1. CONTRACT. THE TERMS AND CONDITIONS SET FORTH BELOW AND ON THIS WEBSITE CONSTITUTE THE EXPRESSION OF ALL THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND SELLER. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY ANY AGENT OR EMPLOYEE OF SELLER THAT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS HEREOF SHALL HAVE NO EFFECT OR FORCE. Any additional contradictory or different terms contained in any other document or communication of Buyer pertaining to the Goods described on this website(the “Goods”) are hereby objected to upon Seller’s acceptance of
Buyer’s order. The terms and provisions set forth herein and in Seller’s Acknowledgment shall constitute the entire agreement between Buyer and Seller and no statement, correspondence, sample or other term shall modify or affect the terms hereof. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in the Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant or determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. All orders are subject to approval by Seller at its offices in Twinsburg, OH. No waiver or alteration of terms herein is binding unless in writing, signed by an executive officer of Seller.
2. PRICE. All prices are F.O.B. Seller’s plant, Twinsburg, OH, unless otherwise specifically set forth on this website. Prices stated are subject to change without notice in the event of: (i) alterations in specifications, quantities, designs, or delivery schedules: (ii) increases in the cost of fuel, power, material, supplies, or labor: and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, or selling the Goods purchased hereunder. Buyer shall receive no discount from Seller on the Goods purchased unless specifically set forth on this website. Seller shall determine all terms of payment and credit for Goods that are not specified in the Agreement. Buyer agrees to pay a delinquency charge of 2% per month, or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate, on the outstanding balances not paid when due, from the date such balances were due until payment with respect thereof is made in full. Buyer agrees to pay Seller all costs of collection, including reasonable attorneys’ fees, for collection of any amount owed by Buyer. Seller retains a security interest in the Goods and in all proceeds of said Goods until Buyer pays in full the purchase price(s) and all other sums due pursuant hereto. Buyer shall execute financing statement(s) on request and irrevocably authorizes
Seller to execute and file same.
3. WARRANTY. Seller warrants that goods manufactured by it will be free from defects in material and workmanship for eighteen (18) months following the date of shipment. If Seller finds any of the goods are defective, Buyer agrees that the sole and exclusive remedy and Seller’s sole and exclusive obligation shall be, at Seller’s option, replacement or repair of the goods. Buyer further agrees that this exclusive remedy shall not fail of its essential purpose as long as Seller is willing and able to repair or replace defective goods in the prescribed manner.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS SECTION, SHALL CONSTITUTE A WARRANTY, IN PARTICULAR, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. IF SELLER MANUFACTURES THE GOODS ACCORDING TO BUYER’S SPECIFICATIONS, SELLER DOES NOT WARRANT THE ACCURACY OF THOSE SPECIFICATIONS OR THAT THE GOODS WILL PERFORM IN ACCORDANCE WITH THOSE SPECIFICATIONS. THIS WARRANTY DOES NOT COVER LABOR OR OTHER COSTS OR EXPENSES TO REMOVE OR INSTALL ANY DEFECTIVE, REPAIRED OR REPLACED GOODS. SELLER’S WARRANTY DOES NOT APPLY TO ANY GOODS WHICH ANYONE HAS SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT (INCLUDING BUT NOT LIMITED TO IMPROPER MAINTENANCE), ACCIDENT, IMPROPER INSTALLATION, MODIFICATION (INCLUDING BUT NOT LIMITED TO USE OF UNAUTHORIZED PARTS OR ATTACHMENTS), OR ADJUSTMENT OR REPAIR UNLESS PERFORMED BY SELLER OR ONE OF SELLER’S AUTHORIZED AGENTS.
SELLER DOES NOT WARRANT GOODS THAT IT SELLS TO BUYER BUT DOES NOT
It is expressly understood that Seller gives any technical advice with respect to the use of its goods without charge, and Seller assumes no obligation or liability for the advice given, or the results obtained, because Buyer accepts the risk for all advice provided by Seller.
This warranty is void if anyone other than Seller makes repairs to the goods without the prior authorization from Seller.
Buyer agrees that unless the Buyer submits a claim in writing to Seller within thirty (30) days following Buyer’s receipt of the goods, then Buyer waives all claims with reference to the goods sold by Seller. Further, Buyer agrees to bring any cause of action for breach of the foregoing warranty within one (1) year from the date of shipment.
4. LIMITATION OF LIABILITY. Buyer agrees to limit Seller’s liability (whether under the theories of breach of contract or warranty, negligence, strict liability or otherwise) for its Goods to repairing or replacing Goods found defective by Seller or at Seller’s option, to refund the purchase price of the Goods or parts thereof. At Seller’s request, Buyer will send, at Buyer’s sole expense, any allegedly defective parts to the place where Seller manufactured them.
5. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH GOODS SOLD TO BUYER PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. Consequential damages for purposes hereof shall include, without limitation, loss or use, income or profit, or losses sustained as the result of injury (including death) to any person, or loss of or damage to property (including without limitation property handled or processed by the use of the Goods).
Buyer further agrees to indemnify and hold Seller and its affiliates, officers, directors, agents, and employees harmless from any third party claim(s), settlement of claim(s) or demand(s), including reasonable attorneys’ fees, due to or arising out of any loss, damage or injury arising from the purchase or use of Seller’s goods.
6. EXCLUSIONS AND LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTIAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF SECTIONS 4 AND 5 MAY NOT APPLY TO BUYER.
7. ACCEPTANCE AND TRANSPORTATION. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Goods. Seller shall deem Goods finally inspected, checked and accepted by Buyer, unless Buyer provides Seller with written notice of any claim for shortages of or defects in the Goods within forty-eight (48) hours after receipt of shipment.
8. TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon tender of delivery by Seller to carrier. Buyer shall make any claims for losses or damage occurring after Seller’s delivery to carrier directly with carrier.
9. PAYMENT AND CREDIT TERMS. Seller’s Credit Department must approve all orders and shipments, and shall determine all terms and forms of payment and credit, to which terms Buyer consents by its acceptance of any Goods from Seller. Seller reserves the right of declining to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility and Seller is not liable for breach or nonperformance of contract in whole or in part.
10. TAXES. Unless otherwise specifically provided on this website, the price for the Goods purchased is net and does not include sales, use, excise or similar taxes, whether federal, state or local. Buyer shall pay the amount of any taxes applicable to the Goods in the same manner, and with the same effect as if originally included in the purchase price. If Seller pays any such taxes, Buyer shall immediately reimburse Seller therefore upon demand.
11. PACKAGING. Seller bases its packaging prices stated on Seller’s standard packaging. Packaging will be standard commercial package and acceptable to commercial carrier. Seller shall furnish special customer packaging only upon Buyer’s request, and Buyer shall bear the cost thereof.
12. DELAYS. Unless expressly specified to the contrary, Seller shall ship Goods in stock promptly upon its receipt of Buyer’s order and the approval of Seller’s Credit Department, and Seller shall ship Goods not in stock as soon as practicable. However, all shipping dates are approximate, and based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller is not liable for any damage, loss, fault or expenses arising out of delays in shipment or other nonperformance of this Agreement caused or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor delay, or (f) any other cause or condition beyond Seller’s reasonable control. In the event of any such delay or nonperformance, Seller may, at its option and without liability, cancel all or any portion of this Agreement and/or extend any date upon which any performance hereunder is due.
13. TERMINATION, CANCELLATION AND CHANGES. The contract resulting from this acknowledgment and acceptance of Buyer’s order(s) cannot be terminated, canceled or modified or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in process and contract value of products or parts completed and ready for shipment.
14. PATENTED PROCESS. Buyer’s purchase of the Goods does not entitle Buyer to employ any patented process owned by Seller or others.
15. PATENT INFRINGEMENT. Buyer agrees to defend and indemnify Seller against any claims or liabilities for, or by reason of, the infringement of any United States Patent arising from the manufacture of any of the Goods in accordance with specifications furnished by Buyer or from the sale thereof.
16. ADDITIONAL CHARGES. The terms and conditions of this contract shall
apply if Buyer purchases substitute or additional Goods, or repair parts from
17. EQUAL EMPLOYMENT OPPORTUNITY. The Equal Opportunity clause, Section 202 of Executive Order 11246, as amended, relative to equal employment opportunities and implementing rules and regulations of the Secretary of Labor, is incorporated herein by specific reference.
18. GENERAL CONDITIONS. No agent, salesman or other party is authorized to bind Seller by any agreement, warranty, statement, promise or understanding not herein expressed.
The laws of the State of Ohio shall govern the construction and enforcement of this contract. Buyer agrees that venue shall lie in Cuyahoga County.
No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not constitute a bar to or a waiver of any such right or remedy on any future occasion.
This contract is binding upon and shall inure to the benefit of the successors and assigns of Buyer and Seller, provided, however, that Buyer may not assign or transfer this contract, in whole or in part, except upon prior written consent of Seller.
19. SEVERABILITY. All the terms and conditions expressed herein are severable. If any term or condition is illegal, invalid, or unenforceable, such illegality, validity, or unenforceability shall not affect the legality, validity, or enforceability of any other terms and conditions hereof.
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