STANDARD TERMS AND CONDITIONS OF SALES
Delays: Seller shall not be responsible for any failure or delay in delivery do to fires, flood, labor troubles whether or not due to fault of Seller, breakdown, delay of carriers, total or partial failure for any reason of unusual sources of transportation, requirements or requests of any government or subdivision thereof, or any similar or dissimilar cause beyond Seller’s control. For any cause whatsoever, whether beyond Seller’s control or not, Seller’s liability for failure or delay in delivery, shall exclude consequent damages and shall not exceed the smaller of the following: (1) the difference between the price applicable hereunder to the material with respect to which such failure or delay in delivery is experienced and the established market price of such material in like quantities as specified hereon at the date on which delivery is required hereunder if such market price is higher than the said price applicable hereunder, or (2) five percent (5%) of the price applicable hereunder to such material. In the event of liability of Seller for any cause beyond Seller’s control, to supply the total demands for any material specified in this order Seller may allocate it’s available supply among any of all Buyers, including subsidiaries, affiliates and departments of Seller, on such basis as Seller, in it’s sole discretion may decide upon, without liability for any failure to perform the contract which may be a consequence thereof.
Tolerance Quantity: The total order and each delivery of material shall be subject to a tolerance of ten percent (10%), plus or minus quantity.
Warranty: Seller warrants that the products sold to Buyer shall be free from defects in material and workmanship and shall conform to specifications within tolerances set forth in Seller’s published standards in effect as of the date of this acknowledgement. This express warranty is in lieu of and excludes all other warranties, guarantees or representations, express or implied, including without limitation, a warranty of merchantability. In the event of a breach of warranty, Buyers shall immediately notify Seller, in writing, of such breach. All claims of breach of warranty shall be asserted by Buyer immediately subsequent of the materials purchased, and in no event shall Buyer’s claim be made more than ten (10) days subsequent to Buyer’s receipt of materials from Seller. ANY CLAIM NOT MADE IN A TIMELY FASHION SHALL BE DEEMED WAIVED BY BUYER. Seller shall have the right to inspect the defective product and at Seller’s operation: (a) refund the purchase price applicable to such material, or (b) direct Buyer to return the defective materials. However, Seller shall not be obligated for such charges where returned materials prove to be free from defect and to meet specifications. SELLER’S LIABILITY SHALL BE SOLELY LIMITED TO THE REPLACEMENT, REPAIR OR TO THE REFUNDING OF THE PURCHASE PRICE APPLICABLE TO DEFECTIVE MATERIAL OR MATERIAL NOT MEETING SPECIFICATIONS. THIS SHALL BE BUYER’S EXCLUSIVE REMEDY. Seller shall not be liable for any consequential damages nor for loss, damages or expenses directly or indirectly arising from the use of the material including without limitations, warehousing, labor, handling and service charges not expressly authorized by Seller.
Inspection for Defective Materials: Buyer agrees to inspect all materials purchased from Seller no later than ten (10) days subsequent to receipt of said materials from Seller, buy shall conduct said inspection prior to any fabrication or alteration of the material received from Seller. In the event that Buyer shall discover that all or any part of the materials received and tested by Buyer shall be found to be defective or non-conforming. Buyer shall immediately give written notice thereof to Seller. Buyer’s sole and exclusive remedy shall be as set forth herein. Buyer hereby expressly waives and relinquishes any claim against Seller arising out of Seller’s delivery of defective or non-conforming materials where Buyer has failed to conduct an inspection prior to fabrication or alteration and to reasonably notify Seller of the results of said tests. BUYER HEREBY EXPRESSLY WARRANTS THAT THE ABOVE INSPECTION SHALL BE MADE IN NO EVENT, LATER THAT TEN (10) DAYS SUBSEQUENT TO THE RECEIPT OF MATERIALS FROM SELLER.
Advice to Seller: The giving or failure to give advice or recommendations of any character by Seller shall not impose any liability upon Seller nor grant to Buyer any license to the use of any Seller’s patents, trademarks or trade name.
Credits: All shipments to be made shall at all times be subject to the approval of Seller’s Credit Department, and if the financial responsibility of Buyer is unsatisfactory
or becomes impaired, or if Buyer fails to make any payment in accordance with the terms of the contract, then, in any such event, Seller may defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance, or it may terminate the contract. Terms of payment shall be as set forth in the invoice.
Taxes: In addition to the price specified in the invoice, the amount of any present or future tax applicable to the sale, manufacture, delivery and/or other handling of material shall be paid by the Buyer.
Changes: Seller assumes no responsibility for any changes in the specifications outlined in the original order, unless such changes are confirmed in writing by Buyer and accepted in writing by Seller. Any price variation resulting from such changes shall become effective immediately upon the acceptance of such changes.
Equipment: Any equipment (including jig, cylinder, dies and tools, but excluding shape profiles) which Seller constructs or acquires specifically and solely for use on Buyer’s order shall be and remain Seller’s property, and in Seller’s sole possession and control, and any charges made by Seller therefore shall be for the use of such equipment only. When for a period of one (1) year no orders are accepted from Buyer for products to be made with such equipment, Seller may make such disposition thereof as it desires without liability to Buyer. Seller shall have no responsibility for loss or damage to such equipment or any material owned or furnished by Buyer while in Seller’s possession. Toll charges designated as estimated will vary in accordance with actual cost.
Patents: If any material shall be manufactured or sold by Seller to meet Buyer’s specifications or requirement and is not a part of Seller’s standard line offered by it to the trade generally is the usual course of Seller’s business, Buyer agrees to defend, protect and save harmless Seller against all suits at law or in equity and from damages, claims and demands for actual or alleged infringements of any United States or foreign patent and to defend any suits or actions which may be brought against Seller for any alleged infringement because of the manufacture or sale of any such material.
Point of Delivery: Delivery to carrier at point of shipment shall constitute delivery to Buyer and Buyer shall assume all risk for subsequent loss or damage. The fact that in some instances a different “F.O.B.” point may be shown in the invoice or that all or part of freight charges may be prepaid, assumed, or allowed by Seller is for Buyer’s convenience only.
Cancellation: Orders are subject to cancellation only upon Seller’s accepting such cancellation in writing, and the effective date of such cancellation shall be the date of such acceptance. The date of such acceptance notwithstanding, Seller shall have the right to continue the processing of the materials or articles affected to the point at which the processing can be halted with the least inconvenience to Seller under the circumstances. Payment of cancellation charges shall be made by Buyer upon receipt of statement of same. Cancellation charges shall not exceed the purchased price of the canceled portion of the order.
Claims: Any course of dealing between the parties to the contrary notwithstanding at Seller’s election any claim for breach of warranty, failure or delay in delivery to otherwise shall be deemed waived by Buyer unless presented in writing to Seller within ten (10) days of receipt of the material in the case of claims of breach of warranty, or within ten (10) days from date required delivery in case of other claims. No inspection or investigation of claims by Seller, even though occurring after the period above specified, shall be deemed a waiver of provision.
Prices: Applicable prices are the Seller’s in effect at time of shipment, prior quotation or order acknowledgements not withstanding.
Waivers: No waiver by Seller of any beach of any provision shall constitute a waiver of any other beach or of such provision. Seller’s failure to object to provisions contained in any communication form Buyer’s shall not be deemed an acceptance of such provisions or as a wavier of the provisions hereof.
If there is any conflict between the purchase order and the above stated terms and conditions, the latter will prevail.