Terms & Conditions For Sale
GENERAL: This transaction is expressly limited to the terms stated herein, and any additional or different terms proposed by Buyer are rejected unless expressly assented to, in writing, by Seller.NO PERSON HAS AUTHORITY TO MAKE A CLAIM, ANY REPRESENTATION, WARRANTY, TERMS, PROMISE OR CONDITION, WHICH IS NOT EXPRESSED HEREIN. THIS TRANSACTION SHALL BE BINDING ONLY AFTER WRlTTEN ACCEPTANCE BY AN AUTHORIZED OFFICER OF SELLER. COMMENCING PERFORMANCE SHALL NOT CONSTITUTE AN ACCEPTANCE OF BUYER’S PURCHASE ORDER.
WARRANTY: Should any part, of Seller’s own manufacture, prove to have been defective in material or workmanship when shipped (as determined by Seller), Seller warrants that it will, at its sole option, repair or replace said part f.o.b., point of manufacture, provided that Buyer notifies, in writing, of such defect within twelve (12) months from date of shipment from the manufacturing plant. On request of Seller, the part claimed to be defective will be returned, transportation, insurance, taxes and duties prepaid, to the factory where made, for inspection. Any item, which has been purchased by Seller, is warranted only to the extent of the original manufacturer’s warranty to Seller.Seller shall not be liable for any damages or delays caused by defective material or workmanship. No allowance will be made for repairs or alterations made by others without Seller’s written consent or approval. If repairs or alterations are attempted without Seller’s consent, Seller’s warranty is void. Save as provided in this Clause 2., all liability of Seller, howsoever arising, and all warranties, representations or conditions, whether expressed or implied, are hereby excluded.THE WARRANTIES PROVIDED IN THE OBLIGATIONS AND LIABILITIES OF SELLER HEREUNDER, AND THE RIGHTS AND REMEDIES OF BUYER HEREUNDER ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES ALL OTHER WARRANTIES, GUARANTEES, OBLIGATIONS, CLAIMS FOR LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY FOR MERCHANTABILITY AND FITNESS FOR PURPOSE.
Seller’s total liability is limited to the lower of the cost of repair or replacement.
ORDER CANCELLATION: Should Buyer wish to cancel an order for any reason all or part of an order already accepted by the Seller, the Buyer agrees to pay an order cancellation fee of a.) for catalog items canceled within a day of scheduled shipment, of 25% the extended amount of line item(s) cancelled; and b.) for special items, recovery of time and materials. Any deposits paid to Seller are non-refundable.
RETURNS: Should Buyer wish to return item to Seller for any reason the Buyer must first contact Seller for Return Material Authorization. Items to be repaired outside of Warranty will be inspected and a repair quotation will be provided to the Buyer. Items covered under warranty are treated as defined elsewhere in this document. Unused catalog items that the Buyer wishes to be returned for credit are eligible if the item is returned within 14 days of delivery and after the Seller inspects the item and at the Seller’s discretion is deemed to be unused and suitable for resell. All shipping and handling charges are the responsibility of the Buyer.
TAXES: Prices quoted herein are exclusive of all taxes. Such taxes, if applicable, shall be wholly at the expense of Buyer, and shall be collected accordingly by Seller.
TERMS OF PAYMENT: Net cash thirty (30) days after date of shipment (Bill of Lading) unless otherwise agreed.
DELIVERY: In no event shall Seller be liable for delays in delivery or subject to cancellation when such delays are occasioned by conditions beyond its reasonable control, including, but not limited to, material shortages at Seller’s works or at Seller’s suppliers’ works, strikes, labor or transportation difficulties, war (declared or undeclared), floods, riots, earthquakes, explosions, epidemics, acts of governments, governmental priorities, allocations, regulations or orders affecting materials or facilities, acts of God or freight embargoes.
DAMAGES: SELLER SHALL IN NO EVENT BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OF A COMMERCIAL NATURE, RESULTING FROM ANY CAUSE.
SHIPPING TERMS: Ex-Works. Unless otherwise agreed, title shall pass to Buyer, Ex-Works point of shipment; and the risk of loss, destruction or damage in the course of transportation shall be borne by Buyer.
ARBITRATION: Any dispute, controversy, or claim arising out of or relating to this transaction which cannot be settled amicably shall be finally settled by arbitration. If U.S. Buyer or Owner, the arbitration shall be in accordance with the rules of the American Arbitration Association and shall take place in Dayton, Ohio; if non-U.S. Buyer or Owner, the arbitration shall be in accordance with the rules of the International Chamber of Commerce and shall take place in Dayton, Ohio. The English language shall be used in all proceedings.
NUCLEAR USE: Buyer covenants, represents, and warrants that neither Buyer nor any third parties shall use or resell or otherwise dispose of for use, any equipment or part thereof, or spare parts in connection with any activity or process involving nuclear fission or fusion or any use of handling of any source, special nuclear or by-product materials, as those materials are defined in the U.S. Atomic Energy Act of 1954 (as amended), without Seller’s written consent; and until such time as Buyer or such third party, at no expense to Seller, shall have arranged for insurance coverage, indemnities and waivers of liability, recourse and subrogation, all acceptable to Seller, and all fully adequate in the opinion of Seller, to protect Seller (and its subcontractors and suppliers) against liability of any kind, whether in contract, tort, strict liability, otherwise Buyer’s failure to comply with any provisions of this Clause 9., hereof shall be cause for Seller to cancel the contract, without liability to Seller, and pursue any remedies provided in law or equity by the contract, the Uniform Commercial Code, or otherwise.Aforesaid covenants, representations, and warranties shall survive, in all respects, the contract and sale.
GOVERNING LAWS: This agreement shall be construed in accordance with the laws of the state of Ohio.
ENTIRE AGREEMENT: EXCEPT AS OTHERWISE PROVIDED HEREIN. THIS DOCUMENT AND ANY MODIFICATIONS THEREOF AGREED UPON IN WRITING, SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER AND CAN ONLY BE MODIFIED BY A WRITTEN AGREEMENT SIGNED ON BEHALF OF BUYER AND SELLER BY THEIR RESPECTIVE DULY AUTHORIZED REPRESENTATIVES.
ACCEPTANCE: Seller’s acceptance is expressly made conditional on Buyer’s assent to Seller’s terms and conditions as set forth herein.
Terms & Conditions For Purchase
AGREEMENT, This purchase order, including these terms, conditions and the specifications hereto, constitute the sole and entire agreement between the parties. Seller’s acceptance of this purchase order is limited to the terms and conditions hereof, and written confirmation, commencing performance, or making deliveries on the date required hereunder constitutes such acceptance notwithstanding Seller’s proposals or terms additional to or different from those set forth in this purchase order. Unless otherwise indicated in writing by the Buyer, the required date on this order for receipt of any equipment, materials, or date of performance, controls. Any equipment or materials received or service performed before the required date may be, at the Buyer’s option, rejected and returned to the Seller at the Seller’s expense. The Seller’s quotation is incorporated in and made a part of this purchase order only to the extent of specifying the nature and description of the goods and services ordered, and then only to the extent that such items are consistent with the other terms of this purchase order. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any of the terms or conditions hereof.
RISK OF LOSS. ETC. The risk of loss of and title to the goods shall not pass to Buyer until Buyer actually receives the goods at the point of destination. If any advance payments have been made to Seller by Buyer prior to delivery to the Buyer of manufactured goods, then in such event title to said goods shall pass to the Buyer, but the risk of loss shall remain with the Seller until actual delivery to Buyer has been made.
TIME IS OF THE ESSENCE. Failure to deliver goods of the quality and quantity and within the time or times specified by this order shall, at the option of the Buyer, relieve it of any obligation to accept and pay for such goods as well as any undelivered shipments if there be any; and upon failure to deliver as specified the Buyer may buy like goods elsewhere and charge the Seller with any increased cost or other loss incurred thereon, unless deferred shipment be agreed to by the Buyer in writing. Any failure by the Buyer to exercise its option with respect to any shipment of goods shall not be deemed to constitute waiver with respect to subsequent shipments. This provision is not in lieu of and the Buyer does not waive the remedies provided by law.
WARRANTY. Seller warrants to Buyer and its successors, assigns, customers and users of its products: (a) that the goods shall be of the quality specified or of the best grade of their respective kinds if no quality is specified, shall conform to the specifications, drawings, samples and other descriptions contained herein and to representations made by Seller or its representatives; and shall be merchantable, fit for Buyer’s particular purpose and that the installation of the goods shall so conform to and operate in Buyer’s particular purpose and that the installation of the goods shall so conform to and operate in Buyer’s product as not to prejudice the proper operation hereof; (b) that at the time the goods are accepted by Buyer, the goods shall have been produced, sold, delivered and furnished in strict compliance with all applicable Federal and State laws, municipal ordinances, regulations, rules, labor agreements and working conditions to which the goods are object; (c) in addition to, and not in lieu of the above, that at the time the goods were accepted by Buyer: (i) the goods meet, or exceed the applicable standards imposed by the Consumer Product Safety Act, the goods meet or exceed the safety and health standards established and promulgated under the Federal Occupational Safety and Health Act (Public Law 91-5%) and its regulations in effect as of the date of the awarding of this order; (ii) That Seller has complied with the applicable Federal and State Laws, rules and regulations, including but not limited to executive orders 11246. section 202, 11625, 11701 and 11758. pertaining to the Fair Employment Practices or which prohibit discrimination because of age, color, sex, physical or mental handicap, race, nationality, religion, or creed, and other similar Federal or State Laws or regulations, (iii) Vietnam ERA Veterans Readjustment Act of 1974, (iv) Equal Pay Act and (v) applicable provisions of the Fair Labor Standards Act of 1938 as amended; and (d) that the goods furnished hereunder are free of any claims or liens of whatever nature whether rightful or otherwise, of any person, corporation, partnership or association.
MODIFICATIONS. This Agreement can be modified or rescinded only by a writing signed by both parties or their duly authorized agents.
WAIVER. No waiver by either Seller or Buyer with respect to any breach or default of or with respect to any provision or condition of this Agreement, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default of or with respect to the same or any other provision or condition of this Agreement. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
BUYER’S OPTIONS. Buyer reserves the right to change specifications and delivery dates. Any difference in price required by such changes shall be equitably adjusted and the Agreement shall be modified in writing accordingly. Buyer further reserves the right to terminate all or part of the work to be performed pursuant to this Agreement. In such event, Buyer shall be liable only for materials or components procured, or work done or supplies partially fabricated within the authorization of this Agreement. In no event shall Buyer he liable for incidental or consequential damages by reason of such termination.
INDEMNIFICATION. Seller agrees to protect, indemnify, save and hold harmless Buyer, its officers and employees, from and against all losses, costs and expenses, and from and against all claims, demands, suits and actions for damages, losses, costs and expenses and from and against all liability awards, judgments and decrees of whatsoever nature for any and all damages to property of the Buyer or others of whatsoever nature and for any and all injury to any persons arising out of or resulting from the negligence of Seller; breach of this order in the manufacture of the goods; from any defect in materials or workmanship; from the failure of the goods to perform to its full capacity as specified in the order, specification or other data; or from the breach of any express or implied warranties.
PATENT INDEMNIFICATION. Seller agrees to hold harmless and to defend Buyer against any claims of patent infringement occasioned by the manufacture, sale or use of material supplied under this order and to indemnify Buyer against any damages occasioned by such claims whether justified or unjustified.
INSPECTION. Buyer shall have a reasonable time after receipt and beneficial use, within which to inspect and/or reject the goods. Buyer shall give written notice to Seller of any rejection of goods, and goods rejected will, at the Seller’s expense, be returned to Seller or otherwise disposed of as Seller skill reasonably request. The cost of inspection of goods rightfully rejected shall be charged to the Seller. When Seller’s samples are required, Seller shall obtain Buyer’s approval in writing of such samples processed or fabricated by means of tooling and process methods to be used in contract production prior to shipment of contract quantities. If reasonable inspection disclosed that part of the goods received are defective or nonconforming, Buyer shall have the right to cancel any unshipped portion of the order. Payment for goods on this order prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims that Buyer may have against Seller. The making or failure to make any inspection of, or payment for or acceptance of the goods, shall, in no way impair Buyer’s right to reject nonconforming goods, recover damages, or exercise any other remedies to which Buyer may be entitled; notwithstanding Buyer’s knowledge of the nonconformity, its substantiality, or the ease of its discovery.
TAXES. Unless exempt therefrom, all taxes which Seller is required by law to collect from Buyer are included in the price stated herein.
CONTINGENCIES. Performance of any obligation under this Agreement may be suspended by either party, without liability, to the extent that an Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel or power, governmental laws, regulations or orders, or any other cause beyond the reasonable control of such party, or labor trouble, strike, lockout or injunction (whether or not such labor event is within the reasonable control of such party), delays, prevents, restricts or limits the performance of this Agreement or the consumption, sale, use or end use of the goods or any product manufactured or processed therefrom or therewith. The affected party skill invoke this provision by promptly notifying the other party of the nature and estimated duration of the suspension period. At Buyer’s option, either the Agreement period shall be extended by the term of any such suspension and deliveries omitted because of such suspension shall be made during such extension, or the total Agreement quantity hereunder shall be reduced by the quantity not delivered during the term of such suspension, and, in either event, the Agreement shall otherwise remain unaffected. In the event Seller’s performance is suspended for more than sixty (60) days during the term hereof. Buyer may, at its option, terminate this Agreement upon written notice to Seller.
PRICE PROTECTION. Seller warrants that the price(s) set forth herein are equal to the lowest net price, and the terms and conditions of sale as favorable, as the price(s), terms and conditions afforded by Seller to any other customer for goods or services of comparable gratis or quality during the term hereof. Should Buyer be able to purchase goods of comparable qualify from another source at a lower delivered cost then in effect hereunder, and Buyer gives Seller written notice thereto, Buyer may purchase such goods from such other source at such lower delivered cost unless within fifteen (15) days of receipt by Seller of said notice, Seller shall meet such lower delivered cost for such quantity of goods. Any quantity so purchased from another source by Buyer shall be deducted from the total quantity ordered on this Agreement, but the Agreement shall otherwise remain unaffected.
TOOLING. Seller shall furnish, at Seller’s expense, all materials, drawings, tools, dies, jigs, gauges, fixtures, patterns, molds, testing apparatus, machinery and equipment and similar materials ( tooling ) necessary to the manufacture of goods or furnishing of services pursuant to this Agreement. Should Buyer, however, furnish, or Seller furnish at Buyer’s expense, tooling, such tooling shall be the property of Buyer, subject to repossession by Buyer at its option. Seller shall be liable for risk of loss of such tooling while in Seller’s possession, identify tooling as the property of Buyer and shall deliver same to Buyer in the same condition as received by Seller, reasonable wear and tear excepted. Should Seller be unable to deliver goods pursuant to this Agreement for reasons attributable to Paragraph 12, then in addition to tooling, Buyer by written notice, may vest in itself title to finished parts, raw materials or work in process associated with this Agreement, and Seller shall deliver all such material at a point outside its facility. Buyer shall , have the option, upon termination of this Agreement, to purchase, at Seller’s cost, less depreciation, all tooling of Seller utilized in the manufacture of goods pursuant to this Agreement which are not goods of Seller’s design.
PACKING AND CARTAGE. No charge will he allowed for packing, boxing or cartage, unless agreed upon at the time of purchase, but damage to any goods not packed to insure proper protection to same will be charged to Seller. Buyer’s order number, part number and quantity shipped will be marked or tagged on each package and bill of lading. Buyer’s count will be accepted as final and conclusive on any shipment not accompanied by itemized packing slip. Delay in or nonreceipt of packing lists, statements or invoices in the number of copies specified, or errors or omissions in any of these will be just cause for withholding payment, without loss of cash discount privilege.
QUANTITY. The quantities of goods as indicated on the face hereof must not be exceeded without prior written authorization from Buyer. Excess quantities may be returned to Seller at Seller’s expense.
DISCOUNT. Discount date, or due date, will be calculated from date invoice is received by Buyer.
CONFLICT MINERALS. Seller warrants to Buyer that no goods supplied under Buyer’s order will contain any “Conflict Minerals” (e.g., gold, titanium, tungsten, tin or any of their derivatives) sourced from any of the “Covered Countries” (e.g., Democratic Republic of the Congo and adjacent countries), as such terms are defined in the Dodd-Frank Wall Street Reform Act, unless Seller has assured that those Conflict Minerals are “DRC conflict-free” (as defined in such Act). Seller shall immediately notify Buyer if at any time the foregoing representation becomes inaccurate and shall, upon Buyer’s request, provide such information as Buyer reasonably may request to confirm that any Conflict Minerals used in the goods supplied by Seller are DRC conflict-free.
BUYER’S PERFORMANCE OF A PRIME OR SUBCONTRACT. In the event that the goods and services purchased hereunder are ordered in connection with Buyer’s performance of a prime or subcontract and specifications and drawings applicable thereto and such prime or subcontract and specifications and drawings are referred to on the face of this purchase order or in Seller’s quotation, confirmation or acknowledgment, Seller agrees to deliver such goods and perform such services in full compliance with all the requirements of such prime or subcontract and specifications and drawings. All terms and conditions applicable to the goods and services purchased hereunder, in such prime or subcontract and specifications and drawings, including but not limited to warranties and guarantees, time of performance and remedies for breach, are hereby incorporated by reference into this purchase order and made applicable to and undertaken by Seller for the benefit of Buyer.
ASSIGNMENT. No right or interest in this Agreement shall be assigned by Seller without the written permission of the Buyer, and no delegation of any obligation owed by either Buyer or Seller shall be made without the written permission of the other party. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes.
MISCELLANEOUS. The validity, interpretation and performance of this Agreement shall be governed and construed in accordance with the laws of the State of Ohio.