TERMS AND CONDITIONS OF SALE
1. GENERAL - No order for Sellers' goods (whether pursuant to Seller's quotation or otherwise) shall be binding upon Seller until acknowledged in writing by Seller. Seller's quotation includes only such goods, accessories and work as are specified therein. Each order is subject to these conditions of sale and Purchaser shall be deemed to have assented to them by purchasing goods from Seller. Purchaser's order shall not to be subject to any other terms or conditions or to modifications of these terms and conditions unless Seller agrees thereto in writing. Seller shall not be deemed to have accepted such other conditions nor to have waived any of these conditions by failing to object to provisions contained in any purchase order or other communication from Purchaser. Purchaser's purchase order must be accompanied by sufficient information to enable Seller to proceed with the order forthwith; otherwise Seller shall be at liberty to amend Seller's quoted prices to cover any increases in cost.
2. TERM - Seller's quotation is good for the period stated therein or, when no period is so stated, for a period of thirty days after its date. Seller reserves the right to withdraw its quotation at any time thereafter prior to acknowledgment of Purchaser's purchase order.
3. DRAWINGS, ETC. - All specifications, drawings and particulars of weights and dimensions submitted with Seller's quotation are approximate only, and the descriptions an illustrations contained in catalogs, price lists and other advertising material are intended merely to present a general idea of the goods described therein, and none of these will form part of the contract. All drawings and specifications submitted by Seller remain Seller's property and are provided on the condition, and Purchaser agrees, that they will not be copied or divulged to any third party and that they will be returned to Seller upon Seller's request.
4. VARIATIONS - In the event of variation or suspension of work by Purchaser's instructions or lack of instructions, the contract price shall be increased accordingly.
5. TESTING - If the goods are to be demonstrated before shipment, Seller will give Purchaser reasonable notice to allow Purchaser to witness the test. Unless otherwise specifically agreed, tests shall conform to Sellers' normal pre-shipment test practices. After any such test, Seller will correct any defects shown by the test so that the goods will conform to Seller's written specification.
6. DELIVERY - Any times quoted for dispatch or delivery are estimates only and are not guaranteed, such quoted times commence from the date of Seller's acknowledgment of Purchaser's purchase order provided Purchaser has supplied all necessary information, drawings and materials to enable Seller to proceed immediately with the order. The estimated time for dispatch or delivery shall be extended by a reasonable period if delay is caused by instructions or lack of instructions from Purchaser or by industrial dispute or any cause beyond Seller's reasonable control. Unless otherwise specified, all shipments are F.O.B Seller's plant or warehouse and title and all risk of loss with respect to any goods shipped shall pass to Purchaser when such goods are delivered to the carrier at such plant or warehouse.
7. PACKING - Purchaser will be charged for export packing or other special packing required. No credit on deduction will be allowed if no packing is required.
8. TERMS OF PAYMENT - Unless otherwise agreed, payment shall be due in accordance with the contract terms. Interest will be charged at the rate of 1-1/2% per month on all invoices not paid when due. In the event of Purchaser's default on the contract, Seller may retain any progress payments received by Seller, but such retention shall not prejudice any other rights Seller may have under the contract.
9. STORAGE - If Seller does not receive forwarding instructions sufficient to enable Seller to ship the goods within 14 days after the date of notification that they are ready for dispatch, Purchaser shall take delivery or arrange for storage. If Purchaser does not take delivery or arrange for storage, Seller shall be entitled to arrange storage either at Seller's plant or elsewhere on Purchaser's behalf and all charges for storage, for insurance and for demurrage shall be payable by Purchaser.
10. WARRANTY AND REMEDIES - Seller warrants that goods manufactured by it and covered by Purchaser's purchase order shall conform in all material respects to the drawings, specifications, descriptions, or samples furnished to or specified by Purchaser and shall be free from defects in materials or workmanship for one (1) year from date of shipment to Purchaser. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF WHATSOEVER NATURE WITH RESPECT TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, CONDITION, QUALITY, DESCRIPTION, DURABILITY OR SUITABILITY of ANY OF THE GOODS. Seller shall assume no liability for, and this warranty will not apply to, any failure of the goods to attain any performance figures quoted unless Seller has specifically guaranteed them in writing. Purchaser assumes responsibility that goods specified by Purchaser are sufficient and suitable for Purchaser's purposes unless Purchaser's specifications are in accordance with Seller's written advice and Purchaser has provided Seller full information upon which to base that advice. Purchaser agrees to properly use and maintain the goods in reasonable manner and in accordance with all maintenance specifications. Seller shall assume no liability forehand this warranty will no apply to, any defects that appear as a result of Purchaser's failure to properly use or maintain the goods, or as a result of alterations which Purchaser makes to the goods without Seller's prior express written approval or from Purchaser's use or operation of the goods in a manner not disclosed to Seller at the time of Purchase's purchase. This warranty does not extend to repairs necessitated by normal use, wear or tear nor to consumable goods. If Seller supplies Purchaser with goods manufactured by others, Seller's only obligation to Purchaser is to assign to Purchaser any warranties or rights Seller may have received from the manufacturer of the goods. Purchaser agrees that Seller shall have no further obligation or liability to Purchaser with respect to any defects in such goods. As Purchaser's sole and exclusive remedy for any breach of this warranty, Seller will, at Sellers sole option, repair or replace any goods manufactured by Seller and covered by Purchaser's purchase order which in Seller's opinion are found to be nonconforming or defective in material or workmanship within one (1) year from date of shipment provided that Purchaser notifies Seller within ten (10) days after Purchaser's discovery of any nonconformity or defect, gives Seller a full and complete opportunity to inspect and repair the goods and, if required by Seller, retains the goods for Seller's plant. Purchaser agrees to pay all shipping and labor costs and expenses incurred by Seller in installing replacement goods. The remedies herein provided are Purchaser's sole and exclusive remedy for any breach of the warranties herein contained. All other remedies are hereby expressly excluded.
11. LIMITATION OF LIABILITY - Purchaser acknowledges that the prices quoted are based upon the enforceability of the following limitation of liability, that the prices would be substantially higher if Seller could not limit Seller's liability as herein provided and that Purchaser accepts this limitation of liability in exchange for such lower price. This limitation of liability is separate, distinct and severable from the limitation of remedies set forth in Paragraph 10 hereof, and if for any reason the limitation of remedies shall, to any extent, be adjudged invalid or unenforceable, such adjudication shall not be deemed to affect the limitation of liability set forth in this Paragraph.
SELLER EXPRESSLY DISCLAIMS AND SHALL NOT HAVE ANY LIABILITY TO PURCHASER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO LOST PROFITS AND WHETHER ARISING IN CONTRACT, TORT, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF SUCH LOST PROFITS OR DAMAGES. IN NO EVENT SHALL SELL BE LIABLE TO PURCHASER OR ANY DAMAGES WHATSOEVER IN EXCESS OF THE PURCHASE PRICE HEREUNDER.
12. WORK ON SITE - Unless otherwise expressly stated, the prices quoted do not include installation, supervision or start-up services. At Purchaser's request and expense, Seller will supply personnel to install and/or demonstrate the goods, subject to the following conditions:
(I) Purchaser will be responsible for providing suitable foundations before the delivery of the goods and for the cost of bringing any necessary electrical, air, water or drain services to the agreed connection point
(ii) Purchaser will be responsible for unpacking the goods, for any temporary storage which may be necessary and for placing them on site.
(iii) Purchaser will supply on site any additional labor, skilled or otherwise, permits, licenses, tools and lifting equipment which may be deemed necessary to carry out site work. Seller shall not be responsible or liable
for any loss, injury or damage to Purchaser's property whatsoever or howsoever arising from any act or default of such workers while they are in or upon Purchaser's premises.
13. LEGAL CONSTRUCTION - This transaction shall in all respects be deemed to have been made and entered into and shall be construed and enforced in accordance with the laws of the State of Ohio. All terms herein which are defined in the Uniform Commercial Code as adopted in the State of Ohio shall have the meaning as set forth in such Code.
(I) Prices quoted are exclusive of all taxes (except taxes levied on Seller's income), including federal, state and local sales, use, property or similar taxes. Purchaser shall pay or reimburse Seller for any such Taxes.
(ii) If the cost to Seller of performing Seller's obligations under Purchaser's purchase order shall be increased or reduced by reason of the making or amendment of any law, order, or regulation, (including but not by way of limitation any duty or tax on the import, purchase, sale, appropriation or processing of any materials or equipment comprised in the order) the amount of such increase or reduction shall be added too or deducted from the contract price as the case may be.
(iii) Where Purchaser's order requires Seller to purchase equipment from suppliers outside of the continental United States, Seller's contract price is based upon the exchange rates in effect at the date of Seller's quotation and the contract price shall be adjusted to reflect any changes in such exchange rates between the date of quotation and the date of Seller's invoice.
(iv) Unless otherwise agreed to by Seller in writing, no penalty for late delivery will be paid.
15. SECURITY INTEREST; REMEDIES - Purchaser agrees that Seller shall have a security interest in all goods supplied by Seller until payment in full has been made. If payment is not made when due, Purchaser hereby authorizes Seller to enter Purchaser's premises for the purpose of retaking possession of the goods supplied. Seller shall have all rights and remedies specified herein in addition to those specified in the Uniform Commercial Code as adopted by the State of Ohio. All such rights and remedies are cumulative. No delay or failure by Seller to exercise any right or remedy shall impair in any manner whatsoever any of such rights or remedies or be construed to be a waiver of any breach or acquiescence therein, and any single or partial exercise of any such right or remedy shall both preclude other or further exercise thereof or the exercise of any other right or remedy. Purchaser shall pay all costs and expenses paid or incurred by Seller in enforcing Seller's rights hereunder including without limitation reasonable attorneys' fees and court costs.
16. INDEMNIFICATION - Purchaser shall indemnify and hold Seller and Seller's officers, directors, employees and agents harmless from and against any claim (including costs, litigation expenses, attorneys' fees and other expenses) for personal injury to or death of any person or damage to property by whosoever owned, to the extent caused by Purchaser's acts or omissions or the acts or omissions of Purchaser's agents or employees arising out of or in any way relating to the sale, installation, use or provision of the goods.