1. Contract Formation
Buyer’s order, communicated by any means, constitutes Buyers’ acceptance of all Seller’s terms and conditions of sale, which are set forth on Seller’s Quotation Form(s). In the event Seller’s quotation constitutes an offer, Buyer’s acceptance is expressly limited to Seller’s terms and conditions of sale which acceptance is manifest by order entry by whatever means used by Buyer. Seller’s terms and conditions of sale take precedence over and supercede any conflicting, different, inconsistent or additional terms contained in any of Buyer’s documentation or electronic transmissions, and any such conflicting, different, inconsistent or additional terms are hereby objected to and rejected by Seller.
All shipments are FOB Seller’s factory or warehouse unless otherwise quoted. Title and risk of loss shall pass to Buyer at the FOB point. All freight and transportation charges, customs duties and insurance, if any, shall be at Buyer’s expense. Carriers are responsible for goods lost or damaged in transit and Buyer/consignee must immediately notify carrier in writing of such loss or damage. Bulk packaging is standard unless otherwise quoted.
Delivery lead times and shipment date as specified by Seller are approximate. Seller agrees to assume limited liability for failure to comply with an acknowledged delivery date. This liability shall be limited to reasonable premium freight cost to the Buyer’s facility only. The liability is limited to the comparable value of product being shipped as deemed appropriate by Seller. At no time does Seller agree to assume liability for premium freight incurred by Buyer as a result of a missed shipment. Delay in delivery shall not give Buyer the right to cancel any order(s).
Quoted prices are subject to change. Labor shall be considered firm for one year. Any raw material increases will be passed along as they occur. Seller will provide written documentation to substantiate such increases. Buyer will have 30 days from notification date to issue updated Purchase Order. Seller assumes no liability for failure to produce or ship product for which an amended Purchase Order has not been issued by Buyer.
5. Order Minimums
Where minimum released quantities are quoted Seller agrees to allow the Buyer to release these quantities over a ninety-day period. In doing so, the Buyer must provide a written schedule outlining the specific dates for which the parts will be taken, so long as the ninety-day time frame is complied with.
Terms of payment are net 30 days from the actual date of invoice unless otherwise negotiated. Seller reserves the right to require full or partial payment, or other security to secure performance of Buyer’s obligation, before commencing or continuing work and/or prior to shipment of finished goods. Buyer shall be liable to Seller for all attorneys’ fees incurred by Seller in connection with the collection of unpaid invoices. All payments to be made in U.S. Dollars unless otherwise specified.
7. Cancellation of Orders/Returns
Orders shall not be canceled or returned without Seller’s prior written authorization. Shipments returned to Seller without prior written authorization will be returned to Buyer, at Buyer’s expense, as well as subject to payment by Buyer of cancellation charges. For return authorization, contact Seller’s Quality Control Department.
In the event of unauthorized cancellation by Buyer, in whole or in part, Buyer shall be liable for payment of cancellation charges in the amount of all losses, costs, expenses and/or damages incurred by Seller.
8. Warranty/Buyer’s Remedies/Limitation of Liability
Seller warrants that the products manufactured and sold by Seller shall be in accordance with Buyers specifications and free from defects in material and workmanship for a period of one (1) year from the date of delivery to Buyer if used under normal circumstances and provided any defect(s) are not the result of: (1) installation method; (2) customer or third party abuse or misuse; (3) wear or deterioration due to environmental conditions. Buyer shall give written notice to Sellers Quality Department of the discovery of any alleged defect within such one (1) year period.
The above is the sole and exclusive warranty of Seller, there are not other warrants, either express or implied, as to any matter whatsoever, including, without limitation, the implied warranties of merchantability or fitness for particular purpose. The sole and exclusive remedy of Buyer for any breach of warranty by Seller shall be that Seller shall provide, upon confirmation of the defective condition of the subject part, at no cost to Buyer, a replacement part for each defective part manufactured and sold by Seller to Buyer, or at Buyer’s choice, Buyer shall receive a credit toward a future purchase in an amount equal to the purchase price paid by Seller for defective parts. In cases where Seller is unable to provide replacement parts in a timely manner Seller may authorize reasonable sorting or rework charges. When this is the case, Buyer must receive written authorization from their Quality Control Manager who collectively will negotiate and ensure that the intended charge is comparable to the value of product in question.
In no event shall Seller be liable for consequential or indirect damages, or economic losses, loss of use, lost profits, down time or damages due to delay, whether by reason of breach of warrant, breach of contract, negligence, strict liability or otherwise.
Buyer shall be liable for all sales, use, excise or other taxes associated with Buyer’s order(s). Buyer shall provide, if applicable, a valid and correct tax exemption certificate applicable to the product destination location, in order to establish that any transaction is subject to sales or use tax exemption.
In the event Seller provides a quotation to Buyer, such quotation shall be expressly conditioned upon these terms and conditions and shall be valid for 30 days from the date of the quotation. Any quotation or response to a request designated as “budgetary” is provided as a convenience to the Buyer to be used as a guideline only. Such “budgetary” quotations or response and any information contained therein, including by way of example, pricing, delivery or quantities is not binding upon Seller.
11. Product Design/Specification Changes/Technical Data Sheets
Seller manufactures all its products solely in accordance with Buyers specifications. Seller recommends that Buyer request a product sample for testing to determine the suitability of the product for Buyer’s intended purpose and application under actual service conditions. Seller makes no warranties or guarantees with respect to intended performance requirements of Buyers design. Seller has in-house capability to perform such testing upon agreement of the specific details of the test and Buyers approval of any associated cost implications.
Where tooling charges have been billed and paid by Buyer, Seller agrees to retain and maintain said tooling for the life of the program. Seller agrees to assume liability and expenses for normal maintenance. Buyer may incur additional tooling expenses if: (1) the volume exceeds the capacity of original tooling; (2) a revision change is made that requires modification and/or completely new tooling. In the event of a tool transfer request by Buyer, Seller will require that all associated cancellation charges for product and material be paid in full prior to releasing the tool. In the event of obsolescence or inactivity, Seller agrees to hold tooling for a maximum of 2 years beyond last ship date. After which time, Seller will notify Buyer in writing giving them 30 days to respond as to the tool’s status. Seller reserves right to scrap tooling if no response is received in the 30-day period.
In all cases, any tooling returned to Buyer will be subject to a packaging charge that is to be paid prior to the release of said tooling. In addition, Buyer assumes all transportation arrangements and expense.
13. Patent Indemnity; Limitation of Responsibility and Damages
(a) In the event any Article not made to Buyer’s specifications is claimed to infringe any United States patent, copyright, trademark or other trade designation, trade secret, or other intellectual property right in effect in the United States at the time Buyer’s order is accepted. Seller agrees, at its option: (1) to procure for Buyer the right to use the Article; or (2) to modify or replace the Article so as to avoid infringement, or (3) to accept redelivery of the Article and reimburse Buyer for the purchase price and any reasonable transportation expenses incurred by Buyer. Should any litigation be instituted against Buyer based on a claim that any Article in the condition received from Seller so infringes. Seller will undertake the defense on Buyer’s behalf and pay any damages and costs awarded therein against Buyer, provided Seller is given prompt written notice and is furnished with copies of all demands, process and pleadings; and provided Buyer cooperates fully in giving Seller authority, information and assistance at Seller’s expense for such defense, as well as control over the defense and any settlement and negotiations with regard to settlement. (b) The foregoing represents Seller’s entire and exclusive obligation with respect to any charge of infringement of any intellectual property right and is in lieu of any statutory warranty relating to infringement. Seller will have no responsibility insofar as any article is modified by Buyer or is made or modified by Seller in accordance with Buyer’s order, and Buyer will indemnify, defend and hold Seller harmless against all damages, costs or expenses, including attorney’s fees, paid or incurred by Seller in connection with any claim of infringement of a patent, copyright or trademark, trade secret, or other proprietary right which arises out of Seller’s compliance with Buyer’s specifications. Seller will also have no responsibility with regard to any settlement, admission or promise made by Buyer without Seller’s prior written consent, nor will Seller be liable for any indirect, special or consequential damages of any nature whatsoever, including lost profits, claimed to have been sustained by Buyer or any user of an article arising out of any claim of infringement.
Each party shall maintain in confidence, and there shall be no disclosure to any third parties, of all information submitted prior to or after execution of this Agreement, whether in writing or discussed orally (but reduced to writing within 30 days thereafter) with the other with respect to the product design, its development and/or subject matter of this Agreement; provided, however, information in the public domain prior to any disclosure hereunder or which becomes part of the public domain through no fault of the recipient, information in the possession of either party prior to disclosure hereunder and not having been disclosed to the other by either party to this Agreement, information independently developed by either parts and not the result of information disclosed pursuant to this Agreement, or information disclosed to either party a third party having a lawful right to do so shall be excluded from the obligation of non-disclosure. Either party to the other grants no rights or license, by implication or otherwise, under any intellectual property rights, including but not limited to, patents, patent rights or trade secrets.
Any notice relating to this agreement must be in writing and will be considered given when deposited, postage prepaid, in a United States Post Office or authorized depository and addressed to the other party at the address given herein.
Clerical and stenographic errors by Seller are subject to correction.
17. Force Majeure
Seller is excused from performance if performance is rendered impracticable by any accident; breakdown; riot; war; delay; interruption in or failure of sources or subcontractors to supply materials and equipment; strike, labor or transportation problem; act of God; other causes and conditions, whether of like or different nature, that are beyond Seller’s reasonable control; and orders, contracts, priorities, directives, requisitions or requests of the federal or state governments, whether or not voluntarily assumed.
18. Governing Law
The validity, interpretation and performance of the Agreement shall be governed and construed in accordance with the laws of the State of Ohio and not the Convention on International Sale of Goods (“CISG”), the application of which is hereby excluded.
Buyer’s purchase of Seller’s products hereunder pursuant solely to Seller’s terms and conditions represents the entire agreement of the parties and supersedes any prior communications, whether verbal or written, including, but not limited to, product literature. No changes, revisions or amendments shall be valid or enforceable except as subject to agreement in writing signed by both parties. B. Failure of Seller to insist on strict performance of any term or condition shall not constitute a waiver. C. Any remedies of Seller set forth herein shall be cumulative and not exclusive and are in addition to any other remedies Seller may have at law.
Effective as of 11/02