Terms and Conditions of Sale
NOTICE TO BUYER: THIS OFFER AND ANY RESULTING CONTRACT IS LIMITED TO AND GOVERNED BY THESE TERMS AND CONDITIONS OF SALE UNLESS SPECIFICALLY AND INDIVIDUALLY OBJECTED TO BY BUYER IN WRITING AS PROVIDED HEREIN, THESE TERMS AND CONDITIONS SHALL SOLELY AND EXCLUSIVELY GOVERN THIS SALE.
The term “Seller” shall denote The Electric Materials Company, its successors and assigns, and the term “Buyer” shall denote the party named as such on the face of Seller’s quotation form and/or Seller’s acknowledgement form and shall include that party’s successors and assigns, and any other parties in privity with or claiming through the party so named.
II. Goods Subject to Sale
A. The goods subject to this sale (hereinafter “Goods”) shall be limited to those goods described on the face of Seller’s quotation form and/or Seller’s acknowledgement form.
B. Unless specifically noted on the face of Seller’s quotation form and/or Seller’s acknowledgement form the Goods subject to this sale do not include, and Buyer assumes responsibility for (1) set-up, start-up, and/or installation; (2) Goods, (3) manuals or instructions as to the proper use and/or installation of the Goods, and/or (4) signs and/or plaques related to the proper use and/or installation of the Goods.
C. Seller reserves the right to substitute substantially comparable goods for the Goods which are the subject of this sale.
Unless otherwise specified on the face of Seller’s Quotation, Goods furnished by Seller are to be within Seller’s size, temper, and finish limits of manufacture and subject to Seller’s standard tolerances for variations, including those in quality.
IV. Seller’s Quotation Form
A. Seller’s quotation form constitutes an offer for the sale of Goods (as defined above) and is based upon all of the terms and conditions contained herein.
B. Any purchase order or other form of acceptance issued by Buyer shall result in a contract for the purchase of the Products at the price quoted in this Offer. The resulting contract shall include all of the terms set forth in this Offer and any of Seller’s subsequent documents signed by Seller and included in the contract, all of which are hereafter called “Seller’s Terms.” Buyer shall be deemed to have accepted any of Seller’s terms not specifically objected to by Buyer. Buyer’s issuance of a purchase order which in effect rejects some or all of Seller’s terms by virtue of Buyer’s standard form language shall not be sufficient objection. Buyer shall be required to set forth each objection to Seller’s terms in a separate writing signed and dated by Buyer and delivered to Seller prior to or contemporaneous with Buyer’s purchase order or other form of acceptance. Seller’s failure to further object to standard terms and conditions of purchase set forth in any or all of Buyer’s contract documents shall not be construed as an acceptance of the same, and any terms in Buyer’s purchase order or any other document of acceptance which are different from or additional to the Seller’s terms are hereby specifically rejected and shall not become part of the contract unless specifically accepted by Seller in a separate document signed by both Buyer and Seller.
C. Seller reserves the right to withdraw any and all quotations at any time prior to acceptance by Buyer. In the event that Seller issues more than one quotation pertaining to the same Goods, the quotation latest in time shall control and all prior quotations shall be deemed withdrawn. Withdrawal of any quotation shall not reinstate the terms of any prior quotation, however, a subsequent quotation may modify a prior quotation, preserving the prior quotation to the extent specifically indicated on the face of the subsequent quotation form.
D. Seller’s quotation is not and shall not be considered a firm offer.
E. No custom in the trade or usage between the parties which is contrary to Seller’s terms shall apply.
Unless specific changes, alterations, or additions are agreed to in a writing signed by an authorized official of the Seller, no terms or conditions other than those contained herein shall apply to this sale. Signature by Seller on any other document of another company shall not constitute acceptance by Seller of any terms or conditions thereon. Signature by Seller on such documents constitutes only acknowledgement of physical receipt thereof and does not in any way imply agreement with any other terms and conditions other than those expressly printed in this document.
Prices published or quoted by Seller are subject to change without prior notification. Unless otherwise set forth on the face of Seller’s quotation, all prices are based on US dollars, FOB Seller’s plant, North East, Pennsylvania. Prices do not include any taxes (sales, excise, use, etc) or any export or import duties imposed by any country which may be applicable to the sale of the Goods. Such charges or taxes, if applicable, will be paid by Buyer, and Buyer hereby expressly agrees to indemnity and hold harmless Seller from any claim, loss, damage, liability or expense with regard to the payment of any such taxes or charges.
B. Special Tooling Charges
All tooling and fixtures produced, purchased or otherwise obtained specifically for the production of Goods for Buyer (Special Tooling) shall remain the sole property of Seller, even if paid for in whole or in part by Buyer, and shall be held in Seller’s possession for use exclusively in filling Buyer’s orders. Seller shall impose no additional charges for the upkeep or replacement of such Special Tooling, however if at any time a period of two (2) years lapses since the receipt of any order from Buyer requiring the use of such Special Tooling, Seller may thereafter make any use or disposition of such Special Tooling as Seller desires without any accounting to Buyer for such use or disposition or the proceeds thereof.
Seller reserves the right to correct any typographical or clerical errors which may be present in prices, specifications, quotations or acknowledgements.
VIII. Terms of Payment
A. Unless other terms of payment are specified on the face of Seller’s quotation, payment shall be made in full to Seller’s Remit To address as noted on the invoice, within thirty (30) days from the date of shipment and payment is not contingent upon installation or upon field costs. Buyer hereby agrees to make such payment in full without any deduction for claim of set-off or recoupment on account of this contract or any other contract or matter between the parties. Title to the Goods shall not pass to Buyer until payment in full is received by Seller.
B. If shipment is delayed by Buyer, payment shall become due thirty (30) days from the date Seller has notified Buyer that it is ready to ship. If production by Seller is delayed by Buyer, partial shipment is to be made based on the contract price and a percentage of completion at the time of notification of delay.
After Seller has sent acknowledgement of Buyer’s purchase order to Buyer, Buyer will have no right of cancellation of the resulting contract without written approval of Seller. If written approval is given, Buyer shall be responsible to Seller for, and hereby agrees to pay, all costs incurred by Seller as of the effective date of cancellation, plus a cancellation fee as determined by Seller. Should Goods already have been shipped prior to the request for cancellation, Seller has the option to accept or refuse return of the Goods. If return is accepted, buyer must return all Goods to the location designated by Seller, freight prepaid. The return will be subject to a restocking charge as determined by Seller. In addition, if any or all of the Goods are in an unsaleable condition, Buyer shall be charged for those Goods at the contract rate. If work is needed to return any Goods to a saleable condition, costs of such work will also be charged to the Buyer.
X. Shipment and Delivery
A. Any shipment date stated in Seller’s quotation and/or other contract documents is approximate only and does not constitute any guarantee of shipment on any particular date. Time shall not be of the essence of the contract.
B. Special production service to secure unusual deliveries not in accordance with the Seller’s original delivery terms shall be given only on Seller’s written agreement following written requests by Buyer and shall be at Buyer’s sole expense.
C. Seller reserves the right to make and to invoice for partial shipments of completed material.
D. Notwithstanding the reservation of title by Seller, risk of loss or damage to all Goods sold FOB, the factory shall pass from Seller to Buyer upon delivery by Seller to possession of the carrier or other person providing delivery of the Goods. Unless other arrangements are made by Buyer at Buyer’s expense, Buyer agrees to the standard valuation and/or released rate set forth in the carrier’s standard rate schedule. Any claims for loss or damage after possession by the carrier will be solely between the Buyer and the carrier. Seller will provide reasonable assistance to Buyer in filing loss or damage claims.
E. Seller will attempt to package, load and prepare all shipments with care to attempt to assure arrival of Goods at destination in good condition, however, Seller cannot control the manner in which the carrier is moved or handled and will not be responsible for shifting of loads within the carrier, or damage to Goods by material handling equipment.
XI. Delays and Storage
A. Seller shall not be responsible to Buyer or any third party for any damages resulting from failure to manufacture, delays in manufacture, failure to make shipment, or delay in shipment where such failure to perform or delay in performance is due to any cause or causes beyond the control of Seller, including but not limited to compliance or noncompliance with any statutes, acts, ordinances, regulations, orders or instructions of any federal, state, municipal or local government or any other agencies or departments, acts of God, acts of civil or military authority, fire, flood, strikes, factory or plant shutdowns or other labor disputes, embargoes, war, riot or civil disturbance, delays in transportation, inability of Seller to obtain necessary labor, lack of manufacturing facilities or equipment of Seller, lack of utilities or utility service, unavailability of energy sources, or inability to obtain materials, supplies, components or other goods and/or services from third parties.
B. If shipment by Seller is delayed or extended by Buyer, Buyer shall arrange for and notify Seller of the place or places to which Seller shall ship the Goods covered by the order, for warehousing or storage at Buyer’s expense. All risk of loss or damage to the Goods shall be borne by the Buyer. If Buyer is unwilling or unable to promptly arrange for warehousing or storage facilities, Seller may do so in place of Buyer and at Buyer’s expense. Buyer hereby agrees to pay any and all storage charges so incurred.
Seller shall have no responsibility for the performance of its Goods when installed under conditions varying materially from those under which the product is usually tested or operated under existing industry standards.
All Goods manufactured by Seller, and any incidental services provided by Seller with respect to any Goods, are guaranteed to the original Buyer to be free from defective materials and/or workmanship for a period of one (1) year from date of shipment. Seller does not, however, make any warranty as to the results to be obtained from the use of any products, either alone or in combination with any other equipment or substance. Any Goods sold but not manufactured by Seller are guaranteed only to the extent that either Seller or Buyer is able to recover under the original manufacturer’s warranty. This warranty shall not be assignable by Buyer.
Seller’s obligation under this warranty may, at its option, be discharged by furnishing or repairing, without charge, FOB, its factory, similar Goods to replace any Goods of its own manufacture which, within the above specified period, prove to have been defective, or any Goods which malfunction or fail to perform as a result of a breach of this warranty, provided that within a reasonable time for inspection after delivery, Seller is notified of such defects, malfunction or nonperformance and the Goods claimed to be defective, malfunctioning or nonperforming are delivered prepaid to Seller at North East, Pennsylvania with evidence that they have been properly installed, maintained and used by the original Buyer. Commercially acceptable imperfections in casting and damage to any Goods due to extraordinary chemical action shall not constitute defects. If, in connection with this warranty, repairs are performed by the Buyer with the written authorization of Seller, then the expense in connection with such repairs shall not exceed the cost of material and direct labor. If such repairs or alterations are performed by Buyer without the written authorization of Seller, Seller will not assume any of the expenses in connection with such repairs and will immediately void any remaining warranty on the Goods.
THE REPAIR OR REPLACEMENT WARRANTY HEREIN SET FORTH IS THE EXCLUSIVE WARRANTY GIVEN BY SELLER FOR ITS GOODS AND SERVICES. THIS WARRANTY IS GIVEN IN LIEU OF ANY OR ALL WARRANTIES WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED BY SELLER. SELLER NEITHER ASSUMED NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF ITS GOODS.
XIV. Limitations of Liability and Indemnities
IN NO CASE, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING SELLER’S OR BUYER’S NEGLIGENCE OR STRICT LIABILITY) SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES INCURRED BY BUYER INCLUDING, BUT NOT LIMITED TO, LOSS OF SALES PROFIT, REVENUE OR GOOD WILL, LOSS OF USE OF GOODS OR ANY ASSOCIATED EQUIPMENT OR MATERIAL, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS, ATTORNEY’S FEES OR LOSSES OR CLAIMS OF CUSTOMERS OF BUYER FOR SUCH DAMAGES. BUYER HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER FROM ANY AND ALL CLAIMS, LIABILITY, DAMAGES OR EXPENSES (INCLUDING ATTORNEY’S FEES) DUE TO PERSONAL INJURIES OR DEATH, TO BUYER, ITS EMPLOYEES, AND THIRD PARTIES AND FROM PROPERTY DAMAGE RESULTING FROM THE BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY OF BUYER.
XV. Limitation of Actions
A. Buyer or anyone claiming through Buyer must bring any action against Seller within one (1) year from the date on which the act complained of occurs.
B. Seller shall have a minimum of four (4) years from the date when payment is due from Buyer to Seller to bring any action against Buyer.
XVI. Product Changes
Factors beyond the Seller’s control and the need for continuing improvements of products require the making of changes in products from time to time Seller reserves the right to make reasonable design modifications of Goods against any order, unless this right is specifically waived by Seller in writing. Seller will have no responsibility whatsoever with respect to changes made to Goods sold, but not manufactured by Seller.
Seller warrants that Goods furnished and any parts of those Goods which are manufactured to Seller’s design, shall be delivered free of any rightful claim for infringement of any United States patent and that if Seller is notified promptly in writing of any such claimed patent infringement and given authority, information and assistance, Seller will defend or may settle at its expense any suit. Failure to do so will be considered a breach of this warranty by Seller and Seller shall pay all damages and costs awarded against Buyer due to such breach in case any Goods or parts thereof are in the suit held to constitute any such infringement. If the use of the Goods or parts enjoined, or if Seller deems it necessary to defend or settle a claimed patent infringement, Seller shall at its expense and option either procure for Buyer the right to continue such Goods or parts or replace the same so it becomes noninfringing or remove the Goods, and refund the purchase price (less reasonable depreciation for any period of use). The foregoing states the entire liability of Seller for patent infringement by said Goods or any part thereof.
In the case of any Goods manufactured and/or sold by Seller to meet Buyer’s particular specifications or requirements and which are not part of Seller’s standard line offered by it to the trade generally and in the usual course of Seller’s business or in the case of manufacture of any Goods in accordance with drawings, designs, models of patterns furnished by Buyer. Buyer agrees to defend indemnity and hold Seller harmless from and against any and all actions at law or in equity and from any and all claims, demands, damages, expenses (including attorneys fees) actions or causes of action for alleged infringement of any United States or foreign patent and to defend any suit or action which may be brought against Seller for any such alleged infringement resulting from such manufacture and/or sale.
No information received by Seller from Buyer or Buyer’s customers shall be deemed to be confidential or held in confidence by Seller unless disclosure is made pursuant to Seller, a secrecy agreement executed by authorized representatives of Seller and the person making the disclosure prior to the making of the disclosure.
XIX. Collection Costs, Attorneys Fees
Buyer agrees that in the event a suit is instituted by Seller to recover possession of any Goods sold, to enforce any of these terms and conditions, or to collect any sums of money, damages or costs from the Buyer hereunder or any sum of money for the use or rental of the Goods. Buyer shall pay all actual costs of collection and attorneys’ fees incurred by Seller in such suit or suits in the event that Buyer brings any action against Seller arising from the sale or use of Seller’s Goods and Buyer fails to prevail in such action. Buyer hereby agrees to reimburse Seller for any attorneys’ fees and costs related to such litigation.
A. Except as provided to the contrary hereunder, Seller or Buyer may assign any contract resulting from one or more quotations and/or acknowledgements with the other party’s written consent, which shall not be unreasonably withheld.
B. Any assignment of such contract by Buyer, if approved by Seller, shall not relieve Buyer of Buyer’s duties to Seller hereunder, and in the event that Buyer’s assignee fails in performing those duties to Seller, Seller shall have the right to pursue both Buyer and Buyer’s assignee for any appropriate relief.
XXI. Applicable Law
The validity, performance and all matters relating to the interpretation and effect of a contract resulting from any one or more quotations and/or acknowledgements shall be governed by the laws of the Commonwealth of Pennsylvania, U.S.A., any litigation arising there, from or related thereto, shall be commenced and prosecuted solely in the state or federal courts in Erie County, Pennsylvania. Seller and Buyer hereby consent to the jurisdiction of such courts.
Seller shall not be bound by any provision of any document of Buyer requiring arbitration of any claim which Seller may have against Buyer related to or arising out of any contract resulting from one or more quotations and/or acknowledgements.
XXIII. Seller’s Remedies
Seller may simultaneously pursue any and all remedies it may have against Buyer for or on account of Buyer’s failure to perform as agreed hereunder and in pursuing any one or more remedies. Seller shall not be deemed to have made an election of remedies.
Failure of Seller to require Buyer’s performance of any of these Terms and Conditions or waiver by Seller of any breach by Buyer of any of these Terms and Conditions shall not prevent subsequent enforcement of such term and/or condition, nor shall it be deemed a waiver of any subsequent breach thereof.
XXV. Entire Agreement
The terms of a quotation and or acknowledgement (including any specifications or other documents incorporated by reference therein) and these Terms and Conditions will constitute the entire understanding and agreement between Buyer and Seller concerning the subject matter. Any representation, promise, course of dealing or trade usage not contained herein will not be binding on either party. No modification amendment rescission waiver or other change of any resulting agreement on any part thereof shall be binding upon Seller unless consented to in writing by Seller’s authorized representatives in North East, Pennsylvania, U.S.A. If any term or condition set forth in a quotation and/or acknowledgement is declared null and void by any court with competent jurisdiction, the remaining terms and conditions shall nevertheless remain applicable.