The following terms and conditions of sale apply to all purchase orders accepted or entered into by Seller. Acceptance of Buyer's order is made only on the express understanding and condition that insofar as the terms and conditions of this acceptance conflict with any of the terms and conditions of Buyer's order, the terms and conditions stated in this acceptance and no others govern the entire transaction of sale without the need for written acknowledgement by Buyer. The failure of Buyer to object in writing within ten (10) days from the receipt thereof shall constitute assent hereto. No additions or modifications of any terms and conditions hereof shall be effective unless made in writing and signed by Seller.
Prices stated apply only if the quantity ordered is released within twelve (12) months and deliveries are to Buyer within eighteen (18) months of Seller's receipt of Buyer's order. Otherwise Seller's standard prices existing at the time of each delivery under this agreement shall apply and Buyer shall be invoiced for any difference between prices herein and prices existing at the time of delivery as to all products purchased under purchase order at the completion of delivery or after eighteen (18) months, whichever event first occurs.
All invoices are due and payable thirty (30) days from the date of invoice. No discounts are authorized. It is understood that Seller may at any time without notice, alter or suspend credit terms, stop shipment, or cancel unfilled orders when, in Seller's opinion, the financial condition of Buyer or its accounts so warrants, or when delivery is unreasonably delayed through any fault of Buyer, or when Buyer is delinquent in any payment of invoiced merchandise. Any and all invoices not paid within thirty (30) days of date of invoice (i.e. payment received by Seller) shall be subject to an interest charge of 1.5% per month on past due balances. This charge shall be due with the payment of the invoice. Without limiting the above provisions, in the event Buyer does not pay all sums due and owing within (60) days (including any and all interest charges), Seller may withhold further shipment of goods and hold such goods for Buyer until payment by Buyer. Such withholding of a shipment shall not constitute a breach by Seller of the agreement between Seller and Buyer, and Seller, at its discretion may continue to manufacture in accordance with this contract in which case Seller shall be entitled to damages equal to those damages provided for in paragraphs VI and IX.
Prices do not include federal, state or local taxes based upon or measured by sale, use or manufacture. All such taxes, where applicable, will be added to the price and shall be paid by Buyer unless Buyer furnishes a tax exemption certificate satisfactory to the taxing authorities. Buyer assumes responsibility for compliance with all federal, state, and local laws governing exports from the U.S. in connection with the sale and use of the products and/or any subsequent re-export of such products. All export and import duties, fees, permits, licenses, etc. for products to be delivered outside of the U.S. shall be the responsibility of Buyer.
Parts and materials shall conform to the drawings end specifications referred to herein, and in the absence or incompleteness of the same, shall be in accordance with Seller's standard tolerances, manufacturing specifications, inspection plans and procedures.
Unless otherwise stated in this document, delivery will be made F.O.B. point of shipment. All stipulated delivery shipment dates are approximate only and will be computed from the date the purchase order is received or the date of release, whichever is applicable. Delivery dates are given to the best of Seller's knowledge based on conditions existing at the time of quoting but are not guaranteed. Failure to make shipment as scheduled does not constitute a cause for cancellation and/or for damages of any character. Seller shall not be liable for any delay or failure to perform in whole or in part because of insurrection, fires, floods, strikes, work stoppage, acts by Buyer, accidents, casualty, inability to procure supplies and raw materials, delays in transportation, government regulation, plant damage, war, force majeure, or any causes beyond Seller's control. Acceptance of goods by Buyer shall constitute a waiver of all claims for delay.
Where delivery schedules have been established hereunder, or releases issued, and Seller has commenced manufacturer delivery, and where Buyer has delayed delivery by Seller of more than twenty-five percent (25%) of the quantity of parts to be delivered, then Seller shall charge Buyer an inventory Holding Charge on all delayed goods, said charge to be 0.0005 x (the raw material costs, plus the work-in process costs, plus finished products at the selling price) per day of delay. Seller shall inform Buyer in writing of the daily Inventory charge as soon as said charge is compiled and such charges shall be due within thirty (30) days after invoicing as provided in paragraph III.
Orders or portions of orders placed on hold by Buyer may be considered materially breached by Buyer and at Seller's discretion as one remedy may be terminated if not released for shipment within the succeeding three (3) month period, and Buyer shall be liable for cancellation charges. Thirty (30) days written notice is required to place scheduled releases on hold, said notice does not give Buyer the right to so delay and Buyer shall be liable for delay in accordance with the terms and conditions provided herein (e.g. paragraph IX and preceding paragraph). Shipments delayed by Buyer will nevertheless be billed to Buyer on date when Seller is prepared to ship. Materials held for Buyer are at Buyer's sole risk and expense.
Title to the goods sold hereunder shall pass to Buyer upon delivery to the carrier, but notwithstanding such passage of title Seller shall retain a purchase money security interest in such goods and the proceeds of products incorporating the same. Buyer shall execute the documents, if any, necessary to perfect such security interest.
Buyer shall indemnify and hold Seller harmless against any expenses or leases resulting from infringement of patents, trade secrets or other intellectual property (IP) arising from compliance with Buyer's designs, specifications or instructions, and shall defend any suit or proceeding brought against Seller based on a claim that any product being furnished under this contract constitutes an infringement of any IP, if such product is being manufactured by Seller to Buyer's designs, specifications or instructions and the claim of infringement results from such designs, specifications or instructions. No other warranties or non-Infringement shall be implied hereunder.
Purchaser may, upon written notice to Floyd Bell Inc, cancel all or part of a standard product order within 14 days of Floyd Bell Inc receiving the order. If a purchaser needs to cancel all or part of a standard product order after 14 days of Floyd Bell Inc receiving the order, a 25% cancellation fee may apply. Custom Product orders cannot be cancelled at any time.
Seller makes no warranty of fitness for a particular purpose in respect of the goods sold hereunder, or any other warranty, express or implied, except a warranty of title. Seller's obligation to Buyer in respect to the goods sold hereunder shall be limited to replacing F.O.B. its plant or such other point as it may designate any such goods which prove to be defective in workmanship or material or which fail to conform to the applicable specifications, provided that written notice of such defect or failure is received by Seller from Buyer within thirty (30) days from the date of receipt of such goods and provided further, that such goods have not been used or resold. In no event shall there be any liability on the part of Seller for special or consequential damages. This warranty is subject to the limitations contained in the paragraph Xl. The transaction of sale shall be deemed to be made in and shall be governed by the laws of the State of Ohio.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT, EXCEPT SPECIFIC PRODUCT WARRANTIES APPEARING IN PRODUCT LITERATURE PUBLISHED BY SELLER.
No products are to be returned without Seller's written authorization and then only with Seller's terms and instructions. All nonconforming material returned to Seller shall be separately packaged, postage prepaid, and marked so as to clearly identify the shipment in question. Shipping charges shall be paid by Seller only in the event Seller determines the products returned are defective. Should Seller determine said returned products are not defective all shipping charges shall be paid by Buyer. In no event shall Seller be responsible for packing, inspection, labor charges or any other related cost in connection with products returned for inspection or adjustment. Failure to adequately identify the particular shipment, to prepay freight, or to advise Seller of nonconforming material within thirty (30) days from date of receipt thereof shall terminate any and all of Seller's obligation with regard to nonconforming items from any previous shipment.
All orders for custom products are subject to an over run/under run of five percent (5%) of the quantity ordered, which shall constitute fulfillment of the order. For all custom orders, Seller will invoice Buyer for all remaining quantities at the end of the initial term and standard payment terms will apply.
All tooling, molds, fixtures, etc., shall remain the property of Seller even though Buyer may have partially or completely paid for such and for a reasonable period, such tooling shall be maintained in good condition for use without additional charge in connection with subsequent orders from Buyer to Seller for similar products. Seller has the right to scrap all tools inactive for a period of twelve (12) months and any resulting scrap value shall belong to Seller for maintenance and storage charges. Seller reserves the right to sell to any Purchaser parts made from such special tools, unless otherwise specifically agreed to in writing.
NOTWITHSTANDING ANYTHING SET FORTH HEREIN, AND TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES IN CONNECTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH OF SELLER'S OBLIGATIONS TO BUYER. SELLER'S AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO ANY PRODUCTS SOLD TO BUYER SHALL IN NO EVENT EXCEED THE AMOUNT BUYER PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR DAMAGES.