Terms and Conditions of Sale
All products, materials, components, goods, commodities, software, technology and any other items (the “Products”) and services offered for sale by Poco Graphite, Inc. ("Poco") are sold subject to these terms and conditions of sale (these “Terms and Conditions”) . These Terms and Conditions shall apply to the sale of the Products and/or services described in the Poco Quotation, Sales Order, Invoice, or other contract documentation to which these Terms and Conditions are attached or incorporated by reference. Except as expressly agreed by an authorized representative of Poco in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Buyer's request for quotation, acknowledgment, purchase order or other contract documentation shall apply. Buyer's acceptance of the Products or services delivered by Poco shall constitute an affirmation by Buyer that these Terms and Conditions govern the purchase and sale of the Products or services. THESE TERMS AND CONDITIONS SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER'S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
PRICES, TAXES AND PAYMENT
All prices are firm unless otherwise agreed to in writing. Poco reserves the right to change the prices and specifications of its Products at any time without notice. Any tax, duty, custom or other fee of any nature imposed upon this transaction by any federal, state or local governmental authority shall be paid by Buyer in addition to the price quoted or invoiced. In the event Poco is required to prepay any such tax, Buyer will reimburse Poco. Payment terms shall be net 30 days after shipment by Poco. An interest charge equal to 1 1/2% per month (18% per year) will be added to invoices outstanding beyond 30 days after shipment. In addition, Poco reserves the right to require pre-paid payment terms from any Buyer whose account is overdue for a period of more than 60 days or who has an unsatisfactory credit or payment record. Poco may also refuse to sell to any person until overdue accounts are paid in full. Buyer hereby grants to Poco a purchase money security interest in the Products sold to Buyer and the proceeds thereof in the amount of the purchase price until such purchase price is indefeasibly paid in cash in full. Buyer hereby authorizes Poco to file such financing statements and other instruments that Poco desires to perfect, protect or enforce Poco’ security interest.
DELIVERY AND SHIPMENT
Poco will make every effort to ship the Products or provide the services hereunder in accordance with the requested delivery date, provided that Poco accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. Poco may make partial deliveries. All partial deliveries will be separately invoiced by Poco and shall be paid for when due by Buyer regardless of the timing of any subsequent delivery. Any delay in delivery of any partial installment shall not relieve Buyer of its obligation to accept remaining deliveries. All shipment costs shall be paid by Buyer, and if prepaid by Poco, the amount thereof shall be reimbursed to Poco. Any and all claims for loss or damage to the Products in transit should be made directly to the carrier and not to Poco.
Title to the Products shall remain with Poco until the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the Products from the Poco facility; or b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the Products at the Port of Entry of the destination country.
RISK OF LOSS
The risk of loss or damage to the Products shall be assumed by Buyer upon the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the Products from the Poco facility; or b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the Products at the Port of Entry of the destination country.
Buyer shall be responsible for inspecting all Products shipped hereunder prior to acceptance, provided, that if, Buyer shall not have given Poco written notice of rejection within 30 days following shipment to Buyer, the Products shall be deemed to have been accepted by Buyer.
DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES
The Products shall be covered by the applicable Poco standard warranty. NO OTHER EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PRODUCTS. POCO EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Any model or sample furnished to the Buyer is merely illustrative of the general type and quality of goods and does not represent that the Products will conform to the model or sample. Buyer's remedies under Poco’s warranty shall be limited to repair or replacement of the Product or component thereof which failed to conform to Poco's standard warranty.
No Products shipped under these Terms and Conditions may be returned without the express prior authorization of Poco. All returns of Products are subject to a restocking charge. No returns will be authorized after 30 days following shipment to Buyer.
Poco may, at Buyer's request, furnish technical assistance, advice and information with respect to the Products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information which is provided without charge at the Buyer's risk, and which is provided subject to the disclaimers set forth in paragraph 7 (DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES).
No agent, employee or other representative has the right to modify or expand Poco’s standard warranty applicable to the Product(s) or to make any representations as to the Product(s) other than those set forth in Poco’s Product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not form a part of these Terms and Conditions.
Buyer acknowledges that Products sold by Poco may be subject to U.S. export control laws and regulations, including without limitation, the Export Administration Regulations, 15 C.F.R. Parts 730 to 774; the International Traffic in Arms Regulations, 22 C.F.R. Parts 120 to 130; and the Foreign Assets Control Regulations codified at 31 C.F.R. Chapter V. Buyer agrees that it will not transfer, export or reexport the Products sold hereunder except in compliance with all applicable U.S. export laws and regulations. Each party shall obtain, at its own expense, licenses, export and import documents, and other approvals as are necessary for each party to fulfill its obligations under these Terms and Conditions. As appropriate, Poco may inform Buyer of applicable export license terms and conditions; Buyer agrees to abide by such terms and conditions. Poco may terminate, cancel or otherwise be excused from performing any obligations it may have under these Terms and Conditions if (1) an export license or other approval required to be obtained by Poco is not approved by the U.S. government, (2) an existing license or approval is revoked for any reason by the U.S. government, and/or (3) the U.S. government changes the applicable export control laws or regulations thereby making it impermissible for Poco to provide the subject items.
EQUAL EMPLOYMENT OPPORTUNITY
Poco is an Equal Opportunity Employer. It does not discriminate in any phase of the employment process against any person because of race, color, creed, religion, national origin, sex, age, veteran or handicapped status.
MODIFICATIONS, WAIVER, TERMINATION
These Terms and Conditions may be modified, and any breach hereunder may be waived, only by a writing signed by the party against whom enforcement thereof is sought. Poco reserves the right, among other remedies, either to terminate or suspend further deliveries under these Terms and Conditions in the event Buyer fails to pay for any shipment or release when the same is due in accordance with Poco’s invoice.
These Terms and Conditions shall be governed by and construed in accordance with the laws (other than those relating to conflict of laws questions) of the Commonwealth of Massachusetts.
The parties agree that any and all disputes or controversies arising under, out of or in connection with these Terms and Conditions or the sale or performance of the Products or services shall be brought exclusively in either the courts of the Commonwealth of Massachusetts or in the United States District Court for the Eastern District of Massachusetts, to whose jurisdiction for such purposes Poco and Buyer each hereby irrevocably consent and submit.
LIMITATION OF LIABILITY
IN NO EVENT SHALL POCO (INCLUDING ITS AFFILIATES AND SUBSIDIARIES) BE LIABLE FOR ANTICIPATED OR LOST PROFITS OR FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. POCO’S TOTAL LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE TERMS AND CONDITIONS OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES OR UNITS THEREOF WHICH GIVES RISE TO THE CLAIM.
Buyer shall not assign its rights or its obligations under these Terms and Conditions without the written consent of Poco.
CANCELLATION PRIOR TO SHIPMENT
In the event Buyer requests that an order for Products or services which it has placed with Poco be cancelled prior to shipment, and with which request Poco agrees, Buyer shall be liable to Poco for all Products already manufactured at the time of notice of cancellation and all costs incurred by Poco as a result of such cancellation, including but not limited to, cancellation costs to suppliers and unreimbursed advances on Products, if any, together with any specifically identifiable incidental and consequential expenses.
Unless otherwise agreed to in writing, Poco reserves the right to make design changes which Poco believes will improve its Products. Poco may also satisfy customer purchase orders by shipping 90-110% of ordered quantities for nonstandard Products depending on actual yield from such nonstandard Product runs. Poco shall only charge Buyer for actual quantities shipped. Poco’s performance shall be excused in the event of strikes, accidents, fires, unavailability of materials, pandemics, epidemics, and all other causes beyond the control of Poco. The quantity shipped during any month may be limited by Poco to either: (a) the average of the monthly quantities purchased by Buyer for the preceding month(s) or (b) the maximum quantity to be purchased divided by the number of months in the period of the contract documentation.
SALE CONVEYS LIMITED LICENSE; NO REVERSE ENGINEERING
Buyer acknowledges that the Products, components of the Products, and methods of making and using the Products are protected by intellectual property rights owned by Poco or its affiliate(s) (Individually and collectively, “Poco Entity”). Poco Entity is and shall remain the sole and exclusive owner of any software and any intellectual property incorporated into or embodied in the Products at all times. The Products are offered for sale and sold by Poco hereunder expressly subject to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Poco Entity with respect to any invention of Poco Entity or any third party, patented or not patented, embodied in the Products, processes, sales literature or manufacturing operations; except that Poco Entity hereby grants to Buyer, under Poco Entity’ intellectual property rights, a limited, non-exclusive, non-transferable, non-sublicensable, nonassignable license to use such Poco Entity intellectual property solely as necessary to use the Products in Buyer’s business. Poco Entity expressly reserves all of its rights under such intellectual property rights, and no manufacture to Buyer’s specifications grants any ownership by or conveyance to Buyer of or to any property right in any invention of Poco Entity. Buyer shall not attempt to reverse engineer or otherwise discover Poco Entity’ intellectual property, patentable, patented or non-patented inventions, trade secrets, secret processes or other confidential information embodied or contained in the Products.
Where reusable cylinders, ampoules, diptubes and/or other containers (collectively, “Reusable Containers”) are delivered to Buyer: (i) title to such Reusable Containers shall at all times remain with Poco together with title to residue in a de minimis amount acceptable to Poco in Poco’s absolute discretion; (ii) risk of loss of such Reusable Containers shall pass from Poco to Buyer at the time of delivery to Buyer, Buyer’s carrier or Buyer’s logistic provider and shall pass back from Buyer to Poco when such Reusable Containers are delivered to Poco or Poco’s carrier; and (iii) such Reusable Containers are loaned to Buyer (and not sold) subject to these terms and conditions unless otherwise expressly stated with respect to such reusable containers on the face of Poco’s quotation and acknowledgement in accordance with Poco’s customary practice. Until such reusable containers are delivered to Poco or Poco’s carrier, Buyer shall be conclusively presumed to have possession of such reusable containers. Buyer shall not, without the prior written consent of an authorized representative of Poco: (a) encumber, pledge, assign or otherwise transfer possession or control of (or permit any of the foregoing to occur to) any of the reusable containers; (b) fill, refill, modify, alter, repair, disable, clean, refurbish, inspect for any purpose other than determination of nonconformity or permit any third party to access the Reusable Containers; or (c) use such Reusable Containers (I) with any material other than the Products shipped therein or as refilled in accordance with Poco’s prior written instructions and consent, (II) for any application, process or other purpose other than that advertised and authorized by Poco, or (III) for any business other than Buyer’s business. Buyer shall return all such Reusable Containers within one hundred eighty (180) days of the date of delivery of such Reusable Containers and Poco may charge Buyer a demurrage charge as specified on Poco’s quotation to Buyer or, if no charge is specified on Poco’s quotation, a reasonable per diem demurrage charge, for all reusable containers not returned to Poco after such 180 day period. After 365 days, Poco may presume such Reusable Containers are lost and may invoice Buyer the replacement price existing at the time of invoice for such Reusable Containers. Poco or Poco’s designee shall maintain written records regarding type, quantity, and location of all reasonable containers loaned to Buyer, and such records shall be conclusive absent manifest error. Buyer hereby authorizes Poco to file, and shall cooperate with Poco to file, any and all necessary precautionary financing statements to reflect Poco’s ownership of the reusable containers.
All tools, dies, and patterns produced by or at the request of Poco, or otherwise utilized by Poco in the production of any Products sold to Buyer, shall remain the exclusive property of Poco. Poco reserves the right to advertise and/or sell any of the foregoing items and any of its Products produced therewith, unless otherwise specifically agreed to in writing by an authorized representative of Poco.
The failure of Poco to enforce at any time any of the provisions of these Terms and Conditions, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions herewith shall in no way be construed to be a waiver of any such provisions, or the right of Poco thereafter to enforce each and every such provision. These Terms and Conditions contain the complete and exclusive statement of the agreement between the parties in connection with the subject Products and/or services and supercedes any previous understandings, communications, commitments, or agreements, oral or written. Buyer warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Poco any gratuity with a view toward influencing such person with respect to the terms, conditions or performance of these Terms and Conditions or any contracts with Poco. Poco and Buyer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Any provision of these Terms and Conditions that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from these Terms and Conditions with respect to such party or circumstance without invalidating the remainder of these Terms and Conditions or the application of such provision to other persons or circumstances. The provisions of these Terms and Conditions which by their nature are required to survive the expiration or earlier termination of these Terms and Conditions shall survive such termination or earlier termination. The headings used in these Terms and Conditions are for convenience of reference only and shall not be conclusive as to their meaning.