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ACCEPTANCE OF BUYER’S ORDER IS CONDITIONAL ON BUYERS ASSENT TO THE TERMS AND CONDITIONS CONTAINED HEREIN. IF BUYER OBJECTS TO ANY TERMS HEREIN, SUCH OBJECTION MUST BE IN WRITING AND DELIVERED TO SELLER WITHIIN A REASONABLE TIME, NOT TO EXCEED 10 DAYS OF RECEIPT OF THIS DOCUMENT. FAILURE TO MAKE SUCH A TIMELY EXCEPTION. OR ACCEPTANCE BY BUYER OF ANY GOODS DELIVERED BY SELLER HEREUNDER, SHALL BE CONCLUSIVELY DEEMED ASSENT TO THE TERMS AND CONDITIONS HEREIN SELLER’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM BUYER WILL NOT BE A WAIVER OF THE PROVISIONS HEREOF.
TAXES
Prices do not include any taxes, now or hereafter enacted, applicable
to the goods sold on this transaction. Taxes will be added by Seller
to the sales price where Seller invoices the same to comply with law,
and will be paid by Buyer unless Buyer provides Seller with a proper
tax exemption certificate.
PRICES, RELEASES, AND SETOFF
Prices apply only if the quantity ordered hereunder is released for
shipment within twelve (12) months (or longer if mutually agreed
to in writing) from the date of Seller's receipt of Buyer's order.
Otherwise, Seller's standard price in effect at time of release
shall apply to quantity shipped and Buyer shall pay the difference
in price, if any, and Seller has the right to terminate this contract.
In such event, Buyer is liable for termination charges as set forth
in Paragraph 15a.
Buyer grants to Seller the right at any time during the course of this contract to revise prices hereunder by Seller's giving to Buyer written notice, such revised prices to apply to all goods thereafter shipped. If buyer provides written objection within ten (10) days following notice of a price change established by Seller, Seller shall have the option of terminating this contract with no liability to Seller.
Buyer waives any rights of setoff, except with respect to it s claims against Seller which arise from transactions with the division at the address shown on the face hereof.
TITLE AND DELIVERY
All shipments of goods shall be delivered F.O.B. Seller's plant,
and title and liability for loss or damage thereto shall pass
to Buyer upon Seller's delivery of the goods to a carrier for shipment
to Buyer, and any loss or damage thereafter shall not relieve
Buyer from any obligation hereunder. Buyer shall be liable for
costs of insurance and transportation and for all import duties,
taxes and any other expenses incurred or licenses or clearance
required at port of entry and destination.Seller may deliver goods
in installments. Shipping dates are approximate only. Seller shall
not be liable for any loss or expense, whether by way of contract
or tort, (consequential or otherwise) incurred by Buyer if Seller
fails to meet the specified estimated delivery schedule because
of unavoidable production or other delays.
All provisions of the Paragraph 3 apply to both domestic and international shipments, except that title to goods shipped outside the U.S. shall pass at the point of destination; risk of loss or damage and all expense associated with goods shipped outside the U.S. shall be the responsibility of the Buyer. Notwithstanding any other provisions of the Paragraph 3 to the contrary, if Buyer is an international subsidiary of Seller, title shall pass at the point of destination and Seller shall be liable for loss or damage to such goods until receipt by Buyer at point of destination.
QUANTITIES
Any variation in quantities shipped over or under the quantities ordered according to the following tolerances shall constitute compliance with Buyer's order and the stated unit price will continue to apply.
Order Quantity (Q) | Tolerance |
Samples Lots | Yield of Run |
200 Lbs > Q > 399 Lbs | +/-30% |
400 Lbs > Q > 999 Lbs | +/- 20% |
1,000 Lbs > Q | +/-10% |
TERMS AND METHOD OF PAYMENT
Where Seller has extended credit to Buyer, terms of payment
shall be net thirty (30) days from date of invoice. The amount
of credit or terms of payment may be changed, or credit withdrawn
by Seller at any time. If the goods are delivered in installments,
Buyer shall pay separately for each installment. Payment shall
be made for the goods without regard to whether Buyer has made
or may make any inspection of the goods. if shipments are delayed
by Buyer, payments are due from the date when Seller is prepared
to make shipments. Goods held for Buyer are at Buyer's risk
and expense.
CONTINGENCIES AND FORCE MAJUERE
Seller shall not be liable for any delay in delivery or for non-delivery,
in whole or in part, caused by the occurrence of any contingency beyond
the control either of Seller or Seller's suppliers, including, but
not limited to, war (whether an actual declaration thereof is
made or not), sabotage, insurrection, riot or other act of civil
disobedience, act of a public enemy, failure or delay in transportation,
act of any government or any agency or subdivision thereof, judicial
action, labor dispute, accident, fire, explosion, flood, storm
or other act of God, shortage of labor, fuel, raw material or
machinery or technical failure where Seller has exercised ordinary
care in the prevention thereof. Seller may allocate production
and deliveries among seller's customers.
SUBSTITUTIONS AND MODIFICATIONS OF GOODS
Seller may modify the specifications of goods designed by Seller,
and substitute goods manufactured to such modified specifications
for those specified herein, provided such goods substantially
conform to this contract. Where Buyer orders goods subject to military
specifications, Buyer agrees that seller may supply goods which
conform with the most current version or revision of the applicable
military specifications.
LEGAL COMPLIANCE
Buyer, at all times, shall comply with all applicable federal, state
and local laws and regulations. Export of the products covered
by this quotation or acknowledgment may be subject to export license
control by the U.S. government. It is Buyer's responsibility
to obtain any licenses which may be required under the applicable
laws of the U.S. including the Export Administration Act and
regulations promulgated thereunder.
CHANGES
Any notice or instruction from the Buyer received subsequent to Seller's
acknowledgment, including supplementary information contained in
a confirming purchase order, which has the effect of changing the
specifications, scope of work, or other terms, will be effective
only upon an appropriate adjustment in the price and/or delivery
date, and acceptance of any change by Seller in writing.
LIMITED WARRANTY:
THE FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OBLIGATION
ON THE PART OF SELLER.
Seller, except as otherwise hereinafter provided, warrants the
goods against faulty workmanship or the use of defective materials,
and that such goods will conform to Seller's written specifications,
drawings, and other descriptions for a period set forth in the schedule
below. Seller warrants that at the time of delivery Seller has title
to the goods free and clear of any and all liens and encumbrances.
These warranties are the only warranties made by Seller and can be
amended only by a written instrument signed by an officer of Seller.
Seller's warranties shall be for the following periods:
Metal goods and clad material systems - six (6) months from the date of shipment. This includes, without limitation, strip and sheet.
Precision materials, six (6) months form the date of shipment.
Continued use or possession of goods after expiration of the applicable warranty period stated above shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer. Seller makes no warranty as to experimental or developmental goods or goods not manufactured by Seller, provided that as to goods not manufactured by Seller, Seller, to the extent permitted by Seller's contact with its supplier shall assign to buyer any rights Seller may have under any warranty of the supplier thereof.
Seller's warranties are herein above set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller's rendering of technical advice or service in connection with Buyer's order of the goods furnished hereunder.
PRODUCT APPLICATION INDEMNITY
Buyer agrees to indemnify and hold harmless Seller for all claims,
whether arising in tort or contract, against Buyer and/or Seller,
including Attorney's fees, expenses and costs, arising out of the
application of Seller's products to Buyer's designs and/or products,
or Seller's assistance in the application of Seller's products.
EXCLUSIVE REMEDIES
If the goods furnished by Seller fail to conform to Seller's
exclusive limited warranty, Seller's sole and exclusive liability
shall be (at Seller's option) to repair, replace or credit Buyer's
account for any such goods which are returned by Buyer during
the applicable warranty period set forth above, provided that
(i) Seller is promptly notified in writing upon discovery by
Buyer that such goods failed to conform to this contract with
a detailed explanation of any alleged deficiencies, (ii) such
goods are returned to Seller, F.O.B. Seller's plant, and (iii)
Seller's examination of such goods shall disclose to Seller's
satisfaction that such alleged deficiencies actually exist and
were not caused by accident, misuse, neglect, alteration, improper
installation, unauthorized repair or improper testing. If such
goods are non conforming, Seller shall reimburse Buyer for the
transportation charges paid by Buyer for such goods. If Seller
elects to repair or replace such goods, Seller shall have a reasonable
time to make such repairs or replace such goods.
THIS IS THE SELLER'S ONLY LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCEPTANCE OF PRODUCT
Acceptance shall be presumed conclusively to have occurred thirty
(30) days following delivery of product to Buyer, unless Buyer
has accepted the product prior to that date.
PATENTS
Seller shall defend any suit or proceeding brought against Buyer
insofar as such suit or proceeding is based on a claim that any
goods manufactured and supplied by Seller to Buyer constitute direct
infringement of any duly issued United States patent and Seller
shall pay all damages and costs finally awarded therein against
Buyer, provided that the Seller is promptly informed and furnished
a copy of each communication, notice or other action relating to
the alleged infringement and is given authority, information and
assistance (at Seller's expense) necessary to defend or settle
said suit or proceeding. Seller shall not be obligated to defend
or be liable for costs and damages if the infringement arises out
of compliance with Buyer's specification (s), or from a combination
with, an addition to, or a modification of the goods after delivery
by Seller, or from use of the goods, or any part thereof, in the
practice of a process. Seller's obligations hereunder shall not
apply to any infringement occurring after Buyer has received notice
of such suit or proceeding alleging the infringement unless Seller
has given written permission for such continuing infringement.
If any goods manufactured and supplied by Seller to Buyer shall be held to infringe any United States patent and Buyer shall be enjoined from using the same, Seller will exert its reasonable efforts, at its option and at its expense, (i) to procure for Buyer the right to use such goods free of any liability for patent infringement or (ii) to replace such goods with a non-infringing substitute otherwise complying substantially with all requirements of this contract or (iii) refund the purchase price and the transportation costs of such goods.
If the infringement by Buyer is alleged prior to completion of delivery of the goods under this contract, Seller may decline to make further shipments without being in breach of this contract, and provided Seller has not been enjoined from selling said goods to Buyer, Seller agrees to supply said goods to Buyer, at Buyer's option, whereupon the patent indemnity obligation herein stated with respect to Seller shall reciprocally apply with respect to Buyer.
If any suit or proceeding is brought against Seller based on a claim that the goods manufactured by Seller in compliance with Buyer's specifications and supplied to Buyer directly infringe any duly issued United States patent, then the patent indemnity obligations herein stated with respect to Seller shall reciprocally apply with respect to Buyer.
The sale of the items ordered hereunder does not grant or convey or confer upon Buyer upon Buyer or Buyer's customers, or upon anyone claiming under Buyer, a license express or implied under any patent rights of Seller covering or relating to any combination, machine or process in which said item might be or are used.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF SELLER FOR PATENT INFRINGEMENT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
TERMINATION AND CANCELLATION
(a.) Buyer may terminate this
contract in whole, or from time to time, in part, upon thirty
(30) days advance written notice to Seller. In such event, Buyer
shall be liable for termination charges which shall include:
a price adjustment based on the quantity of goods actually delivered
and all cost, direct and indirect, incurred and committed for
this contract; together with a reasonable allowance for prorated
expenses and anticipated profits.
(b.) If, in Seller's judgment, the Buyer's financial condition does not justify the terms of payment specified, Seller may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods prior to delivery.
NON-WAVER OF DEFAULT AND COLLECTION RIGHTS
In the event of any default by Buyer, Seller may invoke any remedy
provided by law or by the terms herein stated, and may decline
to make further shipments. If Seller elects to continue to make
shipments, Seller's actions shall not constitute a waiver of
any default by Buyer or in any way affect Seller's legal remedies
for any such default.
In the event Seller resorts to a third party or to litigation in order to collect amounts due Seller, Buyer agrees to pay costs of collection for amount owed to Seller, including, but not limited to, attorney's fees, court costs, and interest in the amount of 1% per month (12% per annum), from the date the amount is due.
APPLICABLE LAW AND FORUM
The validity, performance and construction of this contract shall
be governed by the laws of the state in which Seller resides,
as shown on the face hereof and such state shall be the only jurisdiction
in which any suit may be brought against Seller regarding any
dispute arising of this transaction.
U.S. GOVERNMENT CONTRACTS
If the goods to be furnished under this contract are to be used in
the performance of a U.S. Government contract or subcontract,
and a U.S. Government contract number shall appear on Buyer's purchase
order, those clauses of the applicable U.S. Government procurement
regulations which are required by Federal Statute to be included
in U.S. Government subcontracts are incorporated herein by reference.
ASSIGNMENT
This contract is binding upon and inures to the benefit of the parties
and the successors and assigns of the entire business and good will
of Buyer, or of that part of the business used in the performance
of this contract, but shall not be otherwise assignable, without
the prior consent of Seller.
AFFIDAVITS AND CERTIFICATES
No certificates of compliance, conformance, or chemical analysis
shall be provided unless Buyer's detailed requirements are stated
on the face of the Buyer's order. Seller reserves the right to
charge an additional fee for any such certificate.
SIZES, TOLERANCES, INSPECTION AND SAMPLES
Quotations are preferably made on the basis of Buyer's prints.
When quotations are made on the basis of samples or otherwise,
the dimensions on which the quotation is based will be stated.
USE OF, OR REFERENCE TO SAMPLES, SHALL NOT ENLARGE, AFFECT OR ALTER
THE LIMITED AND EXCLUSIVE WARRANTY (PARAGRAPH 10) OR REMEDY (PARAGRAPH
12).
Where Buyer requires samples from Seller to verify completion of fitting-up, Buyer will pay for such fitting-up within (30) days after receipt of the samples, unless Buyer within such period gives Seller a detailed written description of any allowable variance from specifications, in which case Buyer will promptly pay upon correction of such variances.
The dimensions for quoting and manufacturing are the mean specifications and are subject to the normal tolerances for variations. Unless otherwise specified in Buyer's prints or specifications, for precious metal clad products inlay will be interpreted to be the average reading of the samples cross-sectioned; for flat sections, three readings across the surface will be averaged; for radial faced surfaces, the center readings will be averaged. Standard tolerance in inlays over .001 shall be plus or minus 10% from the nominal. With regard to metallurgical materials and other related products, all manufactured goods will be inspected to a 1.5% AQL unless otherwise specified.
TOOLS AND DIES
Unless otherwise provided herein, even though fitting-up charges
may be specified, all tools and dies, including, without limitation,
fixtures, gauges and assembly equipment manufactured for this contract,
will be Seller's property, but will be retained by Seller for Buyer's
non-exclusive use; provided, however, that Seller may dispose of
such tools and dies if Buyer does not order from Seller goods for
manufacture therefrom within any one (1) year period.
If any tools and dies manufactured by Seller are to become Buyer's property, it must be specifically so provided on the face hereof. Any such tools and dies, or any materials, tools, dies and other equipment furnished by Buyer to Seller, shall be at Buyer's sole risk and expense, and Seller shall not be liable for loss, damage, maintenance, repair or renewal, regardless of cause. If Buyer desires to withdraw such tools and dies from Seller's plant, and if Seller consents to permit Buyer to withdraw them, for any reason, Buyer will first compensate Seller for any cost incurred with respect to them, including, without limitation, design and development costs.
SEVERABILITY OF TERMS
If any phrase, clause or provision shall be declared void, the
validity of any other provisions shall not be affected thereby.
RELEASE OF INFORMATION
Neither party hereto shall, without the prior written consent of
the other party which will not be unreasonably withheld), publicly
announce or otherwise disclose the existence of the terms of this
agreement, or release any publicity regarding this amendment. This
provision shall survive the expiration, termination or cancellation
of this Agreement.
MODIFICATION
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES
RELATING TO THE SALE OF THE GOODS DESCRIBED ON THE FACE HEREOF,
AND NO ADDITION TO OR MODIFICATION OF ANY PROVISION OF THIS CONTRACT
SHALL BE BINDING UPON SELLER UNLESS MADE IN WRITING AND SIGNED
BY A DULY AUTHORIZED REPRESENTATIVE OF SELLER LOCATED AT SELLER'S
APPROPRIATE ORDER ENTRY LOCATION.
RETURN OF DEFECTIVE MATERIAL
Once a customer has requested and received an EMS Rejected Material
Request (RMR) number from EMS, the appropriate packaging requirements
for returning the material is provided to the customer as part
of the EMS RMR authorization notification. Reference to the EMS
RMR authorization number must be clearly displayed and legible
on the outside of the packaging. Items without the EMS RMR authorization
number will not be accepted by EMS. Material that is damaged in
transit as a result of the customer not following the appropriate
packaging requirements (excluding the defects documented on the
EMS RMR) will void the EMS RMR authorization. The maximum time
window that EMS will accept requests for RMR authorization numbers
is one year from the date of product shipment from EMS. For product
susceptible to oxidation, as previously agreed-to by Buyer and
Seller, the maximum time window that the EMS RMR will be accepted
for oxidation related problems (including rust) is two months from
the time of product shipment, provided that the product has been
maintained in its original packaging and has not been exposed to
excessive humidity or other harmful environments.