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GENERAL TERMS AND CONDITIONS OF SALE
1.
Terms and Conditions of Sale. Seller hereby agrees to sell the
goods and services described on the reverse side (collectively, the
“Goods”) to the Buyer, upon and subject to, the terms and any conditions
hereof (the “Agreement”). The terms and conditions of this Agreement
constitute the full and final expression of the contract for the sale of
the Goods to the Buyer, and supersedes all prior quotations, purchase
orders, correspondence or communications whether written or oral between
Seller and Buyer. Buyer acknowledges and agrees that any purchase
orders or other documents related to the transaction covered by this
Agreement and issued by Buyer or its agents, are issued solely for
authorization and internal uses of the issuing party and Seller
specifically objects to, and shall not be bound by, any such terms and
conditions which are not specifically set forth herein or are in
conflict with this Agreement, and Buyer further acknowledges and agrees
that shipment by Seller to Buyer is not an acceptance of the terms and
conditions of any purchase order or other document issued by Buyer or
its agents. Buyer shall be bound by the Agreement when it sends a
purchase order or otherwise indicates acceptance of this Agreement, or
when it accepts delivery from Seller of the Goods.
2.
Price Quotation. All prices quoted by Seller are based upon the
costs and conditions existing on the date of the quotation and are
subject to change by Seller, in its sole discretion, before Buyer’s
acceptance. Notice of any such change shall be in writing and forwarded
to Buyer. Quoted prices do not include sales, use, excise, or similar
taxes or assessments, which shall be the sole obligation of Buyer,
unless Seller expressly agrees otherwise.
3.
Payment. Payment for the Goods by Buyer, shall not be subject
to any right of set-off and shall be paid either: (i) in full no later
than the 25th day of the month following the month in which
Seller invoices Buyer for the Goods, (ii) in the event Seller offers
Buyer a cash discount in writing, Buyer shall pay the cash discounted
amount in full by the 10th day of the month following the
month in which Seller invoices Buyer for the Goods; or (iii) in the event
Seller offers Buyer payment terms in writing other than those set forth
in subparts (i) or (ii), payment shall be made in accordance with
such specific terms. The parties agree that all payments not received
when due shall bear interest at 1.5% per month.
4.
Packaging. Seller shall endeavor to comply with Buyer’s packaging
specifications, if any, but Seller reserves the right to substitute any
other methods of packaging that is reasonably comparable to the
specifications furnished by Buyer, if any, both with respect to costs
and risk to which the Goods are subject.
5.
Shipping and Delivery. Unless otherwise provided in writing by
Seller, Seller shall delivery the Goods FOB origin at Seller’s place of
business at 3219 South Avenue, Toledo, Ohio. Buyer shall pay all
transportation costs of the Goods. Seller may make partial delivery at
Seller’s sole discretion. Seller shall endeavor to meet the shipping
date specified by Buyer; provided, however, if Seller is unable to meet
that date, Buyer shall have no claim against Seller for any damages
resulting from any such delay in delivery.
6.
Title and Risk of Loss. Title to the Goods passes to Buyer when the
Goods are fully paid for. Any risk associated with the sale or transit
of the Goods rests with Seller up to the time Buyer receives the goods
at the place of delivery. After delivery, all risk of loss is with
Buyer, including, without limitation, any risk associated with the
transportation of the Goods or any Goods subsequently returned to
Seller.
7.
Warranties. SELLER HAS MADE NO AFFIRMATION OF FACT AND HAS MADE
NO PROMISE RELATING TO THE GOODS BEING SOLD AND DELIVERED UNDER THIS
AGREEMENT THAT HAVE BECOME A BASIS OF THE BARGAIN MADE OR THAT HAVE
CREATED OR AMOUNTED TO AN EXPRESS WARRANTY THAT THE GOODS WOULD CONFORM
TO ANY AFFIRMATION OR PROMISE. SELLER IS SELLING THE GOODS UNDER THIS
AGREEMENT ON AN "AS IS" AND "WITH ALL FAULTS BASIS". SELLER IS NOT
LIABLE FOR NORMAL MANUFACTURING DEFECTS OR FOR CUSTOMARY VARIATIONS FROM
QUANTITIES OR SPECIFICATIONS, UNLESS EXPRESSLY STATED HEREIN. SELLER
EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND
(WHETHER ARISING BY IMPLICATION OR BY OPERATION OF LAW) WITH RESPECT TO
THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR
REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE.
8.
Conditions of Warranty. Seller’s warranty of any Good is of no
effect if: (i) the Good is not stored or handled appropriately; (ii) the
defect of the Good resulted from damages occurring after delivery of the
Good; (iii) the defect of the Good has not been reported to Seller
within thirty (30) days after delivery; or (iv) the defect should have
been discovered by Buyer in Buyer’s inspection and it is not reported
within five (5) days after the Good’s delivery.
9.
Defective Goods. If a Good does not conform to any express warranty
herein and the warranty is not excluded by Section 7 hereof, then Buyer
must promptly notify Seller. If Seller determines that the Good does
not comply with en express warranty provided herein, Seller shall repair
or replace the defective Good at no cost to Buyer. Except as provided
in this Section 9, SUCH REPAIR OR REPLACEMENT IS THE ONLY REMEDY OF
BUYER FOR ANY BREACH OF THE WARRANTY PROVIDED BY SELLER.
10.
Returns. No Goods may be returned to Seller without providing
prompt written notice of that intent and obtaining Seller’s prior
written consent. Returned Goods must be securely packed by Buyer to
reach Seller without damage. Buyer is responsible for the costs of
returning the Goods without being damaged. All returned Goods are
subject to a restocking fee of between 10% and 50% of the price charged
for such Goods.
11.
Liability Limitation. IN NO EVENT IS SELLER RESPONSIBLE TO BUYER
OR ITS AGENTS AND CUSTOMERS FOR ANY INCIDENTAL, SPECIAL, LIQUIDATED,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT
LIMITATION, ANY DAMAGES OR BACKCHARGES RELATED TO ANY DELAY IN OR NON-PERFORAMCE
OF REQUIRED DEADLINES OR JOB COMPLETION PROMISES, OR ANY DIRECT OR
INDIRECT LOST PROFITS OR REVENUE, REGARDLESS OF WHETHER THOSE DAMAGES
WERE FORESEEABLE. THE TOTAL CUMULATIVE LIABILITY OF SELLER ARISING FROM
OR RELATED TO THE GOODS OR THIS AGREEMENT, IN TORT (INCLUDING NEGLIGENCE
OR STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF GOODS
ON WHICH SUCH LIABILITY IS BASED.
12.
Property. Unless otherwise provided in writing by Seller, all
property of any description, including, without limitation, tools,
equipment, machinery, materials, drawings, and manufacturing aides, used
in the performance of this Agreement or the production of the Goods
shall belong to Seller.
13.
Termination. In the event of a breach by Buyer, Seller may
terminate this Agreement without liability to Buyer upon giving ten (10)
days’ written notice of termination. Further, Seller may immediately
terminate this Agreement without liability to Buyer by delivering
written notice to Buyer upon the occurrence of any of the following
events: (i) Buyer becomes insolvent; (ii) Buyer applies for or consents
to the appointment of a receiver, trustee, liquidator, or custodian;
(iii) Buyer makes a general assignment for the benefit of creditors;
(iv) Buyer is adjudicated bankrupt or insolvent; (v) Buyer commences a
voluntary case under any applicable bankruptcy law or files a voluntary
petition or answer seeking reorganization, an arrangement with creditors
or an order for relief; or (vi) Buyer dissolves. If this Agreement is
terminated by Seller pursuant to this Section 13, Seller shall be
entitled to reasonable reimbursement for any labor, material, or other
expenses incurred in connection with this Agreement, plus a reasonable
amount of overhead.
14.
Force Majeure. Seller shall not be liable or responsible in damages
to Buyer for any delay or failure to perform any obligation or condition
under this Agreement due to any event or occurrence beyond the
reasonable control of Seller, including, without limitation, acts of
God, fires, explosions or other casualty, lockouts or other industrial
disturbances, material shortages, acts of the public enemy, wars,
blockades, insurrections, riots, epidemics, arrests and restraints of
government and of people, civil disturbances, and the binding order of
any court or governmental authority.
15.
Indemnification. To the maximum extent allowed by law, Buyer shall
defend, indemnify, and hold Seller, and Seller’s employees and agents
harmless from and against all sums, costs, liabilities, losses,
obligations, suits, actions, damages, back charges, penalties, fines,
interest and other expenses (including, without limitation, reasonable
attorneys’ fees) that Seller may incur or be obligated to pay as a
result of: (i) Buyer’s negligence, use, ownership, maintenance,
transfer, transportation or disposal of any of the Goods; (ii) any
infringement or alleged infringement of the industrial or intellectual
property rights (including, without limitation, patent rights and
copyrights) of others arising from Buyer’s plans, specifications
(including, without limitation, Buyer’s trademarks and brand names), or
production of the Goods; (iii) Buyer’s violation or alleged violation of
any federal, state, county, or local laws or regulations, including,
without limitation, the laws and regulations governing product safety,
labeling, packaging, and labor practices; and, (iv) Buyer’s breach of
this Agreement including, but not limited to, Buyer’s non-payment of any
amount due hereunder.
16.
Succession and Assignment. This Agreement, and the rights,
benefits, duties, and obligations of the parties hereunder, shall inure
to the benefit of and be binding upon the parties hereto and upon their
respective assigns and successors in interest. Buyer may not assign,
delegate, or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of Seller.
17.
Governing Law. The parties acknowledge that the transaction that is
the subject matter of this Agreement bears a reasonable relation to the
State of Ohio and agree that this Agreement and their rights and duties
hereunder shall be governed, construed, and enforced in accordance with
the laws of the State of Ohio. The parties specifically intend that
Uniform Commercial Code as enacted in the State of Ohio, as amended
(Ohio Revised Code Chapter 13), shall govern and control all
aspects of this Agreement and its interpretation and that all the
definitions contained in those statutes will be applicable to this
Agreement, except when this Agreement specifically provides otherwise.
18.
Jurisdiction and Venue. The parties irrevocably submit and agree to
the exclusive jurisdiction of the state courts located within Lucas
County, State of Ohio, with respect to any action, suit, or proceeding
arising under or relating to this Agreement and irrevocably agree that
all such actions or proceedings shall be litigated in such courts, and
waive any objection which they may have based on improper venue or forum
non conveniens to the conduct of any proceeding in any such
court.
19.
Severability. The terms and provisions of this Agreement are hereby
declared to be severable, so that if any terms, provisions, or parts
hereof are held invalid, void, or otherwise unenforceable, the remainder
of this Agreement and application of such terms, provisions, or parts to
other circumstances shall not be affected thereby.
20.
Notices. Any notice required or permitted under this Agreement
shall be deemed given when hand delivered; when deposited in United
States certified mail, return receipt requested; or when sent by a
nationally recognized courier service, return receipt requested,
addressed as follows: (i) to Seller, at 3219 South Avenue, Toledo, Ohio;
and (ii) to Buyer, at its last known business address. The parties may
from time to time change the address to which notices are to be given by
written notice to the other party.
21.
Miscellaneous. The parties are independent contracting parties and
nothing in this Agreement shall make either party the agent or legal
representative of the other for any purpose whatsoever, nor does it
grant to either party any authority to assume or to create any
obligation on behalf or in the name of the other. The terms of Sections
1, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17 and 18 hereof shall survive the
expiration or earlier termination of this Agreement. No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of
any other or subsequent breach or condition, whether of like or
different nature. |
