Terms & Conditions
BY ACCEPTING DELIVERY OF THE GOODS OR SERVICES COVERED HEREBY, BUYER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN ITS PURCHASE ORDERS OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED HEREIN AND ON THE REVERSE SIDE HEREOF AND ALL SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL BE NULL AND VOID.
1. PRICE. A quotation not accepted within thirty (30) days is subject to review, cancellation, or re-quotation at the Seller’s sole discretion and without notice. Prices are subject to change by Seller without notice; increases in labor, freight, and material costs before completion of the contract plus applicable overhead may be invoiced to Buyer. Premium time as required by the Buyer will be invoiced as an extra item.
2. DELIVERY OR PERFORMANCE. Unless otherwise specified on the face hereof, all deliveries are FOB point of shipment. Shipment will be made in accordance with the Seller’s instructions. Upon delivery of goods to the carrier, the Buyer assumes the risk of all loss and damage resulting from any cause whatsoever. Shipping, delivery, or performance dates are approximate and are not guaranteed. Seller may ship and invoice for a quantity of up to ten percent over or under the quantity specified and buyer agrees to accept and pay for such quantity and Seller’s performance shall be deemed complete. Partial deliveries shall be accepted and paid for by the Buyer at contract prices and terms.
3. FORCE MAJEURE. Seller shall not be liable for delay or other failures of performance due to causes beyond its reasonable control including without limitation acts of God, acts of Buyer, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, delays in transportation or car shortages, or inability to obtain necessary labor, materials, components, equipment, services, energy, or utilities through the Seller’s usual and regular sources at usual and regular prices. In any such event, Seller may at any time without further liability to Buyer, (a) postpone performance under the contract, (b) make partial performance or cancel all or any portion of this contract, or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of this contract shall not affect Buyer’s duty to pay for the performance of any other part thereof.
4. WARRANTY AND REMEDY. Unless otherwise expressly stated on the face hereof Seller warrants to Buyer for a period of three months from the date of shipment and/or performance of services, that its services hereunder are performed in a good and workmanlike manner in that goods delivered hereunder are free from defects in materials and workmanship except that the materials furnished by Seller’s suppliers or subcontractors are warranted by Seller only to the extent of the supplier’s or subcontractor’s express warranty to Seller. If during such period Buyer promptly notifies Seller in writing of any breach in such warranty and complies with any applicable warranty procedures of Seller, Seller shall at Seller’s option, re-perform services, repair or replace any defective goods at Seller’s plant (Buyer to pay all transportation charges) or refund the price of the goods or services or part thereof which gives rise to the claim. Seller shall make no allowance for repairs or alterations made by Buyer unless made with Seller’s prior written consent. The foregoing shall constitute the sole and exclusive remedy of Buyer and the full liability of the seller for any breach of warranty. THE FOREGOING IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY OR FITNESS FOR PURPOSE AND SUPERCEDES AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATIONS OR WRITTEN WARRANTIES OR REPRESENTATIONS NOT EXPRESSLY DESIGNED IN WRITING AS A “WARRANTY” OR “GUARANTEE” OR SELLER, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING, BROCHURE, OR OTHER MATERIALS.
5. LIMITATIONS OF SELLER’S LIABILITY. Seller’s liability or any claim of any kind, including negligence, with respect to the goods or services covered hereunder, shall in no case exceed the price of the goods or services or part thereof which gives rise to the claim. IN NO EVENT SHALL THE SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES IN THE NATURE OF PENALTIES.
6. LIMITATION OF ACTIONS. Any action for any loss or damage with respect to the goods or services covered hereunder must be commenced by the Buyer within one year after the Buyer’s cause of action has accrued.
7. INDEMNIFICATION AND WAIVER. Buyer shall defend, indemnify, and hold harmless Seller from any loss or damage sustained directly by Seller and from and against all claims asserted against Seller with respect to the goods or services covered hereunder arising in whole or in part out of (a) failure of Buyer, its agents, employees, or customers to follow specifications, instructions, warnings, or recommendations furnished by Seller, (b) misrepresentation by Buyer, its agents, employees, or customers, (c) the sole or contributing negligence of Buyer, its agents, employees, or customers, or (f) alleged infringement of any patent, trademark, or copyright as a result of Seller’s performance in accordance with Buyer’s designs, plans, or specifications. Buyer hereby waives and releases Seller from all rights or contribution or indemnity to which it may otherwise be entitled. As used in this paragraph, the term “Seller” shall mean Seller, its officers, directors, agents, employees, subcontractors, parents, subsidiaries, divisions, and affiliates.
8. CANCELLATION BY BUYER. Buyer may cancel this contract only upon written notice to Seller and payment of reasonable cancellation charges including (1) the price for goods and services completed prior to Seller’s receipt of such notice; (2) all costs previously incurred in connection with uncompleted goods or services together with reasonable profit thereon, and (3) the expenses incurred by Seller by reason of such cancellation.
9. TAXES. All taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export, or use of the goods, or services, (other than income taxes) shall be paid by Buyer. Buyer shall defend, indemnify and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by Seller in connection therewith.
10. ADVICE AND ASSISTANCE. Upon request, Seller in its discretion may furnish an accommodation to Buyer technical advice or assistance regarding the goods or services. Seller assumes no obligation or liability for the advice or assistance given or results obtained, which shall be at Buyer’s sole risk.
11. BUYER’S MATERIALS. All of Buyer’s tooling, goods, and other property in Seller’s possession shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to such materials caused by Seller’s negligence or otherwise. At any time after one year since completion of any order requiring the use of such materials Seller may use or dispose of such materials without liability to Buyer.
12. SELLER’S PROPRIETARY RATES. All drawings, inventions, or improvements made by or for Seller in connection with the performance of this contract shall be the Seller’s property. Buyer shall not reproduce any drawing furnished by Seller. Buyer shall not use or disclose any of Seller’s trade secrets or confidential information, whether or not designated as such except as required in connection with the use of the goods or services covered hereunder.
13. SECURITY AGREEMENT; CREDIT AND COLLECTION. To secure payment of all sums due Seller hereunder or otherwise. Seller shall retain a security interest in the goods delivered hereunder and this contract shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect such security interest. Seller is relying upon Buyer’s representation of solvency and if Seller at any time reasonably believes that Buyer is insolvent or that Buyer’s credit is impaired, Buyer shall be in material breach hereof and Seller may, without liability to Buyer, withhold performance hereunder, change the payment terms and/or repossess goods theretofore delivered. Title to the goods covered hereby shall remain in Seller until full payment is received. Seller may charge Buyer finance, service, or late charges in an amount not greater than allowed by law, and if Buyer fails to make payment when due, Buyer shall be liable to Seller for all costs of collection including attorney’s fees.
14. MISCELLANEOUS. This contract constitutes the entire agreement between Buyer and Seller relating to the goods or services covered hereunder. No modifications shall be binding upon the Seller unless in writing signed by Seller’s duly authorized representative. No waiver by Seller of default by Buyer shall be deemed a waiver of any subsequent default. Captions used herein shall have no substantive significance.