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1. CONTRACT SCOPE AND DOCUMENTS
Absent a written contrary written agreement signed by both Parties, the contract between Seller and Purchaser shall be governed by Seller’s written Quotation to Purchaser (“Quote”), Purchaser’s written acceptance of the Quote (“Purchase Order”), and the terms stated in this Agreement (collectively the “Contract”). Absent Seller’s prior written agreement, any term or provision stated in Purchaser’s Purchase Order that is inconsistent with either the Quote and/or the within Agreement shall be ineffective and not part of the Contract. The Contract may not be modified except by a written agreement signed by both Parties. For purposes of the Contract, any notices or modifications that must be in writing may be satisfied by an exchange of e mail communications. |
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2. DESCRIPTION OF PRODUCTS/AGREEMENT TO SELL AND PURCHASE
The materials/parts/services covered under this Agreement (the “Products”) are defined in Seller’s Quote, which is incorporated by reference. Except as is otherwise stated in the Quote, all design or engineering drawings and/or specifications related to the Products furnished by Purchaser (collectively “Specifications”) are hereby incorporated in this Agreement and have been furnished previously to Seller. Seller agrees to manufacture and sell to Purchaser, and Purchaser agrees to purchase from Seller, the quantity of Products, at the prices and at the delivery dates stated in Seller’s Quote. The Specifications have been solely generated by Purchaser, and Seller shall not be responsible for any deficiencies in the design of the Products. Purchaser shall indemnify and hold Seller harmless (including attorney fees) from: a) any liabilities arising out of Purchaser’s design of the Products’ Specifications; and b) any claims that the Specifications infringe upon the patents or other intellectual property rights of a third party. |
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3. TERM OF AGREEMENT
This Agreement shall become effective upon formation of the Contract and shall continue in effect unless earlier terminated by either party pursuant to the terms of the Contract. |
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4. PRICE AND PAYMENT
Prices for the Products shall be as stated in Seller’s Quote. Absent a contrary provision in the Quote, prices for the Products shall not include, and Purchaser shall be solely responsible for paying, all applicable sales, use, or other taxes associated with its purchase of Products from Seller. Absent a contrary provision in the Quote and subject to Seller approving a request for the extension of credit, Purchaser shall pay all of Seller’s invoices for Products delivered to Purchaser under this Contract within thirty (30) days. Invoices not paid within those terms will accrue 1 1/2% interest per month until paid in full. The price for Products is subject to modification for fluctuations in raw material or third party costs to Seller, as provided for in this Agreement. |
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5. RAW MATERIAL AND OTHER PRODUCTION COST INCREASES AND DECREASES
Absent a contrary provision stated in the Quote, during the term of this Agreement, Seller may increase the cost of the Products charged to Purchaser based upon any documented third party cost increases associated with manufacturing Products (i.e. any costs Seller pays to third parties directly associated with manufacturing the Products other than internal labor and general overhead costs) that are incurred subsequent to issuance of the Quote. Absent a contrary provision stated in the Quote, during the term of this Agreement, Seller shall decrease the cost of the Products charged to Purchaser based upon any documented third party cost decreases associated with manufacturing Products (i.e. any costs Seller pays to third parties directly associated with manufacturing the Products other than internal labor and general overhead costs) that are realized subsequent to issuance of the Quote. Seller shall reflect all raw material and other price increases or decreases, as the case may be, on its invoices. Upon the reasonable prior request of Purchaser, Seller shall furnish documentation substantiating all pricing revisions made subsequent to issuance of the Quote. |
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6. FREIGHT/PAYMENT TERMS
Absent a contrary provision stated in Seller’s Quote, freight terms are F.O.B. Seller’s dock, freight collect. In all cases, shipments shall be made utilizing carriers specified by Purchaser. Purchaser may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Seller will pack and ship Products in accordance with Purchaser’s reasonable instructions, including labeling. If Purchaser has not provided packing or shipping instructions, Seller will pack and ship Products in accordance with sound commercial practices. If Seller is required to use Purchaser’s returnable packaging, Seller will be responsible for cleaning and returning the returnable packaging. If returnable packaging is not available, Seller may use expendable packaging and Purchaser will reimburse Seller for the reasonable costs of expendable packaging. Seller will deliver Products in substantial conformity with the Contract terms; Purchaser acknowledges that all release and shipping dates are approximate. If Products are not ready for delivery in time to meet targeted delivery schedules, the party causing the delay will be responsible for additional costs of any resulting expedited or other special transportation. Purchaser will also be responsible for additional costs of expedited or other special transportation that Purchaser may require as a result of changes to its firm releases or delivery schedules or for other reasons not caused by Seller. In no event shall Seller be liable for consequential or other damages associated with any delays in shipping Products in conformity with targeted delivery schedules. |
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7. INSPECTION OF AND TITLE TO PRODUCTS
Purchaser is responsible to inspect all Products delivered by Seller, within 10 days of receipt. Any claim by Purchaser that any of the Products are non-conforming must be made in writing within 60 days of delivery or are forever barred. Title to all Products delivered by Seller under the Contract shall not pass to Purchaser until Purchaser has made full payment to Seller for same. |
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8. ASSIGNMENT
This Agreement and the Contract is not assignable or transferable by either Party, either in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. |
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9. ENTIRE AGREEMENT
The terms of the Contract represent the entire understanding of the Parties regarding the subject matter hereof, and supersedes all prior understandings, whether written or oral. Further amendments or modifications may only be made in writing, and must be signed by an authorized representative of each Party. No waiver of the breach of any term or condition of this Agreement shall be deemed to constitute the waiver of any other breach of the same or any other term or condition. |
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10. LIMITED WARRANTIES
Seller warrants to Purchaser that (1) the Products will be free from defects in workmanship and materials, and will conform to the Specifications, and (2) Seller will transfer to Purchaser ownership and good title to Products, free of all liens, encumbrances, and rights of third parties (except those created by Purchaser), upon payment in full to Seller. Unless otherwise specifically stated in the Contract, Seller does not warrant the design of the Products or their fitness for any particular purpose. THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES AND ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARRISING BY LAW OR CUSTOM, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED. |
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11. NON-CONFORMING PRODUCTS AND R.M.A. PROCEDURE
Except as otherwise specifically provided in the Contract, Purchaser’s sole and exclusive remedy for Products that do not conform to the warranties provided for herein will be to reject the non-conforming Products, and to require Seller, at Seller’s option and expense (including applicable shipping costs), to either repair or replace the non-conforming Products. Purchaser shall give Seller timely written notice of its claim that Products are allegedly non-conforming, together with such reasonable documentation as Seller may request in order to ascertain the legitimacy of Purchaser’s claim. Seller shall give Purchaser written notice of the extent to which it is recognizing the validity of such claim. Seller shall give Purchaser a written return merchandise authorization (“RMA”) for all allowed claims To the full extent possible, Purchaser will provide Seller with access to any available warranty data related to the Products and any available field-returned Products. Purchaser will also provide Seller with an opportunity to participate in any root cause analysis performed by Purchaser concerning the Products. Seller shall not be liable for money damages, consequential damages, Purchaser’s internal costs, or any other claims associated with allegedly non-conforming Products. |
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12. PRODUCT LIABILITY AND INDEMNIFICATION
With the exception of Seller’s obligation to repair or replace non-conforming Products as provided for in this Agreement, Seller shall have no liability for claims arising out of the sale of Products to Purchaser and/or the performance of its obligations under this Agreement. Purchaser will and does hereby agree to indemnify, defend, and hold Seller harmless from and against all third-party claims or demands for injury or death to persons, property damage, economic loss, and any resulting damages, losses, costs, and expenses (including reasonable legal fees), regardless of whether the claim or demand arises under tort, contract, strict liability, or other legal theories, if and to the extent caused by the Products, or Seller’s acts or omissions in its performance under the Contract. This indemnification obligation on the part of Purchaser specifically applies to the extent that the claim, injury, loss, or damage results from (1) Purchaser’s Specifications, (2) Purchaser’s design of the Products, (3) any alteration, or installation of the Products by anyone other than Seller, or (4) integration or interaction of the Products with systems or components not supplied by Seller. |
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13. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
Both parties shall keep the terms of the Contract and the performance thereof confidential, and shall not disclose same except as may be required by subpoena or process of law, after notice to the other Party. Purchaser does not transfer to Seller any patent, trade secret, trademark, service mark, copyright, mask work, or other intellectual property right Purchaser has in information, documents, or property that Purchaser makes available to Seller under the Contract, other than the right to use Purchaser’s Specifications and related intellectual property rights to produce and supply Products to Purchaser pursuant to the Contract. |
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14. DEFAULT
Time is of the essence. Either Party will be in “Default” under the Contract if it (1) fails to perform any obligation under the Contract and, if the non-performance can be cured, fails to cure the non-performance within 15 business days after notice from other party specifying the non-performance, (2) admits in writing its inability to pay its debts as they become due, commences a bankruptcy, insolvency, receivership, or similar proceeding, or makes a general assignment for the benefit of creditors, or (3) becomes a debtor in a bankruptcy insolvency, receivership, or similar proceeding commenced by a third party that is not dismissed within 30 days after commencement. |
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15. REMEDIES AND LIMITATION OF ACTIONS
(a) In the event of an uncured event of Default, either non-defaulting Party may exercise the remedies provided in this Agreement or the Contract, which are cumulative and are in addition to all other rights and remedies available elsewhere by law. (b) In the event of an uncured event of Default by Seller, Purchaser may recover its actual out-of-pocket damages or costs directly caused by Seller’s breach of the Contract, but in any event incidental or consequential damages (including specifically lost profits) shall not be recoverable. Any legal action on the part of Purchaser must be brought within one (1) year of the earlier of: i) the date of delivery of the subject Products; or ii) the date of the alleged Default. (c) In the event of an uncured Default by Purchaser, Seller may recover from Purchaser all damages recoverable at law including but not limited to any or all of the following: (1) its actual out-of-pocket damages or costs directly caused by Purchaser’s breach of the Contract; (2) the sums owed for Products delivered to Purchaser but not paid for; (3) the cost of finished Products not yet shipped to Purchaser; (4) forty-five percent (45%) of the aggregate amount of monies that Purchaser would have paid Seller for Products scheduled to be sold and delivered under the Contract after the date of Purchaser’s Default (Purchaser acknowledges that the actual damages sustained by Seller resulting from Purchaser’s breach of the Contract are not readily calculable and that this liquidated damages amount is fair and reasonable); and (5) Seller’s reasonable legal and litigation expenses. (d) Notwithstanding anything to the contrary stated herein, in the event that Purchaser is in Default for failure to timely pay Seller for Products sold and delivered to Purchaser, Seller may withhold future scheduled shipments of Products until the arrearage is satisfied, and the suspension of delivery on the part of Seller under such circumstances shall not constitute an event of Default by Seller. |
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16. RELATIONSHIP OF THE PARTIES
Purchaser and Seller are independent contractors, and nothing in the Contract makes either party the agent or legal representatives of the other party for any purpose. Neither Party has authority to assume or to create any obligation on behalf of the other Party. |
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17. SEVERABILITY
A finding that any provision of the Contract or this Agreement is invalid or unenforceable will not affect the validity or enforceability of any other provision of the Contract or the Agreement. |
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18. NOTICES
Any notice or other communication required or permitted in the Contract must be in writing (or electronic mail communications) and will become effective on the date of actual receipt if the date of actual receipt is a business day or on the next business day if the date of actual receipt is not a business day. |
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19. GOVERNING LAW
Unless otherwise agreed in writing, the Contract will be governed by and interpreted according to the internal laws of the State of Ohio. The Parties agree that jurisdiction and venue of any dispute under this Contract will be litigated only in either state or federal court situated in Lake County, Ohio. |