TERMS AND CONDITIONS OF SALE
Unless otherwise specified on the face of this proposal the following terms and conditions apply;
1. ACCEPTANCE
Acceptance of buyer’s purchase order(s) is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein. The terms stated on the front or on this side of this document or any attachments hereto constitute the entire agreement between the Buyer and Seller and are in lieu of any additional or different terms, representations, or warranties contained in buyer’s order or otherwise asserted by Buyer to apply to this order. Notwithstanding any terms in Buyer’s acknowledgment or confirmation, Buyer shall be conclusively presumed to have assented to these terms and conditions upon their receipt without prompt written objection thereto or upon Buyer’s acceptance of all or any part of the goods ordered.
Any changes, modifications, or amendments requested by Buyer to the terms stated on the front or on this side of this document after acceptance shall only be with the express written approval of seller and to be exhibited by a written change order to be attached hereto and made a part of this sales order. Goods are defined as all things which are moveable, including specially manufactured, U.C.C. Section 2-105 (1)
2. MODIFICATION
No modification, change or amendment of any term or condition of this order or confirmation of Buyer’s Purchase order is binding against Seller unless Seller acknowledges the modification, change or amendment in writing, signed by an authorized employee of Seller. Seller further reserves the right to correct all clerical and stenographic errors.
3. DELIVERIES
Deliveries shall be F.O.B., Sellers factory (Chicago, Illinois). The delivery date stated on the face of this document or any other document of Seller is a desired, not promised, date that Seller will in good faith attempt to meet.
All shipments are insured or are to be insured at Buyer’s expense and made at the Buyer’s risk. Seller does not assume liability for any consequences caused by any delay in delivery, and in no event shall seller be liable for any of the following: delay of failure to deliver due to loss or damage of the purchased product; shortage of raw materials; supplier failure; delay in delivery of parts or components; strikes, lockouts, or labor troubles of any kind; flooding; fire; theft; accident; breakdowns of production machinery or plant; acts of God; governmental inspections; restrictions; requisitions; regulations; embargoes; riot; civil commotions; war; malicious mischief; inability to obtain shipping or freight space; carrier problems of any kind; or any other contingencies of whatever nature of like or different character beyond Seller’s control, whether or not presently occurring or contemplated by either party. If Buyer delays or interrupts the shipment of the goods, the price is subject to escalation, depending on such factors as added storage charges and changes in price from Seller’s suppliers.
4.TERMS OF PAYMENT:
A. Buyer agrees that net amount of Seller’s invoice to be paid in full in thirty (30) days from date of Seller’s invoice or as specified in accordance with the terms shown on the face of this document.
B. Invoicing to be made by Seller either on the date of shipment or as specified in the order.
C. Either Buyer’s request for delay in shipment or delays in transportation shall not be the reason to delay payment.
D. In case of refusal, cancellation or inability of the Buyer to accept any shipment or order in accordance with the terms of Buyer’s order or this order, the Buyer shall be held liable for freight, express, storage, extra cost of handling and other expenses that may be incurred thereby and determined by Seller.
E. If Seller’s opinion the financial condition of Buyer at any time does not justify continuance of production, shipment or delivery on the terms of payment specified, Seller may require full or partial payment in advance.
F. If the Buyer wrongfully rejects the goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole contract, then with respect to any goods directly affected and, if the breach is of the whole contract, then also with respect to the whole undelivered balance, the Seller may withhold delivery of such goods, stop delivery of such goods in possession of a carrier or other bailee, and recover damages for nonacceptance or repudiation. The measure of damages shall be the difference between the market price at the time and place for tender and the unpaid contract price, together with any incidental damages but less expense saved in consequence of Buyer’s breach.
5. RISK OF LOSS
Any F.O.B. term notwithstanding, title to the goods and their risk of loss pass to the Buyer at the point of shipment (Seller’s factory, Chicago, Illinois). Seller assumes absolutely no liability for goods lost or damaged in transit.
6. CLAIMS
Evident loss or damage to a shipment must be indicated by a notation made by the carrier or carrier’s agent on the delivery documents and must be further reported by Buyer within ten (10) days from receipt of shipment, or be barred from any remedy. The notation on the delivery document must clearly specify the extent of the loss, shortage or damage.
7. WARRANTIES
A. Seller has a standard limited warranty which shall be included with all finished goods manufactured by Seller, a copy of which is annexed to and made part of this order.
B. Seller warrants that the goods are in conformity with specifications set forth on the face of this document or any annexed order.
C. Any models or samples shown or relied upon were shown or used for the purposes of illustration only, and this is not a sale by sample or description. The Buyer acknowledges that it is familiar with the goods sold. THE STANDARD LIMITED WARRANTY OF THE SELLER, A COPY OF WHICH IS ANNEXED TO AND MADE A PART OF THIS ORDER, SHALL BE LIEU OF ANY AND ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE. THE SOLE RESPONSIBILITY OF THE SELLER SHALL BE ITS REPLACEMENT OBLIGATIONS CONTAINED IN THE STANDARD WARRANTY.
8. LIMITATION OF LIABILITY
The Seller shall not be liable for any consequential damages, loss of business, loss of use, downtime or any other economic, pecuniary, or other loss or expense out of this order, the purchase, resale, use of or inability to use the goods or for any other reason, whether the damage, loss or expense arises in contract, in tort, by statute, or otherwise. In no event shall Seller’s liability exceed the price of the goods claimed to be defective or to have caused damage.
9. TAXES
The amount of any present or future sales or other tax, Federal, State, or local, which the Seller now or hereafter shall be required to pay, either on its own behalf or on behalf of the Buyer or otherwise with respect to the material covered by this order shall (unless such prices are expressly stated to be inclusive of such tax) be added to the prices contained herein or on the face of this document or on Seller’s invoice.
10. REMEDIES
A. The remedies outlined herein shall be the exclusive remedies available to the Buyer. The exclusive remedy of the Buyer in the event that any of the goods does not conform to the order as set forth on the face of this document or the Seller’s standard limited warranty shall be at the Seller’s election to either repair, replace or exchange the nonconforming items or parts. All goods claimed to be nonconforming or defective must be shipped to the Seller’s factory (Chicago, Illinois), all freight prepaid.
B. The Seller’s acceptance of any goods so shipped shall not be deemed an admission that the goods are nonconforming, and, if the Seller finds that any goods returned are not defective, such goods will be reshipped to the Buyer at the Buyer’s expense and the Buyer will be charged for any shipping charges incurred by the Seller.
C. In the event any goods are found to be nonconforming, the Buyer expressly waives its rights to consequential or incidental damages.
D. The Buyer shall pay and discharge all costs, expenses, and attorney’s fees which shall be incurred and expended by Seller in enforcing the terms and conditions of this order, whether by the institution of litigation or in taking advice of counsel, or otherwise.
E. Seller shall have all lien rights or other remedies provided by statute, law, or equity. The rights and remedies hereby created are cumulative and the use of one remedy shall not be taken to exclude or waive the right to the use of another. If any provision or part of this instrument shall be declared invalid by a Court of competent jurisdiction, such invalidation shall not affect the valid provisions hereof.
F. Buyer hereby grants the Seller, and the Seller shall retain, a security interest in the goods until payment of the total purchase price is received. At the request of the Seller, Buyer shall execute and deliver to the Seller any instrument (including Uniform Commercial Code financing statements) which the Seller deems necessary to protect Seller’s security interest in the goods. If Buyer fails or refuses to execute and deliver any financing statement requested by the Seller, Seller may execute and file such statement on behalf of the Buyer as Buyer’s attorney-in-fact.
11. ADDITIONAL ASSURANCES
All orders are subject to the approval of the Seller’s credit department. Seller reserves the right to withhold or halt delivery and demand additional assurances of payment satisfactory to it whenever, in its opinion, reasonable grounds for insecurity exist with respect to Buyer’s financial responsibility.
12. LATE PAYMENT
Subject to limitations imposed by applicable law, the Seller shall charge the Buyer one and one half percent of the purchase price per calendar month for each month payment is made after thirty (30) days from the date of the Seller’s invoice. This increased time price for the goods compensates the Seller for administration costs, additional collection risks, and other costs resulting from Buyer’s failure to pay within the thirty (30) day period as agreed.
13. CONTROLLING LAW, INTERPRETATION
These terms and conditions shall be governed by and construed in accordance with the internal laws of the State of Illinois, U.S.A., including the Uniform Commercial Code of Illinois. Whenever a conflict exists between these terms and conditions and any provision of said Uniform Commercial Code, these terms and conditions shall govern. The section headings contained herein have been inserted for convenience only, and shall not be considered in interpreting any term or condition hereof. If any term or condition contained herein is found to be invalid or unenforceable, it shall be deemed stricken here from without affecting the remaining terms or conditions hereof.
14. JURISDICTION
In the even of a dispute arising relative to these terms and conditions, each party agrees that the appropriate court of jurisdiction shall either be the U.S. District Court for the Northern District of Illinois, Eastern Division, in Chicago, Illinois, or the Circuit Court of Cook County, for the State of Illinois. By executing these terms and conditions, both parties agree to submit to the jurisdiction of either of the aforesaid courts as the sole and exclusive court of jurisdiction for any dispute arising relative to these terms and conditions, or any sale made pursuant to the terms and conditions as specified herein.
15. PATENT INFRINGEMENT
If a claim is asserted based on the alleged infringement of a United States patent by any part of the goods (other than a part of the goods based on specification by the Buyer), Seller, at its cost, shall either replace or modify such part with a non-infringing part or procure for the Buyer the right to use such part, provided the Seller is given full opportunity to conduct all negotiations with respect to such claims. In no event shall Seller have any liability for losses arising from any use or nonuse of any infringing part. The foregoing provisions fully set forth the Seller’s exclusive responsibilities, and Buyer’s exclusive remedies, with respect to any infringement of any part of the goods and SELLER EXPRESSLY DISCLAIMS ANY OTHER WARRANTY AGAINST INFRINGEMENT, WHETHER EXPRESS OR IMPLIED. Buyer shall defend and hold the Seller harmless from any claim of infringement relating to any part of the goods designed and manufactured to Buyer’s specifications, including the use thereof in combination with other parts, materials or processes.
16. WAIVER
Waiver by Seller of any breach of contract by Buyer shall not operate as a waiver of any future breach nor as a continuing waiver nor shall such waiver or any course of conduct operate as a modification or recission of any of the terms contained herein. Seller’s remedies, whether provided by law, contract or contained elsewhere, shall be deemed to be cumulative.
17. ENTIRE AGREEMENT
There are no promises, agreements or understandings, either written or oral, outside the terms of this document, which forms the full and complete agreement between Buyer and Seller, superseding all prior negotiations, understanding, promises and written and oral agreements. Any subsequent modifications to this document, including any terms and conditions contained in the acceptance, must be in writing and signed by both the Seller and Buyer.
18. NOTICE
All notices and other communications required hereunder shall be in writing and delivered by telex, facsimile, telegram, or certified or registered mail, postage prepaid, return receipt requested. Any such notice shall be deemed to have been given on the date it is received during regular office hours at the address listed on the applicable order or at such other address as the affected party may have previously designated for notices.