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| Terms and Conditions |
| 1. |
CHANGES: Buyer agrees not to make
changes to the materials, specifications or to the delivery
schedule set forth on the face hereof without the prior
written consent of Seller. |
| 2. |
PAYMENT: All amounts payable shall be
paid in United States funds. Should Seller at any time
consider that conditions do not warrant shipment on the terms
of payment stated in this contract, Seller shall have the right
to change the terms of payment and/or require payment as a
condition of shipment, notifying Buyer whenever this right is
exercised. Seller shall not be required to proceed or continue
with performance of Buyer's order while Buyer is in default
under this or any other contract with Seller or upon the
dissolution, liquidation, suspension of business or insolvency
of Buyer or the commencement of any proceeding under any
bankruptcy or debtor law by or against Buyer. If progress
payments are specified herein, Seller may suspend production,
shipment or delivery until all such payments then due are paid
in full by Buyer. Acceptance by Buyer of each delivery shall
constitute a separate contract with respect to the amount
thereof. Seller may recover for each shipment as a separate
transaction, without reference to any other shipment. |
| 3. |
EXCUSABLE FAILURE TO PERFORM: Failure of Seller to make delivery when due, if such failure is due to any contingency beyond the control of Seller such as, but not limited to, acts of God, bad weather, strikes or other labor disturbances, shortages of or inability to obtain raw materials, utilities, fuel, transportation or equipment, fire, floods, explosions or other casualties, wars or civil disturbances, insurrection or riots, breakage or accident to machinery or equipment, compliance with any federal, state or local law, order or regulation or any other cause beyond such control (including a failure of any supplier or contractor to perform) interfering with the manufacturing or shipment of the materials affected shall not subject Seller to any liability to Buyer. |
| 4. |
TAXES: In the event that Seller may be required to pay any excise, sale or use taxes, duties or other charges or increases upon the manufacture, sale or transportation of the materials sold not now specifically included in the price on the face hereof, Buyer shall reimburse Seller for same. |
| 5. |
TRANSPORTATION: If Buyer requires a means of transportation other than that selected by Seller, any extra cost incurred by reason of using such other means shall be paid by Buyer. If freight is included in the contract price and the present freight rates are changed, Seller shall receive the benefit of any increase and Buyer shall receive the benefit of any reduction. |
| 6. |
TITLE: Title and risk of loss to all materials sold shall pass to Buyer upon Seller's delivery to carrier at point of shipment (whether or not Seller pays any part of the freight) or if Seller stores the materials for the account of Buyer at Seller's facility, then title and risk of loss shall pass to Buyer at the time of storage. |
| 7. |
INSPECTION AND REPLACEMENT: Buyer shall inspect the materials and accept or reject same within forty-eight (48) hours after delivery of the materials at Buyer's facility. If the materials shall appear not to conform to the contract, Buyer shall notify Seller of such condition, and allow Seller a reasonable opportunity to inspect the material. No materials shall be returned by Buyer without Seller's prior written consent. If the materials furnished to Buyer shall fail to conform to the contract, Seller shall furnish instructions to Buyer for the replacement of such nonconforming material at Seller's expense. |
| 8. |
WARRANTY: Seller warrants that all new materials of its manufacture delivered to the original Buyer by Seller shall conform to the written specifications of Buyer and shall be free from defects in material or workmanship under normal use and service for a period of six (6) months from date of shipment. Seller makes no warranty with respect to materials which are manufactured by others. Any materials not manufactured by Seller are sold only under such warranty as the manufacturer gives to Seller. Seller makes no guaranty as to the enforceability of such warranty but shall use reasonable efforts to assist Buyer in asserting a claim under such warranty of the manufacturer. Buyer's exclusive remedy is to secure repair or replacement at Seller's option, of any portion of the materials of its manufacture, which, upon prior inspection by Seller, shall prove to have been defective. Upon notification by Buyer Seller will either request that the materials be returned F.0.B. Seller's plant or Seller may elect to make inspection at Buyer's plant. Materials found defective by Seller during such warranty period will be replaced F.O.B. Seller's plant. The provisions of this warranty shall not apply to materials which have been subject to accident, overloading, misuse or negligence by Buyer, its agent, employees, contractors or invitees, or which shall have been installed, maintained, repaired, or altered by other than Seller in any way so as, in the reasonable judgment of Seller, to affect adversely its performance and condition, nor to the replacement of parts required for normal maintenance services, nor to deterioration due to normal wear and tear. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. |
| 9. |
LIABILITY: In no event shall Seller be liable to Buyer for consequential or incidental damages, In the event that the materials do not conform to the contract, Buyer's exclusive remedy, whether in contract, negligence, special liability or otherwise, is to secure repair or replacement of the materials as specified in Paragraph 7 above. |
| 10. |
INFRINGEMENT: If a claim is made or an action is brought or threatened for infringement of any patent, trademark, tradename or copyright, or any related litigation, arising out of the manufacture or sale of the materials in accordance, in whole or in part, with the designs or specifications of Buyer, Buyer shall indemnify Seller against any and all damages, liabilities, losses, and expenses. including reasonable attorneys' fees, incurred by Seller in connection with such claim or action and shall defend such action at Buyer's expense if requested by Seller. |
| 11. |
SELLERS PROPERTY: All jigs, fixtures, dies, tools, patterns or other special equipment charged by Seller to Buyer shall remain the property of Seller. All designs, drawings, specifications or other technical information disclosed by Seller to Buyer and any modifications or improvements thereof shall (i) be the property of Seller and shall be treated as confidential by Buyer and shall not be disclosed to others without the prior written approval of Seller, (ii) be used by Buyer only in connection with its use of the materials sold by Seller, (iii) not be used by Buyer for the production of materials by Buyer or any third party without the prior written consent of Seller and (iv) be delivered to Seller at its written request upon completion or termination of this order provided, however, that this confidentiality obligation shall not apply to information which is made available to the general public. |
| 12. |
ASSIGNMENT: This contract is not assignable by Buyer in whole or in part without the prior written consent of Seller. |
| 13. |
ENTIRE AGREEMENT: No statement of agreement, oral or written, made prior to or at the signing hereof, shall vary or modify the written terms hereof. Neither party shall claim any modification, waiver or release from any provision by mutual agreement unless such agreement is in writing signed by the other party. No modification or addition to this contract shall be affected by the acknowledgement or acceptance by Seller or any purchase order or other documents submitted by Buyer containing additional or different terms or conditions. |
| 14. |
APPLICABLE LAW: This contract and the respective rights and obligations of the parties shall be governed by and construed according to the laws of the state in which the materials are shipped from. |
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Revised 12/98 |
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