1.1 Payment of the Product purchase price and any additional charges shall be
made in full accordance of terms stated on the Seller’s invoice. All payments will be
made in U.S. dollars.
1.2 If Buyer fails to fulfill any condition of its payment obligations, Seller may
suspend or cancel delivery under any pending purchase order, and Buyer will pay Seller
all costs incurred by Seller due to such suspension or cancellation (including storage
2.1 Seller shall be responsible for, and shall pay directly, any and all corporate
and individual taxes that are produced by the sale of the Products (the “Seller Taxes”). If
Buyer deducts or withholds Seller Taxes, Buyer shall furnish within one month to Seller
accurate official receipts from the appropriate governmental authority for each deducted
or withheld Seller Taxes. Buyer shall be responsible for, and shall pay directly when due
and payable, any and all Buyer Taxes (defined below)., but shall not deduct Buyer
Taxes from any amount due to Seller If Seller is required to pay Buyer Taxes, Buyer
shall, promptly upon presentation of Seller’s invoice for such Buyer Taxes, pay to Seller
in U.S. dollars an amount equal to the U.S. dollar equivalent of such Buyer Taxes.
2.2 “Buyer Taxes” means all taxes, duties, fees, or other charges of any nature
(including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts,
import, license, property, sales, stamp, storage, transfer, turnover, use, or value-added
taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest,
or assessment related thereto), other than Seller Taxes, imposed by any governmental
authority of any country on Seller or its employees or subcontractors due to the
execution of any agreement or the performance of or payment for work hereunder.
3. SHIPMENT; DELIVERY; TITLE TRANSFER; STORAGE
3.1 Shipment will be made from Seller’s manufacturing location in the United
Sates, or such other U.S. point of shipment as specified by Seller. The Product price
does not include freight charges (are shipped FOB from Seller’s manufacturing
3.2 Title to the Product and risk of loss shall pass to the Buyer at the time of
the delivery of the Product to a common carrier. Buyer will be responsible for arranging
and paying for transportation from the U.S. point of shipment, to Buyer’s facilities or
End-Users named facility.
3.3 If any part of the Product order cannot be shipped to Buyer when ready due to
any cause not attributable to Seller, upon notice to Buyer, Seller may ship such Product
to storage. If such Product is placed in storage, including storage at the facility where
manufactured, the following conditions shall apply: (a) title and all risk of loss or damage
shall thereupon pass to Buyer if it had not already passed; (b) any amounts otherwise
payable to Seller upon delivery or shipment shall be payable upon presentation of
Seller’s invoices and certification as to cause for storage; (c) all expenses incurred by
Seller, such as for preparation for and placement into storage, handling, inspection,
preservation, insurance, storage, removal charges and any taxes shall be payable by
Buyer upon submission of Seller’s invoices; and (d) when conditions permit and upon
payment of all amounts due hereunder, Seller shall resume delivery of the Product to
the originally agreed point of delivery.
4.1 Seller fully warrants to Buyer that at the time of shipment and for one year
thereafter, the Product shall be free from all material defects in material, workmanship,
and title based on the design criteria supplied to Seller from Buyer.
4.2 Seller’s entire liability and Buyer’s exclusive remedy for any and all losses and/or damages
for any cause of action arising out of the Agreement, whether based on contract, warranty, negligence,
or otherwise, with respect to such Product or delivery of such Product shall be limited, at Seller’s
option and in Seller’s sole discretion, to (a) repair or replacement of the nonconforming or defective
Product, or (b) payment to Buyer in an amount to not exceed the purchase price of such Product. Any
claim by Buyer shall be deemed to be waived unless made in writing within one year of Seller’s
shipment of such Product. Any repair or replacement shall not be cause for extension of the duration of
the warranty period.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, CONTINGENT,
SPECIAL OR INCIDENTAL DAMAGES OR EXPENSES WHATSOEVER WHICH MAY ARISE
AS A RESULT OF THE AGREEMENT OR OTHERWISE, OR ANY OTHER MATTER WITH
RESPECT TO THE PRODUCT OR THE SERVICES, WHETHER USED ALONE OR IN
COMBINATION WITH OTHER PRODUCT AND/OR SERVICES. THIS WARRANTY IS
EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
IN NO EVENT, UNDER ANY CAUSE OF ACTION OF THEORY OF LIABILITY, SHALL
SELLER, ITS DISTRIBUTORS, OR SUPPLIERS BE LIABLE TO BUYER, ANY USER, OR ANY
THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES, OF ANY NATURE WHATSOEVER, ARISING OUT
OF THE USE OF, MISUSE OF, INABILITY TO USE, OR FAILURE OF PERFORMANCE OF
ANY OF SELLER’S PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, BUYER AND ANY USER UNDERSTAND AND
AGREE THAT SELLER IS NOT LIABLE FOR ANY PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE THAT MAY RESULT FROM SUCH PARTY’S USE OF THIS PRODUCT.
THE USER OF THIS PRODUCT ASSUMES ALL RISKS OF PROPERTY DAMAGE OR INJURY
TO HIMSELF/HERSELF AND ANY THIRD PARTIES THAT MAY ARISE FROM THE
PRODUCT’S USE OR MISUSE, OR FROM AN INABILITY TO USE OR FAILURE OF
PERFORMANCE OF THE PRODUCT.
NOTWITHSTANDING ANY DAMAGES THAT USER MIGHT INCUR FOR ANY REASON
WHATSOEVER, THE ENTIRE AGGREGATE LIABILITY OF SELLER AND ANY OF ITS
DISTRIBUTORS AND/OR SUPPLIERS SHALL BE LIMITED TO THE AMOUNT ACTUALLY
PAID BY USER AND/OR BUYER, AS APPLICABLE, FOR THE PRODUCT GIVING RISE TO
LIABILITY. IF ANY APPLICABLE JURISDICTION DOES NOT ALLOW ANY PART OF THIS
LIMITATION OF DAMAGES, THE LIMITATIONS OF LIABILITY SET FORTH ABOVE
SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER SUCH JURISDICTION’S
4.3 The foregoing warranties are conditioned upon (i) proper storage, handling,
transportation, installation, operation, use, repair, and maintenance, and conformance
with the installation, operation and maintenance manuals provided by Seller and any
reasonable recommendations of Seller, and (ii) the Buyer promptly notifying Seller of
any defects and, if required, promptly making the Product available for correction.
INVOICE TERMS AND CONDITIONS
1. The price stated herein shall be in United States currency. The price includes all
taxes required by law to be paid by Seller as well as charges for boxing and crating
unless otherwise specified, but does not include sales, use, occupation, license, excise
or other taxes to be paid by Buyer, nor does the price include charges for tooling or
2. This shipment is a separate and independent
transaction, with payment due accordingly. Where shipment is delayed by Buyer,
payments are due when Seller is prepared to make shipment. Products held for
Buyer shall be at Buyer’s risk and expense. Payment is due and payable thirty (30)
days after invoice dale unless otherwise specified herein. Time is 01 the essence. A
FINANCE CHARGE OF TWO PERCENT (2%) PER MONTH, OR THE HIGHEST RATE
ALLOWABLEBY LAW, IF LESS THAN TWO PERCENT (2%) PER MONTH, WILL BE
ADDED TO THE UNPAID BALANCE ON All ACCOUNTS NOT PAID IN FULL ON OR
BEFORE THE DUE DATE. THE FINANCE CHARGE IS EQUIVALENT TO AN ANNUAL
PERCENTAGE RATE OF TWENTY-FOUR PERCENT (24%).
3. Regardless 01 whether the Seller or Buyer selects the carrier, all shipments are
F.O.B. shipping point with freight prepaid or collect by Buyer, whichever applicable.
Buyer hereby acknowledges that title and risk of loss shall pass upon delivery of the
goods to the carrier.
4. Stated shipping dates and dates of delivery, if any, are approximate, and are not a
guarantee of any particular date of shipment or delivery. Seller shall not be liable for
any delay or failure in performance or in the delivery or shipment of materials
hereunder, or for any damages suffered by Buyer or anyone claiming under Buyer by
reason of such delay, if such delay in performance is due to causes beyond its
control, such as acts of God, war, acts of government, fire, flood, strike, delay in
transportation, or otherwise. In the event of such delay, Seller may, at its option,
cancel this agreement, or delay performance hereunder for any period reasonably
necessary due to any of the foregoing causes during which time this agreement shall
remain in full force and effect, and Seller shall have the further right to then allocate
its available goods between its own use and its customers in such manner as Seller
may consider equitable, without liability for any failure of performance which may
result therefrom. IN THE EVENT OF A DELAY OR FAILURE OF PERFORMANCE NOT
EXCUSED UNDER THE FOREGOING, SELLER’S LIABILITY SHALL NOT EXCEED THAT
PORTION OF THE INVOICE PRICE REPRESENTED BY THE QUANTITY OR MATERIAL
DELAYED OR NOT SHIPPED.
5. Seller warrants that the materials to be supplied hereunder will conform to the
description on the face hereof, subject to Seller’s standard tolerances for variations.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED
OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND
BEYOND THE DESCRIPTION ON THE FACE HEREOF. SELLER SHALL NOT BE LIABLE
FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM
ANY BREACH OF WARRANTY OR ANY DAMAGES FOR NEGLIGENCE. SELLER’S
LIABILITY AND BUYER’S EXCLUSIVE REMEDY IS EXPRESSLY LIMITED TO THE
REPAIR OR REPLACEMENT, WITHOUT COST TO BUYER, OF DEFECTIVE
MATERIALS, OR THE REPAYMENT OF THE PURCHASE PRICE UPON RETURN OF
MATERIALS, OR THE GRANTING OF A REASONABLE ALLOWANCE ON ACCOUNT OF
ANY DEFECTS, AS SELLER MAY SOLELY ELECT. Seller shall have the right, at all
times hereafter, to inspect the materials and otherwise investigate Buye’s claims.
Any claim on account of defective materials or for any other cause whatsoever, shall
be deemed waived by Buyer unless written notice thereof is given to Seller within
thirty (30) days after the date of shipment.
6. If Buyer (i) fails to perform any of the terms and conditions to be performed by
Buyer, including, without limitation, payment of the purchase price when due, (ii)
dissolves or is liquidated, or (iii) is the subject of a proceeding in bankruptcy,
insolvency, receivership or assignment or the benefit of creditors, then Seller may, in
its sole discretion, without notice to Buyer, declare Buyer to be in default. Upon or
after default, Seller may, without notice, (i) defer any shipments or stop any
materials shipped while in transit until payment in full is made, or until Seller is
otherwise satisfied as to Buyer’s financial responsibility and Buyer has given
adequate assurance of payment to Seller as requested by Seller, (ii) cancel in whole,
or in part, any and all orders then outstanding between Seller and Buyer, (iii) declare
all sums owing hereunder and under any other agreement, documents or
instruments between Seller and Buyer, whether now or hereafter existing to be
immediately due and payable, and (iv) exercise any and all other rights and remedies
available under applicable law, including, without limitation, the Uniform
Commercial Code of Indiana. All attorneys fees and legal expenses incurred by Seller
in enforcing the same shall be borne by Buyer.
7. Return of defective products shall be made, TRANSPORTATION CHARGES PREPAID,
only with the prior written consent of Seller and subject to such conditions as the
Seller shall specify. Title and risk of loss shall remain with Buyer until said products
are returned F.O.B. Seller’s plant.
8. With respect to any item supplied in accordance with Buyer’s designs, specifications
or instructions, Buyer shall indemnity, defend and hold harmless Seller and its
assigns from and against all liability, loss, damage, and expense including reasonable
attorneys fees, resulting from any actual or claimed trademark, patent or copyright
infringement, domestic or foreign, or any litigation based thereon. Such obligation
shall survive acceptance of the goods and payment by Buyer hereunder.
9. Except as otherwise herein provided, and in the event the items supplied hereunder
are in accordance with Seller’s design or specifications, Seller shall defend at its
expense any suit brought against Buyer based upon a claim that any item provided
hereunder infringes any United States Letters Patent, and shall pay costs and
damages finally awarded in such suit, provide that, (a) Seller is notified promptly in
writing of the suit and is give assistance for the defense of the same and (b) Seller
shall have sole control of the defense of any suit and all negotiations for its
settlement and compromise. In the event a final non-appealable judicial
determination is made that an item furnished hereunder infringes upon a valid
United States patent, Seller shall, at its option and expense, either procure for Buyer
the right to continue using the item, replace the same with a non-infringing item. or
refund the purchase price and transportation cost thereof. THE FOREGOING STATES
THE ENTIRE LIABILITY OF SELLER FOR PATENT INFRINGEMENT. THERE SHALL BE
NO LIABILITY, CONSEQUENTIAL OR OTHERWISE, FOR THE USE OF ANY ITEM
COVERED BY ANY ADVERSELY HELD PATENT.
10. In connection with the manufacturing or the furnishing of materials hereunder,
Seller has complied with federal. state or local laws or regulations respecting
manufacture, assembly, purchase, or sale of the goods.
11. No claims for shortage in weight or count will be honored by Seller unless presented
within live (5) working days after receipt of the goods by Buyer.
12. Seller at Buyer’s expense, shall provide, keep in good condition and replace when
necessary all dies, tools, gauges, fixtures and patterns necessary for the production
of any goods or materials ordered. Buyer shall be charged for all such tools or dies,
unless herein specified to the contrary. Title for all such tooling and dies shall remain
the property of the Seller, notwithstanding any payment made by Buyer. Any tools,
dies and fixtures not used in production for a period of two (2) years may be
scrapped by Seller upon thirty (30) days written notice to Buyer and the proceeds
derived therefrom shall be retained by the Seller.
13. Notwithstanding form language to the contrary contained in any purchase order or
acknowledgment by Buyer of this transaction, whether received by Seller before or
after the date hereof, the failure by Buyer to object to the terms hereof in writing
within ten (10) days after the date hereof or shipment of the goods by Seller
hereunder, shall unless otherwise mutually agreed to in writing, constitute
acceptance by the Buyer of the terms hereof. Any additional or inconsistent terms or
conditions in Buyer’s purchase order or acknowledgment are not binding on Seller
unless agreed to in writing by Seller. No change modifications or waiver of any
provisions hereof shall be effective unless the same shall be in writing and signed by
a duly authorized representative or Seller. No waiver by Seller of any breach of any
provision hereof shall constitute a waiver of any other breach of such provision.
Seller’s failure to object to provisions contained in any communication from Buyer
shall not be deemed an acceptance of such provisions or as a waiver of the
14. This invoice supersedes all prior agreements, merges all prior negotiations, and
constitutes the entire agreement between the patties with respect to the subject
matter hereof. The terms and conditions hereof shall be binding upon Seller and
Buyer, their respective successor and assigns.
15. Buyer agrees that upon acceptance of the goods or payment hereunder, that any
action for breach hereunder shall be commenced within one (1) year.
16. This transaction shall be governed by the laws of the state of origin and any action
with respect hereto shall be maintained in said state.