ADVANCED MATERIAL TECHNOLOGY, INC.
TERMS AND CONDITIONS OF SALE
Advanced Materials Technology, Inc. (AMT) provides these Terms and Conditions of Sale (“Agreement”) which shall govern all sales of any product by AMT (“Products”) to any purchaser (“Customer”) unless AMT specifically agrees to modification of this Agreement in writing by an authorized representative of AMT.
1. Customer agrees that by placing an order with AMT or its authorized distributor, Customer has read this Agreement and agrees to be bound by the terms of this Agreement. Any purchase order from Customer containing language different from this Agreement, shall be null and void and shall have no effect unless specifically agreed to by AMT in writing signed by an officer of AMT.
2. All shipments from AMT shall be made Ex Works AMT shipping point unless otherwise noted and agreed to by AMT in writing. Delivery of Products to a carrier at AMT’s facility shall constitute delivery to the Customer and Customer shall bear all risk of loss or damage in transit. Unless otherwise agreed to between AMT and Customer AMT shall choose the carrier and Customer agrees to bear all reasonable and customary costs and expenses associated with shipment. AMT shall not be responsible for any taxes, sales tax, excise tax, duty, custom costs, inspection or testing fee or any charge whatsoever imposed by any governmental authority with exception of sales tax (if any) applicable to the Products and for which AMT invoices Customer and receives payment from Customer. In the event that AMT is required to pay any shipment costs, duty, taxes, or any other charge beyond the price of the Product, Customer shall reimburse AMT for the same.
3. Any specified delivery dates are estimates only and do not represent a promise by AMT to deliver Products at a date certain. As a result, AMT will not be liable for any loss, damage, or penalty relating to any claimed delay in, or failure to, deliver any Product. The sole remedy for a delayed delivery to the Customer shall be that the Customer may cancel the order as long as the cancellation is received by AMT prior to the delivery of the Product to the carrier. In addition, in the event of a force majeure event impacting AMT’s ability to fulfill a Customer order for greater than 180 days, including but not limited to, fire, embargo, war, regulation substantially affecting AMT’s ability to perform, explosion, accident, theft, vandalism, riot, lightening, flood, either party may terminate the order. The Customer will still be required to make payment for all Products delivered to the carrier prior to the termination.
4. Payment is due within 30 days of delivery of the Product unless otherwise required by AMT as provided herein. Customer agrees and understands that AMT in its discretion may have to make multiple deliveries over a period of time to fulfill a large order. Customer is required to make payment for all products received consistent with this Agreement. AMT reserves the right to require an advanced deposit of up to 100% of the purchase price (including expected delivery costs) at the time of any order prior to delivery as a condition of performance. In addition, if at any time during the fulfillment of an order requiring multiple deliveries, AMT believes that collectability of the purchase price is questionable, AMT at any time and without advance notice to Customer, may delay or postpone a shipment until AMT is paid in full. In the event Customer fails to make timely payments when due, AMT reserves the right to assess an interest charge of 1.0% per month (or the maximum amount allowed by law if it is less than 1.0% per month.). In the event that Customer breaches this Agreement, in addition to any damages AMT shall be entitled to recover, AMT shall also be entitled to reasonable attorneys’ fees and costs associated with AMT’s efforts to prove the breach of this Agreement.
5. Any price offered by AMT for any Product to Customer shall be valid for thirty days unless otherwise specifically addressed by AMT. In addition, for large orders, requiring multiple deliveries over a period of more than 30 days, AMT reserves the right to adjust the pricing by the same percentage of the increase in the cost of inputs, but only if the costs of materials have increased by 10% or more since the date of the order. In such an event, AMT will provide notice to Customer, and Customer has the right to terminate the remaining unfulfilled order. However, Customer will be responsible for making payment at the previously agreed to price for all Products delivered to the carrier for shipment as of the date of the notice.
6. Customer hereby WAIVES ANY RIGHT TO CONSEQUENTIAL, INCIDENTAL, and/or SPECIAL DAMAGES of any kind relating to the sale, delivery, and our use of any Products sold by AMT to Customer even if AMT has been advised of the possibility of such damages including without limitation liability for loss of use, cost of capital, loss of work in process, down time, loss of revenue or profits, failure to realize savings, and/or any liability to any third party of any kind. AMT warrants only that the Products at the time of delivery shall conform to the description of such Products as provided to Customer through AMT’s product descriptions at the time of the delivery of the Product. AMT provides no other warranty of any kind with respect to the Products sold to Customer. AMT EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. AMT also disclaims all other implied or express warranties of any kind. Customer agrees that its SOLE AND EXCLUSIVE REMEDY for non-conforming Products shall be either replacement of such products without charge, or refund of the purchase price, at AMT’s discretion. AMT does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any patents.
7. From time to time, and at AMT’s discretion, AMT may furnish technical assistance with respect to AMT’s Products. With respect to any such technical assistance, AMT makes NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILIYT OR FITNESS FOR ANY PARTICULAR PURPOSE. ANY SUGGESTION BY AMT REGARDING THE USE APPLICATION OR SUITABILITY OF AMT’S PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY.
8. Customer agrees to indemnify, defend and hold AMT, and AMT’s corporate affiliates, agents, employees and representatives harmless from and against any and all claims damages, losses, costs, expenses (including attorneys’ fees and litigation costs) resulting from Customer’s: (a) sale of the AMT Products to any third party; (b) breach of the provisions and representations contained in this Agreement; and/or (c) negligence or misuse of the Product by Customer or any of Customer’s buyers or users of AMT Products.
9. Upon receipt of any AMT Products, Customer shall inspect the products to determine if the shipment is in conformances as to quantity and whether there are any defects or damages to the products. In the event Customer identifies an issue, Customer shall notify AMT in writing regarding any claim or issues relating to the products, and shall await AMT’s response to the issue(s) identified by Customer. In the event Customer fails to notify AMT of any such claim within five business days of receipt of the shipment.
10. This Agreement and all disputes allegedly arising from the sale of AMT Products shall be governed by the laws of the State of Delaware. Any legal action, suit, or proceeding arising out of this Agreement or the sale of AMT Products to Customer shall be brought in the federal or state courts of the State of Delaware located in Wilmington, Delaware. However, nothing herein shall preclude AMT in AMT’s sole discretion from asserting any claim in any court of competent jurisdiction to enjoin infringement of AMT’s marks, patents, or other intellectual property rights, or to prevent irreparable harm to AMT. By making a purchase of AMT’s products, Customer hereby acknowledges AMT’s rights to its trademarks.
11. All provisions of this Agreement are distinct and severable. Any provision deemed illegal, void or unenforceable shall not affect the validity, legality or enforceability of any other provision of this Agreement. The failure of AMT to strictly enforce any particular condition contained herein shall not constitute a waiver of AMT’s rights.