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Angle Tool Works Standard Terms and Conditions - Dated 9/20/2016
These Standard Terms and Conditions of Business are additional to the terms and conditions specified on the quotation.
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Definitions. As used herein:
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Goods means any of the goods sold or to be sold by Seller to Purchaser as indicated on the Order Documents, including prototypes and parts. Services means any of the services sold or to be sold by Seller to Purchaser as indicated on the Order Documents, including design, installation, start-up, and operating instructions.
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Order Documents means these Documents and the Seller's terms and conditions and other documentation as applicable to each transaction:
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Seller's quotation form,
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documents pertinent to the design and specifications for the Goods,
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Purchaser's purchase order, excluding Purchaser's Terms and Conditions unless specifically accepted in writing on the Seller's order acknowledgment.
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Purchaser's writing accepting Seller's quotation,
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Seller's acknowledgment of Purchaser's purchase order, less any Purchaser's terms and conditions.
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all other the information designated by these terms and conditions as comprising part of the Order Documents,
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The design, prototype, and sample of the Goods, and
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All modifications of any of the foregoing.
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Some order documents and/or agreements may refer to Customer rather than Purchaser. The term Customer and Purchaser are interchangeable and identical in reference to all terms and conditions.
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Purchaser means the party to whom Seller has addressed the quotation form or the party to whom Seller sold the Goods or Services.
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Quotation form means the quote form from Seller to Purchaser regarding the Goods, the Services, the purchase price, the other terms of the transaction, and any modification thereof.
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Seller means Angle Tool Works Inc., an Illinois corporation.
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Third party means any person or entity other than Seller and Purchaser.
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Third Party Rights means the rights of any third party, including rights of patent, copyright, trademark, trade secret, moral rights, and rights under contracts and licenses.
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Applicability.
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These terms and conditions shall apply to each of Seller's sale and provision of the Goods, Services, or both, to or for Purchaser, as indicated by the other Order Documents that are applicable to the particular transaction.
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Seller's Standard Terms and Conditions of supply and payment are for all transactions.
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Seller's Standard Terms and Conditions apply to all assembly, repair, and the assemblies and repairs of the tooling of others performed by the Seller.
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Seller's Standard Terms and Conditions form an exclusive basis for doing business regarding all Seller's quotations, offers and agreements. Even if there is no expressed reference to the Seller's Standard Terms and Conditions has been made in any specific individual case(s).
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Seller rejects any other terms and conditions of the Purchaser. Purchaser's standard terms and conditions shall not become any part of any order, contract, agreement, or purchase unless the Purchaser's specific term and/or condition is expressly accepted by Seller in writing on the Seller's Order Acknowledgment.
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Seller's Standard Terms and Conditions apply to all future transactions by Purchaser, without any exceptions for previous terms and conditions of Purchaser that may have been previously agreed to in writing. There is no carry forward of any previous agreements to new or future orders unless expressly accepted by Seller in writing on the Seller's Order Acknowledgment.
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Packaging, Shipment, and Storage.
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If the Order Documents indicate Goods:
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The price includes banding tooling to skidding for motor truck shipment within the continental United States. Crating of shipments in wood or plastic crates in additional charge to purchaser. All crating expenses will be added to final invoice unless specified otherwise on the order documents.
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Delivery is EX WORKS (EXW) Seller's facility (as defined by the then current Incoterms), even if Seller arranges for the transportation.
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Transport insurance or similar insurances is at the sole discretion and responsibility of the customer. Seller will dispatch without insurance, unless we have been specifically instructed in writing to the contrary by the Purchaser.
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Claims in the event of damage or loss of goods during transport are the liability of the carrier, the customer shall obtain a statement of facts from the carrier without delay and file claims with the carrier.
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Seller shall notify Purchaser when the Goods are ready for shipment, and within five days thereafter Purchaser shall remove the Goods from Seller's facility.
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If Purchaser fails to timely remove the Goods from Seller's facility, Purchaser shall pay Seller's then current storage and maintenance charges,
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Seller is not required to maintain or otherwise care for the Goods that are stored at Sellers facility for extended periods of time, unless agreed to in prior written agreements or correspondence.
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Purchaser shall assume all risks of loss and damage while the Goods are in Seller's possession unless agreed to in prior written agreements or correspondence.
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Seller reserves the right to insure the delivery item against theft, breakage, fire and other damages at the Purchaser's expense, provided the Purchaser has not demonstrated that the Purchaser maintains such insurance coverage. If Seller add insurance to shipment of Goods, the Seller will add any insurance expenses to the shipping and final invoice costs to the Purchaser.
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Seller reserves the right to insure any shipment if Seller arranges the shipment. Purchaser is obligated to pay any and all shipping charges, insurance charges and handling expenses. Seller reserves the right to add all shipping, insurance and handling charges to the final invoice, and Purchaser is obligated to pay those additional costs.
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Purchaser (Customer) is obligated to insure all shipments of goods. Therefore, it is the Purchaser's obligation and responsibility to insure all shipments for loss or damage. Seller is not obligated to insure any shipments, but does reserve the right to do so.
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Seller's Performance Dates.
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All dates and times for Seller's performance are estimates and are not guaranteed. Purchaser assumes all risk of loss, damage, and liability for delays in Seller's performance, including delays caused by Seller's ordinary or gross negligence, but excluding Seller's intentional delay. Unless Seller intentionally delays its performance, Purchaser may not cancel an order or receive any price reduction, refund, credit, or other compensation for Seller's delay.
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Taxes, Duties and New Tariffs
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Special Notice Regarding Tariffs, Duties and State Sales Taxes.
Unless there is agreement in writing prior to purchase order acceptance, the following is the Sellers's policy regarding all Taxes, Duties and Tariffs.
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All State Sales Taxes are the responsibility of the Purchaser, unless there is an agreement in writing prior to the purchase of the order acceptance.
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All Import and/or Export Taxes, International fees, International levies, International Brokerage fees, and duties of any kind are not included in quoted prices. All Taxes, Duties, Fees and Tariffs are the responsibility of the Purchaser to pay in full.
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Seller includes only required Illinois local and state taxes, federal wage taxes on employees as required by law, and any other Illinois sales tax if applicable.
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Purchaser has sole obligation to pay all expenses for any use taxes, transfer taxes, import and/or export duties or tariffs, and customs expenses.
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In the event that Seller prepays any Duties, Fees, Tariffs, of other related any purchases, the Purchaser is obligated to immediately pay the Seller those expenses, due upon receiving the Seller's invoice amounts.
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Since, the Purchaser is responsible to pay all international duties and tariffs. The Purchaser is responsible to pay any new tariffs imposed on imports and/or exports that we not inforce at the date of the order acceptance will the added to the invoice. The Seller will inform the Purchaser of those increases in expenses with a either one or all of the following documents, (a) quotation with additional expenses, (b) order acknowledgment of additional expenses, (c) an invoice detailing the additional expenses. Therefore, it is the Purchaser's obligation to pay those additional amounts.
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Thus, the Seller reserves the right to invoice additional amounts associated with the purchase order regarding special tariffs or duties. Henceforth, it is the Purchaser's obligation to pay those additional amounts.
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Seller will notify the Purchaser of amounts of any materials tariffs or duties as soon as the amounts are known to the Seller as stated above.
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Installation and Start-Up.
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Seller is not obliged to install or start-up the Goods, or to provide operating instructions, except as expressly provided by the Order Documents. Purchaser shall disregard any operating instructions for the Goods that are not in writing, even if orally communicated by or on behalf of Seller.
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Design.
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If the Order Documents require Seller to design the Goods, Seller shall not begin the design until Purchaser furnishes Seller with all the information that the Seller requires, including:
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All information to create the tool design
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Equipment Purchaser intends to use to operate the tooling on to produce the Goods
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The products Purchaser intends to produce using the Goods, and if applicable, the number of mold cavities and the maximum shrinkage, and all of that information shall become part of the Order Documents.
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Purchaser shall inspect and review the design and notify Seller of Purchaser's approval or disapproval of the design promptly after Purchaser receives the design from Seller. Purchaser's disapproval of the design shall be limited to the substantial nonconformance of the design with the Order Documents. Seller shall correct such substantial nonconformance of the design within the time estimated by Seller after receiving Purchaser's disapproval. Notwithstanding Purchaser's disapproval, Seller shall be deemed to have fulfilled its obligation to create the design if the design substantially conforms with the Order Documents. Purchaser acknowledges that Seller may require several attempts to create a design that substantially conforms with the Order Documents.
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Prototype and Production Goods.
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If the Order Documents require Seller to create a prototype of the finished Goods, Seller shall not begin to create the prototype until:
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Purchaser approves Seller's design, or,
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By the Order Documents, Seller is deemed to have fulfilled its obligation to create the design, or
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Purchaser delivers to Seller the design and the additional information that Seller requires, all of which shall become part of the Order Documents. Purchaser shall inspect and test the prototype and notify Seller of Purchaser's approval or disapproval of the prototype promptly after Purchaser receives the prototype from Seller. Purchaser's disapproval of the prototype shall be limited to the substantial nonconformance of the prototype with the Order Documents. Seller shall correct such substantial nonconformance within the time estimated by Seller after receiving Purchaser's disapproval. Notwithstanding Purchaser's disapproval, Seller shall be deemed to have fulfilled its obligation to create the prototype if the prototype substantially conforms with the Order Documents. Purchaser acknowledges that Seller may require several attempts to create a prototype that substantially conforms with the Order Documents.
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Manufacture and Assembly.
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If the Order Documents require Seller to manufacture or assemble the Goods from a design or prototype, Seller shall not begin to manufacture or assemble the Goods until:
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Purchaser approves the design or the prototype, or
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By the Order Documents, Seller is deemed to have fulfilled its obligation to create the design or the prototype, or
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Purchaser delivers its design or prototype to Seller, and the additional information that Seller requires to manufacture and assemble the Goods, all of which shall become part of the Order Documents. For purposes of these terms and conditions, Purchaser's intended use and intended function of the Goods shall be only as expressly stated in the Order Documents, notwithstanding Seller's knowledge, awareness, notice, or belief of any other additional use intended use by Purchaser or any other potential use. Purchaser shall be deemed to have accepted the Goods unless Purchaser otherwise notifies Seller within seven days after the Goods are delivered to Purchaser's facility. Purchaser may not withhold acceptance of Goods that substantially conform with the Order Documents.
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Services.
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If the Order Documents require Seller to provide Services, Seller shall not begin to provide those Services until Purchaser provides Seller with all the information Seller requires to provide the Services. Purchaser shall be deemed to have accepted the Services unless Purchaser otherwise notifies Seller within seven days after Seller informs Purchaser that Seller has substantially completed performance of the Services. Purchaser may not withhold acceptance of Services that substantially conform with the Order Documents.
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Limited Warranties.
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Angle limits its Warranties to the quality of workmanship for 90 days from date of goods shipment. This limited warranty is limited to Angle's review and approval of any rework or modification to the existing components, or at Angle's discretion to replace the component if there is a defective component.
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Scope of Warranties. Seller makes only the following limited warranties, as applicable under the Order Documents, and Seller makes no other warranty of any kind, whatsoever.
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Seller's design and the prototype of the Goods shall substantially conform with the Order Documents.
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The parts of the Goods that Seller manufactures shall substantially conform with Order Documents for 90 days from the date the Goods are delivered to Purchaser's facility, provided that during those 90 days Purchaser properly uses and maintains the Goods, and provided that Purchaser does not make any modification, alteration, or change to the Goods.
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Seller's assembly of the Goods shall substantially conform with the Order Documents.
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Seller's incorporation of parts manufactured by third parties into the Goods shall substantially conform with the Order Documents and shall be of reasonably workmanship.
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The Services shall substantially conform with the Order Documents and shall be of reasonably workmanship.
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Seller does not provide any operating instructions or manuals as included or part of any Goods orders. Any written operating instructions or manuals furnished by the Seller would be a special order documents that would be specified on the Seller's order documents and Seller's order acknowledgment. If any instructions or manuals are provided by the Seller to the Purchaser, the Seller shall make reasonable effort to provide accurate and reasonably complete information. However, Seller does not, under as circumstances accept any liability for the actions of any other parties or persons in the usagage of such information. Therefore, any Seller provided instructions or manuals are not guarranteed or warrantied.
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Seller shall not knowingly, but without having made any prior investigation, provide any design of the Goods, or provide any Services, that infringe on or breach any Third Party Rights.
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Condition Precedent. Purchaser's failure to timely and fully pay Seller as provided by the Order Documents:
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Shall void all of Seller's limited warranties, and
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Thereafter, Seller shall have no obligations and Purchaser shall have no rights or remedies under Seller's limited warranties, and Purchaser shall have no warranties or guarantees of any kind whatsoever.
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Third Party Parts. Seller does not warrant parts that are manufactured by third parties, and Seller hereby assigns such manufacturer's warranties, if any, to Purchaser.
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Not Designed by Seller. If Purchaser does not engage Seller to design the Goods, Seller alone is entirely responsible if the Goods infringe or breach any Third Party Rights with respect to the Goods.
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No Other Warranties. There are no other warranties than the Seller's limited warranties. There are no other expressed warranties. There are no implied warranties for fitness for a particular purpose. No warranties of merchantability. No warranty of non-infringement.
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Any Warranty declarations must be expressly indicated as such in the order confirmation or must have been subsequently agreed in writing prior to order acceptance by Seller.
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Details of the characteristics of the supplied goods, their processing and use, specific dimensional accuracy as well as compliance with Seller standard industry specifications will only become part of the contract if they have expressly been agreed in each individual case. Seller makes no guarantee of the fitness of the goods supplied for a particular purpose unless we have expressly guaranteed to do so.
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Not covered by any guarantee or warranty are defects which are identified only after the supplied goods were operated, processed or transformed, despite the defects being apparent.
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No guarantee or warranty for differences in quality, dimension, density, weight, die measurement, shrinkage etc. if such differences do not exceed the normal industry and material deviations and in particular if they are within the tolerance range of quality guidelines or standards. Special requirements for precise dimensional stability shall be expressly stipulated by the Purchaser upon ordering and confirmed by Seller.
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Seller provides no guarantee or warranty of the performance, and in particular the production rate of the supplied goods.
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Seller undertakes no guarantee for defects or damages caused by the following:
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Neglected or defective collaboration
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Failure in good time to inspect the outer packaging, packaging or examine the delivered item
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Incorrect of negligent use or handling
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Non-compliance with the operating instructions
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Incorrect storage
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Defective assembly or incorrect commissioning by the customer or third parties
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Lack of Test Tool Trial
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Natural wear and tear from normal use
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Defective or lack of maintenance
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Use of unsuitable operating equipment
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Use of unsuitable materials, influence of the material to be processed, chemical, electronic or electrical influences
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In the event of justified claims asserted in good time, we guarantee to rework or supply replacements at our own discretion.
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For replacement deliveries, we shall be allowed a reasonable period of time, in particular for the manufacture of replacement goods.
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Any liability claim from Purchaser's losses due to warranty items is limited to 4% of the Seller's sale price of that specific individual item or component price. This would be a small fraction of the price of the complete purchase.
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Limited Liability.
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Seller does not assume any liability for indirect and/or consequential damages of others.
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Seller's liability shall be limited to direct damages by the Purchaser and a total value of no more than 4% of the respective order value. However, this limit does not apply if the Seller's insurance covers an amount in excess of the above stated limit.
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Seller does not assume any liability for the deliveries and/or services of third parties.
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Purchaser's Exclusive Remedies.
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Purchaser shall have only the following remedies for Seller's breach of its limited warranties and for Seller's breach of any other provision of the Order Documents, and Purchaser shall have no other remedy of any kind, whatsoever.
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Goods. Purchaser's exclusive remedy for Seller's breach of its limited warranty regarding the Goods shall be limited to:
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Seller's repair or replacement (including re-design) of the part of the Goods that Seller manufactured, provided that Purchase returns the Goods to Seller at Purchaser's expense,
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Seller's re-assembly of the Goods, or
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Services. Purchaser's exclusive remedy for Seller's breach of its limited warranties regarding the Services shall be limited to:
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Seller's replacement of those Services, or
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Third Party Rights. As Purchaser's exclusive remedy for Seller's breach of its limited warranty concerning Third Party Rights, Seller shall, at its sole election and expense:
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Contest or settle the matter, as determined solely by Seller,
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Modify and replace the Goods or the Services so that they do not infringe or breach the Third Party Rights, provided the primary intended function of the Goods or the Services is not materially impaired, or
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Other Breach by Seller. As Purchaser's exclusive remedy for Seller's breach of the Order Documents other than Seller's breach of its limited warranties, Seller shall:
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cure the breach within a reasonable time at the discretion of the Seller.
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Deemed Cancellation. Purchaser's order for the Goods or Services shall be deemed cancelled.
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Conditions Precedent for Purchaser's Remedies. Purchaser's remedies for Goods or Services that do not substantially conform with the Order Documents, or for Seller's breach of its limited warranties, or for Seller's other breach of the Order Documents, are subject to and conditioned on Purchaser notifying Seller within 72 hours after Purchaser first has notice, knowledge, or belief of such nonconformance or other breach, unless within that time period Seller has actual knowledge or actual notice thereof. Absent Seller's aforesaid knowledge or notice. Purchaser's failure to timely notify Seller shall discharge Seller from any liability for the nonconformance or other breach, Seller shall not be required to cure the nonconformance or other breach or to give Purchaser a refund, and Purchaser shall not have any remedy against Seller for the nonconformance or other breach.
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Cancellation.
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If the Goods or Services substantially conform with the Order Documents, if Seller has breached its limited warranties, or if Seller has not otherwise breached the Order Documents, of if any of the following has occurred by Seller has not had a reasonable opportunity to cure the breach, and Purchaser nevertheless cancels the order:
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Seller shall not be required to refund to Purchaser any payment that Purchaser made to Seller under the Order Documents, to the extent that such payments do not exceed the following ("Seller's Damages"):
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Seller's actual, consequential, and incidental damages, including Seller's direct and indirect damages for its lost profits as Seller reasonably estimates, plus lost production time and revenues due to the cancellation of the project.
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Seller's costs for labor, materials, and overhead, which Seller actually incurs or reasonably allocates or estimates, and
Purchaser shall immediately pay Seller an amount equal to Seller's Damages to the extent Seller's Damages exceeds the amount Purchaser already paid Seller, and
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Seller shall not be required to tender to Purchaser any of the undelivered Goods or unperformed Services, and
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Seller may use or resell the undelivered Goods and unperformed Services at Seller's sole discretion, for which Seller may retain all the sale proceeds.
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Upon any cancellation of an order, whether by Seller, Purchaser, or as otherwise provided by the Order Instruments, each party shall immediately return to the other party all the property and information a party received from the other party in connection with the order, and the parties shall not be required to further perform under the Order Documents, except as provided by these Cancellation provisions, but Seller may retain Purchaser's property and information until Purchaser pays Seller as otherwise required by the Order Documents.
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Compliance with Applicable Law.
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Purchaser shall be solely responsible to ensure that the Goods are installed in Purchaser's facility, maintained, and used in full compliance with all applicable statutes; regulations; codes; ordinances; rules; decisions of courts, administrative agencies, arbitrators; and all the requirements of Purchaser's lenders, landlord's, insurers, and other vendors, except as otherwise expressly provided by the Order Documents.
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No Re-Supply.
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Seller shall not be required to re-design, re-assemble, or
re-manufacture any Goods, change the prototype, or re-furnish Services after Purchaser has accepted or is deemed under the Order Documents to have accepted the Goods, the design, the prototype, or the Services, as applicable.
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Performance Attributes.
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The production speed, production quality, mold shrinkage, and other performance attributes of the Goods depend on many factors beyond Seller's control, including:
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the quality, nature, and consistency of the stock and other materials Purchaser uses,
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third parties employed or engaged by Purchaser, including Purchaser's employees, contractors, and vendors, and including their education, training, experience, skill, job performance, and supervision,
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conditions at Purchaser's facility, including humidity and air temperature,
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the manner in which Purchaser uses or operates the Goods, including the number and timing of start-ups, pauses, and shut-downs, and
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the type and condition of the equipment and tools Purchaser uses in connection with operating the Goods. Therefore, notwithstanding anything in the Order Documents to the contrary, specifications for the production speed, production quality, mold shrinkage, and other performance attributes of the Goods are only approximate, are not part of Seller's limited warranties or any other guarantee by Seller, and are not binding on Seller except to the extent that excessively low production speed, excessively poor production quality, excessive mold shrinkage, and other excessively poor performance of the Goods is directly and solely caused by Seller's failure to design, assemble, or manufacture the Goods, or to provide the Services, in substantial compliance with the Order Documents.
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Excluded From Sale.
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The following are not part of the Goods or the Services, and shall instead remain Seller's property, which Seller may re-use at its sole discretion: Hobbs patterns; tracings; electric discharge machine electrodes; tapes for numerical control, computer-aided design, and computer-aided manufacturing; mylars; special form cutters; templates; and all other manufacturing aids not supplied by Purchaser.
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Seller's Change of Specifications or Prices.
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Notwithstanding anything in the Order Documents to the contrary, Seller may alter the design, or the specifications for the prototype or for the Goods, whether the design, prototype, or sample are furnished by Seller or Purchaser, provided that such alteration does not materially change the primary intended function of the Goods or increase the price for the Goods, and such alteration by Seller shall not change Seller's limited warranty or Purchaser's remedies.
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Seller shall reserve the right to change the prices if, between the agreement on price and delivery, more than four months have elapsed and raw materials prices, subcontractor prices, wages, transport costs, rates of taxation or other cost factors have changed by more than 5%, and the specific change could not have been foreseen on conclusion of the contract.
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If, during the course of the processing of the order, Seller experiences production difficulties which could not have been foreseen on formation of the contract and which result in adherence to the forms or tolerances specified by the customer being possible only at considerable additional cost, we are entitled to increase the price appropriately after discussion or to terminate the contract if no new agreement on price can be reached within a reasonable period of time. The same applies for the benefit of the Purchaser if considerable reductions in cost arise due to changes in the order.
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If due to circumstances beyond the control of Seller, additional services prove necessary after formation of the contract or under the same conditions the agreed content of the services has to be modified or supplemented, the additional expense over and above the agreed price shall be payable by Purchaser. If the addition or modifications to the service require additional time or expense, Seller to notify Purchaser of such changes in timing or expenses.
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Confidentiality.
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When Seller submits a quote or in the course of performing Seller's contractual obligations, Seller will submit to the Purchaser (Customer) various documents, which may include figures, plans, sketches, drawings, descriptions, weight and performance parameters, measurements, calculations, evaluations etc., some of them may be provided in electronic form. The aforementioned documents shall remain our proprietary property of the Seller. Therefore, Those documents shall be held in strictest confidence and shall not be made accessible to third parties.
These proprietary restrictions do not apply when:
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Information which the Purchaser (customer) has known beforehand when this information was not subject to this confidentiality obligation, or
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Information which was prior public knowledge or was published later, or
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Information which the customer has independently developed on its own, or
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Information disclosed by order of a court of law or another authority or
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Information which needs to be disclosed to ensure the fulfillment of the agreement
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Confidentiality shall also apply to all documents marked as confidential and provided by the Purchaser and Seller.
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Confidentiality shall apply to the Purchaser's (customer's) use the documents provided by Seller for no other purpose than the purpose stipulated in the business agreement. The Purchaser's (Customer's use of the entire set of documents or individual documents for any other purposes than the original Order Documents requires Seller's prior explicit approval in writing.
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Indemnity.
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Excluding the matters that are the subject of Seller's limited warranties and Purchaser's exclusive remedies, Purchaser shall indemnify, defend, hold Seller harmless, and not sue Seller, for any claim, liability, expense, or loss, involving any of the foregoing:
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actual or alleged infringement or breach of any Third Party Rights,
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injury to any person and damage to any property caused by the design, prototype, sample, assembly, manufacture, operation, maintenance, or performance of the Goods or the content of the Services, and
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judicial, administrative, and arbitration proceedings involving the Goods or the Services,
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Purchaser's failure to perform one or more of its obligations under the Order Documents, and
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Purchaser's other acts and omissions, whether intentional or due to Purchaser's ordinary or gross negligence. For purposes of Purchaser's indemnity obligations, acts and omissions of any third party acting for or on behalf of Purchaser, including Purchaser's employees, agents, representatives, customers, contractors, and other vendors shall be attributed to Purchaser. Purchaser's indemnity obligations are separate, severable, and independent from Seller's obligations to Purchaser, and therefore Seller's breach of its obligations to Purchaser shall not discharge Purchaser from its foregoing indemnity obligations.
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Industrial Property Rights.
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The Purchaser (Customer) declares that neither the machines/equipment/equipment parts/product designs, nor parts of the machines/equipment/equipment parts/product designs, which Purchaser (Customer) designed either by himself or with
Seller's assistance, or the items produced with this equipment infringe on the industrial property rights of third parties.
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In case any of the abovementioned equipment or products nevertheless does infringe on industrial property rights, the Purchaser (Customer) shall upon first request indemnify Seller and hold Seller harmless from all third party claims for property right infringement brought against Seller.
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The Purchaser (Customer) shall immediately inform Seller when a third party claims that Seller's delivered Goods, Items, Designs infringe on existing property rights.
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Title, Lien, and Security Interest.
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Seller shall retain title to the design and the prototype of the Goods and the Goods as finished products until Purchaser fully pays Seller and otherwise performs Purchaser's obligations under the Order Documents. In addition, to secure Purchaser's performance of its obligations under the Order Documents, this instrument constitutes a security agreement by which Seller shall have a general and continuing lien on and security interest in the design and the prototype of the Goods, production tooling, the Goods as finished products, and all other property of Purchaser of which Seller has actual or constructive custody, possession, or control, whether or not the unpaid amount or unperformed obligation is related to the property for which Seller imposes its lien. Seller may file appropriate Uniform Commercial Code financing statements regarding its aforesaid security interest. Seller may, but shall not be obliged, to sell such property at a private sale or at a public sale with 10 days prior notice, and Purchaser shall pay on demand all costs and expenses of the sale, including the fees of Seller's attorneys, consultants, and auctioneers, and all storage and transportation expenses.
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Notice, Discounts, Payments.
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All notices given under or concerning the Order Documents, the Goods, or the Services, shall be in writing and shall be delivered only by email, fax, commercial courier, or registered or certified mail, return receipt requested, to the parties as indicated on the quotation form or as otherwise indicated in writing by a party to the other party.
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A Delivery of a notice shall be deemed to have occurred at the date and time of actual receipt or at the date and time at which a party refuses to accept the delivery, whichever applies. If a delivery is refused or if a recipient changed its email, fax, or address without delivering notice of the change to the other party, delivery shall be effective at the date and time of the refusal or the attempted delivery, as shown by the records of the party who sent the notice.
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A discount can only be deducted if expressly agreed by Seller. If in individual cases the deduction of a discount was agreed, the right to discount is forfeited if the customer is already in default of payment with another invoice.
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In the event of severe past due invoices, such case payments are first credited against any interest due and then against the oldest receivables.
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Incoming partial invoice payments or payments without invoice payment reference are first credited against any interest due and then against the oldest receivables.
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Partial deliveries and payments shall always be paid for separately in accordance with our payment terms.
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Seller retains the right of ownership until the purchase is paid in full. Seller reserves the right to place leans on such purchases until the tooling is paid in full.
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Force Majeure.
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Seller's time to perform, if delayed due to circumstances beyond Seller's control, shall be reasonably extended, but at least by a time period equal to duration of the circumstance causing the delay.
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Enforcement.
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All disputes between the parties shall be governed by the laws of the State of Illinois, without applying conflict of law principles that would result in applying the law of any state other than Illinois. The parties, in all disputes between them, consent and submit to the exclusive jurisdiction and the exclusive venue of the state courts in DuPage County, State of Illinois, and the parties waive all claims that such jurisdiction and venue is improper or inconvenient. The parties waive all rights to a jury trial in lawsuits between them, and in all such lawsuits, including all appeals, if Seller is the prevailing party, Purchaser shall pay Seller's costs and expenses, including the fees of Seller's attorneys, experts, and consultants. All amounts Purchaser owes Seller that are unpaid and past due, including the foregoing costs and expenses, shall earn simple interest at the rate of 18 percent annually compounded monthly (1 1/2 percent per month) or the highest lawful rate, whichever is more. Notwithstanding the foregoing jurisdiction and venue restriction, Seller may enforce a judgment against Purchaser in any jurisdiction and in any venue.
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Severability.
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If a court determines that any provision of the Order Documents is unenforceable, the balance hereof shall nevertheless remain enforceable. The parties shall modify the unenforceable provision consistent with the court's ruling so that is becomes enforceable while remaining as similar as possible to the original provision.
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Modification of Order Documents.
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Except as provided by this instrument regarding severability, the Order Documents shall not be modified except by a writing signed or acknowledged by the parties. The conduct of a party or anyone acting for or on behalf of a party shall not modify the Order Documents. Seller's failure or forbearance to require Purchaser's strict compliance with the Order Documents, whether or not occurring on multiple occasions, shall not thereby modify the Order Documents, shall not excuse Purchaser's future compliance, and shall apply only to the specific instance of failure or forbearance.
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Integration.
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The Order Documents contain and constitute the final, entire, and exclusive statement of the terms, provisions, understanding, and arrangement between the parties regarding the transactions that are the subject of the Order Documents. The Order Documents supersede all prior and contemporaneous negotiations, representations, and agreements, if any, of any kind, whether electronic, written, or oral, between the parties regarding the matters that are the subject of the Order Documents. Seller hereby rejects without further notice all terms, conditions, and provisions submitted by Purchaser other than those stated in the Order Documents.
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No Reliance.
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Purchaser shall not rely on any covenant, provision, statement, representation, warranty, or promise, by or on behalf of Seller, that is not expressly stated in the Order Documents. Purchaser waives all claims for fraud-in-the-inducement with respect to any covenant, provision, statement, representation, warranty, promise, or document on which Purchaser has hereby agreed to refrain from relying.
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No Additional Obligations.
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Nothing within the Order Documents is or will be intended by the parties to impose or create, by implication or otherwise, any requirement, duty, or obligation on Seller, of any kind or nature whatsoever, that is not expressly stated in the Order Documents.
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Waiver of Contrary Claims.
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Purchaser waives all claims contrary to any provision stated in the Order Documents.
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Successors and Assigns.
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Seller may assign its rights and obligations under the Order Documents to its successors and assigns. Purchaser may not assign its rights under the Order Documents to any third party.
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Intellectual Property Rights of Third Parties and Confidentiality.
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If Seller is supplied or provided by Purchaser CAD data, drawings, models, samples or other specifications to meet Purchasers' requirements, the Purchaser shall have the sole responsibility for any and all consequences of his specifications regarding intellectual property rights and patent infringements.
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In particular Purchaser provides Seller with a guarantee that no intellectual property rights belonging to third parties are infringed through manufacturing and supplying of the delivery goods Seller is providing to Purchaser.
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Seller is under no obligation to the Purchaser to verify whether any intellectual property rights of third parties are infringed by Seller processing of the Purchasers' specifications and/or requirements.
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If, due to intellectual property rights, Seller is prohibited by a third party from manufacturing and delivering the supplied goods to be produced in accordance with the Purchaser's specifications, Seller is entitled to without verifying the legal situation to cease production and to withdraw from the supply of the product to the Purchaser. Any and all liability towards claims by third parties are the liability and at the expense the Purchaser. The costs already incurred by Seller due to implementation of the Purchaser's order must be refunded by the Purchaser to the Seller.
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In all cases described above, the Purchaser undertakes to indemnify the Seller against any and all claims by third parties for the restitution of costs and compensation for damages and to compensate Seller for any costs and damages that are incurred by the Seller on account of infringement or assertion of any property rights held by third parties.
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The Purchaser shall maintain absolute confidentiality regarding any and all matters regarding Seller not generally known to external parties and third parties not involved. This particularly applies to all received data, results of work from the business relationship and the legal and economic objectives of the results of the work where these are not matters that have already been disclosed to the public domain. The agreed confidentiality obligation also particularly applies to know how transferred by Seller in the context of the business relationship. The Purchaser is obliged to place all people which are required to know about Seller's business secrets, employees, assistants and other third parties under a similar confidentiality obligation and to ensure that the Seller's business secrets are treated in accordance with this or any other agreement, and to supervise compliance to the duties of confidentiality.
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Headings.
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The headings herein are included solely for convenience and shall not affect the interpretation hereof.
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Interpretation.
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The parties intend that the Order Documents shall be construed only from the provisions thereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed in favor of or against either party. Whenever appropriate under the circumstances, within the Order Documents:
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the plural of any word shall mean the singular;
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the singular of any word shall mean the plural;
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"and" shall mean "or";
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"or" shall mean "and";
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"any" shall mean one, more than one, or all;
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"all" shall mean any, one, or more than one;
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words referring to persons shall include associations, cooperatives, corporations, firms, general and limited partnerships, limited liability companies, natural persons, public agencies, sole proprietors, trusts, and all other entities;
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(the words "include," "including," and similar words shall be construed as if followed by the phrase "without limitation".
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Consideration.
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The provisions of the Order Documents constitute the entire and exclusive consideration for the parties' transactions that are the subject thereof.