Except as expressly set forth, seller makes no warranty of any kind, express or implied, including with limitation any warranty of merchantability or fitness for particular purpose or otherwise. The forgoing paragraphs provide Purchaser’s entire and exclusive remedy for any claim in connection with the sale or furnishing of goods or parts or their design, suitability for use, installation or operation. No employee or agent of Seller is authorized to make any warranty other than those specifically set forth herein. The terms of any specification or chart issued by Seller or attached hereto are descriptive only and shall not be deemed to constitute a warranty of any kind.
ACCEPTANCE AND PRICE
Quotations are held open for ninety (90) days, unless extended by Elwood Corporation. Terms of payment, discounts or minimum charges applicable to quotations are contained herein. Supplier prices do not include sales, use, excise or other similar taxes, and all such taxes shall be paid by Purchaser. Additional charges may be made to cover any unforeseen or unusual cost elements which have not been contemplated by Elwood Corporation or Purchaser, such as special packaging, painting or engineering in excess of the normal requirements. Unless otherwise specified, all orders are subject to credit approval. Unless otherwise stated, this quotation does not include any services of an Elwood Corporation factory representative relative to the installation, inspection or start-up of the equipment. Orders resulting from this proposal are subject to a delinquency charge at the rate of 2% per month, unless prohibited by the applicable state law; in which case, the highest allowable contract percentage rate; or, at such other allowable rate for delinquent accounts, which supplier may publish from time to time.
- Product: Normal terms of sale are net thirty (30) days from invoice date.
- System: 50% of total order amount due at time of order placement. 40% of total order amount due net thirty (30) days after shipment. 10% of total order amount due at acceptance in customer plant or sixty (60) days after shipment if start-up is delayed due to customer’s scheduling delays.
TITLE AND OWNERSHIP
Title to the products described in the quotation and the right of possession remains with Elwood Corporation until final payment is received; moreover, the products or any part thereof shall not be considered a fixture or be incorporated into realty by reason of attachment thereto, and may be separated from realty for the purpose of repossession. In the event of default on any payment for any reason, the full unpaid balance shall become due and payable. At any time during the continuance of the default, Elwood Corporation may repossess the products and retain the right to collect the balance of the contract price. Purchaser hereby acknowledges Elwood Corporation’s security interest in the products until such time as full payment is made, and Purchaser agrees to join Elwood Corporation in executing appropriate Uniform Commercial Code documents, and to do other acts necessary to protect said security interest.
Under no circumstances shall Elwood Corporation be liable for consequential damages of any nature (whether based on contract to tort) including, but not limited to, loss or profits, loss of production, delays or expenses, and the liability of Elwood Corporation shall not, under any other circumstance, exceed the purchase price of the products furnished.
Elwood Corporation reserves the right to incorporate design changes it deems appropriate which may become apparent during the contract period.
The complete agreement between Elwood Corporation and Purchaser is contained herein and no additional or different terms or conditions stated by Purchaser shall be binding unless agreed to by Elwood Corporation in writing. Failure of Elwood Corporation to insist upon strict performance of any of the terms and conditions stated herein shall not be considered a continuing waiver of any such term condition or any right of Elwood Corporation.
Shipment is F.C.A. our plant and occurs when the products are delivered in good order to the carrier; whereupon, Elwood’s responsibility for loss and damage of products ends. Any freight allowances applicable to the quotation are contained herein or in appropriate supplier catalogs and/or price lists. If shipment, as originally specified is delayed by Purchaser, Elwood Corporation reserves the right to store the products at Purchaser’s expense.
The products are provided with only those safety devises identified herein. It is the responsibility of the Purchaser to furnish other appropriate safety devises necessary to comply with Purchaser’s standards, or which are desired by Purchaser and /or other laws.
MANUFACTURING DEVICES AND TECHNICAL INFORMATION
Unless otherwise agreed, all manufacturing devices, data or other technical information relating to an order shall remain the property of Elwood Corporation.
Purchaser is to provide and pay for all permits and licenses required for the import, movement and completion of installation and operation.
- New Products and Systems: Seller warrants the products herein described, to the extent the same are of seller’s own manufacture, against defects of material and workmanship under normal use and service for a period of twelve (12) months from the date of shipment. Equipment or parts manufactured by others but furnished by Seller will be repaired or replaced only to the extent of the original manufacturer’s warranty. Seller makes no warranty as to the quality or performance of any such equipment or parts.
- Prep Repair-Rebuilt Products: Seller warrants the rebuilt products herein described against defects of material and workmanship under normal use and service for a period of twelve (12) months from the date of shipment.
- Prep Repair-Rebuilt Electronic Products: Seller warrants the products herein described against defects of material and workmanship under normal use and service for a period of ninety (90) days from the date of shipment.
These warranties do not cover ordinary wear and tear, abuse, misuse, overloading, altered products, or materials not of the Seller’s manufacture. Seller will in no event be liable for or accept responsibility for performance of any component of Purchaser’s system not supplied by Seller. Seller’s obligation under these warranties shall, at the Seller’s option, be limited to repairing or replacing, or allowing credit for, any part or parts, which may prove to be defective. Any replacement parts shipped hereunder shall be shipped in accordance with the terms of Section Two (2) above. Seller shall only be obligated to repair or replace any such parts if Purchaser gives Seller prompt notice of the defect or defects and an inspection by Seller (if required by Seller) confirms the defect or defects. Purchaser shall repay all transportation cost of any goods returned to Purchaser hereunder. Purchaser shall be solely responsible for determining suitability of goods for use in connection with Purchaser’s other parts and equipment and Seller shall have no responsibility in this respect and makes no warranty with respect to the suitability of goods delivered by Seller for use with any other parts and equipment.
Goods returned to Seller without written permission of Seller will not be accepted for credit. Purchaser shall bear the sole risk of loss with respect to any damage, loss or destruction of such goods. Expenses incurred by Purchaser in repairing any defective product will not be reimbursed or credited by Seller unless authorized by Seller in advance in writing. Seller shall have no obligation to repair or replace goods hereunder until such equipment or parts have been fully paid for.
SHIPMENT WARRANTY REPLACEMENT PARTS
For all warranty replacement parts, shipment is F.C.A. shipping point and freight will be prepaid at the lowest available commercial rate. Purchaser must prepay freight when returning allegedly defective parts to Elwood Corporation for inspection or replacement.
CANCELLATION OR SUSPENSION
Elwood Corporation shall not be liable for damages occasioned by a delay in performance or delivery, due to Elwood Corporation, and the time of delivery will be extended for a period attributable to the time lost, by reason of any such delay. Cancellation or suspension by Purchaser is subject to cancellation charges equal to the combined amounts of all materials and labor costs either “in-house” or contractually committed, plus manufacturing, product line and administrative burdens and a 10% profit margin added to that total. In the event manufacturing has not begun and no contractual commitments have yet been made, only “in-house” burdens, plus a 10% profit margin will be charged, but in no event, less than 10% or the purchase order price.
Elwood Corporation will defend and hold harmless Purchasers of Elwood Corporation’s products against charges of infringement of apparatus claims of United States Patents issued at exclusively on mechanical infringement by products designed and manufactured by Elwood Corporation. Before this responsibility shall arise, Elwood Corporation must be notified in writing and tendered the right to defend, settle, or make any changes for the purpose of avoiding infringement.
TERMS AND CONDITIONS OF PURCHASE
( preceded by TERMS AND CONDITIONS OF SALE )
- In the performance of the Seller’s work and in the furnishing of materials under this order, Seller shall comply with all applicable laws and regulations relating to employment, including but not limited to the Fair Labor Standards Act and the Occupational Safety and Health Act of 1970. Where this purchase order covers materials and/or services to be used in the fulfillment of a government contract, Seller shall comply with Executive Order 12246, the Vocational Rehabilitation Act of 1973, the Vietnam Era Veteran’s Readjustment Act of 1974, the National Women’s Business Enterprises Program established by Executive Order 12138, the Labor Surplus Area Program mandated by P.L. 95-89, the Small Business Concerns and Small Disadvantaged Business Concerns Programs established by P.L. 95-507, and all rules and regulations hereunder, unless exempt from such compliances. Seller shall hold Purchaser harmless from and reimburse it for any and all costs, damages and expenses (including attorney’s fees) suffered by it directly or indirectly through the failure of Seller to comply with any such laws, regulations or orders.
- Except for articles manufactured to Elwood Corporation’s own specifications and plans, Seller agrees to defend, protect, indemnify and hold harmless Elwood Corporation and it’s customers from all costs, expenses or damages arising out of any actual or claimed patent infringement pertaining to the items covered by this order or any use contemplated by the parties at the time of delivery to Elwood Corporation.
- Seller warrants to Elwood Corporation that all products ordered will be good merchantable quality, free from defects in material and workmanship, fit and sufficient for the purpose intended and in compliance with the Occupational Safety and Health Act of 1970 standards in effect as of the date of this order which relate to the physical characteristics of this product. All damages in connection with the breach of this warranty by Seller shall be borne by Seller.
- Seller shall not be liable for damages occasioned by a delay in performance or delivery due to causes beyond the reasonable control and without the fault or negligence of Seller, provided Elwood Corporation is promptly notified in writing when such a delay is apparent or imminent. However, if Seller otherwise fails to perform, or if Elwood Corporation has reasonable doubt as to Seller’s ability to perform its obligations. Elwood Corporation, in addition to its remedies at law, may revise the delivery schedule or terminate any delayed or doubtful portion of this order, without liability to Elwood Corporation.
- All fixtures, designs, data or other information supplied to Seller by Elwood Corporation shall remain the property of Elwood Corporation. Information provided shall be treated as confidential and only used to produce Elwood Corporation products.
- Commercial Instructions
- The delivery schedule specified on the face hereof, or as revised in writing by Elwood Corporation must be strictly adhered to. In the event material is received by Elwood Corporation prior to DO NOT SHIP BEFORE date of this order, Elwood Corporation will, process the material under one or the following options:
- Material will be returned freight collect and invoice will be returned for cancellation.
- Elwood Corporation will receive material and schedule payment as if material was received on DO NOT SHIP BEFORE date of this order.
- Prices must not be in excess of this stated on the face hereof. Elwood Corporation shall receive the benefits of any price reduction by Seller made effective after receipt of this order but before delivery.
- Payment Terms Interpretation
- No invoice is paid prior to ten (10) days after invoice or material is received, whichever is later.
- Non-discount invoices are paid within forty-five (45) days after invoice or material is received, whichever is later, unless special terms apply.
- All discount invoices are paid within the vendor’s highest discount term calculated from date of invoice or material is received, whichever is later and if “Instant” or “Proximo” discount term payment date is scheduled as follows: 10th Proximo received before 1st of the month are paid on the 15th and if received on or after the 1st are paid on the 30th or the month. 25th “Instant” and 10th “Proximo” received before the 16th of the month are paid on the 30th and if received after the 15th are paid on the 15 of next month.
- Checks are mailed on Friday closest to scheduled payment.
- This order is subject to cancellation or reschedule in whole or in part by Elwood Corporation at any time prior to shipment. In the event such cancellation or reschedule takes place prior to Seller’s stated lead time or actual commencement of work, whichever is later, such cancellation or reschedule shall be at no charged to Elwood Corporation. In the event the order is cancelled or rescheduled by Elwood Corporation after Seller has commenced work and providing the work in the case of cancellation, Elwood Corporation shall reimburse Seller on a negotiated bases for expenses incurred up to time of cancellation. In the case of reschedule, Seller will revise production to meet the new delivery date.
- Failure of Elwood Corporation to insist upon strict performance of any of the terms and conditions in this order shall not be considered a continuing waiver of Elwood Corporation’s rights, or such terms and conditions.