A. This Agreement supersedes all previous quotations, including offers made visa the internet and agreements pertaining to the Goods. Delivery to Seller of Buyer’s acceptance of a Seller’s quotation (according to its terms), Seller’s actions in reliance on Buyer’s oral acceptance of a written or oral quotation, or Buyer’s receipt of the Goods, will constitute a binding contract under the terms of the Agreement. The Agreement is subject to Seller’s revocation or cancellation without liability until it is approved by Seller. Notice of such approval may be furnished to the Buyer in the form of an acknowledgment, shipment, or other form of express approval.
B. An order submitted by Buyer orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with these Terms and Conditions) or a purchase processed over the internet, may be accepted, approved or filled by Seller, but any resulting contract and the liabilities or obligations of Seller shall be determined solely by the Agreement, and (unless Seller otherwise advises Buyer in writing) notice is hereby given that Seller objects to any such terms or conditions in Buyer’s purchase order or other writing. Seller shall not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filling such order or by failing to further object to Buyer’s terms or conditions.
C. This Agreement is a final, complete and exclusive statement of the Agreement of the parties. SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE TERMS AND CONDITIONS, BUT RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS. Seller may correct unilaterally any mathematical and typographical errors in the Agreement. A course of performance, course of dealing, or customs in the trade shall not constitute a modification or waiver by Seller of any right by Seller.
3. Prices, Payment and Risk of Loss.
A. All prices out of Sellers product range reflect Buyer’s net cost in U.S. currency. The prices do not include any applicable federal, state and local sales taxes. Buyer shall be responsible for all such taxes. Prices specifications are subject to change without notice. Buyer shall pay all government fees levied on the installation and inspection of the Goods. Buyer shall pay upon receipt all invoices rendered by Seller for any such items Seller may pay and for the Goods.
B. This Agreement is for a shipment contract and the Goods shall be delivered ex works (INCOTERMS 2000) Elgin, Illinois unless otherwise provided in the Order. Whether or not Seller prepays shipping charges risk of loss passes to Buyer upon tender of the Goods to a carrier. Seller’s breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary.
C. Payment Terms: Oelheld U.S. accepts MasterCard, VISA and Discover credit-card payments. The purchase order will be processed after payment has been received by oelheld (on average up to 7 business days).
General payment terms on open-accounts are NET 30 days after shipment and may be extended for orders over $500 to firms listed and satisfactorily rated by Dun & Bradstreet. Unrated or unlisted firms are requested to submit two major trade references and the name of their local bank. Oelheld U.S. reserves the right to require C.O.D. payment terms from any customer whose account is overdue for a period of more than 30 days.
D. All amounts not paid to Seller when due shall incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law. Seller shall be awarded reasonable attorney fees in its enforcement of the Agreement.
Shipping dates are estimates based on Seller’s present engineering and manufacturing capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer’s order. All shipping dates are approximate and shall be computed from the date of entry of the order on Seller’s books. All shipping dates are further subject to Seller’s prompt receipt from Buyer of a written purchase order or acceptance, letter of credit, down payment, and other conditions as specified in the Agreement, and of all drawings, information and approvals necessary to provide the Goods and to grant any credit proposed in the Agreement. If shipment of any item or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the item at the place of manufacture at the risk and expense of Buyer from the time it is ready for shipment. In the event of any such delay in shipment, full and final payment for an item shall be due and payable 30 days after Buyer is notified that the item is ready for shipment. In addition, Seller shall not be in default because of its delay or failure to deliver or perform resulting, in whole or in part, from: (i) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or order, or (ii) the lack of usual means or transportation, fires, floods, explosions, strikes or any other accidents, contingencies, or events, at Seller’s or its supplier’s plant or elsewhere (whether or not beyond Seller’s control) which directly or indirectly interfere with, or render substantially more burdensome, Seller’s production, delivery, or performance.
5. Inspection, Testing and Rejection.
A. If the Agreement expressly provides for Buyer’s inspection and/or acceptance of the Goods, Seller’s standard test procedures conducted by Seller’s representative shall be the criteria for inspection and/or acceptance, unless other specific procedures have been specified in the Agreement.
B. All drawings, specifications, technical documentation, samples, prototypes and Goods shall be deemed approved and/or accepted by Buyer if Buyer does not provide a written objection and/or rejection within fourteen days of receipt or other reasonable time established by Seller. Any objection and/or rejection by Buyer must be in writing and state with specificity all defects and nonconformities upon which Buyer will rely to support its rejection.
ALL DEFECTS AND NONCONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED.
A. Seller warrants to Buyer only, that Goods to the extent manufactured by Seller shall be free from manufacturing defects in materials and workmanship which are discovered within the warranty period, subject to the disclaimers and limitations of the Agreement. The warranty periods for respective products are determined by Section 7 Handling and Storage of the Material Safety Data Sheets (“MSDS”) of the product delivered to the Buyer. This does not constitute a warranty of performance, but only a limited warranty for the storage of the Product which must be pursuant to the recommended conditions listed in the MSDS for the particular product purchased by buyer. Due to the fact that the Goods are subject to a wide variety of use and are exposed to so many environmental influences, this limited warranty only includes such defects that arose due to storage. The warranty shall not apply to any other failures, which occur during installation, maintenance, cleaning, and those due to wear and tear.
B. Seller warrants to Buyer only that the Goods will be as described in the Agreement in all material respects, subject to the limitations stated herein and Seller’s published and internal standards; however, Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Goods without. Seller may, in its discretion, also rely on any generally accepted industry standards.
C. Seller’s warranties shall apply only if the Goods: (i) have been installed, maintained, and used in conformity with instructions furnished by Seller from time to time, if any; (ii) have been subjected to normal use for the purpose for which Goods were designed; (iii) have not been subjected to misuse, negligence, or accident; and, (iv) have not been altered or repaired by persons other than Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Goods.
D. Notwithstanding the foregoing, Seller may upon request evaluate the defective product which is not covered by warranty and determine on a case by case and complementary basis whether to repair, exchange or supplement the particular product.
7. Disclaimer and Limitation of Express Warranties.
There are no express warranties other than those contained in the Agreement and they are not assignable. Any representations as to performance and other matters, except as contained in the Agreement, were for illustrative purposes only and do not constitute a warranty. Whether or not the Goods are to be used exclusively by Buyer, there shall be no third party beneficiaries to the express warranties contained herein. Seller does not warrant any portion of the Goods not manufactured by or not furnished by Seller (whether or not specified by Buyer), but Seller shall assign to Buyer upon request all assignable warranties of Seller’s suppliers related to such Goods. All descriptions, shipping specifications and illustrations of the Goods and their quality compatibility with other systems and capabilities in catalogues, brochures and price lists or otherwise provided by Seller are intended for general guidance only and Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance on them. Seller does not warrant that it or the Goods are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement.
8. Remedy and Limitation of Seller’s Liability.
In no event shall Seller be liable for any incidental, special or consequential damages (including without limitation injury or damages of any kind or nature to person or property, loss of profit or use, or labor or rental costs) arising from the sale or use of any products or from any other cause whatsoever, whether based on warranty (express or implied) or otherwise based on contract or in tort. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein.
SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
Seller does not warrant the Goods will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in this Agreement.
10. User’s Responsibility for Safety.
It is Buyer’s or other user’s responsibility to provide all proper devices, tools, training, and other means that may be necessary to effectively protect all personnel from serious bodily injury which otherwise may result from the method of particular installation, use, operation, or service of the Goods.
Safety Standards; EPA, OSHA and similar state regulations; and other sources should be used by Buyer to insure the safe use of the Goods. If Buyer fails to comply with the obligations set forth in this section, Buyer shall indemnify and save Seller harmless from any liability or obligation incurred by Seller to persons injured directly or indirectly in connection with the operation of the Goods and all warranties of Seller shall become automatically void.
Buyer shall indemnify Seller from any and all third party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts manufactured with the Goods, if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller.
12. Consequential, Incidental, and Other Damages.
BUYER AND THIRD PARTIES SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE. This limitation shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations. Any legal inability to limit or restrict the right of Buyer or a third party to such damages shall not affect the right of Seller to indemnification hereunder, and under no circumstance shall Buyer recover more than the purchase price.
13. Security Interest, Power of Attorney.
In addition to any security interest granted by the UCC, Buyer hereby grants a security interest to Seller in all Goods and documents related thereto and proceeds and products therefrom to secure all obligations of Buyer to Seller, whether or not arising under the Agreement. Buyer shall sign documents for filing evidencing the security interest. Buyer grants Seller an irrevocable power of attorney to sign Buyer’s name to a financing statement if necessary or convenient to perfect Seller’s security interest. In case of a default by Buyer, Seller may peaceably enter the premises of Buyer and others to repossess or render inoperable all Goods in which it has a security interest.
A. Buyer acknowledges that any information disclosed to Seller has not and will not be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Seller at or prior to the time of the disclosure. Otherwise, Seller shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from Buyer in the performance of the Agreement.
B. All other information furnished by Seller in bidding, negotiating and performing the Agreement, are confidential and the property of Seller and shall not be shown or disclosed to any third party or used by Buyer except as may be necessary for the use of the Goods.
C. Any invention or other information developed by Seller in the performance of the Agreement shall remain the property of Seller.
15. Time for Bringing Action.
Any proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in connection with the payment cannot be filed nor maintained unless: (i) it is commenced within one year after the cause for action has accrued; (ii) Buyer has given timely written notice to Seller of its claim as provided herein; and (iii) Buyer deposits the unpaid portion of the purchase price with the tribunal pending final adjudication. An action shall accrue no later than shipment of the Goods.