Terms and Conditions
Foster Transformer Company (“Foster”) offers to sell and deliver its products (“Products”) only in accordance with the terms and conditions set forth herein. These terms and conditions are hereafter referred to either as the “Terms and Conditions” or the “Agreement.” Acceptance of this offer is expressly limited to the Terms and Conditions. Foster hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchaser order. Buyer accepts these Terms and Conditions by making a purchase from or placing an order with Foster, including orders placed through Foster’s website. The Terms and Conditions contain the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all prior proposals, negotiations, representations, communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
Buyer shall pay for the Products according to the terms specified on the invoice. If Foster extends credit to Buyer, payment terms shall be net 30 days after Foster’s invoice. Foster may change or withdraw credit amounts or payment terms at any time for any reason. If credit is not established, Foster accepts Visa, MasterCard, and American Express cards, Paypal, ACH and wire transfer, or Customer may include payment with order. If the products are delivered in installments, Buyer shall pay for each installment in accordance with the above payment terms. In case of doubt as to Buyer’s financial responsibility, Foster may suspend or cancel performance under any agreements in which Foster has extended credit to Buyer. Foster’s suspension of performance may result in rescheduling delays. Suspension or termination in accordance with this clause shall not affect Foster’s right to pursue any other available remedies. A purchase money security interest is retained in the Products to secure payment in full. Buyer authorizes Foster to file a financing statement reflecting such security interest. All payments must be made in U.S. dollars.
Buyer shall pay interest on all past due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. In the event of a payment default, Buyer will be responsible for all of Foster’s costs of collection, including, but not limited to, court costs, filing fees and reasonable attorney fees.
Taxes and Other Charges
Buyer will pay for, and will indemnify and hold Seller harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), duty, custom, inspection or testing fees, imposed on, in respect of, or otherwise associated with the Products. If Buyer claims an exemption from such taxes, fees or charges it must do so at the time of purchase and provide Foster with the necessary supporting documentation acceptable to the authority imposing the tax, fee or charge.
Title and Delivery
Shipments inside the United States shall be delivered F.O.B. Foster Plant. Shipments outside the United States shall be delivered FCA (Incoterms 2000) Buyer’s designated carrier. Title and liability for loss or damage shall pass to Buyer upon Foster’s delivery to the carrier. Any claims for Products damaged or lost in transit are to be made solely to the carrier. Any subsequent loss shall not relieve Buyer from its obligations to Foster. The cost of any special packing or special handling caused by Buyer’s requirements or requests shall be added to the amount of the order. Buyer shall reimburse Foster for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required. Foster shall not be liable for any damage, losses or expenses incurred by Buyer if Foster fails to meet the estimated delivery dates. Foster reserves the right to make deliveries in installments. All such installments shall be separately invoiced and paid when due per invoice. Delay in delivery of any installment shall not relieve Buyer of Buyer’s obligation to accept remaining deliveries.
Prices shown on Foster’s website or in any Foster catalog are current at the time of publication. Prices and availability are subject to change without notice. Quoted prices are based on the entire ordered quantity being released for shipment at one time. If the price of fuels, metals, raw materials, equipment or other production costs increase, Foster may increase the price on deferred deliveries by the increase in such costs. Stenographic or clerical errors are subject to correction.
Any shipping dates or completion dates provided by Foster are estimates only. Foster will make a good faith effort to complete delivery of the Products at the estimated time, but Foster assumes no responsibility or liability and will accept no backcharge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Foster, from any circumstances beyond Foster’s reasonable control, including, but not limited to, liability for Foster’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of Foster. Under no circumstances shall Foster be liable for any special, consequential, incidental, indirect or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
Inspection and Acceptance
Immediately upon Buyer’s receipt of any goods shipped hereunder, Buyer shall inspect the same and shall notify Foster in writing of any claims for shortages, defects or damages and shall hold the Products for Foster’s written instructions concerning disposition. If Buyer fails to so notify Foster within five days after the Products have been received by Buyer, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by Buyer.
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If samples have been submitted to and approved by Buyer, Foster’s Products shall be based on the approved sample, all other blueprints and specifications not withstanding.
Limitations and Damages Disclaimer: Foster warrants that all Products supplied by it will be free from defects in material and workmanship under normal use and service for a period of ninety (90) days after delivery by Foster to the original purchaser. Notwithstanding the foregoing, Foster shall not be liable for any defects caused by neglect, misuse, mistreatment or misapplication, including improper installation or testing, nor for any Products that have been altered or modified in any way by an entity other than Foster. Foster’s liability under this warranty shall be limited to Products returned to Foster during the warranty period that are determined by Foster not to conform to the above warranty. If any Products fail to conform to the limited warranty set forth above, Foster’s sole liability shall be, at its option, either to repair or replace such Products without charge or to refund the purchase price. It is the Buyer’s responsibility to confirm that the Products and their use are in compliance with applicable codes and regulations.
EXCEPT AS SET FORTH ABOVE, PRODUCTS ARE PROVIDED “AS IS,” “WHERE IS” AND “WITH ALL FAULTS.” FOSTER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NOT EVENT SHALL FOSTER BE LIABLE FOR ANY SPECIAL, COLLATERAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS CONTRACT OR THE USE OR FAILURE OF THE PRODUCTS PROVIDED HEREUNDER, REGARDLESS OF WHETHER FOSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST FOSTER MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED.
IN NO EVENT SHALL FOSTER’S AGGREGATE LIABILITY FROM ANY WARRANTY, INDEMNITY, OR OTHER OBLIGATION ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, OR ANY USE OF ANY PRODUCT HEREUNDER, EXCEED THE TOTAL AMOUNT PAID TO FOSTER FOR THE PARTICULAR PRODUCTS SOLD UNDER THIS AGREEMENT WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. THE EXISTENCE OF MORE THAN ONE CLAIM AGAINST THE PRODUCTS SOLD TO BUYER UNDER THIS AGREEMENT SHALL NOT ENLARGE OR EXTEND THIS LIMIT.
BUYER UNDERSTANDS AND AGREES THAT THE FOREGOING LIABILITY LIMITATIONS ARE ESSENTIAL ELEMENTS OF THIS AGREEMENT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL AND ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
Any cancellation by Customer must be approved by Foster. Any cancellation or rescheduling of Product by Buyer within sixty (60) days of Foster’s estimated shipping date shall be subject to cancellation charges in the full amount of the purchase order. Any cancellation or rescheduling by Buyer more than sixty (60) days prior to Foster’s estimated shipping date shall be subject to charges equal to all costs incurred as reasonably determined by Foster. Foster shall make reasonable efforts to cancel deferred deliveries of materials and to re-consign material to other orders when possible. In any event, the cancellation charges shall not exceed the value of the original purchase order.
In order to allow for efficient scheduling of manufacturing operations and to provide fairness and minimize costs for all Foster customers, the following conditions shall apply:
a. Delivery dates and quantities shall be considered firm within thirty (30) days of the scheduled shipping date.
b. Delivery dates for releases scheduled to ship more than thirty (30) days from the current date may be deferred by a maximum of sixty (60) days and may not be changed more than one time.
c. Delivery dates and quantities for releases scheduled to ship more than ninety (90) days from the current date may be changed as required; however, such changes may be subject to cancellation charges if the total quantity is affected in such a way as to create obsolete inventory or cancellation charges or charge backs to Foster by any of its vendors.
Tooling charges cover only partial costs of tools. All tools shall remain the property of Foster for the use of Buyer.
Authorization to return an item must be obtained from Foster in advance. The Return Material Authorization (RMA) number must be clearly marked on the outside of the packaging. Items not marked with a RMA number or not matching the return authorization record will not be accepted. Returned products must be in resalable condition and in the original package with a copy of the sales receipt or invoice. Items shall be returned freight pre-paid. Credit will be issued based on Customer’s purchase price for the returned product less any applicable restocking charges, freight, or other expenses. Made to order, custom or other products otherwise fabricated or altered to accommodate Customer are not returnable. Foster shall not be liable for any damage to returned items resulting from improper or inadequate packaging.
No Liability to Third Parties or for Secondary Source Information
Foster is not liable to third parties or to anyone with whom its does not have a direct contractual relationship for any claims arising out of alleged defects in Products sold or services performed. Foster is not liable for defective, inaccurate or incomplete information provided by secondary sources.
All illustrations and descriptions appearing on Foster’s website or in any catalog are for the sole purpose of identification. While Foster makes a reasonable effort to insure the accuracy of such information, Foster does not represent that the Products will necessarily conform to the illustrations or descriptions. Foster makes no representation that the Products comply with specific requirements of the U.S. Occupational Safety and Health Act (OSHA) or of federal or state environmental laws, rules and regulations under each of the foregoing, as they now exist or may exist in the future. It is the Buyer’s responsibility to comply with such laws based upon the intended or actual use of the Products. Product cross-reference comparisons do not imply that all products compared are available or perfectly comparable. CROSS-REFERENCED PRODUCTS ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Buyer shall review all cross-referenced product specifications prior to purchase and use to determine suitability of the Products for Buyer’s intended use.
Product Information Disclaimer
Although Foster has used reasonable efforts to accurately illustrate and describe the Products in its catalogs, literature, and websites, such illustrations and descriptions are for the sole purpose of product identification and do not express or imply a warranty or affirmation of fact of any kind or a warranty or affirmation of fact that the Products will conform to their respective illustrations or descriptions. Foster reserves the right to correct publishing errors.
Foster’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Foster’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by an officer of Foster.
This contract shall be governed by and interpreted in accordance with the laws of the State of Ohio, without reference to conflict of law principles. If for any reason a court of competent jurisdiction finds any provision of this Contract unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of this contract will continue in full force and effect. Buyer agrees that exclusive jurisdiction for any dispute arising out of or relating to this contract lies with the courts in the State of Ohio and consents to venue in Hamilton County, Ohio which Buyer agrees shall have personal jurisdiction over Buyer. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and Foster may seek injunctive relief in any United States or foreign court. Except in case of nonpayment, neither party may institute any action in any form arising out of these Terms and Conditions more than one year after the cause of action has arisen. These Terms and Conditions shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these Terms and Conditions and any uncertainty or ambiguity shall not be interpreted against any one party.
U.S. Foreign Corrupt Practices Act
Buyer acknowledges that it is an Independent Contractor, as defined in the next paragraph, and represents, warrants, and covenants that it has not paid, offered or agreed to pay, authorized the giving of, or caused to be paid, directly or indirectly, money or anything of value to any foreign official (as defined in the U.S. Foreign Corrupt Practices Act, as amended), in connection with the purchase and resale of the Products ordered.
Foster and Buyer are Independent Contractors and not principal and agent. Nothing construed or contained in these Terms and Conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Without limiting the generality of the foregoing, Buyer is not authorized to make, and shall not make, any representations on behalf of, or which are binding upon, Foster and shall take no actions on behalf of, or which are binding upon, Foster. The status of Foster and its personnel and any subcontractors is and will be that of independent contractors, and no such personnel or subcontractors will, at any time or for any purpose, be deemed employees or agents of Customer.
Export Controls and Related Regulations
Buyer represents and warrants that it is not on, or associated with any organization on: (i) the United States Department of Commerce’s Bureau of Industry and Security’s Denied Persons List or Unverified List; (ii) the United States Department of the Treasury’s Office of Foreign Assets Control lists, Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers-Kingpin, or Specially Designated Terrorists List; or (iii) the United States Department of State’s Designated Foreign Terrorist Organizations, Embargoed Countries list, or Debarred Persons List. Buyer represents and warrants that it is not subject to a denial order issued by the United States Department of Commerce. Buyer shall comply with all relevant laws and regulations of governmental bodies or agencies, including but not limited to all applicable export control laws of the United States or other governing agencies and their successors.
Foreign Principal Party in Interest
Freight Forwarder and Documentation: It is specifically agreed that Buyer shall be the foreign principal party in interest and/or that its freight forwarder shall act as Buyer’s agent in such capacity for Export Administration Act or other applicable purposes and Buyer and freight forwarder shall assume responsibility for all export or routed transactions documentation. At Foster’s request, Buyer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by Buyer or its freight forwarder related to sales to them by Foster.
Country of Importation and Anti-Diversion
Buyer represents that it is purchasing products from the United States and importing them to the country specified in Buyer’s and Foster’s documentation. Buyer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the United States, and that there will be no re-export or diversion from such specified destination contrary to such laws. Any commodities, technology and software will be exported from the United States in accordance with the Export Administration Act regulations and other applicable regulations. Diversion contrary to United States law is prohibited. If requested by Foster, Buyer shall provide documentation satisfactory to Foster verifying delivery at the designated country. Buyer further agrees to inform Foster at the time of order of any NAFTA or other special documentation, packaging or product marking or labeling requirements, but Foster shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents as are necessary under United States export laws and regulations for export, unless Foster expressly agrees to do so.
Permits, Export, and Import Licenses
Buyer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Act, Toxic Substances Control Act, or other applicable legislation or regulations including, but not limited to, the Department of Defense or Department of State regulations.
Trademarks, Copyrights and Domain Names
Buyer acknowledges that it has no right, title, or interest in the trade names, trademarks, copyrights, or domain names of Foster, and in the product names, and covenants that it will take no action to register or otherwise interfere with such rights of Foster. Buyer agrees that it will not copy the products sold to Buyer or their packaging, trade dress, catalogs, or websites.
This Agreement constitutes the entire, complete, and exclusive agreement between the parties relating to the sale of the Products and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of the Products made by any Foster representative, which are not stated herein, shall be binding on Foster. No addition to or modification of any provision of this contract shall be binding upon Foster unless made in writing and signed by a duly authorized officer of Foster. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this Agreement. These Terms and Conditions shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
These Terms and Conditions shall govern the purchase of products and services (collectively, “Products”) pursuant to Purchase Orders issued to Seller by Foster Transformer Company, Inc. (“Buyer”). These Terms and Conditions may be amended by mutual agreement of the parties, which may be evidenced by exchange of written communications. This order is not binding upon Buyer until accepted by Seller. Acceptance of all terms and conditions of this Purchase Order (“Order”) shall take place when (a) Buyer receives the acknowledgment copy of this Order, properly executed by the Seller, or (b) Seller delivers to Buyer the Products.
ACCEPTANCE OF THIS ORDER IS EXPRESSLY LIMITED TO THE TERMS HEREOF. ANY ADDITIONAL TERMS ON ANY SELLER FORM ARE OBJECTED TO AND REJECTED, AND SHALL NOT BE BINDING ON OR ENFORCEABLE AGAINST BUYER. IN THE EVENT OF INCONSISTENCY BETWEEN THE TERMS OF THIS ORDER AND ANY PURPORTED ACCEPTANCE, THE TERMS OF THIS ORDER SHALL PREVAIL.
It is agreed unless otherwise provided, (a) the within stated price (“Purchase Price”) is a firm price; (b) the Purchase Price shall be all-inclusive and shall include all taxes on items ordered hereby; (c) the price as herein stated shall include all costs for transporting and insuring the items ordered to the Buyer’s dock; and (d) the Purchase Price is not less favorable than that extended to any other customer for the same or similar Products in equal or lesser quantities.
Buyer will remit payment of the Purchase Price (less any applicable discounts or offsets) for each Conforming Product according to terms stipulated on the face of this purchase order or if no terms are stipulated within 60 days of invoice date, provided that the Invoice Date shall not be earlier than the date the Products are actually shipped by Seller.
No extra charges of any kind including charges for packing or cartage will be allowed unless specifically agreed to by Buyer in advance.
Seller shall pack, mark and ship all Products to Buyer in new condition using good commercial practices and the most advantageous transportation service and rates. Seller shall convey to Buyer good title, free and clear of all liens and other security interests. Unless otherwise specified on the face of this Order, the F.O.B. point shall be Buyer’s location designated on the face of this Order. If transportation is F.O.B. Seller’s location, Seller shall bear all risk of loss or damage to the Products, and title shall not shift to the Buyer, until delivery of the Products to the carrier. If transportation is F.O.B. to Buyer’s location, Seller shall bear all risk of loss or damage to the Products, and title shall not shift to Buyer until delivery of the Products to Buyer’s location. Delivery shall be in accordance with the schedule set forth in this order, provided, however, Seller shall not be liable for any delay or failure to perform its obligation resulting directly or indirectly from causes beyond its reasonable control, such as strikes and acts of God. If Seller fails to deliver Products in accordance with the lead time specified in these Terms and Conditions or the applicable Purchase Order, then Seller will be responsible for all premium freight charges and any other associated costs required to supply Products to Buyer as soon as possible.
Cancellation of Purchase Orders
Buyer may cancel any Purchase Order, in whole or in part, without further obligation or liability to Seller, at any time prior to Seller’s shipment of the Products covered by such Purchase Order by providing Seller written or electronic notice of such cancellation.
By accepting this order Seller warrants (“Performance Warranty”) that the items to be furnished hereunder will be (a) in full compliance with Buyer’s specifications, blueprints, drawings, and data or Seller’s samples, if any; (b) fit for the use intended by the Buyer, (c) free from defects in materials, workmanship, and design; and (d) free from any actual or claimed patent, copyright, or trademark infringement. Seller warrants title to the Products. Notwithstanding anything contained herein to the contrary, Buyer may, at its option, assign or otherwise transfer any warranty, in whole or in part, on any particular Products to any of Buyer’s customers; whereupon (a) such customer may enforce the Warranty against Seller on, in, and for such customer’s own behalf, name, and benefit, and (b) Buyer may enforce such Warranty against Seller on, in, and for Buyer’s or such customer’s behalf, name or benefit.
Seller agrees the warranties herein contained shall (a) be in addition to any warranties (i) implied by law; (ii) expressly made by Seller other than hereunder, and (iii) survive acceptance and payment by Buyer.
The warranty period (“Warranty Period”) is for one year after delivery unless otherwise stated on the face of the order.
During the Warranty Period, Seller shall, at no additional cost to Buyer, credit or replace at Buyer’s option any Product that fails to conform to its Performance Warranty in any respect whatsoever (“Defective Product”). If Buyer’s option is for credit, Seller shall grant Buyer a credit equal to the full amount of the Purchase Price originally paid for the Product. If Buyer’s option is to replace such Product, the replacement Product must conform to the Performance Warranty in all respects. Replacement Product must be new product; no repaired product will be accepted. Seller shall replace, at the Buyer’s option, each Defective Product and redeliver a Conforming Product to Buyer as soon as possible, and in all events no later than five (5) days of Seller’s receipt of each Defective Product. In the event Seller fails to do so, Buyer shall be entitled to an immediate and full refund of the Purchase Price paid to Seller for such Defective Product. All return shipments of Defective Products to Seller shall be at Seller’s sole cost, risk, and expense. Seller shall bear all reasonable direct costs and expenses incurred by Buyer to replace a Defective Product with a Conforming Product, including, but not limited to, labor and travel expenses. Buyer has the right to return Product on a per occurrence basis. No minimum quantity shall be required for returns. At the end of the Warranty Period the Seller will make available to Buyer any technical documentation (including schematic diagrams), repair parts and training for Buyer technicians as may be reasonably required to permit Buyer to maintain and repair the Products.
Tools, dies, molds, and patterns of all kinds manufactured or purchased for Buyer and held by Seller for making Buyer’s parts must be repaired, renewed, and fully insured by Seller against possible loss or damage. Seller shall protect and indemnify Buyer from any loss or damage to such items. The cost of changes in such items necessary to effect design or specification changes ordered by Buyer shall be paid for by Buyer. Buyer shall have the right to take possession of and title to any such items that are special for the production of Buyer’s parts and goods covered by this order upon payment to Seller of the unamortized cost thereof; provided, however, that no further payment to Seller shall be required if Buyer previously paid for or reimbursed Seller for the cost of the items.
All Products shall be subject to Buyer’s inspection and approval at any place that Buyer may reasonably designate prior to acceptance and payment of the Purchase Price. Any Product requiring installation shall not be deemed finally accepted until Buyer establishes that such Product conforms to the Performance Warranty through installation, inspection, or use thereof. The Performance Warranty on each Product shall survive any testing, inspection, delivery, payment, and acceptance of any Product by Buyer. Buyer expressly reserves, without liability hereunder or otherwise, to reject and refuse acceptance of items which do not conform in all respects to (a) any instructions contained herein, (b) Seller’s approved samples; and (c) Seller’s warranties. No inspection, tests approval, or acceptance of the Product shall relieve Seller from responsibility for any defects in the Product or other failures to meet the requirements of this order, or for latent defects, fraud, or such gross mistakes as amount to fraud.
Excess and Premature Product
Buyer shall not be obligated to accept or pay for: (a) any Products in excess of the quantity ordered in its Purchase Order (“Excess Product”); (b) Products that have been discontinued in transit, or (c) deliveries arriving more than five (5) days in advance of the Delivery Date specified on the Purchase Order (“Premature Products”).
Rights and Remedies
No payment shall be due hereunder for any amount invoiced for any Defective Product, Excess Product, Premature Product, or any Product not received at the Delivery Location by the Delivery Date. Nothing herein shall limit Buyer’s right to cancel Purchase Orders for Defective Products and undelivered Products hereunder or Buyer’s right to revoke its acceptance of any Defective Product under this Agreement or applicable law. All of Buyer’s rights and remedies under this Section for Defective Products shall be in addition to, and cumulative with, Buyer’s other rights and remedies under this Agreement, at law, or in equity.
Buyer reserves the right to change any one or more of the following; (a) specifications, drawings, blueprints, and data incorporated in this order where the items to be purchased are to be specifically manufactured for the Buyer; (b) method of packaging, packing, or shipment, and (c) place and/or time of delivery. If any such change causes an increase or decrease in the cost of or the time required for the performance hereunder, an equitable adjustment shall be made in the price or delivery schedule, or both. Any claim for adjustment by the Seller shall be deemed waived unless asserted in writing within thirty (30) days from the receipt by Seller of the change. Nothing contained in this clause shall relieve Seller from its obligation to proceed without delay in the performance of this order as changed.
Seller agrees to defend, indemnify and hold Buyer harmless from and against damages, losses, claims, costs and expenses (including reasonable attorney fees) related to any third party claims against Buyer arising out of (a) any allegation that any Product infringes any patent, copyright, trademark, trade secret or other intellectual property right of a third party and (b) any personal injury, wrongful death or property damage (including, without limitation, to the property or employees of Buyer) alleged to have been caused by the negligence of Seller or a defect in a Product. Buyer shall give Seller prompt notice of any such claims (“Claims”), and permit Seller to control the defense and settlement of Claims, and reasonably cooperate with Seller in connection with the defense and settlement of Claims. The foregoing indemnification obligations shall not be limited by the amount or existence of insurance maintained or provided by Seller.
Seller and Buyer shall treat as confidential all specifications, drawings, blueprints, and data supplied by Buyer (“Data”). Such Data shall remain the property of Buyer and shall not be used for any purpose other than the production for the Buyer. All Data shall be returned to Buyer promptly upon Buyer’s request. Seller shall not disclose any information relating to this order to any third person without the other party’s consent.
For the purposes of this paragraph the following definitions shall apply: “Complete Work” shall mean all Products completed in accordance herewith for which Seller shall not have received payment as of the date of termination. “Work in Progress” shall mean all Products upon which work shall have commenced but which are not completed items as of the date of termination. “Terminated Work” shall mean all Products ordered hereunder upon which work had not commenced as of the date of termination. “Material” shall mean all goods, supplies, and services required to be furnished by Seller for the completion of the Product ordered hereunder.
(a) Buyer may terminate this order, in whole or in part, at any time upon notice to Seller. Upon receipt of such notice, unless otherwise directed by Buyer, Seller shall (i) stop work under this order to the extent specified; (ii) terminate all orders and subcontracts to the extent that they relate to terminated work; (iii) place no further orders for materials except as they are required to complete work in progress, if required, and non-terminated work, if any, and at Buyer’s election; (iv) complete the work in progress and non-terminated work, if any, in accordance herewith.
(b) Upon termination and subject to Buyer’s direction and approval, Seller shall (i) settle all claims with subcontractors and suppliers arising from such termination and (ii) use its best efforts to sell the material relating to the terminated work or in Seller’s sole discretion retain the material.
(c) Not later than three months after termination, Seller shall submit a termination claim (herein, the “Claim”) to Buyer, in the form prescribed by Buyer setting forth the proposed amounts due Seller as a consequence of the termination. If Seller fails to submit the Claim within such time, Buyer may independently determine the amount due Seller, if any, and such determination shall be final. Upon submission of a timely Claim by Seller, and if the parties fail to agree upon all or any part of such amount within a reasonable time, Buyer shall, but only with respect to any part as to which there is no dispute, pay to Seller that amount (herein the “Termination Payment”) equal to the costs incurred by Seller (i) prior to notification of termination in anticipation of performing the Terminate Work, including claims arising from the termination of contracts made with third parties to complete the Terminated Work, to the extent such costs so incurred are not limited on the face hereof, and (ii) Less the aggregate of (X) all payments, if any, made to Seller on account of the Terminated Work and materials purchased by Seller prior to the effective date of termination. (Y) any claim which the Buyer may have against the Seller in connection with this order and (Z) the agreed price or proceeds of sale of any material allocable to the Terminated Work or a sum equal to cost to Seller of all material retained by Seller. In no event shall Buyer’s obligations to Seller, as a consequence of the termination exceed the aggregate purchase price of the items as stated on the face hereof or the Termination Payment whichever is the lesser amount, and upon payment thereof, Buyer shall have no further obligations to Seller hereunder or otherwise.
(d) All determinations required hereby shall be made by generally accepted accounting principles. Seller shall make his premises available to Buyer at any time after termination and prior to settlement for the purpose of inspection by Buyer of Seller’s inventory, work in progress, books, records, documents and other evidence bearing on the Termination Payment.
Compliance With Laws
Seller shall comply with all federal, state, or local law, ordinance, rules and regulations in the manufacture and sale of the Products, including, but not limited to, the Occupational Safety and Health Act, the Truth 1 Negotiation Act, all applicable provision of the Fair Labor Standards Act, and all provisions of Executive Order No. 11246 of September 24, 1965, and all rules, regulations, and relevant orders of the Secretary of Labor related to equality of employment opportunity which Executive Order, regulations and orders are incorporated herein by reference.
(a) If this order is given pursuant to any existing contract, it is also subject to the terms of such contract. In the event of any conflict with the provisions hereof, the contract terms shall control.
(b) Seller shall not assign this order nor delegate its performance hereunder without the written consent of Buyer.
(c) Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any other default.
(d) Seller shall not change this order nor ship non-conforming items without first obtaining the written consent of Buyer.
(e) If at Buyer’s request any research and development is performed with respect to any of the items sold hereunder or in anticipation hereof which results in any patents, trademarks, or copyrights, title thereto shall vest in Buyer.
(f) This order shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to its choice of law rules. Any claim or litigation brought under or relating to this Agreement shall be brought in a court of competent jurisdiction located in Hamilton County, Ohio.
(g) These Terms and Conditions, together with Purchase Orders issued hereunder, constitute the final and entire agreement between Buyer and Seller with respect to the purchase of the Products and supersede any terms and conditions in any acknowledgement form, invoice or other document of Seller. These Terms and Conditions may be amended only by a written instrument duly executed by both parties, and may not be amended orally or by the course of performance.