TERMS & CONDITIONS
BY ACCEPTING DELIVERY OF THE GOODS AND SERVICES COVERED HEREBY, BUYER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN ITS PURCHASE ORDERS OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED HEREIN AND ALL SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL BE NULL AND VOID.
1. PRICE. Prices are subject to change by Seller without notice, increases in labor, freight and material costs before completion of contract plus applicable overhead may be invoiced to Buyer Premium time as required by Buyer will be invoiced as an extra item.
2. DELIVERY OR PERFORMANCE. Unless otherwise specified, all deliveries are FOB point of shipment. Shipment will be made in accordance with Seller’s Instructions. Upon delivery of goods to carrier. Buyer assumes risk of all loss and damage resulting from any cause whatsoever. Shipping, delivery or performance dates are approximate and are not guaranteed. Seller may ship and invoice for a quantity of up to ten percent over or under the quantity specified and buyer agrees to accept and pay for such quantity and Seller’s performance shall be deemed complete. Partial deliveries shall be accepted and paid for by Buyer at contract prices and terms.
3. FORCE MAJEURE. Seller shall not be liable for delay or other failure of performance due to causes beyond its reasonable control including without limitation acts of god, acts of Buyer, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather epidemic, war, riot, delays in transportation or car shortages, or inability to obtain necessary labor, materials, components, equipment, services, energy, or utilities through Seller’s usual and regular sources at usual and regular prices. In any such event Seller may at any time without further liability to Buyer, (a) postpone performance under the contract, (b) make partial performance or cancel all or any portion of the contract, or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of this contract shall not affect Buyers duty to pay for performance of any other part hereof.
4. WARRANTY AND REMEDY. Unless otherwise expressly stated on the face hereof Seller warrants to Buyer for a period of three months from the date of shipment and/or performance of services, that its services hereunder are performed in a good and workmanlike manner in that goods delivered hereunder and free from defects in materials and workmanship, except that materials furnished by Seller’s suppliers or subcontractors are warranted by Seller only to the extent of the supplier’s or subcontractors express warranty to Seller. If during such period Buyer promptly notifies Seller in writing of any breach in such warranty and complies with any applicable warranty procedures of Seller, Seller shall at Seller’s option, re-perform services, repair or replace any defective goods at Seller’s plant (Buyer to pay all transportation charges) or refund the price of the goods or services or part thereof which gives rise to the claim. Seller shall make no allowance for repairs or alteration made by Buyer, unless made with Seller’s prior written consent. The foregoing shall constitute the sole and exclusive remedy of Buyer and the full liability of seller for any breach of warranty. THE FOREGOING IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OR PERFORMANCE, MERCHANTABILITY OR FITNESS FOR PURPOSE AND SUPERCEDES AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATION OR WRITTEN WARRANTIES OR REPRESENTATIONS NOT EXPRESSLY DESIGNATED IN WRITING AS A “WARRANTY” OR “GUARANTEE” OF SELLER, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR OTHER MATERIALS.
5. LIMITATION OF SELLER’S LIABILITY. Seller’s liability on any claim of any kind, including negligence, with respect to the goods or services covered hereunder, shall in no case exceed the price of the goods or services or part thereof which gives rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGES IN THE NATURE OF PENALTIES.
6. LIMITATION OF ACTIONS. Any action for any loss or damage with respect to the goods or services covered hereunder must be commenced by Buyer within one year after Buyer’s cause of action has accrued.
7. INDEMNIFICATION AND WAIVER. Buyer shall defend, indemnify and hold harmless Seller from any loss or damage sustained directly by Seller and from and against all claims asserted against Seller with respect to the goods or services covered hereunder arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings, or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees or customers to comply with all applicable legal requirements, including the Occupational Safety and Health Act of 1970, (c) misuse of the goods by Buyer, its agents, employees or customers, (d) misrepresentation by Buyer, its agents, employees or customers, (e) the sole of contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyer’s designs, plans or specifications. Buyer hereby waives and releases Seller from all rights or contribution or indemnify to which it may otherwise be entitled. As used in this paragraph, the term ““Seller” shall mean Seller, its officers, directors, agents, employees, subcontractors, parent, subsidiaries, divisions and affiliates.
8. CANCELLATION BY BUYER. Buyer may cancel this contract only upon written notice to Seller and payment of reasonable cancellation charges including (1) the price for goods and services completed prior to Seller’s receipt of such notice; (2) all costs previously incurred in connection with uncompleted goods or services together with reasonable profit thereon, and (3) the expenses incurred by Seller by reason of such cancellation.
9. TAXES. All taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the goods, or services (other than income taxes) shall be paid by Buyer. Buyer shall defend, indemnify and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs by Seller in connection therewith.
10. ADVICE AND ASSISTANCE. Upon request, Seller in its discretion may furnish as an accommodation to Buyer technical advice or assistance regarding the goods or services. Seller assumes no obligation or liability for the advice or assistance or otherwise. At any time after one year since completion of any order requiring the use of such materials, Seller may use or dispose of such materials without liability to Buyer.
11. BUYER’S MATERIALS. All of Buyer’s tooling, goods and other property and Seller’s possession shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to such materials caused by Seller’s negligence or otherwise. At any time after one year since completion of any order requiring the use of such materials, Seller may use or dispose of such materials without liability to Buyer.
12. SELLER’S PROPIETARY RATES. All drawings, inventions or improvements made by or for Seller in connection with the performance of this contract shall be the Seller’s property. Buyer shall not reproduce any drawing furnished by Seller. Buyer shall not use or disclose any of Seller’s trade secrets or confidential information, whether or not designated as such except as required in connection with the use of the goods or services covered hereunder.
13. SECURITY AGREEMENT; CREDIT AND COLLECTION. To secure payment of all sums due Seller hereunder or otherwise, Seller shall retain a security interest in the goods delivered hereunder and this contract shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer authorized Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect such security interest. Seller is relying upon Buyer’s representation of solvency and if Seller at any time reasonable believes that Buyer is insolvent or that Buyer’s credit is impaired. Buyer shall be in material breach hereof and Seller may without liability to Buyer, withhold performance hereunder, change the payment terms and/or repossess goods theretofore delivered. Title to the goods covered hereby shall remain in Seller until full payment is received. Seller may charge Buyer finance, service, or late charges in an amount not greater than allowed by law, and if Buyer fails to make payment when due. Buyer shall be liable to Seller for all costs of collection including attorney’s fees.
14. MISCELLANEOUS. This contract constitutes the entire agreement between Buyer and Seller relating to the goods or services covered hereunder. No modifications shall be binding upon the Seller unless in writing signed by Seller’s duty authorized representative. No waiver by Seller of default by Buyer shall be deemed a waiver of any subsequent default. Captions used herein shall have no substantive significance.
PACKZEN MAKES NO WARRANTIES EXCEPT AS SET FORTH BELOW AND HEREIN. THE WARRANTY SET FORTH BELOW IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WARRANTY THE REMEDIES OF ANY BUYER FROM PACKZEN. (AND ITS LIABILITIES) ARE LIMITED SOLELY AND EXCLUSIVELY TO REPLACEMENT OR REPAIR OF A DEFECTIVE PACKZEN. PRODUCT WHEN THAT PRODUCT WAS DEFECTIVE AT THE TIME OF PURCHASE AND IS RETURNED TO PACKZENWITHIN NINETY DAYS OF PURCHASE FOR REPAIR OR REPLACEMENT. UNDER NO CIRCUMSTANCES IS PACKZEN. LIABLE TO ANY PERSON FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER WHETHER ANY CLAIM OR POTENTIAL CLAIM IS BASED UPON THEORIES OF CONTRACT, NEGLIGENCE OR TORT