1. Scope. All orders are subject to the
following terms and conditions. No salesperson or other party is
authorized to bind HOHNER by any agreement, warranty, statement,
promise or understanding not herein expressed, and no modifications
shall be binding on Seller unless same are, in writing and signed by
an executive of seller or his duly authorized representative. Verbal
orders will not be executed until written notification has been
received by Seller and properly acknowledged by Seller.
2. Prices. All prices and terms are
subject to change without notice. Prices shall be those in effect at
the time of shipment. Orders requiring certified test data in excess
of commercial requirements are subject to a special charge.
3. Order Acceptance. All orders
are subject to final approval and acceptance by Seller at his home
4. Shipping and Payment Terms.
Unless otherwise agreed, the following are the payment and shipping
Terms of Payment - Seller standard terms
of payment - Net 30 days
Transportation - Shipments are F.O.B.
place of manufacture. (Beamsville, Ontario Canada)
5. Delivery. Delivery of goods to common
carrier or licensed trucker shall constitute delivery to Buyer and
all risk of loss or damage in transit shall be borne by buyer. Any
claims or losses for damage or destruction after such delivery shall
be the responsibility of the Buyer. Seller reserves the right to
make delivery in installments which shall be separately invoiced and
paid for when due, without regard to subsequent deliveries. Except
as otherwise provided, Seller shall not be responsible for freight,
transportation, insurance, shipping, storage, handling, demurrage or
similar charges. If such charges are by terms of sale included in
the price, any increases in rates becoming effective after the date
hereof shall be set for the account of the Buyer.
6. Taxes. All sales, excise Goods and
Services, and similar taxes which Seller may be required to pay or
collect with respect to the goods covered by any order shall be for
the account of the Buyer except as otherwise provided by law or
unless specifically otherwise by Seller in writing.
7. Delay. Seller shall not be responsible
for delays in delivery or any failure to deliver due to causes
beyond Seller’s control, including but not limited to, acts of God,
war mobilization, civil commotion, riots embargoes, domestic or
foreign governmental regulations or orders, acts of the Buyer, its
agents or employees, fires, floods, strikes, lockouts and other
labour difficulties or shortages of or inability to obtain shipping
space or transportation, or inability to secure fuel, supplies,
power at current prices or on account of shortages thereof or due to
limitations imposed by the extent or availability of Seller’s normal
manufacturing facilities. Buyer may not in any event cancel this
order for any delays in delivery without giving at least ten days
prior written notice of intention to do so, and in no event after
goods have left point of shipment.
8. Terminations and Hold Orders. No order
may be terminated by the Buyer except upon written request by Buyer
and approval by Seller and it said request is approved by Seller,
under the following conditions.
(1) The Buyer agrees to accept delivery of and
pay for at the appropriate current prices all of the units
completely manufactured by Seller through the work day on which the
termination is received by Seller.
(2) The Buyer agrees to pay Seller all
direct and indirect costs and expenses applicable to the portion of the
order that is incomplete.
(3) The Buyer acknowledges that “Hold
Orders” and “Stop Work Orders” are properly considered at Seller’s
9. Protection Against Infringement. Seller
agrees that it will at its own expense, defend any suits which may
be instituted by any party against Buyer for alleged infringement of
United States or Canadian patents relating to the goods of its own
manufacture furnished hereunder, as used in the regular course of
Buyer’s business, provided Buyer shall have made all payments then
due hereunder, and gives to Seller immediate notice in writing such
suits and in such suit, Seller will pay such award, but Seller shall
not be responsible for any compromise without its written consent,
nor shall it be bound to defend any suit or pay any damages therein
when the same shall arise by reason of the use of parts not
furnished by Seller hereunder, in the event that the use or sale of
sold goods enjoined, Seller, if unable within a reasonable time to
secure for Buyer the right to continue using or selling the said
goods will, at its own expense, either replace the said goods so
that the same becomes non-infringing or remove the enjoining goods
and refund the sum paid, therefore; the foregoing states the entire
liability of Seller for patent infringement by said goods or any
Seller resumes no liability whatever for
patent infringement for any goods or part thereof manufactured to
10. Credit. Seller reserves the right at
any time to revoke any credit extended to Buyer if Buyer fails to
pay for any shipments when due or if in the Seller’s opinion there
is a material adverse change in Buyer’s financial condition. Seller
may at its option, cancel any accepted order if Buyer fails to meet
any invoice due.
11. Warranty. Seller warrants its products
against defects in the workmanship and materials of the items
purchased under this order provided, however, that notice of such
defect is received in writing by Seller within one year from date of
delivery of the item under this order. Seller’s liability under this
clause is restricted to replacing, repairing, or issuing credit (at
Seller’s option) for any returned unit and only under the following
(1) Seller must be promptly notified in writing
as soon as possible after defects have been noted by the customer
but no later than one year from date of delivery.
(2) The defective merchandise is to be
returned to place of manufacture, shipping charges prepaid by the
(3) Our inspection of the returned units
shall disclose to our satisfaction that the units were defective in
workmanship or materials at the time of delivery.
(4) Warranty will become null and void if
product is tampered with.
(5) Mounting instructions must be
followed to maintain warranty coverage.
All other warranties, for any of Seller’s
products, expressed or implied, statutory or otherwise, including
without limitation any implied warranty of merchantability or
fitness for purposes are excluded.
12. Returns and Adjustments. No unit may
be returned unless authorized in advance and agreed to by Seller and
then only upon such conditions as Seller may agree to. Buyer shall
be responsible for the unit returned until such time as Seller
receives the same at its plant and for all charges for packaging,
inspection, shipping or transportation or insurance associated with
returned material. In the event that credit for returned materials
is granted, it shall be at the prices in effect as of the date of
any original shipment of the unit by Seller. Claims for shortage or
incorrect material must be made within 5 days after receipt of
13. Limitation of Liability. Seller’s liability for any
claim of any kind (except) “Protection against infringement shall
not exceed purchase price of any goods which give rise to the claim.
Seller shall in no event be liable for Buyer’s manufacturing costs,
lost profits, goodwill or other special or consequential damages.
Seller can not be made responsible for any application of its
devices nor does the Seller recommend the use of its devices in life
14. Non-Waiver by Seller. Waiver
by Seller of a breach of any of these terms and conditions shall not be
construed as a waiver of any other breach.
15. Compliance with Laws. Seller
intends to comply with all laws applicable to its performance under any
16. Errors. Clerical errors are
subject to correction.
17. Governing Law. All matters relating to
the interpretation and effect of those terms and any authorized
changes, modifications or amendments thereto shall be governed by
the laws of the Province of Ontario.
18. Extended Meanings. Words importing the
single number only shall include the plural and vice versa and words
importing the masculine gender shall include the feminine and neuter
genders and words importing persons shall include firms and
corporations and vice versa.
19. Headings. Headings of articles and
sections hereof are inserted for a convenience of reference only and
shall not affect the construction and interpretation of this
20. Entire Agreement. This agreement
constitutes the entire Agreement between the parties with respect to
the Corporation and their participation therein, except as herein
stated and in instruments and documents to be executed and delivered
pursuant hereto, and contains all representations, undertakings and
agreements of the respective parties. There are no verbal
representations; undertakings or agreements of any kind between the
parties respecting the subject manner hereof except those contained
Currency. Unless otherwise specified, all references
herein to currency shall be in US dollars