THE TERMS AND CONDITIONS SET FORTH BELOW AND ON THE FACE HEREOF CONSTITUTE ALL OF THE TERMS OF THIS AGREEMENT BETWEEN THE BUYER AND SELLER. All orders are subject to the approval by Seller at its offices in Cleveland, Ohio. No course of prior dealings between the parties or usage in the trade shall be relevant to supplement or explain any term used in this Agreement. No waiver or alteration of terms herein shall be binding unless agreed to in writing and signed by both parties.
All prices are ExWorks shipping point unless otherwise agreed to in writing by Buyer and Seller. Prices quoted are those in effect at the time of quotation. Seller reserves the right, in its sole discretion, to bill and Buyer agrees to pay prices prevailing at the time of shipment. All prices are based on the quantities quoted and any change in the quantities may affect the price. No discount will be allowed unless specifically agreed to in writing by Seller. Until the purchase price and all other sums due pursuant hereto are paid in full, Buyer grants to Seller and Seller retains a security in the products described on the face hereof (sometimes referred to as the "Goods") and in all proceeds of said Goods. Buyer shall execute UCC-1 financing statement(s) upon request by Seller and irrevocably authorizes Seller to execute and file the same.
Invoices for Goods and services shall be due and payable net thirty (30) days from shipment. Buyer agrees to pay a delinquency charge of 1-1/2% per month, or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full.
Upon Buyer's receipt of shipment, Buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice describing with particularity the nature of any defects in the Goods or the amount of any shortage claimed within thirty (30) calendar days after receipt of shipment, the Goods shall be deemed accepted by Buyer. In the event that Buyer does not specify a method of shipment, Seller shall use its own discretion in determining the method of shipment. Premium transportation (including, but not limited to, airfreight and overnight delivery service) required by the Buyer will be borne by Buyer.
Title to Goods sold and risk of loss of such Goods shall pass to Buyer at the ExWorks shipping point.
SELLER WARRANTS GOODS MANUFACTURED BY IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR ONE (1) YEAR FOLLOWING THE DATE OF SHIPMENT. IF ANY OF THE GOODS ARE FOUND BY SELLER TO BE DEFECTIVE, SUCH GOODS WILL, AT SELLER'S OPTION, BE REPLACED OR REPAIRED AT SELLER'S COST. THE PARTIES HERETO EXPRESSLY AGREE THAT BUYER'S SOLD AND EXCLUSIVE REMEDY SHALL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE SO LONG AS THE SELLER IS WILLING AND BE ABLE TO REPAIR OR REPLACE DEFECTIVE GOODS IN THE PRESCRIBED MANNER. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS ACTION, OTHER THAN AS SET FORTH IN THIS SECTION 6 SHALL CONSTITUTE A WARRANTY. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED LABOR OR OTHER COSTS OR EXPENSES TO REMOVE OR INSTALL ANY DEFECTIVE, REPAIRED OR REPLACED GOOD. SELLER'S WARRANTY DOES NOT APPLY TO ANY GOODS INSTALLATION, MODIFICATION (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS), OR ADJUSTMENT OR REPAIR PERFORMED BY ANYONE OTHER THAN SELLER OR ONE OF SELLER'S AUTHORIZED AGENTS.
ANY CLAIM BY BUYER WITH REFERENCE TO THE GOODS SOLD HEREUNDER SHALL BE DEEMED WAIVED BY THE BUYER UNLESS SUBMITTED IN WRITING TO SELLER WITHIN THE EARLIER OF (i) THIRTY (30) DAYS FOLLOWING THE DATE BUYER DISCOVERED OR BY REASONABLE INSPECTION SHOULD HAVE DISCOVERED, ANY CLAIMED BREACH OF THE FOREGOING WARRANTY, OR (ii) TWELVE (12) MONTHS FOLLOWING THE DATE OF SHIPMENT, ANY CAUSE OF ACTION FOR BREACH OF THE FOREGOING WARRANTY SHALL BE BROUGHT WITHIN ONE YEAR FROM THE DATE THE ALLEGED BREACH WAS DISCOVERED OR SHOULD HAVE BEEN DISCOVERED, WHICHEVER OCCURS FIRST.
SELLER'S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING PARTS FOUND BY THE SELLER TO BE DEFECTIVE, OR AT SELLER'S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS OR PARTS THEREOF. AT SELLER'S REQUEST, BUYER WILL SEND, AT BUYER'S EXPENSE, ANY ALLEGEDLY DEFECTIVE PARTS TO THE PLANT OF SELLER WHICH MANUFACTURED THEM.
DISCLAIMER OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF ANY OBLIGATION OR WARRANTY IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY TO ANY PERSON, OR LOSS OF OR SUSTAINED AS THE RESULT OF WORK STOPPAGE. BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.
Unless otherwise specifically provided herein, the price for the Goods purchased does not include sales, use, excise or similar taxes, whether federal, state, or local. Buyer shall be responsible for all such applicable taxes levied or assessable on any Goods after title passes to Buyer at the F.O.B. point. Buyer will provide Seller with any and all tax exemption certificates, acceptable to the appropriate taxing authorities, where applicable.
Unless expressly specified to the contrary, all shipping dates are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, expense or freight charges arising out of delays in shipment or other nonperformance of this agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor delay, or Agreement and/or extend any date upon which any performance is due.
All orders and shipments shall at all times be subject to the approval of the Seller's Credit Department. The Seller reserves the right of declining to accept any order or make any shipment whenever, for any reason, there is doubt as to Buyer's financial responsibility and Seller shall not in such event be liable for breach or nonperformance of contract in whole or in part.
Goods may not be returned for credit without Seller's prior consent, and may be subject to a Twenty-Five percent (25%) restocking charge. All transportation charges for returned Goods are the sole responsibility of the Buyer. Returned Goods are subject to Seller's inspection and will not be considered for acceptance for credit unless they are, (i) in the Seller's sole discretion, in "like new" condition, and (ii) returned to Seller within sixty (60) days from the date of shipment. The Buyer hereby agrees that it will not debit the Seller's account for any return, regardless of the reason for such return, unless agreed to by Seller.
Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer's order by Seller, except with Seller's written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in process and contract value of products or parts completed and ready for shipment.
In no event shall Seller be liable for damages arising from infringement or alleged infringement of patents or copyrights. In the event that Buyer should be enjoined in such suit or proceeding from using any of the Goods purchased pursuant to this Agreement, Seller, at its option, shall promptly either (i) secure termination of the injunction and procure for Buyer the right of use of such Goods without any obligation or liability, or (ii) replace said Goods with noninfringing materials or modify same to become noninfringing, all at Seller's expense and to Buyer's reasonable satisfaction, or (iii) remove said Goods at Seller's expense and refund the purchase price of the infringing Goods to Buyer. THIS SHALL BE BUYER'S EXCLUSIVE REMEDY AGAINST SELLER WITH RESPECT TO PATENT OR INFRINGEMENT. The sale of Goods hereunder does not convey any license or copyright under any proprietary or patent rights of any manufacturer. Seller shall not have any liability if the alleged infringement is based upon the use or application of the Goods in combination with other goods and buyer shall indemnify Seller therefore. Seller disclaims all other liability for infringement of intellectual property rights and further disclaims any liability for incidental or consequential damages.
No agent, salesman or other party is authorized to bind Seller by any agreement, warranty, statement, promise or understanding not herein expressed.
The sale of Goods pursuant to this order shall be governed by the laws of the State of Ohio.
Any notice which is required or permitted under the terms of this Agreement shall be in writing and delivered to the address of the party set forth in this Agreement. Either party may change address by written notice.
The remedies herein served by the parties shall be cumulative and additional to any other or further remedies provided in law or at equity which the parties may possess. In addition to the rights and remedies conferred upon Seller by law, Seller shall not be required to proceed with the performance of any order or contract if Buyer is in default in the performance of any order or contract with Seller.
Any clerical errors are subject to correction.
No delay or omission by Seller is exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar to or waiver of any such right or remedy on any future occasion.
The waiver, illegality, invalidity or unenforceability of any provision appearing on this Agreement shall not affect the validity of the Agreement as a whole or the validity of any other provisions herein.
This contract shall be binding upon and shall inure to the benefit successors and assigns of Buyer and Seller. Buyer may not assign or transfer this contract, in whole or in part, except upon the prior written consent of Seller.