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 Quotations are valid for 30 days from the date provided unless revised, withdrawn or extended by ATC prior to the expiration of such 30-day period.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