Sales Terms & Conditions
The following terms and conditions shall be incorporated into each accepted order or contract between the buyer indicated in the attached order or contract (“Buyer”) and the seller indicated in the attached order or contract (“Seller”) for any items sold by Seller (“Product”).
1. ACCEPTANCE OF ORDER. The issuance by Buyer of a purchase order predicated upon this proposal shall not constitute a binding contract unless and until it is expressly accepted by Seller. Any terms or conditions of Buyer’s purchase order or similar instruments, which are in addition to or inconsistent with Seller’s terms and conditions, shall not be binding on Seller and shall not apply to this transaction unless specifically agreed to in writing in Seller’s acceptance and acknowledgement. Seller’s failure to object to provisions contained in Buyer’s order or other communication shall not be deemed a waiver of these Terms and Conditions.
2. PRICES. All quotations, unless otherwise stated, are for immediate action and all prices quoted therein are subject to change without notice any time prior to Seller’s acceptance of Buyer’s order. All Product will be billed at Seller’s prices in effect at time of shipment. Previous quotations for the Product or services described hereon are hereby cancelled. Prices quoted do not include any city, state, or federal taxes which may be applicable. Such taxes will be paid by Buyer.
3. PAYMENT. Invoices shall be paid in accordance with the terms stated in the Purchase Order and due dates for payment of invoices shall be computed from the date of receipt of both the Products and Invoices by Buyer.
4. BUYER’S MATERIAL. Quotations covering machining of Buyer’s material are made subject to delivery of the amount of material as specified by Seller in the appropriate lengths and are subject to change if material furnished by Buyer is defective or will not machine with reasonable wear on tools at the speed and feed estimated. Chemical and physical specifications are the sole responsibility of Buyer, and parts manufactured from Buyer’s material which conform to blueprint specifications shall be accepted by Buyer, Seller does not guarantee to deliver more than 90% of the quantity ordered, in accordance with these Terms and Conditions. If Buyer’s material proves defective in total or in part or of a different character than represented by either Buyer or material producer, all work performed by Seller shall be reimbursed by Buyer.
5. DELIVERY F.O.B. Unless otherwise specified in writing, delivery of Product will be made F.O.B. Seller’s facility. All Product becomes Buyer’s property and responsibility when delivered to a common carrier or any such delivery service as Buyer may specify, at the F.O.B. point. Seller will make every effort to make shipment in accordance with the delivery schedule submitted, but such delivery is not guaranteed. Seller shall not be liable for any penalty or damages for delay in the production or delivery of the materials covered hereby. If any condition or cause whatsoever beyond the reasonable control of Seller, prevents compliance with such schedule, in the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of such delay. Seller accepts no risk of loss or damage to Buyer’s Product by deterioration or by fire, smoke, explosion, sprinkler leakage, windstorm, flood, hail, aircraft, riot, civil commotion, labor trouble, or any other casualty while in transit, in Buyer’s possession or under Buyer’s control.
6. LIMITED WARRANTY.
a. All statements, technical information, and recommendations concerning the Product sold or samples provided by Seller are based upon tests believed to be reliable but do not constitute a guarantee or warranty. Suggestions as to design use and suitability made by Seller are submitted in good faith; however, Buyer must and shall assume final responsibility for accepting and using such suggestions. All Product is sold and samples of Product are provided with the understanding that Buyer has independently determined the suitability of such Product for its purposes. Seller warrants, as limited below, that Product shall conform in material respects to the specifications provided by Seller, if any. Unless dimensions are limited by a specific tolerance, it is understood that the production variations as published by the Seller will be acceptable. General title block tolerances on blueprints shall not apply unless agreed to in writing by the Seller.
b. Should the Product fail to conform in material respects to the specifications provided by Seller, if any, and such defects appear within twelve months, or in the time period stated on the specific Product specification sheet, if any, after the initial date of shipment, Seller shall, upon written notification thereof and substantiation that the Product has been stored and applied in accordance with Seller’s standards, correct such defects by suitable rework or replacement without charge at Seller’s plant or at the location of the Product, at Seller’s election, provided, however, if Seller determines that rework or replacement is not commercially practical, it shall issue a credit in favor of Buyer in an amount not to exceed the purchase price of the Product. This remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to rework or replace any of its defective Product. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
c. The warranty provided by Seller to Buyer hereunder shall cease to be valid immediately upon the occurrence of the following: i) Buyer has not fully complied with Seller’s instructions regarding use, installation and/or maintenance, in which case Buyer must prove that said instructions have been observed by Buyer; ii) Buyer has made any changes to the Product purchased from Seller in which the defect has been discovered without having obtained Seller’s consent; iii) Buyer has not offered Seller the opportunity to do everything which would be necessary or desirable to repair the defect concerned.
7. LIMITATION OF LIABILITY. In no event shall Seller be liable for any incidental or consequential or other damages including but not limited to loss of profit, loss of use or production or loss of capital. The remedies of Buyer set forth above are exclusive, and the total liability of Seller with respect to any contract, or anything done in connection therewith, whether arising out of contract, negligence, strict tort of any warranty or otherwise, shall not exceed purchase price of the Product upon which liability is based.
8. INDEMNIFICATION. Seller shall not be responsible for the acts or omissions of Buyer, and Buyer agrees to indemnify and hold the Seller, its agents, successors, assigns, insurance carriers, directors, shareholders and officers (each as “Seller Indemnitee” and collectively the “Seller Indemnitees”), harmless from any and all claims and/or liabilities, of whatever nature asserted against any Seller Indemnitee arising out of Buyer’s sale of Product to third parties and/or any services rendered by Buyer to third parties in connection with the installation, maintenance and/or replacement of any Product. Buyer’s indemnification obligations hereunder shall include all costs and expenses incurred by any Seller Indemnitee including, but not limited to, reasonable attorney’s fees, incurred by said Seller Indemnitees in having to defend such an action. In the event a court of competent jurisdiction ultimately determines payment is due and owing by one or more Seller Indemnitee with respect to any claim asserted, Buyer shall be responsible for payment of such amount.
9. PATENTS. Buyer will indemnify, defend and hold Seller harmless from any and all expense or loss from any claim for damages, or liability, arising out of actual or alleged infringement of patents or trademarks resulting from compliance with Buyer’s design, specification or instruction.
10. PROPRIETARY RIGHTS, INFRINGEMENT. All specifications, blueprints, technical documents, instructions, molds, casts, formulas, sketches, drawings, manufacturing processes, know-how, software and software protocols, electronic commerce system information, inventory management system information, and other business information supplied to Buyer under the Agreement or prepared for Buyer under the Agreement shall be proprietary to Seller (“Seller’s Proprietary Property”) and shall remain the sole property of Seller, except that exclusive designs developed by Buyer prior to the placement of a Purchase Order shall remain the property of Buyer, its agents, representatives or employees for any purpose except in connection with the work to be done by Seller for Buyer under the Agreement, and shall not be used, disclosed or made available to any other third party by Buyer for its agents, representatives, or employees. By its acceptance of the Agreement, Buyer agrees to take all necessary precautions against theft, destruction, damage, loss, unauthorized duplication or wrongful distribution, or unauthorized use of Seller’s Proprietary Property. Unless otherwise agreed to by Seller in writing, Seller’s Proprietary Property shall be returned to Seller upon completion of production or processing or earlier, upon Seller’s demand.
11. QUANTITY. All quotations are based on production and prompt delivery of stated quantity at one time and Buyer accepting over-run or under-run on each individual item not exceeding 10% of quantities ordered unless otherwise agreed in writing. This quotation applies to the quantities shown only. Additional quantities and/or sizes will be quoted upon request.
12. PARTIAL TOOL CHARGES. Any charges for special tools, dies or fixtures which are necessary for the completion of orders are partial and do not cover the full costs of Seller for such tools, dies or fixtures. Such tools, dies or fixtures remain the property of Seller. Buyer shall pay for the cost of special tooling when Seller has submitted sample Product made to the Buyer’s specification or has completed a shipment of Product in lieu of samples. Tools can become property of Buyer only by written agreement and after Buyer pays full tool charges.
13. APPLICATION. Seller’s ball nuts are designed to operate on Seller’s screws. Seller’s screws are designed to operate with Seller’s ball nuts. Utilizing a Seller ball nut with a non- Seller screw will void the warranty for the ball nut. Utilizing a Seller screw with a non- Seller ball nut will void the warranty for the screw.
14. STRAIGHTNESS. If applicable, straightness is measured and inspected in a bolted or clamped condition utilizing the functional holes intended for this purpose. If bolt holes are not present, straightness will be measured as is typical by Seller’s process.
15. THREADS. Unless otherwise specified, threads will be of the American National or Unified form and will be made to Class 2A or 2B fit tolerances. When Buyer specifies threads other than sizes mentioned above or in other classes of tolerances or limits, gages are to be furnished by Buyer or charged for by the Seller.
a. EXTERNAL THREADS: Where threading to the shoulder is specified, if a thread relief or under-cut of sufficient width is not provided for, it will be understood that the last full thread will not be cut closer to the should than a distance of two and one-half threads and in the case of very fine pitches, never closer than 1/16″.
b. INTERNAL THREADS: Unless dimensional limits for minor diameter of tapped holes are specified, the percent of full depth thread will be in accordance with the regularly accepted general practice. Unless otherwise specified, blind tapped holes may not have a full thread closer than fives threads from the bottom and in case of the fine pitches, not closer than 5/32″.
16. GAGES: Where dimensions cannot be readily gaged with micrometers and require special gages, such gages may be furnished by Buyer or supplied by Seller at an extra charge. In the case of threads, the inspection gages shall conform to the limits specified by the latest National Bureau of Standards Handbook H26, as supplemented, entitled “Screw Thread Standards for Federal Services for Inspection Gages”.
17. CHANGES AND CANCELLATION. Orders accepted by Seller are not subject to changes or cancellation by Buyer, except with Seller’s written consent. If a change or cancellation is so made it is agreed that all finished Product be taken at full contract price, that Product in process be paid for at cost plus pro rata profit, and that Seller be reimbursed for materials purchased in anticipations of their use in Product.
18. INSPECTION. Buyer shall notify Seller in writing of any default in Product or claim reasonably discoverable upon inspection of Product within thirty (30) days after Buyer’s receipt of Product, or Buyer shall be deemed to have accepted such Product and any claims arising therefrom shall be waived. All claims for errors or shortages must be made within ten (10) days of Buyer’s receipt of Product.
19. GOVERNING LAW. These Terms and Conditions shall be deemed to be made under and shall be governed by the laws of the State of Illinois. Venue and jurisdiction for any disputes arising hereunder shall be in Winnebago County, Illinois.
20. DEFAULT. In the event of default under any Buyer order, Seller may immediately terminate its performance required by any and all purchase orders outstanding between Buyer and Seller without notice to Buyer. All late payments shall be charged interest at the rate of 1.5% per month on the unpaid balance or the maximum amount allowed by law, whichever is less. Buyer shall immediately notify Seller of the occurrence or expected occurrence of any of the events of default listed below. Buyer shall be liable for all costs including reasonable attorneys’ fees incurred by Seller in collecting delinquent accounts.
The following shall be considered events of default:
(a) If a payment is not received by its due date;
(b) If an application for a suspension of payments or for protection under the U.S. Bankruptcy Code is filed or granted on behalf of Buyer;
(c) If Buyer loses full or partial control of its assets;
(d) If Buyer’s company is dissolved or if its business is discontinued in whole or in part; or
(e) If Buyer fails to comply in full or in part with any obligations owed to Seller.
a. This proposal and any applicable Purchase Orders constitutes Seller’s entire quotation covering Buyer’s requirements. There are no agreements not included in the above.
b. The failure of a party to require performance of any provision of any purchase order or contract between the parties will not affect its right to enforce such provision in the future. No waiver by a party of any provision of these Terms and Conditions will be effective unless such waiver is in writing, and no waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition, breach, term, condition or covenant.
c. If a court of competent jurisdiction finds that any of the provisions hereof are in conflict with any applicable statutory provision, the remaining provisions shall nonetheless remain in full force and effect. The invalid provision shall in that case be deemed to have been replaced by a similar, legally enforceable provision which approximates the purpose and intent of the invalid provisions as closely as possible.
d. In the event it is necessary for either party to file a lawsuit to enforce or defend any of the provisions of these Terms and Conditions or of a purchase order or other agreement between the parties relative to an order, the party that prevails in court with respect to such lawsuit shall be entitled to recover from the other party its reasonable attorneys’ fees and costs related to such lawsuit.
e. In an event of force majeure, which shall be understood to include any situation or circumstance which is beyond the control of Seller such as, but not limited to, riot, war, rebellion, fire, flood, earthquake, acts of God or acts of governmental authorities, the time of delivery agreed for the performance stipulated shall be extended by such a period as conforms to the duration of the event of force majeure and such further delay caused thereby.