General Conditions. All sales are subject to the terms and conditions stated herein. THE SALE OF PRODUCTS IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS. These terms and conditions shall supersede any provisions, terms, or conditions contained on any confirmation, order, or other writing BUYER may give.
Change Orders. In the event that BUYER desires to make changes to an order, BUYER shall submit to SELLER a change order, which will be subject to further acceptance by SELLER in its sole discretion, and subject to these terms and conditions. Upon acceptance by SELLER, a mutually-agreed adjustment shall be made to the original order to reflect the modifications agreed to in the change order.
Proprietary Information. All PROPRIETARY INFORMATION with respect to the product and processes of SELLER is defined in and shall be subject to the PROPRIETARY INFORMATION EXCHANGE AGREEMENT executed by SELLER and BUYER. BUYER agrees to not reproduce, reverse assemble, reverse compile, or otherwise attempt to reverse engineer SELLER’s PROPRIETARY INFORMATION.
Safety and Health. BUYER shall at all times comply with all Safety Data Sheets, and all other information and materials transmitted by SELLER to BUYER, for the products sold hereunder, including, but not limited to, all warnings and safety and health information about such products and their components. BUYER will provide such information to, and shall instruct, its employees, agents, contractors, customers or any third party which may be exposed to the products about such information and precautions and make copies thereof available to such parties. BUYER assumes full liability and responsibility for compliance with the above-referenced information and precautions, and with all laws, statutes, ordinances and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, and use of the products. BUYER further agrees to protect, defend and hold harmless SELLER from and against all claims, demands, causes of actions, damages, losses, liabilities, costs, expenses (including attorneys’ fees), penalties, and judgments (collectively, “Claims”) associated with the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any products after delivery to BUYER.
Limited Warranty and Remedies. SELLER warrants all products to be free from defects and will replace any product proven to be defective when applied according to SELLER’s specifications – at no cost - within a period of one year. Because the application and use of this product is beyond SELLER’s control, SELLER cannot be responsible for any harm or damage resulting from the use of the products. EXCEPT AS SET FORTH ABOVE, ALL PRODUCTS ARE SOLD “AS IS” AND WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR AS ANY OTHER MATTER. IN NO EVENT SHALL SELLER’S LIABILITY ASSOCIATED WITH THE PRODUCT EXCEED THE SALE PRICE OF THE PARTICULAR QUANTITY OF PRODUCT PURCHASED. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL, SPECIAL, DIRECT, INDIRECT, INCIDENTAL, OR OTHER DAMAGES OF ANY KIND WHATSOEVER, OR FOR ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT INVOLVED, UNDER THE FOREGOING WARRANTY OR ANY OTHER PART OF THIS AGREEMENT, AND BUYER HEREBY WAIVES FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS ANY SUCH CLAIMS AGAINST SELLER. All information, materials, and recommendations for use about SELLER’S products are for informational purposes only, and do not constitute a warranty of any kind by SELLER. BUYER FURTHER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE PRODUCT, PROCESS, OR PROPRIETARY INFORMATION IN ANY MANNER.
Shipping and Delivery. All products furnished hereunder will be shipped Ex Works from SELLER’s facility at BUYER’s expense. BUYER shall notify SELLER in complete detail as to the method of shipping and the place of delivery. If BUYER’s delivery instructions are delinquent or insufficient, SELLER reserves the right to designate the method and route of shipment. Title and risk of loss or damage shall pass to BUYER when SELLER transfers the products into the possession of the carrier. The products shall be considered to be delivered on the date that the products are transferred to the possession of the carrier, or on the date that BUYER is notified that the products are ready for shipment, whichever occurs first. SELLER shall not be liable for any damages caused by delay in shipment due to, but not limited to, force majeure and other causes beyond SELLER’s reasonable control. The term force majeure shall include, but is not limited to, war, blockade, civil disturbances, strikes and lockouts, raw material shortages, labor shortages, court order, fire and other casualties, accidents and governmental actions. If shipment is delayed on the instruction of the BUYER, the cost of storage of such products from the date such products were ready for shipment will be invoiced to the BUYER. SELLER reserves the right to deliver in partial shipments.
Payment Terms. Payment is due net thirty (30) days from the date of delivery unless otherwise noted on the Purchase Order. Payment is to be made in U.S. dollars, with all associated bank charges to be paid by BUYER. A one and one-half percent (1.5%) per month late fee will be assessed on all overdue balances. No reminder or notification of default is required.
All taxes, fees, costs, insurance, and other charges associated with the sale, shipment, transportation insurance and importation of the products are the responsibility of BUYER, and if paid by SELLER, such expenses shall be immediately due and payable by BUYER. Remittances marked to indicate payment in full will be deposited with the full reservation of all of SELLER’s rights notwithstanding such markings, and such deposit shall not indicate SELLER’s acceptance of the remittance as payment in full unless the remittance actually constitutes payment of all sums owed. Buyer’s obligations of payment pursuant to the contract arising from these terms and conditions do not cease until full payment has been remitted to, and is at the free disposal of, SELLER. All payments shall be made in accordance with these terms and conditions, without any deductions of any kind. Unless and until all payments due hereunder are fully paid for, BUYER hereby grants to SELLER a security interest in the products purchased to secure the unpaid balance of such sums and all other obligations of BUYER to SELLER. BUYER grants to SELLER a power of attorney to execute and file on behalf of BUYER all necessary financing statements and other documents required to perfect the security interest granted herein.
Termination and Cancellation Charges. If BUYER terminates any order, fails to accept delivery, or wrongfully accepts products ordered, without limiting other remedies available to SELLER, BUYER shall pay cancellation charges to SELLER in an amount equal to:
A restocking charge of twenty-five percent (25%) on all products returned to SELLER in their packaging and undamaged; plus
SELLER’s full cost for all material, equipment and SELLER’s labor charges at standard rates for engineering, assembly and/or manufacturing expended on BUYER’s order, plus
SELLER’s full cost of purchased services or products from third party vendors (including cancellation therefor) regarding BUYER’s order.
If, in SELLER's judgment, doubt exists as to BUYER's financial responsibility, or if BUYER is past due in payment of any amount whatsoever owing to SELLER or its affiliates, SELLER shall have the right, without prejudice to any other remedies, to suspend performance, decline to ship, or stop any product in transit, until SELLER receives payment of all amounts owing to SELLER or its affiliates.
Default and Remedies. Notwithstanding any other provision of these terms and conditions, if BUYER defaults in performing any of its obligations to SELLER hereunder or otherwise, SELLER may, at its option and without incurring any liability thereby, elect to cancel this agreement and/or to cancel any or all other agreements with BUYER, and pursue all available legal and equitable remedies. If BUYER shall be insolvent or cease doing business or be the subject of any proceedings under any bankruptcy, insolvency, or reorganization statute or law, such act shall, at the option of SELLER, be deemed a default hereunder, and SELLER may elect to cease performing and cancel any products or services not delivered or received prior to the election, and pursue all available legal and equitable remedies, including, but not limited to, the right to accelerate any unpaid balance owed by BUYER. BUYER shall indemnify and hold harmless SELLER from any and all Claims resulting from a breach by BUYER of any of its obligations pursuant to these terms and conditions.
Status of the Parties. Each of BUYER and SELLER shall at all times be deemed to be, and shall be, an independent contractor with respect to the other, and nothing in these terms and conditions or in any other document shall be construed to create a joint venture, partnership, agency, or any other relationship between BUYER and SELLER for any purpose. Neither party shall have authority to enter into agreements of any kind on behalf of the other, and neither party shall have any power or authority to bind or obligate the other in any manner to any third party.
Governing Law and Jurisdiction. The validity, construction and interpretation of all documents relating to this sale, and duties of the parties hereto, shall be governed by the laws of the State of Ohio, United States of America. Any action arising from or related hereto shall be instituted and litigated only in the federal or state courts located in Greene County, Ohio. The parties hereby irrevocably consent to the jurisdiction of the courts of Greene County, Ohio.
Miscellaneous. These terms and conditions set forth the entire understanding and agreement of the parties in respect of the subject matter hereof. No provisions shall be waived, changed, or rescinded except by a writing signed by the party to be charged. No failure to enforce, or waiver of any breach of, any provision of this document shall constitute a waiver of any other provision or shall constitute an amendment or modification to these terms and conditions. If any provision shall be held to be unenforceable such holding shall not affect the enforceability of any other provision of these terms and conditions. No right or interest in the contract arising from these terms and conditions may be assigned by BUYER, and no delegation of any obligation owed by BUYER shall be made. Any purported assignment or delegation in violation of this provision shall be void. The provisions of this document otherwise shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns.