Terms & Conditions
All orders are subject to acceptance by Buyer at Aspex’s applicable manufacturing facility. “Terms and Conditions” means collectively, the terms and conditions contained herein. Any Terms and Conditions originating with Buyer are superseded by these Terms and Conditions and shall not be or become part of the contract between Buyer and Aspex unless specifically accepted in a writing signed by a duly authorized officer of Aspex. Acknowledgment of the receipt of any order, including signing and returning to Buyer its acknowledgement copy, if any, shall not constitute acceptance by Aspex of any additional or different terms and conditions, nor shall Aspex’s commencement of work, in itself, be construed as acceptance of an order containing additional or different terms and conditions. Aspex shall have no liability until and unless the orders are accepted.
Prices for and payment terms of the Goods are set forth in the attached Proposal.
Prices do not include any sales, use, excise, property, import, export or other taxes that may be levied on the transaction by local, state, federal or foreign governments. Any such taxes shall be the responsibility of Buyer.
Unless otherwise specified, all shipments are made Ex Works (INCOTERMS 2000) Aspex’s factory. Delivery to a common carrier or licensed trucker shall constitute tender of delivery to Buyer and all risk of loss or damage in transit shall be borne by Buyer. In no event shall Aspex be held liable for any damages or expenses caused by delays in delivery. The parties recognize that delivery dates are approximate. The acceptance of the Goods by Buyer shall constitute a waiver of all claims for delay. Buyer and Aspex agree that “TIME IS NOT OF THE ESSENCE” in Aspex’s performance of this order. Aspex shall not be liable for delay in delivery or failure to manufacture due to causes beyond its or its subcontractors’ reasonable control, including, but not limited to, delays or failures due in whole or in part to, acts of God, acts of Buyer, acts of civil or military authority, priorities, fire, strike, floods, acts of terrorism, insurrection, epidemics, quarantine, war, riot, transportation delays, acts of a public enemy, inability to obtain necessary labor, materials or manufacturing facilities, or other causes similar to those enumerated. In the event of any such delay or failure, the date of delivery of the Goods shall be extended for a period equal to the time lost by reason of the delay.
5. CANCELLATION CHARGES.
Buyer understands and agrees that the Goods are being specifically manufactured for the Buyer by Aspex and that any cancellation of an order shall result in the cancellation charges described in the Proposal. In addition, any postponement of a delivery of Goods by Buyer by more than ninety (90) days shall be deemed a cancellation of the order and shall be subject to these cancellation charges. Aspex reserves the right to ship and bill “in place” any order which is complete and which meets Buyer’s requirements and specifications as defined in the order if shipment of this order is delayed by Buyer’s source inspector more that five (5) calendar days from its scheduled shipping date.
6. TERMS OF PAYMENT.
Unless otherwise specified, terms of payment are net thirty (30) days from date of invoice. Late charges shall incur an interest rate of one percent (1 %) per month or the maximum rate allowable under applicable laws, whichever is less.
7. WARRANTY. See separate warranty.
8. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, ASPEX SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS ARISING OUT OF THE PERFORMANCE, DELAYED PERFORMANCE OR BREACH OF PERFORMANCE OF THIS ORDER REGARDLESS OF WHETHER SUCH LIABILITY BE CLAIMED IN CONTRACT, EQUITY, TORT OR OTHERWISE. ASPEX’S OBLIGATION IS LIMITED SOLELY TO REPAIRING OR REPLACING (AT ITS OPTION AND AS SET FORTH ABOVE), AT ITS APPROVED REPAIR FACILITY, ANY GOODS OR PARTS WHICH PROVE TO ASPEX’S SATISFACTION TO BE DEFECTIVE AS A RESULT OF DEFECTIVE MATERIALS OR WORKMANSHIP, IN ACCORDANCE WITH ASPEX’S STATED WARRANTY. IN NO EVENT SHALL ASPEX’S LIABILITY EXCEED THE TOTAL PURCHASE PRICE SET FORTH IN THIS
9. GENERAL INDEMNITY.
Buyer agrees to hold Aspex harmless from any and all liability, and to pay all costs and attorney’s fees, for injury or damage to persons or property caused in any manner by Goods covered by the order while in possession or under the control of Buyer or Buyer’s successor in interest.
10. PROPERTY RIGHTS.
Except where otherwise expressly agreed, all patterns, tools, jigs and fixtures, drawings, designs, software and other materials and data developed, fabricated or otherwise required in the performance of this order, notwithstanding any charges therefore, shall be and remain Aspex’s property and in Aspex’s possession and control. Except as specifically provided for in this order, Buyer shall have no right to any technical data and computer software associated with this order.
11. RIGHT TO GOODS; DEFAULT; INSOLVENCY.
If Buyer becomes insolvent or if Buyer is in default for credit reasons under the terms of this or any of the agreement between Buyer and Aspex, Aspex shall be entitled, at Aspex’s option, to discontinue further performance of all or part of the order, to withhold shipments, in whole or in part, and/or to recall Goods in transit, retake same, and repossess all Goods which may be stored with Aspex for Buyer’s account, without the necessity of taking any other proceedings. Buyer consents that all Goods so withheld, recalled, retaken or repossessed shall become Aspex’s absolute property provided that Buyer is given full credit therefore. The foregoing shall not be construed as limiting, in any manner, any rights or remedies available to Aspex under contract, at law or equity.
12. NON-WAIVER BY ASPEX.
Waiver by Aspex of a breach of any of the Terms and Conditions shall not be construed as a waiver of any other breach. Any failure at any time of Aspex to enforce any provision of these Terms and Conditions shall not constitute a waiver of such provisions or prejudice Aspex’s right to enforce such provisions at any time. Should any provision of these Terms and Conditions be or become void or not enforceable by force or operation of law, all other provisions shall remain valid and enforceable.
Buyer shall not assign, subcontract, or otherwise transfer the order, in whole or in part, without the prior written consent of Aspex, and any such assignment, subcontract, or transfer without Aspex’s prior written consent shall be void.
Changes in whole or in part of the order can be made only with Aspex’s written consent and upon terms that will permit an equitable adjustment to be made in both the price and schedule of the Goods to be delivered. Changes will be recognized and implemented only when communicated to Aspex by Buyer’s authorized representative, in writing.
Termination of the order in whole or in part can be made only with Aspex’s consent and upon terms that will indemnify Aspex against loss and afford an equitable profit.
16. INSPECTION AND ACCEPTANCE OF GOODS.
Final inspection and acceptance of Goods provided under this order shall be made by Buyer within fourteen (14) days of receipt of the Goods at Buyer’s facility, except in the case where Buyer’s source inspector or authorized representative inspects the Goods at Aspex’s facility. Failure of Buyer to inspect said Goods at its facility within the above time period (where source inspection is not applicable) should be deemed to mean acceptance has occurred. In the event Buyer’s source inspector is delegated to perform inspection and acceptance, then sign-off of the relevant test documentation and shipping documents by the source inspector or authorized representative shall constitute acceptance of the Goods by Buyer.
17.GOVERNING LAW; LIMITATION ON ACTIONS.
This order shall be governed and construed in accordance with the laws of the State of New York, USA. No actions arising out of the sale of Goods covered by this order, other than an action by Aspex to recover the purchase price of such Goods, may be brought by either party more than one (1) year after the cause of action accrues. The terms of the United Nations Convention for the International Sale of Goods (UNCISG) shall not apply to the sale of Goods.
Each SpinTrak System manufactured and sold by Aspex Incorporated is warranted free from defects in parts and workmanship of a period of 12 months from the date of acceptance as defined in Aspex’s Terms and Conditions paragraph 16.
Aspex Incorporated will directly or through its authorized representatives repair and/or replace parts covered under this warranty. Any parts that are being replaced under warranty must be returned to Aspex Incorporated within 30 days of the customer’s receipt of the replacement part. If warranty service is requested or required at a machine location in an end use customer’s plant, such customer must pay to Aspex Incorporated or its authorized representative all travel expenses from either New York, USA or the authorized representative’s primary location, plus any additional service technician’s reasonable out-of-pocket expenses if incurred. In the event the field site problem is not related to a malfunction or problem of the SpinTrak System, the labor cost will be the responsibility of the customer at current prevailing labor rate for like services. The service technician may require or provide information, test procedures, and current SpinTrak System/process conditions in order to aid in the diagnosis of a reported problem. The customer must respond in a timely manner with any information or test results required. Failure to do so will negate the customer claim and may nullify the warranty. In warranty repairs do not extend the original warranty period.
Defective Part Return
No product may be returned, whether in-warranty or out of warranty, without first obtaining approval from Aspex. No credit will be given nor repairs made for products returned without such approval. Subject to the exceptions specified herein, Aspex Incorporated will undertake to correct defects in parts so long as it receives written notice of such defects within the warranty period. Customer agrees to return at their sole expense (no C.O.D. or Collect Freight accepted) to Aspex Incorporated ,for analysis and credit any defective parts within 30 days of customer’s receipt of the replacement part or parts otherwise the part(s) replacement cost will be invoiced to the customer at current part prices.
The warranty given herein shall become void and of no force or effect if Aspex Incorporated shall determine that defects have been caused by accident, casualty, neglect, misuse, improper machine grounding to earth, unstable or interrupted electric power, air conditioning, air supply, humidity control, improper systems operations, causes other than ordinary use, acts of nature, or causes through direct fault of the customer through improper handling, use, storage or installation. The warranty also does not apply to equipment failure or non-performance due to non-disclosure of process, design, environment or other information regarding the installation, environment, and/or other information pertinent to the SpinTrak system design and performance. In addition, the warranty given herein shall become void and of no force or effect if repairs or modifications have been made to the subject equipment by persons other than Aspex Incorporated service personnel or its authorized representatives, unless such repairs or modifications are made with the prior express written consent of Aspex Incorporated .
Contact for Warranty Service
For all warranty service, contact Aspex Incorporated service directly at Aspex Incorporated , 161 Hudson Street, New York, NY, 10013. USA, Telephone: (212) 966-0410, Fax: (212) 966-2289, or email: firstname.lastname@example.org or you may contact your local authorized representative for more information.
Representations and/or warranties, by whomever made, to the extent that they are inconsistent or in conflict with the terms herein, including limitations thereof, shall not be binding upon Aspex Incorporated unless confirmed in writing signed and approved by duly authorized officer of Aspex Incorporated . This warranty is in lieu of and exclusive of all other warranties, THERE ARE NO EXPRESS WARRANTIES EXCEPT AS STATED HEREIN. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE SPECIFICALLY DISCLAIMED.
The foregoing constitutes Aspex Incorporated ’s entire warranty and stated the full extent of its liability to the customer or any other party for breach of warranty and for damages. Aspex Incorporated shall not be liable for any incidental or consequential damages or loss, damage or expense, directly or indirectly arising from use of the SpinTrak system or its components or any inability to use them separately or in combination with any other equipment, or from any other cause. Upon the expiration of the warranty period as set forth above, all warranty liability shall terminate.
If you have any questions about this Agreement, please contact us.
This document was last updated on May 5, 2019