TERMS AND CONDITIONS OF SALE
The term and conditions of sale contained herein apply to all quotations made and purchase orders submitted to an accepted by the seller. Seller’s acceptance of Buyer’s order is expressly conditioned upon Buyer’s consent to the terms and conditions captained herein, which shall govern, irrespective of any terms and conditions which may be affixed to or contained in Buyer’s form or order blank and/or specified by Buyer. The terms and conditions contained herein shall be deemed accepted by the Buyer either by written acknowledgment or by acceptance of delivery by Buyer of the goods ordered from seller unless Seller receives written notice of rejection of the terms or conditions contained herein prior to acceptance of delivery by Buyer. The acceptance of those goods shall constitute assent to the term and conditions contained herein. Seller’s failure to object to any provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions of this acceptance. Any changes in the terms and conditions of sale contained herein must be specifically agreed to in writing by the President or Vice President of the Seller before becoming binding on either the Seller or the Buyer.
All orders or contracts must be approved and accepted by Authorized Representative of the Seller at its home office.
The said terms and conditions of sale shall be applicable whether or not they are attached or enclosed with the products to be sold or sold hereunder.
Prices quoted for the items described above and acknowledged hereby are not subject to audit, price revision, or price redetermination by the Buyer.
Invoices for material delivered under this order are payable only in funds which are accepted at par in the United States. All terms are from date of invoice or shipment, whichever is sooner. These terms of payment are subject, nevertheless, at all times to the approval of Seller’s President or Vice President, and in case of doubt arising as to Buyer’s financial responsibility, shipment may be suspended until satisfactory assurance of Buyer’s responsibility is received.
In the event that payment is received in excess of 30 days from the date of invoice, a Service Fee of 1 1/2 % per month (18% per annum) shall be assessed. In the event collection procedures are required by Seller, the Buyer shall pay all costs of collection, whether or not legal proceedings are instituted, including but not limited to collection fees, attorney fees, court costs incurred by Seller and all accrued interest.
All goods sold hereunder may be tendered by a single delivery or by delivering in lots at Seller’s discretion. Payment shall be make accordingly upon receipt of each shipment. This contract is non-severable, notwithstanding the fact that separate shipments and payments may be made hereunder. In the event shipments are delayed by the Buyer, payments shall become due on the date when the Seller is prepared to make shipment. In the event the work covered by the purchase order is delayed by the Buyer, payments shall be based on the purchase price and the percentage of completion. Products held for the Buyer shall be so held at the risk and expense of the Buyer. The Seller reserves the right to ship to its order and make collection by sight draft with bill of lading attached.
Seller reserves the right to suspend credit at any time when in its sole judgment the financial condition of the Buyer warrants such action. At such time, without releasing Buyer of its obligation to accept goods hereunder. Seller may thereupon require that Buyer pay his account in full and pay cash on all future deliveries as a condition to such deliveries and treat failure to do so as a breach of this entire contract, terms of credit hereunder to the contrary notwithstanding.
All products not specifically designated otherwise are sold F.O.B. shipping point, Seller’s plant; and the cost of transportation thereof shall be borne by the Buyer.
Seller’s title passes to Buyer and Seller’s liability as to delivery ceases upon making delivery of material purchased hereunder to carrier at shipping point in good condition with the carrier acting as Buyer’s agent. All claims for damages must be filed with the carrier. All shipments will normally be made by Parcel Post, Railway Express, Air Express or Air Freight. Unless specific instructions from Buyer specify which of the foregoing methods of shipment is to be used, the Seller will exercise his own discretion. Buyer shall bear all risk of loss or damage to the goods upon Seller’s delivery of the goods to the carrier.
Shipping dates are approximate and based upon prompt receipt from Buyer of all information necessary to arrive at mutually agreeable delivery schedules. In no event shall Seller be liable for any re-procurement costs or for damages caused by delay or non-delivery due to causes beyond its control, including but not limited to acts of God, acts of civil or military authority, priorities, fires, strikes, lockouts, slowdowns, factory or labor conditions, and manufactures inability due to causes beyond the Seller’s control to obtain necessary labor, materials, or manufacturing facilities or any other causes similar or dissimilar beyond Seller’s control. In the event of any such delay the date of delivery shall be deferred for a period equal to the time lost by reason of the delay.
5. WARRANTY AND LIMITATION OF LIABILITY
Seller warrants to the original purchaser of its goods that the goods shall be free from defects in materials and workmanship during the 365-day period running from the date of manufacture. Seller’s obligations under this warranty are specifically limited to replacing or repairing the goods which are shown by Seller’s examination to be in a defective condition attributable to Seller. To qualify for this limited warranty, Buyer must return the goods to Seller, within a reasonable time after discovery of the defect, and within the 365-day period. Seller will examine the goods. If Seller determines that there is a defect attributable to it, it will correct the problem within a reasonable time. If the goods are covered by this limited warranty, Seller will assume the expenses of repair. If any defect attributable to Seller under this limited warranty cannot be reasonably cured by repair or replacement, Seller may elect to refund to you the purchase price of the goods, less reasonable depreciation, in complete discharge of its obligations under this limited warranty. If Seller makes this election, Buyer shall return the goods to Seller free and clear of any liens or encumbrances.
This is a limited warranty. The original purchaser of the goods and any person to whom they are transferred, shall not be entitled to recover from Seller any consequential or incidental damages for injury to person and/or property resulting from any defective goods manufactured by Seller or from Seller’s breach of this contract. It is agreed and understood that the price stated for the goods is in part consideration for limiting Seller’s liability.
Seller shall have no obligation under this limited warranty if the goods are, or have been, misused or neglected or if there have been accidents to the goods or if it has been repaired or altered by someone else.
Seller may provide to Buyer data relating to the goods sold and the application of the goods to Buyer’s purposes. Any information is for general use only in order to enable Buyer to make its own independent determination as to the suitability of the goods for Buyer’s intended application.
Seller does not represent or warrant to Buyer the suitability of the goods for Buyer’s intended use. This is Buyer’s decision alone.
SELLER EXPRESSLY LIMITS WITH RESPECT TO THE GOODS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE TO THE 365 DAY WARRANTY PERIOD. AFTER THE 365 DAY WARRANTY PERIOD EXPIRES, SELLER EXPRESSLY DISCLAIMS WITH RESPECT TO THE GOODS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, THERE IS NO WARRANTY OF ANY NATURE MADE BY SELLER BEYOND THAT STATED IS THIS DOCUMENT.
6. BLUE PRINTS AND SPECIFICATIONS
All orders are accepted with the understanding that the parts or material furnished will be in accordance with blueprints and specifications, on hand in Seller’s files or furnished to Seller with the Buyer’s order and which have been specially agreed to and accepted by Seller in writing as applicable to such order.
All tolerance, including quantity tolerances, shall be in accordance with Seller’s standards.
The Buyer shall hold the Seller harmless against any expense or loss resulting from infringement of patents or trademarks arising from compliance with Buyer’s designs or specifications or instructions. The sale of products by the Seller does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combinations of said products with other devices or elements.
Except as otherwise provided in the preceding paragraph. Seller will defend at its expense any action brought against the Buyer to the extent that is based on a claim that any product sold hereunder infringes letters patent duly issued by the U.S. Patent Office and subject to the limitation of liability stated below, Seller will pay those costs and damages finally awarded against the Buyer in such action which are attributable to such claim, but such defense and payments are conditioned on the following:
 That Seller shall be promptly notified in writing by the Buyer of any notice of such claim.
 That Seller shall have the sole control of the defense of any action on such claim and of all negotiations for its settlement or comprise and,
 Should the product become, or in Seller’s opinion be likely to become the subject of a claim of infringement of a United States patent, that the Buyer shall permit Seller at Seller’s option and expense.
[i] to procure for the customer the right to continue using the product;
[ii] to replace or modify the same so that it becomes in Seller’s sole judgment non-infringing; or
[iii] to grant the Buyer a credit for such product less depreciation and accept its return.
The depreciation shall be an equal amount per year over the life of the product, all as established by Seller.
Seller shall have no liability to the Buyer under any provision of the agreement with respect to any provision of the agreement with respect to any claim of patent infringement which is based on modification of the product where such modification was not made by Seller or on the combination or utilization of the product with equipment or devices not made or sold by the Seller. Buyer agrees that Seller’s liability to Buyer for damages for patent infringement, regardless of the form of action, shall not exceed the price paid by the Buyer for the infringing product. The foregoing states the entire liability of Seller with respect to infringement of patents.
The material to be furnished hereunder is manufactured in accordance with Seller’s manufacturing specifications and may be covered by U. S. patents. Seller grants no patents or data rights under this contract and specifically prohibits the reproduction or distribution of any data or information or manufacturing know-how furnished in connection with this quotation or the resultant contract, except an necessary for the normal service of the product provided under this contract.
Any equipment (including jigs, dies and tools) which Seller constructs or acquires for Buyer notwithstanding any charges therefor, shall remain Seller’s property and in Seller’s possession and control, and any amount paid in connection therewith by the Buyer shall be considered a service charge. New or additional dies or changes necessary in existing equipment to conform with changes in design ordered by the Buyer are to be paid for by the Buyer. Dies or equipment service charges cover only the useful life of such dies or equipment. Any materials or equipment owned or furnished by the Buyer while in Seller’s possession will be carefully handled and stored by Seller, but Seller shall have no responsibility for loss or damage thereto.
Buyer agrees to pay such taxes, excises, and otherwise as may be levied by the Federal Government or the State or any political subdivision thereof, upon the manufacture, sale and use of the product being sold hereunder.
If payments required hereunder are in default, Seller reserves the right to treat such failure to make timely payments as a breach of this entire contract and withhold further shipments and/or at its option to either cancel the order, or demand that the entire amount under the contract be paid upon tender of all goods ordered hereunder or require Buyer to pay his account in full and pay cash on all future deliveries as a condition to such deliveries and treat failure to do as a breach of this entire contract. Seller additionally reserves the right to cancel the order if prevailing conditions beyond the control of Seller from any cause whatsoever make it impossible or impractical to make the shipments. In case of such cancellation, Seller shall incur no liabilities. In the event of cancellation by Buyer for any reason whatsoever, in addition to all other charges and damages, Buyer will be required to pay a cancellation fee which will be determined by Seller based on expenditures incurred as of the time of cancellation. In the event that partial shipments have been made, unit prices for delivered items shall be adjusted to reflect the unit price related to the lesser quantity actually delivered.
12. GENERAL TERMS
No waiver of a breach of any provision hereof shall constitute a waiver of any breach or of such provision. Failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of the provisions of this acknowledgment of order which shall constitute the entire contract between Buyer and Seller. It is specifically agreed that any purchase order or notice of release which may be issued by Buyer shall in no way constitute a modification hereof.
This agreement shall be governed by the laws of the State of Indiana. If any of this agreement is contrary to, prohibited by, or deemed invalid under applicable laws or regulations of any such jurisdiction in which it is sought to be enforced, then such provision to that extent shall be deemed inapplicable and deemed omitted but shall not invalidate the remaining provisions hereof. This agreement may be modified only by a writing duly signed by both parties hereto. All oral representations and prior negotiations are merged herein. The terms and conditions of this agreement present the entire agreement and understanding of the parties hereto and supersede all previous agreements between them. In the event Seller is required to enforce any provision of this agreement, Buyer shall pay all costs of such enforcement, whether or not legal proceedings are instituted, including but not limited to attorney fees, expenses and court costs.
13. GOVERNMENT CONTRACT PROVISIONS
If Buyer’s original purchase order indicates, by Contract Number, that it is placed under a government contract, the provisions of the current Armed Services Procurement Regulation are applicable in accordance with the terms thereof, with an appropriate substitution of parties, as the case may be, i.e. “Contracting Officer” shall mean “Buyer,” “Contractor” shall mean “Seller,” and the term “Contract” shall mean this order.
Buyer must raise in writing to Seller within 90 days of the date of this invoice any claim or dispute it believes it has against Seller. If Buyer fails to comply with this requirement, it will be precluded from raising the claim or dispute against Seller.
Buyer shall defend, indemnify and save harmless Seller, its parent, and any of its affiliates, and their respective shareholders, partners, members, managers, officers, directors, employees, agents, representatives, and/or licensors (collectively “Indemnitees”) from and against, and reimburse them for, any loss, damage, liability, cost or expense (including reasonable attorneys’ fees and legal expenses) relating to the death of or injury to any person whomsoever, or to the loss of or damage to any property whatsoever arising directly or indirectly from or in connection with Buyer’s negligence, gross negligence or intentional acts or omissions relating to the goods, including but not limited to Product Liability Claims, and any breach of a warranty.