(Rev. 01-2013, January 2013)
1. APPLICABLE TERMS AND
These terms and conditions of sale establish the rights,
obligations, and remedies of Measurement Specialties, Inc. (“MEAS”) and Buyer. They apply to any order issued by Buyer for
the purchase of MEAS goods or services unless MEAS and Buyer have signed a
valid written purchase agreement that covers the specific goods that are the
subject of Buyer’s purchase order. MEAS’s acceptance of Buyer’s order is made
expressly conditional on agreement by Buyer to these terms and conditions of
sale. No additional, different, or
variation in the terms, no matter how minor, whether or not contained in
Buyer’s purchase order, contract, or any other document or communication
pertaining to Buyer’s order, shall be binding on MEAS unless MEAS through an
authorized representative explicitly agrees to such term in writing. .
2. QUOTATIONS. Unless otherwise stated, quotations are valid
for sixty (60) days and are non-binding until MEAS accepts Buyer’s written purchase
3. MINIMUM ORDERS. Unless expressly
waived in a written quote, a surcharge of $100 (75 €/60 £) will be applied to
orders below $750 (500 €/400 £). In
addition, any product-specific minimum order quantities shall be specified in a
4. PRICING AND DELIVERY.
a. Unless otherwise
agreed, all prices are in U.S. dollars and
exclude V.A.T. and any other applicable tax, duty, customs charge, or fee associated
with the import or export of the good through local customs, or any other
charge of any nature imposed by any governmental authority. Buyer shall reimburse MEAS in the event MEAS
is required to prepay any such tax, charge, or fee.
b. Unless otherwise
agreed, delivery will be EX Works, the MEAS site of manufacture (Incoterms 2010). Goods will be packed in non-returnable
packaging unless MEAS has agreed in writing to customer-specific packaging or
labeling. Transportation will be arranged at Buyer’s request and expense.
Any quoted delivery date is an estimate only and commences from
MEAS’s written acknowledgment of Buyer's order.
Buyer’s sole remedy for failure of MEAS to deliver in a timely manner
shall be to acquire the goods from another source, in which case said quantity
shall be eliminated from this contract. Buyer
shall have no claim against MEAS for damages due to late delivery.
5. CANCELLATIONS. In the case of
customer-specific/configurable goods, MEAS reserves the right to charge a
cancellation fee equal to the amount of its irrevocable raw material purchase
commitments, the value of finished goods, inventory carrying costs, and WIP
(whichever applicable) if Buyer cancels or modifies its purchase order (i)
before the acknowledged delivery date, (ii) during the quoted lead-time, or
(iii) before the Buyer’s original requested ship date, whichever is later. Buyer’s payment of the cancellation fee shall
be due within thirty (30) days of the date of the MEAS invoice for the
cancellation fee. Buyer’s request to delay/extend delivery by
an additional ninety (90) days after the original delivery date may be deemed a
cancellation/modification of the purchase order.
6. INSPECTION AND ACCEPTANCE. Buyer will inspect the goods within twenty
(20) days of receipt. Goods will be
presumed to be accepted unless MEAS receives written notice of rejection
explaining the basis for rejection.
Title and Risk of Loss.
a. Title (ownership) of
the goods will pass to Buyer only on receipt by MEAS of full payment of its invoice.
Buyer shall cooperate in any measures
necessary for the protection of MEAS’s title, including authorization to notify
and register the reservation of title in public registries, books, or records.
b. Unless otherwise required
by the applicable INCOTERM, risk of loss shall pass to Buyer upon dispatch of
the goods to the carrier for delivery to Buyer.
All goods are shipped at Buyer's risk and claims for goods damaged or
lost in transit should be filed by the consignee direct with the transportation
a. Subject to credit
approval and unless otherwise agreed to in writing, payment shall be due without
deduction thirty (30) days from the date of invoice. Payments must be made in the quoted currency. Buyer shall not withhold payment on account
of any claim against MEAS.
b. MEAS reserves the
right to charge interest at 1.5% per month on any sum outstanding after
the due date. Such interest shall be
payable on demand and may be charged and added to the balance of overdue
In the event that Buyer fails to remit a payment when due, MEAS may
with reasonable written notice to Buyer, stop work and withhold future
shipments until all delinquent amounts and interest, if any, are paid. In addition, at its option, upon thirty (30)
days written notice to Buyer, MEAS may (i) repossess the goods for which
payment has not been made, (ii) cancel this contract, and/or (iii) recover all
costs of collection, including but not limited to, reasonable attorney
fees. These remedies may be in addition
to any other remedies available to MEAS, at law or in equity.
LIMITED PRODUCT Warranty.
MEAS warrants title to the goods sold under this contract and
that for the applicable warranty period set forth in Paragraph (b) below, the goods
conform to MEAS specifications and are free from defects in material and
workmanship. MEAS MAKES NO OTHER WARRANTY AND EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES OF ANY KIND EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE EVEN IF THAT PURPOSE IS KNOWN
TO MEAS, OR ANY WARRANTY RELATING TO PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER
Warranty Period. The
warranty period shall be one (1) year from the date of shipment.
The warranties set forth in Paragraph (a) do not apply to
engineering samples or prototypes, which are delivered on an “as is” basis.
MEAS’s warranty does not extend to and any warranty is expressly
excluded for non-conformities or defects of the goods deriving or resulting
from (i) components of other manufacturers included in the good, (ii) improper
handling, testing, installation or use, (iii) unauthorized repair or alterations,
(iv) use not covered by the specifications or use for specific applications,
(v) Buyer’s design, specifications, or instructions, (vi) negligence or
accident, or (vii) defects due to accident, fair wear and tear, tampering,
improper operation, improper storage, or fault on the part of any person other
If the good(s) fails to meet the warranties set forth in Paragraph
(a), MEAS shall, at its option, provide replacement parts (for purposes of this
provision, “replace” does not mean go into the field and replace installed
parts) or repair the non-conforming good(s) at no cost to Buyer. Repair or replacement shall be Buyer’s sole
and exclusive remedy for a breach of warranty.
Any other rights or remedies of Buyer are expressly excluded,
particularly, but not limited to, entitlements (if any) to a reduction of
compensation, rescission, or the bringing in of a third party. MEAS shall not be liable for damages, losses,
costs, or claims arising from its failure to conform to a warranty.
WARRANTY. Buyer warrants that the designs and
specifications furnished by it to MEAS will not infringe any patent, trademark
or copyright with respect to the manufacture or sale of the resulting goods.
SERVICES. MEAS performs Services in a professional and
workmanlike manner and with qualified personnel. MEAS does not assume any obligation to
deliver particular results or deliverables when providing Services and
disclaims all warranties, if any, for the provision of Services.
12. RETURNS. Buyer’s warranty
claim will be subject to MEAS’s Return Material Authorization (RMA) procedures
(available on the MEAS website). The claim
must be in writing and made within the warranty period. Buyer must return non-conforming goods within
sixty (60) days of receipt of a RMA Number from MEAS. Freight costs to return non-conforming goods
will be at MEAS’s expense, unless MEAS rejects the warranty claim in which case
Buyer shall be responsible for such costs. .
a. Only standard,
catalog goods may be returned at Buyer’s convenience. Returns for convenience are subject to a $100
or 15% (whichever is greater) re-stocking fee, excluding freight charges. Goods must be returned in “as new” condition
and in proper packaging and shipping materials (must comply to ESD safety
precautions, if applicable). CUSTOMER-SPECIFIC GOODS, INCLUDING
CONFIGURABLE GOODS, CANNOT BE RETURNED FOR RE-STOCKING.
b. Goods shipped to
Buyer under a government-issued export license or other governmental export authorization
shall not be returned unless specifically authorized by MEAS. Buyer shall comply with all instructions
issued by MEAS for the return of export-licensed goods.
Delays (FORCE MAJEURE). Except for
payment obligations, neither party will be liable to the other for delay in
performance or non-performance, in whole or in part, if performance has been
made impracticable by compliance in good faith with any applicable foreign or
domestic governmental regulation or order, whether or not it later proves to be
invalid, or by the occurrence of a contingency the non-occurrence of which was
a basic assumption on which this contract was made, including, but not limited
to, acts of God, fire, flood, accident, riot, war, sabotage, strike, labor
trouble or shortage, or embargo. MEAS's inability to obtain at prices and on
terms deemed by it to be practicable any required raw material, energy source,
equipment, labor, or transportation, or any increased costs due to capital
improvements for environmental protection shall also be sufficient to relieve
MEAS of its obligation to perform hereunder. If any of such circumstances
affect only a part of MEAS’s capacity to perform, MEAS shall have the right to
allocate goods and deliveries among all of its customers and its own
requirements in a manner and at such times as MEAS may determine. Quantities affected
by this paragraph may, at the option of either party, be eliminated from the
contract without liability, but the contract shall remain otherwise unaffected.
DELAY. MEAS shall not be liable
for any delays or increased costs caused by Buyer, such as delays in providing
necessary information, end-use certificates, late payments, or other Buyer
deliverables or delays by Buyer-designated suppliers in providing goods or
services. In the event of a non-force
majeure Buyer-caused delay, the price and other affected terms will be adjusted
accordingly to reflect MEAS’s increased costs or other adverse impacts
associated with the delay. In addition,
if delivery of goods or services is delayed due to acts or omissions of Buyer or
Buyer-designated suppliers, MEAS may store the goods at Buyer’s risk and
expense, and may invoice Buyer just as if there had been no delivery delay.
a. Buyer will indemnify,
defend and hold MEAS harmless from and against
any liability, cost, expense (including reasonable attorneys' fees),
claim, judgment, settlement or damage that MEAS may be required to pay to any
third party (including, but not limited to, any employee of Buyer who alleges
or proves injury in the course of his or her employment while working with the goods
supplied by MEAS under this contract),
which is caused or contributed to by the negligence or fault of Buyer; or
results from the infringement of any patent, trademark or copyright related
to designs or specifications supplied by
Buyer. In case the Buyer resells the goods supplied
by MEAS under this contract, Buyer will request and, if possible, obtain from
its customer an indemnification similar to the foregoing for the benefit of
Buyer and MEAS.
b. Subject to the
Limitation on Liability section, MEAS will indemnify, defend and hold Buyer
harmless from and against any liability, cost, expense (including reasonable
attorneys' fees), claim, judgment, settlement or damage that Buyer may be
required to pay to any third party, which is caused or contributed to by the
negligence or fault of MEAS.
16. INTELLECTUAL PROPERTY RIGHTS.
a. Unless otherwise
agreed to in writing, ownership of intellectual property rights in goods or
services provided by MEAS under this contract, including all patents,
copyrights, trademarks, and other intellectual property rights shall at all
times remain solely and exclusively with MEAS.
MEAS’s sale of goods to Buyer does not convey to Buyer any license or
any other right, express or implied, to such intellectual property rights.
b. MEAS confirms to the
best of its knowledge that there are no third party intellectual property rights
infringed by the goods. MEAS, however,
does not warrant that the goods do not infringe rights of third parties.
a. MEAS shall not be
liable in contract, tort or otherwise for any injury, loss, or damage suffered
by Buyer arising out of or in connection with the supply of goods or services
by MEAS under this contract.
b. In no event shall MEAS be liable
for special, incidental, consequential, punitive, statutory, or indirect
damages, including, but not limited to, loss of profits, revenues, capital or
business opportunity, OR downtime costs.
liability UNDER its indemnification obligations IN this contract shall not
exceed twice the amount actually paid to MEAS for the portion of such goods or
services to which liability arises.
d. All of the foregoing limitations
shall apply irrespective of whether liability arises from breach of contract,
breach of warranty, tort, negligence, strict liability, or any other legal
theory. Notwithstanding this limited
liability, MEAS does not disclaim liability for personal injury or death caused
by defective products to the extent such liability is expressly mandated by
a. Either party may
terminate this contract and any or all unperformed Orders by giving written
notice to the other party in the event:
The other party materially breaches
this contract and fails to remedy the breach within forty-five (45) days after
receipt of written notice that specifies the grounds for the material breach;
The other party fails to make any
payment required under this contract when due, and fails to remedy the
non-payment within thirty (30) days after written receipt of the notice of
The other party becomes insolvent or
files a petition for bankruptcy, or a petition is filed against it relating to
bankruptcy, arrangement, reorganization, receivership, or assignment for the
benefit of its creditors.
b. Termination for the
reasons set forth in Paragraph (a) shall take effect immediately. However, termination shall not affect any
debt, claim, or cause of action accruing to any party against the other party
before the termination.
Agreement. These terms and
conditions of sale constitute the entire contract of sale and purchase of the goods
between the parties. It is not
assignable by Buyer without the written consent of MEAS. No modification of
this contract shall have any force or effect unless in writing signed by the
parties and no modification shall be effected by the acknowledgment or
acceptance of purchase orders containing different terms or conditions.
Law. This contract shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia without
regard to any conflict of law principles, except that any arbitration initiated
pursuant to the Dispute Resolution provision below, shall be governed by the
Federal Arbitration Act, Chapters 1 and 2. The United Nations Convention on Contracts for
the International Sale of Goods, 1980, and any successor thereto, does not
21. DISPUTE RESOLUTION.
a. The Parties shall use their best
efforts to resolve any disputes, disagreements, or controversies arising out of
or related to this contract by good faith negotiations. If such disputes are not resolved within
sixty (60) days after notification by one party to the other of the problem,
either party may formally submit the dispute to binding arbitration. If both parties are incorporated (organized
to conduct business) in the United States, the dispute shall be finally settled
by arbitration administered by the American Arbitration Association in
accordance with the provisions of its Commercial Arbitration Rules. The
language of the arbitration shall be English.
The place of the arbitration shall be Washington, D.C. The judgment upon the award rendered by the
arbitrator maybe entered into any court having jurisdiction thereof. Nothing in
this contract shall prevent either party from seeking provisional measures
(e.g., pre-arbitral attachments, temporary restraining order, temporary
injunction, permanent injunction and/or order of specific performance) from any
court of competent jurisdiction, and any such request shall not be deemed
incompatible with the agreement herein to arbitrate, or a waiver of such right
b. If Buyer is incorporated in North
or South America (but not the United States), any dispute will be finally
resolved by arbitration submitted to the International Centre for Dispute
Resolution (ICDR) in accordance with its International Arbitration Rules. The place of arbitration will be Miami,
Florida, USA. The arbitration will be
conducted, and the award rendered, in English.
Any award will be payable in U.S. dollars, and may be entered or
enforced in any court having jurisdiction, the parties hereby consenting to the
jurisdiction of said court.
Buyer is incorporated in Europe, Africa or the Middle East, any dispute will be
finally resolved by arbitration submitted to the International Centre for
Dispute Resolution (ICDR) in accordance with its International Arbitration
Rules. The place of arbitration will be
London, England. The arbitration will be
conducted, and the award rendered, in English.
Any award will be payable in the currency of the purchase order, and may
be entered or enforced in any court having jurisdiction, the parties hereby
consenting to the jurisdiction of said court.
d. If Buyer is incorporated in a country
located in the Asia-Pacific region, any dispute will be finally resolved by
arbitration submitted to the International Centre for Dispute Resolution (ICDR)
in accordance with its International Arbitration Rules. The place of arbitration will be Singapore. The arbitration will be conducted, and the
award rendered, in English. Any award
will be payable in U.S. dollars, and may be entered or enforced in any court
having jurisdiction, the parties hereby consenting to the jurisdiction of said
Assistance and Data. MEAS may, at Buyer's request, furnish technical assistance,
advice and information with respect to the goods supplied under this contract,
if and to the extent that such assistance, advice and information is readily
available, except for proprietary techniques or procedures. It is expressly
agreed that there is no obligation to provide such information, and that the
information is subject to the Limitation on Liability Section of this contract.
MEAS accepts no liability in contract, tort or otherwise for any damages or
injury arising directly or indirectly from any error or omission in such
technical data or literature.
23. Tools. Tools made for the
manufacture of goods to be supplied under the contract and the copyright
therein remain MEAS property notwithstanding that the Buyer may have been
debited with any sum in respect of their cost.
24. EXPORT AND IMPORT COMPLIANCE.
a. Buyer is responsible
for compliance with all applicable import and export control laws and
regulations. Buyer will obtain import,
export, and re-export approvals and licenses required for the goods, services,
or technical data delivered under this contract and will retain documentation
evidencing compliance with those laws regulations.
b. Upon request, Buyer
shall provide information within the stated deadline, including end-use
certificates, to MEAS for purposes of MEAS’s export compliance requirements.