1. All prices, including delivery terms, are subject to change, without notice, to prices and delivery terms in effect at the time of shipment.
2. Shipping date is sellers best estimate, and will not operate to bind seller to ship or make deliveries on the dates stated herein.
3. Seller warrants that the product described on the face hereof will be free from defects in material and workmanship. If any failure to conform to this warranty should be found within thirty (30) days (in the case of any non-conformity discoverable through reasonable inspection), or within six (6) months ( in the case of defects not discoverable through reasonable inspection) from date of receipt of the product by buyer, and seller is given immediate notification thereof, seller, upon being satisfied of the existence of such non-conformity, will correct the same by replacement of the defective product or making suitable repairs, whether due to the nature of such non-conformity, the use made by the buyer of the product, or for any other reason, it will return to buyer the price set forth herein, or where appropriate, the unit price for such number or quantity of products as shall have such non-conformity which seller is unable to correct, upon seller’s receipt of the non-conforming product f.O.B. Its plant, provided, however, no product shall be returned to seller without its express written consent; and provided further that such receipt of any non-conforming product will not be required where it is no longer possible for buyer to return the same to seller. The foregoing is seller’s sole warranty with respect to the product. Seller makes no other warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose.
4. Buyer’s exclusive remedy against seller shall be as set forth in the preceeding paragraph. In no event shall seller be liable to buyer, either directly or by way of contribution or indemnity, for direct, special, incidental, tort or consequential damages, or any other damges of any kind whatsoever, such as, but not limited to, property damage, loss of profit, damages based on loss of use of the product, or damages for cover, regardless whether the claim for any such damages be based on breach of warranty, express or implied, breach of contract, tort, or otherwise.
5. Seller reserves, at any time, the right to change the payment terms set forth herein, if, in its sole opinion, the financial condition of the buyer warrants such change. In such case, in addition to any other remedies provided by law, seller may require cash payments or security satisfactory to it before delivery. Failure to pay invoices when due shall operate to make all subsequent invoices immediately due and payable. The receipt by seller of part payment of the full amount then due and payable ( whether under the original terms of payment or terms of payment changed by seller as provided herein ) shall not be a waiver of any of seller’s rights set forth herein or provided by law. Past due invoices will be subject to a service charge at the higher of either the prime rate of interest plus six percent (6%) or eighteen percent (18%) per annum.
6. Any equipment, including jigs, dies, tools, printing plates, cylinders, etc., which seller constructs or acquires solely for use in the production of the product described herein shall be and remain seller’s property. Seller shall at all times have the right to the sole and exclusive possession and control of the same. Any charges made by seller for any such equipment shall not confer on buyer any right of any kind with respect to such equipment. Seller shall have the right to make such disposition or use (including use of equipment to manufacture products for customers other than buyer) of the equipment as it, in its sole and exclusive judgment, considers to be appropriate.
7. When returnable spools, reels or non-standard packaging are required in connection with shipment of the products, seller shall charge buyer an appropriate deposit, which shall be paid net, cash, 30 days, without discount. If the same are returned to point of origin, and in the sole opinion of seller are in good condition, reasonable wear and tear excepted, within a period of twelve (12) months from date of shipment of the product, seller will give to buyer a credit equal to the amount of such deposit. Such credit, however, is subject to a deduction charge for repairs, if in seller’s opinion repairs are necessary. Lagging is not charged for, and therefore no credit will be allowed when returned.
8. In addition to the price specified herein, the amount of any present or future tax applicable to the sale, manufacture, delivery, use and/or other handling of the product shall be paid by the buyer.
9. No waiver by seller of any breach of any provisions hereof shall constitute a waiver of any other breach or of such provision.
10. DELIVERY TERMS ARE AS STATED ON THE FACE OF THIS DOCUMENT. THE NUMBERS “I’ AND “2”, ETC., IF REFERENCED THEREON, CORRESPOND TO THE APPLICABLE CLAUSES BELOW. TERMS ARE SUBJECT TO CHANGE WITHOUT NOTICE TO THOSE IN EFFECT AT THE TIME OF SHIPMENT.
(1)F.O.B. Buyer’s plant, or at such other place served by common carrier at which buyer or his representative takes custody of the products, when custody is taken at a point within the united states. If seller permits buyer to designate route, method or agency (common carrier only) of transportation, buyer will be invoiced for the difference between the transportation charges incurred by seller and an amount determined by multiplying the quantity shipped by the lowest available rate, whether carload or truckload. No transportation allowance will be made for buyer pickup at any point, including team tracks.(2) f.O.B. Shipping point–no freight allowed.
(2)11. Seller shall not be liable for damages based on cover, or consequential damages (including, but not limited to, loss of profits or damages based upon loss of use of the product), for any failure to or delay in delivery due to acts of god, floods, tornados, hurricanes, earthquakes, or other weather conditions, accidents (whether or not caused or contributed to by seller’s negligence), strikes or other labor disputes (whether against seller, its suppliers or carriers, and whether or not due to the fault of seller), delay of carriers, shortages of materials, fuel or energy breakdown of seller’s equipment, orders, requirements or requests of any government, government agency, or any officer or official thereof, or any similar causes, whether or not beyond seller’s control. In the event that there is a delay in delivery due to such cause or causes, seller shall have the option to cancel without any liability to buyer or to make delivery within a reasonable time after the termination of the cause or causes of the delay.
12. This contract is not subject to cancellation unless cancellation is accepted in writing by seller, and buyer pays all cancellation charges. Cancellation charges shall include cost of raw
Material committed to or on hand purchased by seller for the product described herein, and material, supplies and labor costs for work in progress plus overhead and reasonable profit. In addition, buyer shall pay to seller the contract price for all units or quantities of finished product not previously paid for whether delivered or still in seller’s possession. Upon payment of such cancellation charges, all such raw materials and work in progress and finished product shall become the property of buyer, and on buyer’s request shall be delivered to it f.O.B. Seller’s plant.
13. Buyer shall indemnify and hold seller harmless from and against any and all claims, causes of action, judgments and expenses incurred in connection therewith, including reasonable attorneys’ fees, made upon or brought against seller by any person whomsoever, which are in any way related to or connected with the product described herein or the manufacture of use of the same, and without limiting the generality of the foregoing, such claims for personal injury, death, property damage, loss of profit, damages based upon loss of use of any product, plant or equipment, patent, trademark or trade name infringement, whether or not such claims are based in whole or in part upon seller’s breach of any warranty, express or implied, negligence, or other tort.
14. Acceptance of this order is expressly limited to acceptance of the terms and conditions herein contained, and buyer’s acceptance of the products shall be conclusive evidence of the acceptance of all said terms and conditions. Seller hereby gives notice that it objects to any terms or condition contained in any form or document heretofore or hereafter supplied by buyer to seller which are in addition to or different from the terms and conditions herein contained.
15. In the event of legal litigation, the prevailing party shall be entitled to attorneys fees, cost and expenses.
16. In the event any provision hereof is illegal or unenforceable, the unenforceable provision shall not effect the validity of any other provision, and shall be deemed stricken herefrom.
17. The terms and conditions of this order shall constitute the sole and exclusive agreement between buyer and the seller, and the same may not be altered, amended, modified or rescinded except by a writing signed by the buyer and seller.