| Terms
and Conditions |
1. SCOPE. All descriptions,
quotations, proposals, offers, acknowledgements,
acceptances and sales by Catching Fluidpower,
Inc.,(Seller), are subject to and shall
be governed exclusively by the terms and
conditions stated herein. Buyer’s acceptance
of any offer to sell is limited to these
terms and conditions. Any terms and conditions
in addition to, or inconsistent with those
stated herein, proposed by Buyer in any
acceptance of an offer by Seller, are
hereby objected to. No such additional
different or inconsistent terms and conditions
shall become part of the contract between
Buyer and Seller unless expressly accepted,
in writing, by Seller. Seller’s acceptance
of any offer to purchase by Buyer is expressly
conditional upon Buyer’s assent to all
the terms and conditions stated herein,
including any terms and conditions in
addition to, or inconsistent with those
contained in Buyer’s offer. Acceptance
of Seller’s products shall, in all events,
constitute such assent.
2. PRICES and PAYMENT. Unless
otherwise mutually agreed upon in writing,
all price quotations are firm for 30 days
only and automatically lapse upon the
expiration of such period. Prices quoted
are exclusive of taxes, and Buyer agrees
to pay any and all sales revenue excise
or other taxes (exclusive of taxes based
on Seller’s net income) applicable to
the purchase of goods Buyer from Seller.
If Buyer claims an exemption from any
such taxes Buyer shall provide Seller
with a tax exemption certificate acceptable
to the taxing authorities. Payment shall
be made by Buyer net 30 days from the
date of delivery of the items purchased
hereunder. Amounts not timely paid shall
bear interest at the maximum rate permitted
by law for each month or portion thereof
that the Buyer is late in making payment.
Should Buyer fail to make timely payment
in accordance with this provision, Buyer
agrees to pay all of Seller’s cost of
collection, including reasonable Attorney’s
fees. Any claims by Buyer for omissions
or shortages in a shipment shall be waived
unless seller receives written notice
thereof within 30 days after buyer’s receipt
of the shipment.
3. DELIVERY. All sales
are made FOB point of shipment. Seller’s
liability for delivery ceases upon making
delivery of goods to the carrier at the
shipping point in good condition; the
carrier shall be the agent of the Buyer.
Risk of loss shall pass to Buyer upon
such delivery. Unless written instructions
are provided by Buyer as to manner of
shipment, seller shall, in its discretion,
select the manner of shipment. Shipping
dates are approximate. Seller shall have
no liability for any delays in delivery.
4. TITLE. Title to goods
purchased hereunder shall pass to Buyer
upon delivery. Seller reserves a purchase
money security interest therein until
payment in full by Buyer of the purchase
price thereof and all associated charges.
Seller warrants that title to goods purchased
by Buyer will be conveyed to Buyer free
of any liens, claims, or encumbrances
of Seller, or any party acting by, through
or under Seller, excepting only Seller’s
purchase money security interest.
5. WARRANTY DISCLAIMER.
If it is possible to do so, Seller shall
undertake to assign to Buyer the warranties,
if any, granted by the manufacturer(s)
of goods purchased hereunder or components
thereof to Seller. Except for the warranty
of title, SELLER DOES NOT MAKE, AND HEREBY
DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, AS
TO GOODS PURCHASED HEREUNDER, THEIR CONDITION
OR OPERATION, THEIR CONFORMANCE WITH ANY
SPECIFICATIONS, THEIR SUITABILITY FOR
BUYER’S REQUIREMENTS OR AS TO ANY INFRINGEMENT
OF PROPRIETARY RIGHTS OF THIRD PARTIES.
6. LIMITATIONS OF LIABILITY.
The maximum liability of Seller to any
person arising out of or in connection
with the sale or use of any goods delivered
to Buyer hereunder, whether such liability
arises from a claim based upon contract,
tort (including strict liability), or
otherwise, shall IN NO EVENT EXCEED THE
ACTUAL AMOUNT PAID BY BUYER TO SELLER
FOR THE GOODS GIVING RISE TO SUCH CLAIM.
Under no circumstances shall Seller be
liable for incidental, consequential or
special damages for any claim of any third
party.
7. INSPECTION. Within
five (5) business days commencing upon
its receipt of goods purchased hereunder,
Buyer must inspect such goods at its expense
and risk for the purpose of discovering
nonconformities or defects therein. Upon
discovering nonconformity, Buyer shall
notify Seller immediately, and in no event
later than one (1) business day after
the expiration of the five (5) day inspection
period, and Buyer shall permit Seller
a reasonable period to investigate and,
if necessary, cure the alleged nonconformity.
Buyer’s sole and exclusive remedy in the
event Seller is unable or unwilling to
cure a nonconformity of goods is to reject
the goods by so advising Seller in writing,
sent certified or registered mail no later
than three (3) business days after Seller
completes its effort to cure or advises
Buyer of its decision not to cure, provided,
however, nothing herein contained shall
absolve Buyer from its liability for wrongful
rejection. Buyer shall not use and agrees
to hold at Seller’s disposition all rejected
goods for a reasonable time after rejection;
to follow Seller’s instructions relative
to returning the goods to Seller; and,
to otherwise exercise reasonable care
relative thereto. Buyer’s failure to notify
Seller in the manner set forth above and
within the time period therein specified
shall constitute Buyer’s unqualified acceptance
of the relevant goods, and in no event
shall Buyer have the right to reject non-defective
products or to reject or revoke its acceptance
relative to any goods once accepted without
Seller’s prior written consent. The terms
set forth herein regarding inspection,
rejection, and acceptance supersede all
other statutory provisions conflicting
therewith, to the extent permitted by
law.
8. CHANGES IN SPECIFICATIONS OR
DESIGN. Seller shall attempt,
but shall not be obligated, to incorporate
specification or design changes requested
by Buyer subsequent to Seller’s acceptance
of Buyer’s order, provided, however, that
all change requests granted by Seller
shall be subject to additional charges
and extended delivery dates as Seller
shall determine in its sole discretion.
9. CANCELLATIONS AND RESCHEDULES.
Cancellations and reschedules requested
by Buyer will be accepted only with the
express approval of Seller, and will be
subject to cancellation charges or price
increases. Cancellation charges will include,
without limitation, expenditures made
or committed to by Seller for the applicable
order and a reasonable allowance for profit.
10. SPECIAL TOOLS. Any
special tools, jigs, dies, patterns, etc.,
which Seller or the manufacturer it represents
makes or acquires for Buyer, notwithstanding
any charge therefore, shall be and remain
Seller’s property subject to its possession
and control, provided, however, that at
time of quotation special written arrangements
may be made for retention of title by
Buyer upon payment of the full cost thereof.
In no event shall Buyer have any interest
in any tooling belonging to Seller which
has been converted or adapted by Seller
for such use, notwithstanding any charge
for any such utilization, conversion,
or adaptation. Seller shall have the right
to alter, discard, or otherwise dispose
of any tooling without liability to Buyer
when for two (2) consecutive years no
orders have been received from Buyer requiring
the use of such tooling.
11. BUYERS PROPERTY.
Any designs, tools, patterns, materials,
drawings, information, or equipment furnished
by Buyer, or any special tools made or
acquired for Buyer by Seller which becomes
Buyer’s property, shall be used only in
the production of goods ordered by Buyer
and not otherwise, unless by Buyer’s written
consent; provided that such property may
be considered obsolete and destroyed by
Seller when for two (2) consecutive years
no orders are received from Buyer for
products to be made with such property.
Seller agrees to exercise reasonable care
with respect to such property and equipment
while in its possession and control, but
shall not be responsible for loss or damage
occurring without its fault or negligence,
or for ordinary wear and tear.
12. ADDITIONAL CONDITIONS APPLICABLE
TO ORDERS PLACED UNDER GOVERNMENT CONTRACT
OR SUBCONTRACTS THEREUNDER. If
Buyer notifies Seller that goods ordered
hereunder are for use under a prime contract
with an agency of the United States Government,
the following terms and conditions of
the Armed Services Procurement Regulations
shall be incorporated with Seller’s terms
of sale insofar as Buyer may be required
to incorporate such provision in its subcontracts
or insofar as applicable to the goods
sold hereunder: Walsh Healy Public Contracts
Act (12605); Renegotiating (7.103.13)
Buy American Act (6.104.5); Examination
of Records (7.104.5); Audit and Records
(7.104.41); Price Reduction for Defective
Cost of or Pricing Data (7.104.11); Military
Security Requirement (7.104.12); Termination
(8.706); Equal Opportunity Employer (12.802).
13. GENERAL. Buyer shall
not assign any order or rights hereunder
without the prior written consent of Seller.
These terms and conditions shall be governed
by the laws of the State of Illinois.
These terms and conditions shall be binding
upon and inure to the benefit of Buyer
and Seller, and may be amended or modified
only by a written instrument executed
by the party against whom the same is
sought to be enforced.
14. This document and other information
from Catching Fluidpower Inc., its subsidiaries
and authorized distributors, provide product
and/or system options for further investigation
by users having technical expertise. It
is important that you analyze all aspects
of your application and review the information
concerning the product or system in the
current product catalog(s). Due to the
variety of operating conditions and applications
for these products or systems, the user,
through its own analysis and testing,
is solely responsible for making the final
selection of the products and systems
assuring that all performance, safety,
and warning requirements of the application
are met.
Revised 10/05/06
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