Terms and Conditions of Sale
1. Terms and Conditions of Sale: All descriptions, quotations, proposals, offers, acknowledgements, acceptances and sales of Seller’s products are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer’s acceptance of any offer to sell is limited to these terms and conditions. Any terms or conditions in addition to, or inconsistent with those stated herein, proposed by Buyer in any acceptance of an offer by Seller, are hereby objected to. No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing by Seller. Seller’s acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer’s assent to all the terms and conditions stated herein, including any terms in addition to, or inconsistent with those contained in Buyer’s offer. Acceptance of Seller’s product shall in all events constitute such assent.
2. Prices: In the event the Seller’s quotation or Offer of Sale and/or Buyer’s order provides for deliveries later than 30 days from the date of this Offer of Sale, the prices quoted are subject to escalation to Manufacturers’ prices in effect at the time shipment is made, except in cases where the Seller has agreed in writing to waive such escalation. Unless otherwise stated herein, prices quoted are F.O.B. shipping point. Any portion of the price which is not paid in accordance with the terms of payment herein stated shall accrue carrying charges at the rate of 1/20 of 1% per day until paid.
3. Delivery: Unless otherwise provided on the face hereof, delivery shall be made F.O.B. shipping point. Regardless of the method of delivery, however, risk of loss shall pass to Buyer upon Seller’s delivery to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery. Incurred freight, insurance and handling fees will be added to the invoice at the time of invoicing.
4. Warranty: The Seller MAKES NO WARRANTY WHATSOEVER concerning products manufactured by others, but will extend to the Buyer only such warranties respecting such products as are permissible under the terms thereof. Seller will repair or replace products manufactured by it which prove defective within one (1) year from date of shipment upon return of the same at Buyer’s expense when such defects are due to defective material supplied by the Seller or defective workmanship of its employees, provided the products shall have been properly assembled and utilized in accordance with Seller’s design thereof and instructions relating thereto, it being understood that the foregoing warranty shall be of no effect whatsoever in the event any changes are made in the products prior to or in connection with their assembly or use.
Seller makes NO WARRANTY WHATSOEVER, except as to title, with respect to products manufactured and/or designed to Buyer’s own specifications and the Buyer shall, at its own expense, defend and save Seller harmless from and against any claim, suit, expense or otherwise which shall be asserted or brought against the Seller by reason of its manufacture or sale of such products.
5. EXCLUSION OF OTHER WARRANTIES: EXCEPT FOR THE EXPRESS WARRANTY AS DESCRIBED ABOVE, THERE ARE NO WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES AS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSES, WHICH EXTEND BEYOND THE DESCRIPTION OF THE PRODUCTS ON THE FACE HEREOF. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF THE SELLER SHALL BE EFFECTIVE TO VARY OR EXTEND THE ABOVE REFERENCED EXPRESS WARRANTIES OR ANY OTHER TERMS HEREOF.
6. Liability Limitation: In no event shall Seller be liable for consequential, incidental or special damages resulting from or in any manner related to the products, their design, use, or any inability to use the same, including, without limitation, damages arising out of or in any manner relating to the delivery of the products or any delay with respect to their delivery, it being understood that the sole and exclusive remedy with respect to defective products manufactured by it shall be the repair, correction or replacement thereof pursuant to the “WARRANTY” provisions hereinabove contained. Should the products prove so defective, however, as to preclude the remedying of warranted defects by repair or replacement, the Buyer’s sole and exclusive remedy shall be the refund of the purchase price of the defective products involved upon the return of the products to Seller.
7. Changes, Reschedules and Cancellations: Buyer may request to modify the designs or specifications for the items sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of this order, however, no such requested modification or cancellation shall become part of the contract between Buyer and Seller unless accepted by Seller in a written amendment to this Agreement. Acceptance of any such requested modification or cancellation shall be at Seller’s discretion, and shall be upon such terms and conditions as Seller may require.
8. Buyer’s Property: Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Buyer, or any other items which become Buyer’s property, may be considered obsolete and may be destroyed by Seller after (2) consecutive years have elapsed without Buyer placing an order for the items which are manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller’s possession or control.
9. Taxes: Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sales or delivery of the items sold hereunder. If any such taxes must be paid by Seller or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold, Buyer agrees to pay all such taxes or to reimburse Seller therefore upon receipt of its invoice. If Buyer claims exemption from any sales, use or other tax imposed by any taxing authority, Buyer shall save Seller harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable.
10. Indemnity for Infringement of Intellectual Property Rights: Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights except as provided in this Paragraph 11. Seller shall have no liability for claims of infringement based on information provided by Buyer, or directed to items delivered hereunder for which the designs are specified in whole or in part by Buyer, or infringements resulting from the modification, combination or use in a system of any item sold hereunder. If a claim is based on information provided by Buyer or if the design for an item delivered hereunder is specified in whole or in part by Buyer, Buyer shall defend and indemnify Seller for all costs, expenses or judgments resulting from any claim that such item infringes any patent, trademark, copyright, trade dress, trade secret or any similar right.
11. Force Majeure: Seller shall not be responsible or liable for any delays or failures in manufacture or delivery due to any cause or condition beyond the control of Seller, including, without limiting the generality of the foregoing, strikes or other labor difficulties, fire, floods, inability to secure transportation facilities, actions of the elements, shortage of materials or equipment, riots or other civil commotion, and war.
12. Law, Ordinances and Regulations: Seller shall utilize reasonable efforts to cause products manufactured or designed by it to comply with its interpretation of federal safety regulations and insurance codes of a national scope. However, Seller shall not be responsible for compliance with local interpretation of federal safety regulations or insurance codes, nor with any local laws, ordinances, codes and/or regulations which may at any time be in effect with respect to the products, unless such responsibility shall be expressly assumed by Seller in writing. Further, Seller shall have no responsibility whatever for compliance with such laws, etc. by products manufactured or designed by others.
13. Entire Agreement/Governing Law: The terms and conditions set forth herein, together with any amendments, modifications and any different terms or conditions expressly accepted by Seller in writing, shall constitute the entire Agreement concerning the items sold, and there are no oral or other representations or agreements which pertain thereto. This Agreement shall be governed in all respects by the law of the State of Indiana. No actions arising out of the sale of the items sold hereunder or this agreement may be brought by either party more than two (2) years after the cause of action accrues and the parties agree to submit to the jurisdiction of the appropriate court in the Sate of Indiana for purposes of resolving any dispute or claim arising in connection with said transactions.
14. Payment terms and Security Interest: Net 10th / 25th Prox. unless otherwise negotiated. All invoices not paid when due will thereafter be subject to a monthly service charge of one and a half percent (11/2%) of the unpaid balance.
15 . Costs of Enforcement: Buyer agrees to pay seller’s reasonable expenses, including reasonable attorney’s fees and costs, incurred in enforcing the terms herein.