1500 E Murden Street | Kokomo, IN 46901 | 866-585-8024
CARDINAL METAL FINISHING TERMS AND CONDITIONS OF SALE
CARDINAL METAL FINISHING ACCEPTANCE OF BUYER'S PURCHASE ORDER IS EXPRESSLY CONDITIONED ON THE BUYER'S ASSENT TO AND ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS.
The following are terms and conditions by which Cardinal Metal Finishing ("Seller") will sell its products to Buyer. Receipt of these Terms and Conditions of Sale (hereinafter "Agreement") by Buyer without prompt written objection thereto shall constitute an acceptance of this Agreement by Buyer. This Agreement shall supersede all written or printed terms set forth in any purchase order issued by Buyer. This Agreement supersedes all prior written understandings, assurances, and offers. No reference herein to Buyer's purchase order shall in any way incorporate different or additional terms or conditions which are hereby objected to.
1. ACCEPTANCE: This Agreement forms the basis of the agreement between Seller and Buyer and shall not be considered material alterations thereof. Any terms or conditions stated by Buyer in a purchase order, proposed supply agreement or in any other communication prior or subsequent hereto shall not be binding on Seller if in conflict with or in addition to any of the provisions of this Agreement nor shall any such communication by Buyer serve as an objection, explicit or otherwise, to this Agreement. In the event that Buyer’s offer is expressly conditional upon Seller’s adherence to Buyer’s terms and conditions, then this Agreement shall operate as a counteroffer, expressly conditioned upon the Buyer’s acceptance of this Agreement. Whether this Agreement operates as an acceptance or a counteroffer, the acceptance by Buyer of any goods provided hereunder shall constitute acceptance by Buyer of this Agreement and relinquishment and waiver of any right to limit acceptance or object to this Agreement under the Uniform Commercial Code. Any representations made by sale representatives, employees or agents of Seller inconsistent with this Agreement shall not be binding on Seller, and Buyer shall not rely thereon.
2. PRICES AND PAYMENT:
(a) The prices specified herein or otherwise stated, in writing, by Seller are subject to change, without notice, to prices in effect at the time of each shipment. Seller shall submit invoices to Buyer stating amounts due. Payment terms are 30 days, unless otherwise agreed to, in writing, by Seller. Payment shall be made in United States dollars.
(b) Any tax imposed by any governmental authority on the sale of products referred to in this Agreement shall be paid by Buyer, in addition to the selling price specified by Seller, and the failure by Buyer to do so shall be a breach of this Agreement.
(c) Seller reserves the right to pass on surcharges and other adjustments related to changes in the prices of raw materials, and to make corrections in price quotations due to typographical, engineering or other errors, or resulting from incomplete or inaccurate information supplied by Buyer.
(d) Seller reserves the right to assess, at its discretion, a late payment charge equal to 18 percent 18 per annum on past due balances owed Seller upon failure of Buyer to comply with this Agreement. Provided however, that in the event that applicable governmental law sets a maximum rate for late payment fees which is less than 18 percent per annum, then the late payment charge assessed hereunder shall be set at the maximum rate permitted by law.
3. INSPECTION, DELIVERY, SHIPPING, AND PACKING:
(a) Inspection of products shall be done by Buyer or its assigned representative at Buyer's facility. Inspection of products, including final inspection of completed products or in-process inspection of products, at Seller's facility is not permitted.
(b) Delivery schedules are based upon current production capacities, material or component availability, and inventory, and may be changed by Seller as conditions require.
(c) Where the Buyer is located in the United States, all products shall be sold “F.O.B. Origin, Seller's factory, [Indianapolis, Indiana].” [Where the Buyer is located outside of the United States, all products shall be sold “Inoterms 2000, Ex-works, Seller's factory,[Indianapolis, Indiana]].” In either instance, title and risk of loss shall pass to Buyer upon delivery to the carrier at Seller's factory.
(d) The method and route of shipment are at Seller’s discretion unless Buyer timely supplies explicit instructions otherwise.
(e) Title to the goods passes to Buyer when the goods are made available to the carrier at Seller’s facility/source plant, even though Seller may have made nonconforming tender or Buyer attempts to revoke acceptance of the goods or Buyer repudiates this agreement after the goods have been identified hereto.
(f) Unless otherwise agreed in writing, all delivery dates are estimates by which Seller shall use its best efforts to deliver all goods within the time specified, however, in no case shall the Seller be liable for any expense, loss or damage whatsoever suffered by Buyer as a result of the Seller’s failure to deliver goods by the specified date.
(g) All claims for loss or damage to products while in the care, custody, and/or control of a carrier shall be the responsibility of Buyer, who shall submit any claims to that carrier.
(h) Shipments hereunder shall be at all times subject to the approval of Seller's Credit Department.
(i) Seller shall pack, mark, and ship the products according to its standard commercial procedures for shipment, unless the parties agree, in writing, that Seller shall comply with any special instructions provided by Buyer. Compliance with special instructions may result in an increased price.
4. PRODUCT CHANGES:
(a) Seller reserves the right to change without notice the design of, or the process of manufacturing, the products covered by this Agreement; provided that the foregoing shall not be construed as relieving Seller from its obligation to deliver products which conform to any specifications, drawings, and prints which Seller may have furnished to Buyer.
(b) If Buyer desires product changes, Buyer shall submit a written request to Seller for consideration. Within a reasonable period thereafter, Seller shall notify Buyer of its acceptance or rejection of the proposal. Seller's failure to notify Buyer of Buyer's proposed product changes means Seller has rejected Buyer's proposal. If Buyer's request for product changes is accepted by Seller, and the product changes cause an increase or decrease in the cost of the product or the delivery schedule, Buyer shall make, in writing, an equitable adjustment in the price or delivery schedule, or both.
Seller's Standard Commercial Warranty relating to products is applicable to this Agreement.
NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE PRODUCTS INLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Commercial Terms (September 2012)
The provisions of this warranty shall not apply to products (1) used for the purposes for which they are not designed or intended; (2) which have been repaired or altered without Seller's prior written consent;
(3) which have been subjected to misuse, negligence, accident, or improper installation; or (4) which, based on Seller's examination, do not disclose to Seller's satisfaction nonconformance to the warranty.
6. INSPECTION AND ACCEPTANCE:
Buyer shall have 10 business days after receipt of the goods, which includes but is not limited to, the arrival of the goods to the point of destination or the taking into custody of the goods by Buyer, by physical means or otherwise (the "Rejection Period"), to inspect and either accept or reject them. Failure to inspect the goods within the Rejection Period shall constitute a waiver of Buyer’s right of inspection. Failure to inspect and/or reject the goods within the Rejection Period shall constitute an irrevocable acceptance of the goods and Buyer shall be bound to accept and pay for the goods in accordance with these Terms and Conditions of Sale. To reject any nonconforming goods, Buyer must immediately (and in any event, within the Rejection Period) notify Seller in writing that Buyer considers the goods nonconforming. Such notification shall identify each and every alleged nonconformity and describe that portion of the shipment being rejected. Failure of Buyer to give such notice within the Rejection Period shall constitute an unqualified and irrevocable acceptance of the goods by Buyer and a waiver of any and all claims by Buyer for nonconforming goods or delivery and Buyer shall be bound to pay for the goods in accordance with these Terms and Conditions of Sale.
7. CLAIMS: For defective or nonconforming goods that were rejected by Buyer in accordance with the provisions stated above, the Buyer must make all claims of defective or nonconforming goods within 60 days of receipt of the goods, as described herein. Failure to make such claims within 60 days will be deemed a waiver of those claims. The Buyer shall give the Seller a full and reasonable opportunity to investigate all claims.
8. BUYER'S REMEDIES: [The Buyer's exclusive and sole remedy on account of or in respect of the furnishing of products that are defective or do not conform to this Agreement shall be to secure replacement or repair of the products, at Seller's option, thereof. In no event shall the Seller's maximum liability exceed the selling price for the products claimed to be nonconforming. THE SELLER IS NOT RESPONSIBLE FOR ANY OTHER DIRECT, SPECIAL, CONSEQUENTIAL, OR ACCIDENTAL DAMAGES CAUSED BY THE DEFECTIVE OR NONCONFORMING GOODS.] OR [The Seller’s obligation for valid claims is limited to replacement of the defective or nonconforming goods at the original destination, or giving the Buyer credit for the amount of defective or nonconforming goods, whichever the Seller chooses. Replacement of goods or a credit for the defective or nonconforming goods is the sole and exclusive remedy for contract, warranty, negligence, tort or strict liability claims, for any loss, liability, damage or expense.]
9. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, ACCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OF THE PRODUCTS OR OTHER EQUIPMENT, DOWNTIME COSTS OR CLAIMS OF BUYER'S CUSTOMERS, WHETHER BASED ON CONTRACT, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. DEFENSE, INDEMNIFICATION AND HOLD HARMLESS: Buyer SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS Seller and Seller's parent(s), subsidiaries, divisions, affiliated companies and their respective directors, officers, agents, insurers, employees and representatives (collectively referred to as the "Seller Group"), from and against any and all claims, suits, causes of action, liabilities, losses (including death, personal injury and property damage), judgments, obligations, fines, damages, penalties, expenses, attorneys fees, settlement funds, and consequential and incidental damages, of any kind or character regardless of theory (including, but not limited to, breach of contract, breach of warranty, tort (including negligence), strict liability, environmental laws, intellectual property rights or otherwise), arising out of or in any manner relating to or attributable to or allegedly arising out of or in any manner relating to or attributable to the Products. This agreement to indemnify, hold harmless and defend applies if the act(s) or omission(s) complained of were caused or allegedly caused only in part by the negligence of the Seller Group, but this agreement to indemnify, hold harmless and defend does not apply where the act(s) or omission(s) complained of were caused or allegedly caused solely by the negligence of the Seller Group.
BUYER MAY NOT BRING ANY ACTION ARISING OUT OF ANY CLAIMED BREACH BY SELLER OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
11. [PATENT INFRINGEMENT DISCLAIMER: Seller does not represent that the products may be used, sold, or transferred without infringing patents or other proprietary rights of third parties. Seller does not assume any responsibility nor shall Seller have any liability whatsoever for the infringement by Buyer, its suppliers or its customers of any patent or other proprietary right owned or controlled by any third party.]
12. SETOFF: Neither Buyer nor any assignee of Buyer shall have a right to claim compensation or to set off against any amounts which become payable to Seller under this agreement or otherwise.
13. SEVERABILITY: If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, that provision shall be deemed severed to the extent necessary to comply with such statute, regulation, ordinance, order, or rule. In the event such provision is deemed severed, the parties shall negotiate in good faith to arrive at an alternative arrangement approximating the original business objective of the parties. The remaining terms and conditions of this Agreement shall remain in effect.
14. ASSIGNMENT: This Agreement is not assignable by Buyer without Seller's prior written approval.
15. NO IMPLIED WAIVER: The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.
16. NO AGENCY: This Agreement does not constitute either party the agent or legal representative of the other party. Neither party is authorized to create any obligation on behalf of the other party.
17. TERMINATION: This Agreement may be terminated by either party by giving ninety (90) days' written notice to the other party in the event of failure by such other party to fulfill any of its obligations hereunder. However, if during the period of such notice, such other party remedies such failure, this Agreement shall continue with the same force and effect as if such notice had not been given. Seller may immediately terminate this Agreement, in whole or in part, at its sole discretion, upon giving written notice to Buyer.
18. INSOLVENCY: In the event of the insolvency or bankruptcy of Buyer, or upon the appointment of a receiver for Buyer or its reorganization for the benefit of creditors, Seller may terminate this Agreement. In the event of termination in accordance with this paragraph, Seller shall not be obligated to deliver any products under this Agreement.
19. [SECURITY INTEREST: To secure payment of the purchase price for goods sold hereunder, Buyer hereby grants to Seller a purchase money security interest in all such goods and in those jurisdictions where enforceable, Buyer authorizes Seller to sign and file any financing statements on behalf of Buyer and in jurisdictions where such authorization is unenforceable, Buyer agrees to sign any financing statements and in all instances agrees to take any action as may be necessary or desirable to perfect such security interest.]
20. ATTORNEY'S FEES: In the event Seller should bring an action for enforcement of this Agreement, Buyer agrees that Seller shall be entitled to award of its reasonable attorney's fees and court costs associated with such enforcement proceedings.
21. CUMULATIVE REMEDIES: The rights and remedies herein reserved to Seller shall be cumulative and additional to any other or further rights and remedies provided at law or equity.
22. FORCE MAJEURE: Any delay or failure of Seller to perform its obligations hereunder shall be excused to the extent that it is caused by an event or occurrence beyond its control such as, by way of example and not by way of limitation, acts of God, actions by any governmental authority (whether valid or invalid), governmental laws and regulations not presently in effect, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, accidents, labor problems (including lockouts, strikes, and slowdowns) at Seller's facility, its source plant or their suppliers, inability to obtain power, material, labor equipment, or transportation, or court injunction or order.
23. GOVERNING LAW: This Agreement and any disputes or controversies arising hereunder shall be governed by and construed according to the internal laws of the State of Indiana, United States of America, without regard to its conflict of law principles, and not including the United Nations Convention on Contracts for the International Sale of Goods.
24. JURISDICTION AND VENUE: Buyer and Seller agree than any action arising out of the sale of goods or services in accordance with this Agreement will be brought, heard, and decided in a court of competent subject matter jurisdiction in the State of [Indiana] in the state or federal court located in [Marion County]
25. ENTIRE AGREEMENT: This Agreement, together with any attachments, exhibits, or supplements specifically referenced in this Agreement, shall constitute the entire agreement between the parties hereto and shall supersede all previous communications, representations, or agreements, either oral or written, between the parties hereto with respect to the subject matter hereof.
26. AMENDMENT: No agreement or understanding varying or expanding this Agreement shall be binding upon either party hereto unless it is in writing and signed by a duly authorized representative thereof.
27. RECORDS AND FINANCIAL AUDITS: Seller will maintain, in accordance with generally recognized commercial accounting principles and practices, complete and accurate records of all matters relating to Seller's performance under this Agreement. Upon reasonable advance notice to Seller, Seller shall provide Buyer and/or its representatives with access to such Seller records as they relate to purchase orders by Buyer, during normal business hours, for the purpose of auditing Seller's charges under a purchase order. Seller will cooperate with Buyer and its representatives as reasonably necessary to facilitate the audit process.
28. EXPORT LAWS: This Agreement shall be subject to, and Seller and Buyer shall comply with, all export control laws, regulations, rules, orders, licenses, requirements, and governmental requests now or hereafter in effect in the United States of America. To the extent any sale of products pursuant to this Agreement may require approval of the United States Government, Seller’s obligations under this Agreement are conditioned upon the grant of such approval and upon compliance by Buyer with any restrictions imposed by the United States Government in connection with such approval.
29. NO INDUCEMENTS: The parties hereto represent to each other and each agrees that, neither it nor any person acting on its behalf has, in contravention of any applicable law, given or offered to give, or will give or offer to give, any sum of money or other material consideration to any person, directly or indirectly, as an inducement to obtain business hereunder or to influence the granting of licenses or other governmental permissions to enter into this Agreement or perform obligations hereunder.
30. OFFICIAL TEXT: The official text of this Agreement is in the English language. If this Agreement is translated into another language, the English text shall govern any question with respect to interpretation.
Commercial Terms (September 2012)