TERMS AND CONDITIONS OF SALE
1. Definitions. For purposes of these Terms and Conditions of Sale, the term “Goods” means castings, machines, components, fabrications and similar items furnished hereunder; and the term “Services” means engineering, design, repair and similar services rendered hereunder.
2. Shipment and Payment. Delivery of Goods hereunder is F.O.B., Shipping Points. Risk of loss or damage shall pass to Buyer upon delivery of the Goods to a carrier. Seller’s obligation to ship or deliver hereunder is (at all times) expressly conditioned upon the approval of credit by Seller. If Buyer fails to comply with the terms of payment set forth on the face hereof, or in the event that the credit or financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, Seller has the right to demand cash or security (in form and substance satisfactory to Seller) before shipping Goods or furnishing Services hereunder. Upon the failure of Buyer to promptly provide cash or satisfactory security to satisfy Seller’s demands hereunder, Seller (in addition to Seller’s other rights and remedies) has the right to withhold further deliveries of the Goods or to terminate this order (in whole or in part), and any unpaid amount due Seller by Buyer thereupon shall become due immediately. Buyer shall pay the purchase price for the Goods and Services furnished hereunder as set forth on the face hereof.
3. Delivery. Delivery, shipment and other performance dates designated in the terms hereof are estimates only, and unless otherwise specified, are determined from the date of Seller’s receipt of Buyer’s completed written instructions.
4. Pattern and Die Equipment. Except as otherwise provided herein, Buyer shall furnish pattern and/or die equipment (suitable to Seller) and shall assume the cost of alterations thereof. Seller shall not be responsible for the inspection of pattern and/ or die equipment; provided, however, that if Seller agrees (in writing) to such inspection, Buyer shall furnish Seller drawings and any other pertinent information regarding permissible variations between casting and drawings. Shipping and crating charges on pattern and/or die equipment shall be the responsibility of the Buyer. Seller shall not be responsible for loss or damage to pattern and/or die equipment. Seller and Buyer acknowledge and agree that Seller has a lien on any pattern and/or die equipment in Seller’s possession to the extent and as provided under any applicable Federal, State or local law.
5. Changes. Buyer shall make no changes to specifications, plans, drawings, delivery instructions, approval of samples and any other instructions without Seller’s prior written approval of such changes. If any approved changes affect the terms hereof, Seller and Buyer shall promptly make a mutually agreeable adjustment to the terms so affected through a written document signed by Buyer and Seller. Buyer shall reimburse Seller upon demand for any losses or expenses incurred by Seller as a result of said change.
6. Buyer’s Assets. Seller is not a bailee of any assets of Buyer in Seller’s possession and the same are held by Seller at Buyer’s risk.
7. Security Interest. Buyer hereby grants to Seller a purchase money security interest in the Goods sold hereunder and the proceeds and the products thereof to secure the payment of the purchase price and any and all other sums due and owing from Buyer to Seller. Buyer hereby authorizes Seller to file any and all necessary financing statements and agrees to execute all documents to effect such filings. Buyer shall not sell, pledge, mortgage, lease or otherwise encumber the Goods sold hereunder unless and until the entire purchase price is paid. The Goods furnished to Buyer hereunder shall not be considered a fixture or be incorporated into Buyer’s realty by reason of its attachment thereto, and may be separated therefrom for the purposes of repossession in the event Buyer fails to pay the purchase price and all other sums due and owing from Buyer to Seller when due. Seller reserves the right to waive repossession of the Goods and to assert mechanic’s, materialman’s or laborer’s liens against the property upon which the Goods are erected or installed.
8. Inspection by Buyer. Buyer has the duty to inspect the Goods upon delivery to Buyer, and inspect the Services upon performance by Seller (including, but not limited to, inspection of reports, chemical analyses and other documents delivered to Buyer pertaining to the Goods and/or Services). If Buyer resells and delivers the Goods and/or Services to a third party within thirty (30) days after the Goods are delivered to Buyer or the Services are performed by Seller, then upon delivery of the Goods to and/or performance of Services for said third party, Buyer shall be deemed to have waived all claims relating to any defect or deficiency in the Goods and/or Services.
9. Tolerance and Variations. Except as specified by Buyer and expressly agreed to by Seller (in writing), the Goods furnished hereunder shall be produced in accordance with Seller’s standard business practices. All Goods (including, but not limited to, Goods produced to meet an exact specification) shall be subject to tolerances and variations consistent with good manufacturing practice in respect to dimensions, weight, section, chemistry and mechanical properties, the normal variations in surface and internal conditions and in quality, and to deviations from tolerances and variations consistent with practical testing and inspection methods.
10. Disclaimer. Seller warrants to Buyer that the Goods conform to the description on the face hereof (subject to the provision of tolerances and variations described above) and that such Goods are free from defects in material and workmanship under normal use and service. The warranties of Seller contained in this Agreement do not apply to the items manufactured or produced or services provided by persons or entities other than Seller. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE SELLER’S EXCLUSIVE WARRANTIES AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY), INCLUDING (BUT NOT LIMITED TO) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller’s liability under this Agreement shall be expressly limited (at Seller’s option) to the replacement or repair of non-conforming or defective goods or to the credit for the purchase price of non-conforming goods. Prior to said repair, replacement, or credit, Seller has the right to inspect the goods claimed to be defective or non-conforming, and, if requested by Seller, Buyer shall return such goods to Seller at Seller’s direction and expense. No goods are to be returned to Seller without Seller’s prior written consent. THE REMEDIES SET FORTH HEREUNDER SHALL CONSTITUTE THE EXCLUSIVE REMEDIES AVAILABLE TO BUYER AND ARE IN LIEU OF ALL OTHER REMEDIES.
11. Force Majeure. Seller shall not be liable to Buyer for losses, damages, liabilities, or expenses incurred by Buyer because of Seller’s non-performance or termination hereunder if such termination or non-performance resulted from circumstances beyond Seller’s control, including (but not limited to) acts of God, labor difficulties, shortages or acts of any governmental or judicial authority.
12. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM SELLER’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER OR THE FURNISHING, PERFORMANCE, OR USE OF THE GOODS SOLD HEREUNDER, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF SELLER OR OTHERWISE. Seller’s liability under no circumstances will exceed the purchase price for the Goods and/or Services for which liability is claimed.
13. Indemnification; Assumption of Risk. To the extent permitted by law, Buyer agrees to indemnify and hold Seller and all entities related to or affiliated with Seller (collectively the “Affiliates”) (and their respective directors, officers, shareholders, agents and employees) harmless from and against any and all liabilities, damages, losses, actions, causes of action, claims (including, but not limited to, claims of patent infringements), expenses, costs (including, but not limited to, attorneys’ fees), fines, penalties and any other expenses directly or indirectly arising from Buyer’s sale of goods to a third party and/or Buyer’s intended use of the Goods. Buyer agrees to assume all risk of loss or damage to person or property while on the premises of Seller or any Affiliate. To the extent permitted by law, Buyer (on behalf of itself and all of its agents and employees) hereby releases and forever discharges Seller and Seller’s Affiliates (and their respective directors, officers, shareholders, employees and agents) from any and all claims, demands, causes of action, liabilities, losses or damages resulting or arising from Buyer’s presence (or presence of Buyer’s employees and agents) on the premises of Seller or any Affiliate. Buyer warrants to Seller that Buyer has the authority to grant this release on behalf of Buyer’s agents and employees.
14. Quantity Deviations. Seller may make and Buyer will accept and pay for at the unit prices stated on the order acknowledgment, deliveries ten percent (10%) over or under the quantity specified on the order acknowledgment.
15. Taxes, Duties and Inspection Charges. The purchase price for the Goods and Services does not include sales, excise, import, export or other taxes or duties payable on account of the transaction contemplated hereunder nor does the purchase price include the cost of inspecting the Goods or Services by Buyer or third parties. All such duties or taxes now in effect (or hereafter levied) which are applicable to this transaction shall be in addition to said purchase price and shall be paid by Buyer. In addition, any costs associated with the inspection of the Goods and Services by Buyer or third parties shall be paid by Buyer upon Seller’s written demand.
16. Non-Waiver. No waiver, alteration or modification of any of the provisions hereof shall be binding on Seller unless such waiver is expressed in writing by Seller. Waiver by Seller of any breach or default by Buyer hereunder shall not be deemed a waiver by Seller of any default or breach by Buyer which may thereafter occur.
17. Terms of Contract. Seller’s acceptance of an order from Buyer is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions of Sale, which acceptance shallbe deemed to have occurred unless Buyer notifies Seller to the contrary in writing within five (5) calendar days after Seller delivers its order acknowledgment to Buyer. Any of the terms and conditions of Buyer’s purchase documents which are inconsistent with or in addition to the terms and conditions hereof shall not be binding on Seller and shall not be applicable to the transactions contemplated hereunder (notwithstanding Seller’s receipt of, or acknowledgment of, Buyer’s purchase documents). Buyer and Seller acknowledge and agree that the terms and conditions hereof supersede and reject all prior verbal or written discussions, negotiations and/or arrangements regarding the subject matter hereof. The terms and conditions hereof may be amended only through a written document signed by Buyer and Seller.
18. Confidentiality. Buyer (on behalf of itself and all of Buyer’s agents and employees) hereby agrees not to directly or indirectly use for any purpose or disclose to any person or other entity (other than Seller) any of Seller’s or Seller’s Affiliate’scustomer lists, customer records, trade secrets, business or manufacturing techniques or processes, price lists, business records, confidential documents or any other confidential or proprietary information. Buyer warrants to Seller that Buyer has the authority to agree to these confidentiality covenants on behalf of Buyer’s agents and employees. The confidentiality covenants of Buyer contained herein shall survive the termination of this order for any reason and by any party.
19. Assignment. Seller reserves the right to subcontract all or any portion of the work to be performed hereunder without obtaining the written consent, or providing notice to, Buyer. The rights and obligations of Buyer hereunder may not be assigned without the prior written consent of Seller.
20. Cancellation. Buyer may cancel orders only by written notice and only upon the condition that Buyer make full payment to Seller for all Goods and Services which, upon receipt of such notice by Seller, are within sixty (60) calendar days of completion. Partial payment for all Goods and Services not within sixty (60) calendar days of completion shall be made by Buyer on the basis of actual costs of labor, materials and supplies applied to the production of such Goods or the furnishing of such Services, plus overhead expenses, and plus twenty percent (20%) of such costs and expenses. Goods may be returned only if expressly authorized (in writing) by Seller. Costs incurred by Seller for placing returned goods in saleable condition, any sales expenses then incurredby Seller, plus a restocking charge and any outgoing and incoming transportation costs which Seller incurs shall be chargeable to and payable upon Seller’s written demand.
21. Termination. In addition to Seller’s other rights and remedies, Seller may by written notice to Buyer terminate this order (in whole or in part) if Buyer fails to perform or breaches Buyer’s duties and obligations hereunder; and Seller shall not be liable to Buyer for any losses, damages or expenses incurred by Buyer as a result of such termination. Upon such termination, any amounts due and owing to Seller by Buyer shall become immediately due and payable.
22. Governing Law; Jurisdiction; Venue. The laws of the State of Ohio shall govern all disputes, controversies and litigation arising hereunder. Proper and exclusive venue for all disputes, controversies and litigation arising hereunder lies with the Courts of Cuyahoga County, Ohio. For all disputes, controversies and litigation arising hereunder, Buyer and Seller hereby (jointly and individually) submit to the personal jurisdiction of the Cuyahoga County, Ohio Courts.
23. Time Limitations. Any defect or deficiency which would be reasonably apparent from the inspection of the Goods and/or Services, any claim for an alleged breach of Seller’s warranties hereunder, and any claim for an alleged error in weight or shortage of Goods or Services (collectively called the “Claims”) must be made by Buyer to Seller in writing within thirty (30) calendar days after the Goods are delivered to and/or the Services are performed for Buyer; otherwise, said claim shall be deemed waived by Buyer and shall be forever barred. Any Claims not made by Buyer within said thirty (30) calendar days shall be deemed forever waived by Buyer. Any claim arising from the transactions contemplated hereunder (but not based on a Claim) must be brought within one (1) year from the date Seller performed the Services for or delivered the Goods to Buyer; otherwise, said claim shall be deemed waived by Buyer and shall be forever barred.
24. Federal and State Laws. In the performance of this order, Seller shall comply with all existing or hereinafter enacted valid applicable provisions of any federal or state law and of any rules and regulations thereunder. Any contract provision which the Buyer is required by any valid provision of any Federal or State law, or any valid rule or regulation issued thereunder, in force when this contract becomes effective, to insert in this contract, shall be deemed automatically embodied herein.