1. TERMS OF SALE. These Standard Terms and Conditions of Sale (“Terms”) apply to the sale of any products by Seller. Seller’s quotation or order acknowledgement along with these Terms are specifically defined as the “Agreement”. All purchases by buyer of products (“Buyer”) are expressly limited to and conditioned upon acceptance of these Terms. Unless such provisions are expressly agreed to by Seller in a writing signed by Seller, any additional or conflicting terms and conditions contained on, attached to or referenced by Buyer’s writings, or other prior or later communication from Buyer to Seller, shall have no effect on the purchase of any such products or services by Buyer from Seller and are further expressly rejected by Seller. These Terms along with the Quotation or Acknowledgement in which they are incorporated by reference are deemed an offer for sale by Seller. If Buyer does not accept in writing Seller’s offer to sell, Buyer’s commencement of performance (including ordering, purchasing or taking delivery of product or accepting services) shall, in all cases, constitute Buyer’s unqualified and unconditional acceptance of the Agreement.
2. PRICES. Unless otherwise stipulated in writing, quoted prices will be valid for the time specified in Seller’s Quotation. Prices are based upon Seller’s understanding of Buyer’s requirements and specifications. Quoted prices are exclusive of all taxes (except taxes levied on Seller’s income) including federal, state and local use, sales, property or similar taxes paid or required to be collected by Seller.
3. TITLE AND RISK OF LOSS. Except as otherwise specifically set forth in this Agreement, all sales of products shall be shipped Ex Works, any of the Seller’s facilities collect. Notwithstanding any shipping term, title to any products sold and risk of loss of such products passes to Buyer upon delivery by Seller to the carrier and products shall be deemed “delivered” at such time, and any claims for losses or damage occurring after delivery to carrier by Seller shall be made by Buyer directly with the carrier.
4. PAYMENT TERMS/CREDIT. Buyer shall pay all invoices, without deduction, in U.S. Dollars. If the Agreement does not state payment terms, payment shall be received by Seller no later than thirty (30) days from the date of Seller’s invoice; provided, however, in no event shall Buyer delay the delivery of any product(s) or service(s) provided by Seller, without Seller’s prior written consent. Delay in payment will result in Buyer being responsible for interest at a rate of one and one-half percent (1½%) per month compounded monthly (19.6% per annum), or the maximum rate allowed by law, whichever is less, on the outstanding amount of any unpaid invoice beginning on the day after the payment due date.
a) In the event Buyer fails to timely pay Seller any payments due Seller (whether under this Agreement or pursuant to any other obligation of Buyer to Seller) in accordance with Seller’s terms, Seller may, in addition to any other remedies it may have under this Agreement, defer further shipments until such payments are made or, at its option, cancel the unshipped balance without any liability to Buyer.
b) In the event Buyer fails to timely pay Seller any payments due Seller (whether under this Agreement or pursuant to any other obligation of Buyer to Seller) in accordance with Seller’s terms, Seller may, in addition to any other remedies it may have under this Agreement, defer further shipments until such payments are made or, at its option, cancel the unshipped balance without any liability to Buyer.
5. TAXES AND GOVERNMENTAL CHARGES. Except as otherwise specifically set forth in this Agreement, Buyer shall pay all taxes (excluding federal, state or local income or franchise taxes of Seller) and all import duties, levies and impositions and all other governmental charges, assessments, fees, and any interest or penalties thereon (“Taxes and Governmental Charges”), whether payable by Seller or Buyer, imposed or levied on or with respect to this Agreement or the amounts payable hereunder, the goods, or the possession, sale, use, furnishing or ownership of the goods.
6. CHANGES IN SPECIFICATIONS OR DESIGN. If Buyer requests changes in specifications or designs relating to any products or services to be provided hereunder, shipment schedules shall be revised, if necessary, and an equitable adjustment, upward or downward, shall be made in price if, in Seller’s reasonable determination, it is warranted.
7. LIMITED WARRANTY; DISCLAIMER
a) Subject to the limitations set forth below, Seller warrants that the products conform in all substantial respects to the Seller’s drawing. and to be free from defects in material content and Seller’s workmanship, for a period of twelve (12) months from date of shipment; the foregoing warranty shall not extend to any goods, services or parts thereof which have been subjected to misuse, misapplication or neglect.
b) If goods are claimed to be defective in material content or Seller’s workmanship, or not to conform in all substantial respects to specifications, Seller, upon written notice promptly given, will either examine the goods where located or issue shipping instructions for their return to Seller (transportation costs prepaid by Buyer). In the event any goods or services are determined by Seller to be defective and covered by this warranty, transportation costs (cheapest way) to and from Seller’s plant, will be borne by Seller and reimbursement or credit will be made for amounts so expended by Buyer.
c) With respect to any claim of breach of warranty hereunder, Buyer shall notify Seller in writing within ten (10) days from the date of receipt at Buyer’s facility Buyer’s failure to give such written notice of such claim within such 10-day period shall constitute an unqualified acceptance of the product and a waiver of all claims with respect thereto. In the event timely notice is given by Buyer, but Seller fails to comply with its obligations hereunder, Buyer agrees that any action for a breach of warranty or any other provision of this Agreement must be commenced within one (1) year from the date the alleged breach was discovered or should have been discovered, whichever occurs first.
d) BUYER AND SELLER EXPRESSLY AGREE THAT SELLER’S SOLE OBLIGATION UNDER THIS WARRANTY SHALL BE TO ISSUE CREDIT, REPAIR OR REPLACE (ALL AT SELLER’S OPTION) ANY ITEM OR PART THEREOF MANUFACTURED OR SERVICED BY SELLER WHICH SELLER DETERMINES TO BE OTHER THAN AS WARRANTED; NO ALLOWANCE SHALL BE MADE FOR ANY LABOR, CHARGES OF BUYER FOR REPLACEMENT OF PARTS, ADJUSTMENTS OR REPAIRS, OR ANY OTHER WORK, UNLESS SUCH CHARGES ARE AUTHORIZED IN WRITING IN ADVANCE BY SELLER.
e) THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND COMPRISE SELLER’S SOLE AND ENTIRE WARRANTY OBLIGATION AND LIABILITY TO BUYER, ITS CUSTOMERS AND ASSIGNS IN CONNECTION WITH GOODS SOLD HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.
8. IMITATION OF LIABILITY. SELLER’S’ TOTAL LIABILITY TO BUYER FOR DAMAGES FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO ANY CAUSE WHATSOEVER IN RELATION TO THIS AGREEMENT WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR OTHER CAUSE (a “CLAIM”) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH SUCH CLAIM RELATES. NOTWITHSTANDING THE FOREGOING SENTENCE UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, REVENUE OR OPPORTUNITY, CLAIMS OF THIRD PARTIES OR FOR INJURY TO PERSONS OR PROPERTY, OR FOR ANY OTHER SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND OR NATURE.
9. FORCE MAJEURE. Seller shall not be liable for delays in the performance of, or the non-performance of, any of its obligations under this Agreement if such default is the result of causes beyond its reasonable control including, but not restricted to, acts of God, acts of government, acts of Buyer, fires, strikes, floods, accidents, epidemics, quarantine restrictions, war, acts of terrorism, insurrection or riot, civil or military authority, compliance with priority or allocation orders or preference ratings issued by the government, weight embargoes, car shortages, wrecks or delays of transportation, inadequate transportation facilities, unusually severe weather, or inability to obtain necessary labor, fuel, materials, supplies, or manufacturing facilities and delays of a subcontractor due to such causes, provided that Seller agrees that Seller shall give prompt notice of any anticipated delay caused by such causes beyond its reasonable control.
10. CANCELLATION/MODIFICATION OF ORDER. Buyer acknowledges that any products being purchased hereunder are being manufactured especially for Buyer. In no event shall Buyer have the right to cancel, modify or delay releases with respect to any order where the material and order is in process, except with the Seller’s prior written consent and subject to conditions then to be agreed upon, in writing, which shall include protection of Seller against all losses.
11. COMPLIANCE WITH LAW The parties agree to comply with all applicable laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions or decrees of any governmental authority having jurisdiction (“Laws”) pertaining to the fulfillment of the Agreement.
a) The parties agree to comply with all applicable laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions or decrees of any governmental authority having jurisdiction (“Laws”) pertaining to the fulfillment of the Agreement.
b) Except as permitted under U.S. Laws, any product(s) sold by Seller to Buyer hereunder will not be sold, supplied or delivered by Buyer directly or indirectly to any party or destination that, at the time of such sale, supply or delivery, is declared an embargoed/restricted party or destination by the government of the United States of America or by the United Nations. Within two (2) days after Seller’s request, Buyer will provide Seller with appropriate documentation to verify the final destination of any product(s) delivered hereunder.
12. INFRINGEMENT. Buyer agrees that it will not induce Seller to use any patent, secret process, trade secret, know-how, drawings, plans, specifications or other confidential knowledge or information belonging to any third party. Buyer further agrees that it will defend, indemnify and hold harmless Seller against any damages, costs, expenses or other liabilities (including reasonable attorney’s fees) arising out of, or relating to, any claim brought against Seller relating to the infringement (or alleged infringement) of any patent or any use by Seller of any secret process, trade secret, know-how, drawings, plans, specifications or other confidential or proprietary knowledge or information belonging to any third party arising from the Seller’s manufacture, use or sale of any products in accordance with any information, materials, specifications, drawings, plans, instructions or samples furnished by Buyer.
13. CONFIDENTIALITY; EQUITABLE RELIEF All proposals, drawings, technical data and other proprietary information (including information that constitutes a “trade secret” under applicable state law) disclosed or furnished by one party to the other: (i) shall be kept confidential;(ii) shall remain the exclusive property of the party furnishing or disclosing such information; and (iii) shall be returned to the party furnishing such information upon request. The parties agree that a violation or threatened violation of the provisions set forth in this Section 16 will result in irreparable harm to non-defaulting party, and, accordingly, the parties agree that, in such event, the non-defaulting party shall be entitled to institute judicial proceedings, seeking immediate injunctive relief (or similar equitable relief) against such violation or threatened violation without any requirement to post a bond as a condition of such relief, as well as damages at law as may be recovered by such party, and the attorney fees it incurs in enforcing any of the covenants contained in this Section 16.
14. LAW AND JURISDICTION This Agreement will be governed by and construed and enforced in accordance with the Laws of the State of Ohio applicable to agreements made and to be performed entirely within such state, without regard to conflict of laws rules thereof. The parties agree that any action brought by any party shall be brought and resolved exclusively by the State and Federal courts located in Lake County, Ohio. Each of the parties hereby consents to the jurisdiction of such courts and waives all questions of jurisdiction and venue. The Parties agree that either or both of them may file a copy of this Section 14 with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Legal process in any proceeding may be served on any party anywhere in the world.
15. SEVERABILITY. In the event that any provision hereof shall be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any other provision hereof and such illegal, invalid, or unenforceable provision shall be interpreted and modified by the parties so as to eliminate such illegality, invalidity and/or unenforceability.
16. WAIVER. Except as otherwise specifically set forth in this Agreement, no modification or termination hereof or waiver of any of the obligations hereunder shall be effective unless in writing and signed by the party against whom such modification, termination or waiver is sought to be enforced. The failure by Seller to enforce at any time any of the provisions herein, shall not constitute a waiver and shall in no way be construed as a waiver of such provisions or options, nor in any way be construed to affect the validity of this agreement or any part thereof, or the right of the Seller thereafter to enforce each and every such provision.
17. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Buyer may not assign any rights or claims, or delegate any duties under this Agreement, in whole or in part, without the prior written consent of Seller, which may be withheld at Seller’s sole discretion.
18. INDEMNIFICATION. Buyer shall indemnify and hold harmless Seller its officers, directors, employees and agents from and against any claim (including reasonable costs, litigation expenses and attorneys’ fees) for personal injury to or death of any person or damage to property by whomsoever owned, to the extent caused by the negligent acts or omissions of the Buyer, its agents or employees arising out of or relating to its use of Seller’s products and services.
19. ENTIRE CONTRACT. This Agreement supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. No agent or representative is authorized to alter these conditions, except in writing duly signed by an officer of the Seller. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SELLER IS MAKING NO REPRESENTATIONS OR WARRANTIES TO BUYER AND ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY ANY AGENT OR EMPLOYEE OF SELLER THAT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS HEREOF SHALL BE GIVEN NO EFFECT OR FORCE.