1. PRICES: Prices for the products (“Goods”) referred to in this Quotation or Acceptance of Order do not include overtime premium costs and are subject to increase for any overtime authorized by the Purchaser. All prices exclude inspections, sales, use, license, excise, and other taxes in respect of manufacture, sale or delivery, and export or import duties, all of which shall be paid by Purchaser unless a proper exemption certificate is furnished.
2. PREPARATION CHARGES: Preparation charges are those required for the initial production of Goods. The payment of such charges does not convey any title or the right of possession to dies or other special tooling required. WEATHERCHEM will preserve such dies and special tooling for one year only, after the date of shipment of the last order requiring their use. Preparation charges are made only for the initial quantity and for the rate of delivery specified of a particular design, WEATHERCHEM assuming all the expense of upkeep. The charge for any change in design, for additional quantities, or for different rate of delivery will be quoted by WEATHERCHEM upon request.
3. QUANTITES: Where this Quotation or Acceptance of Order is for the purchase and sale of a stated quantity, unless over-runs are expressly excluded, the Purchaser agrees to purchase over-runs of up to 10% and pay a proportionate increase in price. In the case of asterisked items, the Purchaser agrees to purchase its requirements thereof during the period stated in the Quotation or Acceptance of Order or, if no period is specified, until the Purchaser or WEATHERCHEM has given ninety days notice of termination. Where a quantity is shown for an asterisked item, such quantity shall be a minimum to be purchased by the Purchaser during the period stated or, if no period is specified, within one year after this agreement becomes binding.
4. TERMS OF PAYMENT: Unless otherwise specified, and subject to credit approval:
(a) payment on domestic shipments shall be 1%, ten (10) days net thirty (30) days from date of invoice.
(b) payment on export shipments shall be cash in United States funds payable on sight draft attached to Negotiable On Board Bill of Lading and supporting invoice under confirmed irrevocable Letter of Credit directed to a bank satisfactory to WEATHERCHEM.
5. DELIVERY AND DELAYS: Delivery will be F.O.B. WEATHERCHEM’S plant, Twinsburg, Ohio. Delivery dates are approximate and subject to confirmation. WEATHERCHEM shall not be responsible for reasonable or excusable delays, nor shall the Purchaser refuse to accept delivery because of any such delays. “Excusable delays” include, without limitation, delays resulting from accidents, acts of God, strike, fire, governmental controls, inability to obtain materials from suppliers, failure of materials correctly ordered by WEATHERCHEM to meet specifications, or other causes beyond WEATHERCHEM’S control. “Reasonable delays” include without limitation, delays to which the Purchaser, when notified, makes no objection. If the Purchaser delays shipment, payments are to be made as specified and the equipment shall be held at the Purchaser’s risk and subject to reasonable storage charges.
6. CANCELLATION: Orders will not be subject to cancellation or modification, either in whole or in part, without WEATHERCHEM’S consent, and then only under terms that will reimburse WEATHERCHEM for all applicable costs incurred by it, including costs of purchased materials, engineering costs, and a reasonable allowance for profit, provided that in no event shall the cancellation charge be less than ten percent (10%) of the contract price.
7. WARRANTIES: WEATHERCHEM warrants to the original Purchaser that the Goods of WEATHERCHEM’S own manufacture to be supplied hereunder will, for a period of twelve (12) months from the date of shipment, conform to the specifications mutually agreed upon by WEATHERCHEM and the Purchaser and will for such period be free from defects in material and workmanship under normal and proper operating conditions and that such Goods will be delivered free from defects in material and workmanship under normal and proper operating conditions and that such Goods will be delivered free from any lawful security interest or other lien or encumbrance know to WEATHERCHEM, except security interests or other liens or encumbrances arising hereunder.
The obligation of WEATHERCHEM and the Purchaser’s sole and exclusive remedy hereunder shall be limited, at WEATHERCHEM’S option:
(a) to replacement or repair of any Goods or parts thereof.
(b) should the Goods be determined by WEATHERCHEM to be so defective, however, to as to preclude the remedying of warranted defects by replacement or repair, the Purchaser’s sole and exclusive remedy shall then be refund of the purchase price.
(c) notwithstanding the foregoing, WEATHERCHEM shall have no obligation hereunder if the Goods become defective in whole or in part as a result of improper use or misapplication thereof after delivery to Purchaser.
Goods made by other manufacturers are warranted only to the extent of the original manufacturer’s warranty to WEATHERCHEM. Purchaser agrees to indemnify WEATHERCHEM against all claims arising out of or resulting from the operation or use of the Goods.
EXCEPT AS SET FORTH HEREIN, AND EXCEPT AS TO TITLE, IT IS EXPRESSLY AGREED (a) THAT THERE IS NO WARRANTY OF MERCHANTABILITY, NOR OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, NOR ANY AFFIRMATION OF FACT, OR PROMISES, BY WEATHERCHEM WITH REFERENCE TO THE GOODS, OR OTHERWISE, WHICH EXTENDS BEYOND THE SPECIFICATIONS MUTUALLY AGREED UPON BY WEATHERCHEM AND THE PURCHASER AND (b) THAT THE PURCHASER ACKNOWLEDGES THAT IT IS PURCHASING THE GOODS SOLELY ON THE BASIS OF THE COMMITMENTS OF WEATHERCHEM EXPRESSLY SET FORTH HEREIN.
8. LIMITATION OF LIABILITY: In no event shall WEATHERCHEM be liable for anticipated profits or for damages on account of negligence, or for incidental or consequential damages.
9. TITLE AND REMEDIES: Until full payment of all obligations of the Purchaser hereunder, WEATHERCHEM reserves a security interest in all Goods furnished hereunder. If the Purchaser defaults in payment or performance hereunder, becomes subject to insolvency, receiver ship, or bankruptcy proceedings, makes an assignment for the benefit of creditors, or without the consent of WEATHERCHEM voluntarily or involuntarily sells, transfers, leases or permits any lien or attachment on the Goods delivered hereunder, WEATHERCHEM may treat all amounts then or thereafter owing hereunder by the Purchaser to be immediately due and payable (subject only to credits required by law) and WEATHERCHEM may repossess said Goods by any means available at law.
10. GENERAL: Notice given to WEATHERCHEM and the purchaser shall be given to the respective addresses herein set forth in the Quotation or Acceptance of Order to which these Standard Terms and Conditions are attached and made a part. Any action resulting from any breach on the part of WEATHERCHEM as to the Goods or the parts delivered hereunder must be commenced within one (1) year after the cause of action has accrued. The rights and duties of the parties hereto shall be determined by the laws of the State of Ohio, and to that end this Agreement shall be construed and considered as a contract made and to be performed in the State of Ohio.
11. FABRICATION TO PURCHASER’S SPECIFICATIONS: To the extent Goods are fabricated to Purchaser’s specifications, Purchaser warrants and represents to WEATHERCHEM that (i) the Goods will be fit for the purpose for which intended, (ii) the Goods will conform to all standards prescribed by law, including without limitation all requirements of the Occupational Safety and Health Act of 1970, as amended, and (iii) manufacture and sale of the Goods by WEATHERCHEM will not be unlawful or result in any infringement or alleged infringement of industrial property rights. The Purchaser agrees to indemnify WEATHERCHEM and save WEATHERCHEM harmless from any and all expense (including attorney fees), loss or liability incurred by WEATHERCHEM in connection with any breach of the warranty and representation contained in the immediately preceding sentence or in connection with the defense against any claim which, if proved, would result in such a breach.
12. PATENTS: If a charge or notice of or suit for infringement of a United States patent is directed to the Purchaser, based upon any claim, other than a claim relating to a process, that manufacture, normal use or sale of any of the Goods (including parts thereof) for which the design, detailed specifications and fabrication procedures were selected by WEATHERCHEM, constitutes an infringement of a United States patent, WEATHERCHEM agrees to dispose of the charge, notice or suit in the manner hereinafter set forth, provided the Purchaser notifies WEATHERCHEM in writing within ten days from the receipt by Purchaser of the first notice infringement. If the Purchaser gives such notice to WEATHERCHEM, then WEATHERCHEM shall have the absolute right and obligation, at its expense, to dispose of the charge or suit or any judgment arising therefrom, by doing one or more of the following:
(a) procuring for the Purchaser a patent license right (royalty free to said Purchaser) permitting the purchaser to use and sell the Goods.
(b) so altering the Goods or their mode of operation as to render them non-infringing.
(c) undertaking the defense or prosecution of such suit, when if filed, whether by a third party or as a declaratory judgment suit by said Purchaser after the request of WEATHERCHEM, at the expense of WEATHERCHEM, by counsel selected by WEATHERCHEM, and with WEATHERCHEM having full control of the settlement, defense and prosecution of such suit; and
(d) removing such Goods from the Purchaser, refunding the purchase price thereof less depreciating up to the date of removal, and canceling this Contract as to identical Goods not yet delivered.
The Purchaser agrees to assist WEATHERCHEM, at the expense of WEATHERCHEM, in all reasonable manner in the defense or settlement of any charge or notice of or suit for infringement, including without limitation executing documents and papers requested by WEATHERCHEM, making available to WEATHERCHEM the services of Purchaser’s personnel, and permitting WEATHERCHEM to inspect and copy the Purchaser’s records and files that are relevant to said change or infringement. If the Purchaser shall not agree to permit WEATHERCHEM at its discretion to proceed in accordance with subparagraphs (a), (b), (c) and (d) of this section as WEATHERCHEM may elect, all obligations on the part of WEATHERCHEM to the Purchaser shall terminate immediately. If, in the absence of any charge or notice to the Purchaser, WEATHERCHEM determines that Goods may infringe the claims of a patent, then WEATHERCHEM shall have the absolute right (but shall not be required) to elect to avoid such possible infringement by proceeding in accordance with any one or more of sub-paragraphs (a), (b), (c), or (d) of this Section. WEATHERCHEM shall have no patent obligation or other liability to the Purchaser for infringement or charges of infringement arising from alterations made to Goods by the Purchaser or others. The provisions of this Section state that entire liability of WEATHERCHEM in respect to patent infringement by the Goods and shall be in lieu of all other warranties by WEATHERCHEM, express or implied, respecting such infringement.
13. MISCELLANEOUS: Waiver by WEATHERCHEM of a breach by the Purchaser of any provision of this Contract shall not be deemed a waiver of future compliance therewith, and such provision, and all other provisions hereof, shall remain in full force and effect. The section captions herein are for reference only and shall in no way limit or define the meaning of the provisions hereof.
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