current,uture and proposed products and services;
information concerning research, experimental work, development,
design details, design specifications andngineering; financial
information; procurement requirements; customer lists; information
concerning purchasing, manufacturing, investors, employees,
andusiness and contractual relationships; business forecasts,
sales, merchandising and marketing plans; and information Climax
provides regarding thirdarties. The term "Confidential Information"
will not include information that Applicant conclusively documents:
(a) was in the public domain at the time it
was communicated to Applicant by or on behalf of Climax; (b)
entered the public domain through no fault of Applicant after it
was communicated toApplicant by or on behalf of Climax; (c) was in
Applicant's possession free of any obligation of confidence at the
time it was communicated to Applicant byr on behalf of Climax; (d)
was rightfully communicated to Applicant free of any obligation of
confidence after it was communicated to Applicant by or onehalf of
Climax; or (e) was developed by employees or agents of Applicant
independently of and without reference to any information
communicated to
Applicant by or on behalf of Climax.13.2 Applicant agrees that
it (a) will use the Confidential Information only to perform
Applicant's obligations under these Terms; (b) will keep the
Confidential Information in strict confidence and will not
disclose to any third party the existence, source, content or
substance of the Confidentialnformation, except as required by
court order or other applicable law; (c) will disclose Confidential
Information only to its employees, independentontractors or agents
with a need to know; and (d) will require each such employee,
independent contractor or agent to comply with this Section 13.
Applicant acknowledges and agrees that any breach of this
Section 13 by any employee, independent contractor or agent of
Applicant will constitute a breachf these Terms by Applicant.
13.3 If Applicant is required to disclose any Confidential
Information under any subpoena, interrogatory, request for
production or otherompulsory judicial or administrative process
that calls for or may result in the disclosure of any Confidential
Information, Applicant will immediately notify
Climax so that Climax may seek protection of that Confidential
Information if it wishes to do so. Only after giving such notice
may Applicant disclose suchConfidential Information and then only
to the extent Applicant is legally compelled to do so. Applicant
will immediately notify Climax upon discoveringny loss or
unauthorized disclosure of any Confidential Information.
13.4 When Applicant has fully performed its obligations under
these Terms, or at any other time upon Climax's request, Applicant
will return toClimax the originals and all copies of Confidential
Information that Applicant received from Climax and will destroy
the originals and all copies of allConfidential Information
prepared by or on behalf of Applicant for its internal use.
13.5 Applicant's obligations under this Section 13 will continue
until the information no longer qualifies as Confidential
Information.4. INDEMNITY. Applicant will indemnify, defend and hold
Climax harmless and its successors and assigns harmless from and
against any
nd all Claims arising from or related to: (i) any goods to the
extent Applicant designed or furnished detailed specifications for
those goods,ncluding any actual or alleged infringement and product
liability (except those caused solely by defects in the materials
provided by Climaxr Climax's negligence); (ii) Applicant's breach
of these Terms; (iii) any improper alteration, installation, repair
or maintenance of the goods,ncluding removing guards or defeating
interlocks or other safety devices; (iv) any use of the goods
contrary to the Safety Documentation orny of Climax's other
instructions or applicable law, other than for the purpose for
which the goods were designed, or any other misuse of the
goods; and (v) any failure to provide, implement or enforce the
Safety Documentation. TO THE EXTENT NECESSARY TO PERFORMTS
OBLIGATIONS UNDER THIS SECTION, EACH PARTY EXPRESSLY WAIVES ANY
IMMUNITY OR EXEMPTION FROM
LIABILITY FOR THE PERSONAL INJURY OR DEATH OF ITS EMPLOYEES THAT
MAY EXIST UNDER, OR ANY RIGHT TORECEIVE CONTRIBUTION FROM THE OTHER
PARTY CREATED BY, THE WORKER'S COMPENSATION LAWS OF THESTATE WHERE
THE INJURY OCCURRED OR THE EMPLOYEE IS LOCATED.5. NONSOLICITATION.
Applicant will not directly or indirectly approach, solicit, or
hire any Climax employee for a period of one yearfter delivery of
the Goods. Placing a general "help wanted ad" will not constitute a
breach of this Section6. INSURANCE. Applicant will maintain and
keep in full force and effect, at a minimum, the following
insurance coverages: (i)
1,000,000 personal/advertising injury per occurrence; (ii)
$2,000,000 products/completed operations aggregate; and (ii i)
$2,000,000 generalggregate. Such insurance will be with insurers
acceptable to Climax, will name Climax as an additional insured and
will provide thatClimax be given 30 days' advance written notice of
cancellation or reduction in coverage, and will be primary with
respect to any insurance
r self-insurance programs maintained by Climax. Applicant will
provide a certificate (or certificates) of insurance evidencing the
foregoingoverage within 10 business days of signing these
Terms.
7. COMPLIANCE WITH U.S. LAWS AND STANDARDS. Applicant will
comply with all applicable national, state, municipal and local
laws aswell as all rules, regulations, executive or other orders,
codes, standards, requirements and regulations thereunder,
including but not limited to, the Fair Labor
tandards Act of 1938, as amended, the Occupational Safety and
Health Act of 1970, as amended, the Toxic Substance Control Act
(P.L. 94-469), asmended, ANSI, ASME, AIEE, ASTM and NEMA in effect
at the time these Terms is placed unless otherwise specified and
any and all laws, rules,egulations, orders, directives or
ordinances affecting, controlling, limiting, regulating, pertaining
or related to emissions, discharges, hazardous, toxic,adioactive,
substances, materials or wastes ("Governmental Requirements"), to
the extent applicable to the Goods. Applicant will comply with
allpplicable provisions of Executive Agreement 11246 of September
24, 1965, as amended, the terms of which are incorporated herein by
this reference and
made a part of these Terms. Applicant is hereby notified that it
is the policy of Climax to provide equal employment opportunity and
to adhere to federal,tate and local laws pertaining thereto.
Appropriate action will be taken by Applicant, with respect to
itself and any of its subcontractors, vendors anduppliers to ensure
compliance with such laws. All federal, state and local equal
opportunity and affirmative action requirements with regard to
race, gender,
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reed, color, age, religion, national origin, disability or
veteran status, are incorporated into these Terms by reference, as
are all federal, state and localequirements with regard to child
labor, the prohibition of segregated facilities, convict labor,
combating trafficking in persons, restrictions on certain
foreignurchases and prohibitions on offering or giving gratuities
to officers, officials or employees of the government. Applicant
will give all notices, pay all feesnd take all other action which
may be necessary to conduct its business in accordance with all
applicable statutes, ordinances, rules and regulationsncluding,
without limitation, the above stated standards and acts, any
statutes regarding qualification to do business and any statutes
prohibitingiscrimination among employees because of race, creed,
color, national origin, age or sex or the employment of convict
labor. Applicant will not resell oreliver the Goods into any
country specified by the US State Department as a prohibited
country. The US State Department maintains a website ofrohibited
countries and periodically updates that list. Applicant
acknowledges and agrees that Applicant will be responsible for
knowing the countries that
re on the most recent list of prohibited countries maintained by
the US State Department. .8. COMPLIANCE WITH THE FOREIGN CORRUPT
PRACTICES ACT. Applicant will comply with the United States
Foreign
Corrupt Practices Act and any other similar laws, statute, rule
or regulation of any country in which Applicant operates. In
addition, none ofApplicant, its owners, officers, directors,
employees or agents have not and will not pay, offer, promise, or
authorize the payment, directly or
ndirectly, of any monies or anything of value to any government
official or employee, or any political party or candidate for
political officeor the purpose of influencing that person's acts or
decisions to obtain or retain business. Applicant will sign annual
or periodiccknowledgements of compliance with the Foreign Corrupt
Practices Act at Climax's request, which requests may be made by
Climax in itsole discretion. If Climax has reason to believe that a
breach of this Section has occurred or may occur, Climax has the
right to audit
Applicant in order to satisfy Climax that no breach has
occurred. Upon request by Applicant, Climax will select an
independent third party toonduct an audit to confirm to Climax that
no breach has occurred or will occur. Applicant will cooperate
fully in any audit conducted by orn behalf of Climax. If this
Section is violated, the Agreement will automatically terminate
without the requirement of any written notice orther action by
Climax. Applicant will further indemnify and hold Climax harmless
for any and all claims, losses or damages arising from areach of
this Section or the cancellation of the Agreement, or both.9.
MISCELLANEOUS. Any portion of this Application that is found to be
unenforceable will not invalidate the remainder of this
Application. Any delay in enforcing or any failure to enforce
any provision of this Application will not be deemed a waiver of
any other orubsequent breach of this Application unless such waiver
is in writing and is signed by an officer of Climax. Caption
headings are foronvenience of reference only and will not affect
the interpretation of this Application. Applicant has had the
opportunity to consult with anttorney with respect to this
Application and has either reviewed this Application with its
attorney or waived such right. Therefore,mbiguous terms will be
construed without regard to authorship. The terms "including" and
"includes" are not limiting in any way.
20. COSTS AND ATTORNEY FEES; CHOICE OF LAW; CONSENT TO
JURISDICTION. Applicant will pay such costs, collectiongency
commissions, expenses and reasonable attorney fees (including at
trial and on appeal) as Climax may incur in any manner ofollection
of any sums past due. If this Application becomes the subject of
any suit, arbitration or other proceeding or if Applicant becomeshe
subject of any bankruptcy proceeding (including with respect to any
motion for relief from the automatic stay, objection to a plan
oreorganization or confirmation or other similar proceeding), the
prevailing party will be entitled to its costs and attorney fees,
whetherncurred in such proceeding or in any post judgment
proceeding. Oregon law, without resort to its choice of law
provisions, will govern, and
not the United Nations Convention on Contracts for the
International Sale of Goods. Applicant irrevocably consents to
jurisdiction of andvenue in any state or federal court located in
Multnomah County, Oregon, and agrees that Applicant will not
initiate any action againstClimax in any other jurisdiction.21.
ENTIRE AGREEMENT; MODIFICATIONS. This Application and Climax's
invoices contain the entire understanding between the
arties, and will apply to all goods and services provided by
Climax. APPLICANT AGREES THAT ALL PURCHASE ORDERS WILL BESUBJECT TO
AND GOVERNED BY THESE TERMS. Applicant acknowledges that there are
no other terms, conditions, warranties or
epresentations other than those contained in this Application
and Climax's invoices. This Application may not be amended
orally.
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