Terms of Sale
Initial capitalized words not defined in these Terms and Conditions have the meanings assigned to them in the Sales Agreement between ZEON and Customer (“Sales Agreement”).
1. Packing and Pricing
A. Product shall be suitably packed and shipped as designated by ZEON in accordance with requirements of common carriers in a manner to secure lowest transportation cost.
B. Prices for Product are based on FOB ZEON'S Facilities in accordance with the Uniform Commercial Code in effect in Kentucky, Section 2-319.
C. ZEON reserves the right to sell remanufactured Product.
2. Delivery
If ZEON fails to deliver on the delivery date in Customer’s Purchase Order accepted by ZEON, Customer shall give ZEON written notice of delinquency allowing ZEON a reasonable time to cure. ZEON shall be considered in default of its obligation to deliver under Sales Agreement and these Terms and Conditions on the later of (a) 30 days after such notice, or (b) 60 days after the date in Customer’s Purchase Order accepted by ZEON, in which case Customer may terminate Customer’s Purchase Order by written notice to ZEON.
3. Warranty
A. ZEON warrants to Customer that Product shall be free from defects in design, materials and workmanship. Warranty period shall be for 12 months from shipment date.
B. Customer shall notify ZEON of any rejection for failure to conform to Sales Agreement or these Terms and Conditions, giving detailed reasons for rejection. Failure of Customer to reject any Product within 10 days after receipt shall constitute acceptance.
C. If Customer claims such nonconformity within such 10 days, Customer shall allow ZEON a reasonable time to remedy the defect. Customer shall render necessary assistance to ZEON, and shall furnish adequate means for operating and testing Product.
D. Should Product prove to be nonconforming, and the nonconformity is not remedied, Customer must return the particular Product to ZEON at its expense. Customer shall immediately notify ZEON of the return by registered mail addressed to ZEON, and ZEON may then, at its option, either replace Product or rescind ZEON'S acceptance of Customer’s Purchase Order for defective Product.
E. If ZEON does cure the nonconformity, Customer shall pay the full price as set forth in Sales Agreement.
F. Any action on a breach of ZEON'S obligations under Sales Agreement or these Terms and Conditions must be commenced within 1 year of shipment date.
G. ZEON'S warranty does not apply to any Product to the extent it has been subject to (a) other than normal wear and tear, or (b) improper use, improper installation, improper repair by unauthorized service personnel, tampering, negligence, abuse or accident. ZEON shall not be liable for any indirect, special or consequential damages resulting from or attributable to Product.
H. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF TECHNOLOGICAL VALUE.
LOU:759319.
4. Excusable Delay
Neither party shall be liable to the other for damages for any delay arising out of causes beyond its reasonable control and without its fault or negligence.
5. Changes
ZEON reserves the right at any time to make changes in (a) its drawings and specifications, (b) methods of packaging and shipping, and (c) prices for Product prior to its acceptance of Customer’s Purchase Order. No such changes shall reduce quality or performance of Product not shipped, but for which ZEON has accepted orders.
6. Insolvency
In event of insolvency as defined in the Uniform Commercial Code in effect in Kentucky, any act of bankruptcy, whether voluntary or involuntary, or any insolvency proceeding instituted, by or against Customer, ZEON shall be entitled to (a) cancel any Customer’s Purchase Order then outstanding and receive reimbursement for its reasonable and proper cancellation charges, (b) refuse delivery of Product except for cash including payment for all Product delivered, and (c) stop delivery of Product in transit.
7. Release
ZEON and Customer each agree to release and waive any liability of and claim against the other, its officers, agents and employees, for loss of or damage to property or person, including loss of use arising directly or indirectly out of or in connection with the other's performance under Sales Agreement, these Terms and Conditions or Customer’s Purchase Order.
8. Confidentiality
A. Each party agrees to hold in strictest confidence the contents of this Agreement and any information provided to it by the other party.
B. ZEON retains title and all associated rights to its intellectual property, including trademarks, trade names, copyrights, patents, product packaging, associated markings, advertising, marketing materials and manuals, which may not be copied, removed, disguised or changed by Customer.
9. Compliance
A. Customer acknowledges that ZEON has informed it that US law and US Export Administration Regulations govern, and may prohibit the reexport or other disposition of Product and related technical data received by Customer or its customers from ZEON without prior US government approval.
B. Customer agrees that diversion of Product from destinations identified in the Shipper's Export Declaration constitutes a fundamental and material breach under Sales Agreement, these Terms and Conditions and Customer’s Purchase Order. If Product is diverted from intended destinations, the sale may be voided in the sole discretion of ZEON, and all right, title and interest in Product shall revert to ZEON. In the event of such breach, Customer shall be liable to ZEON for all costs, fees and expenses incurred by ZEON in connection with recovery of Product, including reasonable attorney fees.
C. Customer agrees and warrants that in performance of its obligations under Sales Agreement, these Terms and Conditions and Customer’s Purchase Order, it will comply with US Foreign Corrupt Practices Act.
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