UNITED TOOL AND MACHINE, Inc.
General Terms and Conditions OF SALE
1. General. These General Terms and Conditions of Sale (these “Terms”) are the only terms which govern the sale of goods and/or services (“Goods”) by United Tool and Machine, Inc. (“Seller”) to the buyer (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The accompanying quotation, confirmation of sale, acknowledgement, or credit application (the “Sales Confirmation” and together with these Terms (collectively, this “Agreement”), comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Seller’s acceptance of any purchase order from Buyer is expressly conditioned on Buyer’s assent to this Agreement. If the Sales Confirmation is a credit application, the Sales Confirmation also includes the transaction specific terms of the quotation, confirmation of sale, or acknowledgment. No terms or conditions set forth in any future correspondence between Buyer and Seller shall alter or supplement this Agreement unless in writing signed by an authorized representative of each party. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s additional or different terms and conditions and does not serve to modify or amend these Terms.
2. Firm Commitment. The Agreement is a firm contract and cannot be cancelled or terminated except as provided herein. At Seller’s sole discretion, Seller may accept cancellation of an order for Goods, or accept a requested delay in manufacture, performance of service, or delivery, subject to Buyer paying Seller its out-of-pocket costs of raw materials, Third Party Products, and other sourced materials and services.
3. Delivery, Shipping and Risk of Loss. All shipments are F.O.B. the Seller’s manufacturing or distribution facility (the “Facility”) unless otherwise agreed to in writing by the parties. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit. All risk of loss to all Goods provided under the Agreement shall pass to Buyer when the Goods are delivered to the carrier at Seller’s Facility or otherwise leave the care, custody and control of Seller; provided, however, that, in the event the Goods subsequently are properly rejected by Buyer for any reason, risk of loss and title shall be divested from Buyer and shall revert immediately to Seller upon Buyer’s placement of such properly rejected Goods with a common carrier for return to Seller.
If Seller has separately agreed to arrange for transport of the Goods, Seller shall deliver the Goods to Buyer at the location identified by Buyer (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
If for any reason Buyer fails to accept delivery of any of the Goods within three (3) days after Seller’s notice that the Goods have been delivered at its Facility or the Delivery Point, or if Seller is unable to deliver Goods at the Delivery Point within such time because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) the Goods shall be deemed to have been delivered; and (i) Seller, at its option, may store the Goods until Buyer picks them up, and Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4. Non-delivery. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. The Seller shall not be liable for any non-delivery of Goods unless Buyer gives written notice to Seller of the non-delivery within seven (7) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered, and Buyer shall not have the right to reject the installment.
5. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period”), and shall, following the Inspection Period, provide to Seller a delivery receipt. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) Goods shipped are different than identified in this Agreement; (ii) Goods’ label or packaging incorrectly identifies its contents; or (iii) Goods that are defective in material or workmanship.
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, at its election, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s Facility identified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
6. Return of Goods. Subject to Section 5, Goods may not be returned to Seller without first obtaining written authorization from Seller, which authorization is at Seller’s discretion. A request for return must be filed with Seller and shall include purchase order number, approximate date shipped, and any other identifying numbers requested by Seller. Each request for return of Goods should state the type and quantity of Goods, the part numbers and the reasons for the return. If return authorization is granted, Goods shall be returned in a clean, well packaged condition. Buyer shall pay Seller’s standard restocking fee for any returns made pursuant to this Section 6.
7. Price. Buyer shall purchase the Goods from Seller at the price(s) (the “Price”) set forth in the Agreement. All Prices are exclusive of all Federal, State, or local sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenue, gross receipts, or commercial activity.
8. Payment Terms. Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by ACH, wire transfer or other method agreed to by Seller and in US dollars. Past due amounts shall accrue interest at the rate of 1.5% per month, compounded monthly. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. Title to the Goods shall pass to Buyer upon full payment for the applicable Goods.
If Buyer is or becomes delinquent in the payment of any sum due Seller by more than sixty (60) days from the date of invoice, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, and under this Agreement, to cancel any order, refuse to make further deliveries and declare immediately due and payable all unpaid amounts for Goods previously delivered to Buyer.
Seller shall be entitled to its reasonable attorney’s fees and costs incurred in collecting any amounts owed Seller by Buyer.
9. Security Interest. Seller reserves a purchase money security interest in the Goods sold hereunder and the proceeds thereof, in the amount of the Price. In the event of default by Buyer on any of its payment obligations to Seller, Seller will have the right to repossess the Goods sold hereunder that have not been paid for without liability to Buyer or any third party in possession of such Goods, if not Buyer. In such event, Buyer agrees to make the Goods available to Seller so that Seller can repossess them without a breach of the peace. This security interest will be satisfied by payment in full. Seller may file a financing statement to perfect Seller’s security interest, provided that Seller terminates any such financing statements once the Goods are paid for. Buyer shall cooperate fully with Seller to execute such other documents and to accomplish such filings and/or recordings thereof as Seller may deem necessary for the protection of Seller’s interests in the Goods furnished hereunder.
10. No Warranty; Warranty Disclaimers. EXCEPT FOR THE RIGHT TO RETURN NONCONFORMING GOODS UNDER SECTION 5, SELLER DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
11. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, DIMINUTION IN VALUE, DOWNTIME, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE THE ESSENTIAL PURPOSE OF ANY REMEDY.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
12. Insurance. During the term of this Agreement and for a period of one (1) year thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
13. Compliance with Law. Each party shall comply with all applicable laws, regulations, and ordinances, and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that party needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
14. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part and such failure continues for five (5) days after Buyer’s receipt of written notice of breach; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15 .Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Confidential Information. All non-public, confidential or proprietary information, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by one party (“Discloser”) to the other party (“Recipient”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement, is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Discloser in writing. Upon Discloser’s request, Recipient shall promptly return all documents and other materials received from Discloser. Discloser shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Recipient at the time of disclosure; or (c) rightfully obtained by Recipient on a non-confidential basis from a third party.
17. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, including, without limitation, acts of God or the public enemy, flood, fire, earthquake, explosion, epidemic, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or materials or telecommunication breakdown or power outage.
18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. Statute of Limitations. No claim or cause of action may be brought against Seller for breach of this Agreement, breach of warranty, or any other claim arising in contract, tort, or otherwise, more than one (1) year after accrual of that claim or cause of action.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
22. Governing Law. All matters arising out of or relating to this Agreement shall be governed by, construed, and enforced in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
23. Exclusive Jurisdiction. Any dispute, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio, in each case with jurisdiction over Logan County, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such dispute, action or proceeding.
24. Notices. All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
25. Severability. In the event any of the terms and conditions contained herein is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other term or condition or invalidate or render unenforceable such term or provision.
26. Intellectual Property. Seller shall retain sole ownership of all right, title, and interest in and to all of its intellectual property, including, without limitation, content and materials on its website, ideas, methods, trademarks, service marks, trade names, symbols, logos, copyrights, patents, trade secrets, and know-how (collectively, the “Intellectual Property”), and no licenses to any Intellectual Property are created hereunder.
27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. The sections of this Agreement which are intended to survive its termination shall so survive, including but not limited to Section 7, 8, 10, 11, 16, 22 and 23.