Terms

 

Terms and Conditions of Purchase

1. ACCEPTANCE. This order is for the purchase of the Goods described on the front side hereof (the “Goods”) and is Buyer’s offer to Seller. Any reference to any offer to sell, quotation or other proposal is solely for the purpose of incorporating the description and specification of the Goods contained therein to the extent that such description and specifications do not conflict with the description on the face of this order. This order consists only of the terms contained herein and on the face of this order and any supplements, specifications or other documents expressly incorporated herein by reference. By acknowledging receipt of this order (or by shipping the Goods called for by this order), Seller agrees to the terms and conditions of sale in this order. Any additional or different terms or conditions contained in any acknowledgement of this order by Seller shall be deemed objected to by Buyer without need of further notice of objection and shall be of no effect nor in any circumstance binding upon Buyer unless accepted by Buyer in writing. Acceptance or rejection by Buyer of any such additional terms or conditions shall not constitute an acceptance of any other additional terms or conditions.
2. PRICING. If prices are omitted on the face of this order or if Seller’s prices are different than those stated on the face of the order, Seller’s prices are subject to approval by the Buyer prior to shipment. If approval is not received by Seller within reasonable amount of time, Buyer should be contacted by telephone so as not to delay shipment of this order. Unless otherwise specified on the front hereof, the contract price includes all application federal, state and local taxes, charges or duties.
3. PACKING. The Goods shall be packed and shipped by Seller in accordance with good commercial practice and with Buyer’s instructions, if any, and so as to insure that no damage shall result from weather or transportation.
4. DELIVERY. The Buyer reserves the right to request a complete shipment be made on any order of the Buyer’s choice. The Buyer therefore reserves the right to reject shipment or return any unauthorized incomplete or partial shipments to the Seller on a collect basis without charge or cost to the Buyer. The Seller is not allowed any over shipments or under shipments without prior written approval from the Buyer. If this prior written authorization is not received by the Buyer, and over shipments occur, the Buyer reserves the right to return such materials on a collect basis to the Seller without any charge or cost to the Buyer.  
5. CHANGES, CANCELLATION AND TERMINATION.
1. Buyer at any time may make changes in the quantities ordered or other specifications relating to the Goods, or may change or amend any other term or condition of the order, in which event an equitable adjustment will be made to any price, time or performance, and/or other provisions of this order required to be changed thereby. Any claim for such adjustment must be made within fifteen (15) days from the date of receipt by Seller of such change.
2. Time is of the essence and Buyer may cancel this order, in whole or in part, without liability to the Buyer, if deliveries are not made at the time and in the quantities specified, or in the event of any other breach or failure of any of the terms or conditions hereof.
3. Buyer may terminate this order in whole or in part, at any time for any reason (including, without limitation, the commencement of any reorganization or insolvency proceeding involving Seller), without further liability, by notice to Seller in writing.
4. Failure of Buyer to enforce any right under this paragraph 5 shall not be deemed a waiver of any subsequent right hereunder. The rights and remedies of Buyer under this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.
6. WARRANTY-GOODS. Seller specifically warrants that the Goods, ordered shall be merchantable and shall be fit for the purposes for which such Goods are intended and ordinarily employed. In addition to all warranties which may be implied by law. Seller expressly warrants that the Goods shall conform to specifications, drawings, and other descriptions and shall be free from defects in materials and workmanship. Seller also warrants, to the extent that the Goods are not manufactured pursuant to detailed designs furnished by Buyer, that the Goods will be free from defects in design. Inspection, test acceptance or use of the Goods furnished hereunder shall not affect Seller’s obligation under this warranty, and such warranty shall survive inspection, test, and acceptance and use Seller warrants that Seller will convey good title to the Goods, fee and clear from all liens, claims and encumbrances. Seller warrants that the Goods do not infringe on any patent, trademark, trade name, copyright or other proprietary interest of a third party. This warranty shall run to Buyer, its successors, assigns and customers. Seller agrees to replace or correct defects in any Goods not conforming to the foregoing warranty promptly, without expense to Buyer, when notified or such non-conformity by Buyer. In the event of failure by Seller to correct defects in or replace non-conforming Goods promptly. Buyer, after reasonable notice to Seller, may take such corrections or replace such Goods and charge Seller for the costs incurred by Buyer thereby. Nothing herein nor any notice given to Seller hereunder, nor Buyer’s exercise of any right hereunder, nor replacement, repair or correction of defective Goods by Seller, shall limit Buyer’s right to be reimbursed for any and all damages resulting from any breach of this warranty, including without limitation consequential and indirect damages of any nature.
7. WARRANTY-PRICE. Unless otherwise specified in the front hereof, the prices charged to Buyer are F.O.B. Buyer’s premises. Seller warrants that the prices charged Buyer on this order, which shall not be higher than shown on the front hereof, are not higher than prices charged on orders placed by others for similar quantities on similar conditions subsequent to the last generally announced price change. In the event Seller breaches this warranty, the prices of the Goods shall be reduced accordingly, retroactively to the date of such breach. Seller agrees that any price reduction in the Goods subsequent to placement of this order, but prior to shipment, will be applicable to this order.
8. PROPRIETARY INFORMATION. The specifications, drawings, designs, manufacturing data and other information transmitted to Seller by Buyer in connection with the performance of this order are the property of Buyer and are disclosed in confidence upon the condition that they are not to be reproduced or copied or used for furnishing information or equipment to others, or for any other purpose detrimental to the interest of the Buyer.
9. INSPECTION. Goods purchased hereunder are subject to inspection and approval at Buyer’s destination. Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with Buyer’s instructions, specifications, drawings and data or Seller’s warranties (express and implied). Seller will reimburse Buyer for inspection costs of rejected items. Items not accepted will be returned to Seller at Seller’s expense. Payment for any of the Goods hereunder shall not be deemed an acceptance thereof. Exercise or non-exercise of this right shall have no effect on Buyer’s other rights and remedies hereunder. Such final inspection and approval shall not be conclusive as regards latent defects, fraud or such gross mistakes as amount to fraud and shall not be deemed to alter or affect the obligation of Seller or the rights of Buyer under the paragraph hereof entitled “Warranty Goods.”
10. INDEMNIFICATION.
1. Seller agrees to defend, indemnify, and hold Buyer, its employees, customers, successors and assigns, harmless against any claims, demands, whether valid or invalid, action or proceeding liability, loss or expense whatsoever, including reasonable attorney’s fees, arising from any actual or alleged (i) defect in the Goods (ii) failure therefore to comply with specifications or with the express and implied warranties of Seller, (iii) violation by the Goods, or in their manufacture or sale, or any statute ordinance or administrative order, rule or regulation of (iv) infringement of any patent, trademark, trade name, trade secret, copyright, or other proprietary interest of third persons, in the event of any claim, demand, action or proceeding being commenced against Buyer by reason of any of the above matters. Buyer agrees to give Seller prompt notice thereof in writing.
2. If the Goods or any component part furnished hereunder are held to infringe and their use is enjoined, Seller shall, at its option and its own expense, (i) procure for Buyer and its successor and assigns, the right to continue using the Goods, (ii) replace the Goods with substantially equivalent non-infringing product, or (iii) modify the Goods so that they become non-infringing with substantially equivalent performance. Absent such remedial action by Seller, Buyer reserves its rights at law, or at its option may return the infringing Goods to Seller at Seller’s expense and Seller promptly shall refund the purchase price to Buyer.
11. COMPLIANCE WITH LAWS. Seller shall comply with all applicable federal, state and local laws, executive regulations and orders. In particular, Seller on all invoices shall certify in writing that the Goods were produced in compliance with and meet all applicable requirements and standards of the Fair Labor Standards Act as amended, including without limitation Sections 6, 7, and 12, and the regulations and orders of the U.S. Department of Labor issued thereunder and the Occupational Health and Safety Act.
12. ASSIGNMENT. Seller shall not assign this order or any interest therein, including any performance or any amount which may be due or may become due hereunder, without Buyer’s prior written consent.
13. CONTROLLING LAW. This transaction shall be governed by, and any contract resulting from this order shall be construed and enforced in accordance with the internal laws of the State of Illinois. If any provision, paragraph or part, or the application thereof under certain circumstances, is held invalid or is otherwise prohibited by law of any state, the remainder of the contract, or the application of such provision, paragraph or part under other circumstances or in other states, shall not be affected thereby.
14. NOTICE. Any notice relating to this order shall be considered given if and when deposited in the United States mail, postage prepaid, addressed to the other party at the address given herein.
15. SETOFF. Buyer may set off any amount due from Seller to Buyer, whether or not under this order, against any amount due Seller hereunder.
16. RISK OF LOSS. Notwithstanding terms to the contrary, risk of loss of the Goods shall pass to Buyer at the time the Goods actually are delivered to its premises.
17. WAIVER. No claim or right arising out of a breach of any contract resulting from this order can be discharged in whole or part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. Waiver by Buyer of a breach by Seller of any provision of such contract shall not be deemed a waiver of any other provision or of future compliance with all provisions hereunder, and all such provisions shall remain in full force and effect. Failure of Buyer to enforce any right hereunder shall not be deemed a waiver of any subsequent right hereunder. The rights and remedies of Buyer under this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under this order.
18. SPECIAL TOOLING.
1. Designs, tools, jigs, dies, fixtures, templates, patterns and drawings (hereinafter collectively call “tools”) furnished by Buyer and tools (except as provided in subparagraph (c) hereof) made or acquired by Seller for performance of Buyer’s order, the cost of which is separately quoted or amortized in the unit price, shall remain or become the property of Buyer. Such tools shall be used exclusively for production under Buyer’s orders.
2. Buyer shall not be obligated to reimburse Seller for the cost of any tools, unless specifically agreed to in writing by Buyer.
3. When charges paid by Buyer for such tools do not convey title, they shall be used exclusively for production under Buyer’s orders during their useful life or until otherwise disposed of by mutual agreement.
4. Reproducible drawings for tools to be made or acquired by Seller for performance of Buyer’s order shall be submitted to Buyer for approval prior to the manufacture or acquisition of such tools.
5. Seller will maintain the tools referred to in subparagraph (a) above in first-class condition and will make replacements where necessary. Seller will not make any alterations in such tools without Buyer’s specific written authorization. Seller shall be responsible for all loss or damage to such tools while in Seller’s possession. Upon completion or cancellation of this order, such tools shall be disposed of as Buyer shall direct.
6. Tools made or acquired by Seller for performance of Buyer’s order, the cost of which is chargeable to Buyer, shall be separately identified by Seller as directed by Buyer. Payment for such tools will not be made until acceptable articles have been received and approved by Buyer and satisfactory evidence is received by buyer that proper identification has been made.
19. GENERAL. All warranties shall be construed as conditions as well as warranties. No modification or waiver of a breach or of any provision of this order shall be valid or binding upon buyer unless approved by Buyer in writing by an authorized agent. The paragraph headings used herein are for convenience only and shall be no significance in the interpretation of this contract. This sets forth the entire understanding of the parties with respect to the subject matter and order is a complete and exclusive statement of the terms of the agreement between Buyer and Seller.