Terms and Conditions
The terms and conditions set forth herein constitute the entire agreement between Buyer and Seller, and no change in or modification of this agreement shall be binding upon Seller unless the change or modification is in writing and signed by Seller. Seller hereby rejects any term or condition of any order, confirmation or other document sent by Buyer (whether before or after date hereof) and by accepting these goods Buyer agrees that any such terms and conditions shall not be part of this agreement, unless in writing and signed by the Seller after the date hereof.
Except as expressly inconsistent therewith, this agreement, as described in paragraph 1 above, and all matters relating to the relationship, shall be governed by and construed in accordance with the provisions of the state laws of the SELLER’S plant.
In the event of Buyer’s breach of any obligation hereunder, Seller shall recover all cost and expenses incurred in attempting to remedy said breach, including its reasonable attorney’s fee, which Buyer agrees to pay.
Seller’s prices firm for a period of thirty (30) days from initial quote. This pricing shall lapse unless the Seller receives an order in response thereto within such period.
Payment shall be made as set forth herein. Seller reserves the right to require payment in advance or to require C.O.D. payment. All payments due hereunder which are delinquent for thirty (30) days shall bear interest at the maximum legal rate from and after that date.
TAXES AND DUTIES:
In addition to the purchase price, Buyer shall pay all sales, use and excise taxes, tariffs, duties and other charges imposed by any country, state or other political subdivision in connection with the sale of the goods. For tax purposes, title to the goods shall pass from Seller to Buyer upon being loaded for shipment, whether by common carrier, by Seller’s or Buyer’s own trucks or otherwise.
TRANSPORTATION AND RISK OF LOSS:
Except as noted herein, all sales under this order are F.O.B. Seller’s plant, Seller reserves the right to select carrier. Prior to delivery of goods to the carrier at the F.O.B. point, the risk of loss or damage thereto shall be borne Seller. At and after the delivery of goods to the carrier at the F.O.B. point, the risk of loss or damage thereto shall be borne by Buyer.
All shipping dates for goods sold hereunder are approximate. Seller will use its best effort to ship goods in accordance with the delivery schedules indicated herein; but Seller shall not be liable for damages whether general, consequential or otherwise, or for delays in shipping. Whenever the Seller’s supply of goods covered by this order is insufficient to meet current shipping requirements, Seller may keep its available supply for its own use or allocate it for its own use and among its customers, including those not under contract, on such basis as Seller shall not be liable to Buyer for failure to deliver all or any part of the quantity hereunder. Additionally, if for any reason Seller is unable to ship the order quantities when due, Buyer shall accept partial deliveries and Seller shall have reasonable time from and after the due date to deliver in full. Any delivery not made due to cause beyond Seller’s reasonable control, including but not limited to, embargoes, civil commotions, labor troubles, strike, fire, flood, accident, failure in production or production equipment, inability to obtain power, raw materials, or shipping capacity, or interruptions occasioned by governmental activities, may be cancelled at Seller’s option, but the obligations of each party with respect to other shipments shall remain unaffected.
If, for any reason whatsoever, Buyer shall cancel or suspend this order or deliveries there under for more than thirty (30) days, Buyer shall pay Seller (i) for goods the production of which has been completed at the time of such interruption, the prices specified herein, and (ii) for goods, the production of which has not been completed or not been started, the costs to the Seller plus Seller’s anticipated gross profit.
Buyer agrees that Seller may ship a reasonable quantity of goods in excess of the quantity ordered or may consider a contract complete with a reasonable under-shipment. Such excess or shortage will not exceed, usually, 10% of the quantity specified.
All claims for damages, errors, or shortages must be made by Buyer within five (5) business days after the goods are delivered. Failure to make such claim within the stated period shall constitute an irrevocable acceptance of the goods and an admission they fully complied with all the terms, conditions and specifications of this agreement.
Seller warrants that any goods sold pursuant to this contract, except those made specifically for Buyer according to Buyer’s specifications or those supplied to Seller by third parties, do not infringe any valid U.S. patent. This warranty is given upon condition that Buyer promptly notifies Seller of any claim or suit involving Buyer in which such infringement is alleged, and if Seller is affected, that Buyer permits Seller to control completely the defense or compromise of any such allegation of infringement. Seller does not warrant that the use of any goods sold hereunder, or articles made there from, either alone or in conjunction with other materials, will not infringe a patent.
MATERIALS SUPPLIED AND TOOLING:
Unless otherwise agreed in writing, all materials supplied by Buyer and all tooling and equipment required for the work covered by the contract shall become and remain the sole property of Seller, notwithstanding tooling charges, if any, to Buyer. Seller may dispose of any such material, tools, and equipment in any manner it sees fit without accounting to Buyer therefore or in the proceeds thereof.
The seller warrants that the goods conform to the description and specifications and are free from defects in material and workmanship. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Buyer acknowledges that he is not relying on the Seller’s skill or judgment to select or furnish goods suitable for any particular purpose and that there are no warranties which extend beyond the description in the face of this agreement. The Buyer assumes all risk and the liability for the results obtained in its manufacturing process by the use of any materials delivered hereunder.
LIMITATION OF LIABILITY:
In addition to the disclaimers set forth on the reverse side hereof and in paragraph 14 above. Buyer acknowledges and agrees that Seller, in any event shall not be liable for any consequential or incidental damages (including revenues and/or profits) that may be claimed to result from an alleged breach by Seller, and special, exemplary Buyer hereby expressly releases Seller from any liability for such damages. Buyer agrees that, in the event of a breach by Seller hereunder, Buyer’s exclusive remedy and Seller’s sole obligation shall be, at Seller’s option, a return of the purchase price of the goods in question or replacement of the goods in question. SELLER SHALL NOT HAVE ANY OTHER OBLIGATIONS WITH RESPECT TO THE GOODS, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. No action may be brought by Buyer against Seller after one (1) year from the date hereof, and Buyer acknowledges and agrees that this provision shall be grounds for dismissal of any suit or claim asserted by Buyer after such time.
VALIDITY OF PROVISIONS:
Whenever possible, each provision and term hereof shall be interpreted in such a manner as to be valid and enforceable, provided that in the event any provisions or term hereof should be determined to be invalid or unenforceable, all other provisions and terms hereof and the application thereof to all persons and circumstances subject thereto shall remain unaffected to the extent permitted by law. If any application of any provision or term hereof to any person or circumstance should be determined to be invalid or unenforceable, the application of such provision or term to other persons and circumstances shall remain unaffected to the extent permitted by law.