ACCEPTANCE. Quotation furnished by Cowper Inc. (“Cowper”) shall not be construed as an offer. Quotations furnished by Cowper are subject to, and shall not be binding upon Cowper until (i) actual receipt by Cowper of Buyers written purchase order based on the terms and conditions herein, without qualification, and (ii) Cowper’s written acceptance of such purchase order at its main office in Chandler, Arizona. The sole and exclusive terms of sale shall be those contained herein and in Cowper’s written acceptance of the purchase order. Any conflicting or additional terms contained in the purchase order or other documentation originating with Buyer shall be of no force or effect. Cowper reserves the right to make changes in design, manner of construction, use of materials or auxiliary equipment at any time without incurring any obligation toward Buyer or user of an apparatus previously sold.
PAYMENT: PRICE ADJUSTMENTS. Unless otherwise specified herein, (i) all prices are F.O.B. the factory and (ii) terms of sale are Net 30 days. All amounts not paid by Buyer when due shall bear interest at the rate equal to the greater of (i) eighteen percent (18%) per annum or (ii) the maximum lawful rate. The price stated herein does not include any sales, use or other taxes unless so stated specifically. Such taxes will be added to invoice prices in those instances in which Cowper is required to collect them from Buyer; provided, however, if Cowper does not collect any such taxes and is later asked or required to pay such taxes by any taxing authority, Buyer shall make such payment to Cowper or, if requested by Cowper, directly to the taxing authority. If requested by Cowper, Buyer shall make reasonable progress payments. Changes in specifications or deliveries may be subject to change in price.
DELIVERY. Delivery dates specified herein are dependent upon the timely receipt from Buyer of all data and materials required for the design and / or construction of the equipment and of all materials required for testing it. Cowper shall not be liable for any delay or failure in delivery due, in whole or in part, to any cause or circumstance beyond its immediate control and without its fault, including, but not limited to, wars, acts of government authorities, embargoes, strikes or other labor and transportation difficulties, fires, floods, difficulties in obtaining raw materials or supplies, accidents and abnormal conditions. Buyer’s acceptance of the product(s) upon its delivery shall constitute a waiver of all claims for loss or damage due to delay.
INSTALLATION. Unless Cowper agrees in writing to install the product(s), Buyer shall be responsible for installation of all product(s) and bear all expenses in connection therewith. If Buyer requests Cowper’s assistance with installation, additional charges will be added according to Cowper’ standard policy for such service that would include payment for labor, living and travel expense.
RISK OF LOSS. Regardless of the manner of shipment, title to the product(s) and the risk of loss or damage thereto shall pass to Buyer upon tender to the carrier at shipping point (OEM factory, Cowper warehouse or other facility).
ITEMS FURNISHED BY BUYER. All data, materials and equipment to be furnished by Buyer or procured by Cowper for Buyer for the construction, remodeling, or testing of products(s), or for any other purpose, shall be delivered at no cost to Cowper F.O.B. it’s plant or the OEM plant and Buyer shall pay all costs of returning the same. Buyer shall pay all crating and delivery expenses for samples and parts delivered to it, and except as required for test purposes, the cost of producing parts or samples requested by Buyer.
LIMITED WARRANTY. Cowper warrants that, except as hereafter provided, the product(s) identified on the quotation (i) shall be free of any defects in workmanship, materials and construction for the period of one hundred eighty days from the date of shipment and (ii) shall comply with all written specifications furnished by Buyer and acknowledged by Cowper in writing. THIS LIMITED WARRANTY DOES NOT COVER, AND COWPER MAKES NO WARRANTY REGARDING, THE FOLLOWING: (i) PARTS THAT ARE NOT MANUFACTURED BY Cowper; (ii) DEFECTS OR FAILURES CAUSED BY ACCIDENT OR IMPROPER HANDLING OR INSTALLATION; (iii) DEFECTS OR FAILURES CAUSED BY THE FAILURE TO USE OR MAINTAIN THE PRODUCT(S) ACCORDING TO COWPER’S RECOMMENDATIONS; (iv) PRODUCT(S) MANUFACTURED PURSUANT TO PLANS, SPECIFICATIONS, DRAWINGS, OR DESIGNS SUBMITTED OR APPROVED BY BUYER; (v) DEFECTS OR FAILURES CAUSED BY UNSUITABLE ENVIRONMENTAL CONDITIONS OR ALTERATION, MODIFICATION, OR REPAIR OF THE PRODUCT(S) BY PERSONS OTHER THAN COWPER; (vi) MATTERS RELATED TO SPEED OF PRODUCTION OR OUTPUT; AND (vii) SAFETY DEVICES OR FEATURES SHOWN IN APPLICABLE SPECIFICATIONS. THIS WARRANTY EXTENDS TO BUYER ONLY AND DOES NOT EXTEND TO ANY TRANSFEREE, ASSIGNEE OR SUCCESSOR OF BUYER.
NO OTHER WARRANTIES. THIS SALE IS MADE WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE DESIGN, FITNESS, CAPACITY, QUALITY OR ANY OTHER MATTER CONCERNING THE PRODUCT(S) EXCEPT AS SET FORTH HEREIN. WITHOUT LIMITING THE FOREGOING, THIS SALE IS MADE WITHOUT ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
OEM WARRANTY. PRODUCTS THAT ARE NOT COVERED BY COWPER’S WARRANTY, MAY BE COVERED BY THE OEM WARRANTY OF OUR OEM PARTNERS. IF AUTHORIZED BY THE OEM TO PROVIDE WARRANTY SERVICE, COWPER WILL SERVICE OEM WARRANTIES FOR A PERIOD OF 90 DAYS FROM DATE OF INVOICE. THEREAFTER, COWPER WILL SERVICE OEM WARRANTIES AS A NON-WARRANTY CLAIM.
REPAIR OR DEFECTS. In case of Cowper’s material breach of the limited warranty set forth herein, Cowper shall have the time required of it to remedy the defect or failure. If Cowper is unable to remedy the defect or failure within such time, Cowper shall, at its election and in its discretion, either replace the product(s) or refund the purchase price.
EXCLUSIVE REMEDIES: NO CONSEQUENTIAL DAMAGES. THE REMEDIES SET FORTH IN PARAGRAPH 9 HEREOF SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR COWPER’S BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN. UNDER NO CIRCUMSTANCES SHALL Cowper BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, ECONOMIC, DIRECT, INDIRECT, GENERAL OR SPECIAL DAMAGES, WHETHER ARISING OUT OF CONTRACT OR TORT, WHETHER ARISING OUT OF NEGLIGENCE OR STRICT LIABILITY, ARISING OUT OF, BASED UPON ON RELATING TO THE SALE, USE OR OPERATION OF THE PRODUCT(S).
CLAIMS. Buyer shall make no claim against Cowper for shortages unless Buyer provides written notice of such claim to Cowper within ten (10) days after delivery. Buyer shall make no other claims against Cowper unless Buyer provides written notice of such claims to Cowper within thirty (30) days after delivery or, in case of Cowper’s alleged breach of the limited warranty set forth herein, within thirty (30) days after the date within the warranty period on which the defect or failure is or should have been discovered.
PATENTS. Where any product is manufactured from designs, drawings, plans, data or specifications not furnished by Cowper, Buyer agrees to indemnify, defend (with counsel acceptable to Cowper) and save harmless Cowper and its successors and assigns from against all suits at law or in equity and from all losses, damages, claims and demands arising out of actual or alleged infringement of any United States or foreign patent, trademark or copyright by reason of the use or sale of the product(s).
CONFIDENTIALITY AND PROPRIETARY INFORMATION. All plans, drawings, specifications, notes, instructions, engineering notices, data and technical information furnished by Cowper to Buyer shall at all times be property of Cowper, and Buyer shall not disclose such information to any party other than Cowper or a party duly authorized by Cowper. When its no longer reasonably necessary for Buyer to retain such information furnished in a tangible form, Buyer shall, at Cowper’s request, return such information and all reproductions thereof. Buyer agrees that it will not disclose the fact of Cowper’s relationship with Buyer to third parties except on a “need to know basis” with the prior written approval of Cowper and further agrees that it will not disclose the fact of Cowper’s relationship with Buyer (including but not limited to mentioning Cowper in any press releases, Internet publications, or other publications directed at the public or competitors of Buyer or of Cowper) to the public or any third party without obtaining the prior written consent of Cowper.
FINANCIAL INSECURITY. If Cowper shall at any time in good faith doubt Buyer’s financial responsibility, Cowper may decline to make shipment(s) hereunder except upon receipt of cash payment in advance or security or other proof of responsibility satisfactory to Cowper. If Buyer fails in any way to fulfill its covenants and obligations hereunder, Cowper may defer completion and delivery until such breach is cured.
CANCELLATION. After acceptance by Cowper, Buyer may not cancel all or any part of the order except in the event (i) Cowper materially breaches any of the terms hereof or (ii) Cowper consents in writing to such cancellation and Buyer indemnifies Cowper against all direct, incidental, and consequential damages.
ASSIGNMENT. The rights and obligations under this agreement shall not be assigned or delegated by Buyer without prior written consent of Cowper.
REMEDIES. The warranties and remedies available to Cowper under the terms of this agreement shall be cumulative in addition to those implied or available at law. No waiver of any breach of this agreement shall be construed to constitute a waiver of any other breach or of any provisions hereof.
CONSENT TO JURISDICTION: APPOINTMENT OF PROCESS AGENT. Buyer hereby irrevocably submits to the jurisdiction of any Arizona or federal court sitting in Maricopa County, Arizona, over any action or proceeding arising out of or relating to the product(s) and agree that all claims in respect of such action or proceeding may be heard and determined in any such court. Buyer further agrees that venue for any such action shall lie exclusively with courts sitting in Maricopa County, Arizona, unless Cowper agrees to the contrary in writing. Buyer irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. Buyer agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
EXPENSES AND ATTORNEYS FEES. Buyer agrees to pay any and all costs and expenses (including, without limitation, reasonable attorney’s fees and litigation expenses) incurred by Cowper and arising out of or relating to any breach of any covenant or agreement or the incorrectness or inaccuracy of any representation and warranty of Buyer contained in this agreement.
COMPLIANCE WITH LAWS. Cowper agrees that in the manufacture and sale of the product(s) to Buyer, Cowper shall comply with all applicable federal, state and local laws, ordinances and regulations, including, without limitation, the Fair Labor Standards Act, as amended, and the Federal Occupational Safety and Health Act of 1970, as amended. This Agreement incorporated by reference all the clauses required by the provisions of said laws, orders, and regulations.
ENTIRE AGREEMENT. There are no other representations, understandings or agreements previously made between the parties, except those that are expressly set forth herein. This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cannot be changed, modified, discharged or terminated, except by a writing signed by both parties. Unless expressly accepted in writing by Cowper, additional or differing terms and conditions proposed by BUYER or included in BUYER’s PURCHASE ORDER are objected to by COWPER and have no effect.
WAIVER. No waiver shall be deemed to have been made by any party of any of its rights hereunder unless the same shall be in writing and signed by the waivering party. Such waiver, if any, shall be a waiver only in respect to the specific instance involved and shall in no way impair the rights of the waiving party or the obligations of the other party in any other respect and at any other time.
GOVERNING LAW. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of Arizona without giving effect to the principles of conflicts of law.
SEVERABILITY. In the event that any one or more terms or provisions hereof shall be held void or unenforceable by any court or arbitrator, all remaining terms and provisions hereof shall remain in force and effect.
BLANKET ORDERS. Blanket Orders are to be governed by Cowper’s Blanket Order Policy.