TERMS AND CONDITIONS
Customer’s Terms and Conditions
Seller desires to provide its Customers with prompt and efficient service. However, to negotiate individually the terms and conditions of each sales contract would substantially impair Seller’s ability to provide such service. Accordingly, Products and services furnished by Seller are sold only on the terms and conditions stated herein; notwithstanding any terms or conditions on Customers order. Seller’s performance of any contract is expressly made conditional on Customer’s agreement to Seller’s Terms and Conditions of Sale unless otherwise specifically agreed to in writing by Seller. In the absence of such agreement, commencement of performance and/or delivery shall be for Customer’s convenience only and shall not be deemed or construed to be acceptance of Customer’s terms and conditions, or any of them. If a contract is not earlier
formed by mutual agreement in writing, acceptance of any Product or service shall be deemed acceptance of the terms and conditions stated herein. All contracts for the sale of Products shall be construed under and governed by the law of the location of Seller’s manufacturing plant from which the Products are shipped.
Quotations and Prices
All quotations are subject to the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face hereof. In the case of a conflict between the terms and conditions stated herein and those appearing on the face hereof, the latter shall control.
Seller’s prices and quotations are subject to the following:
(a) All purchased prices are subject to change without notice.
(b) UNLESS OTHERWISE SPECIFIED IN WRITING, ALL QUOTATIONS ARE FIRM FOR, AND EXPIRE, THIRTY (30) DAYS AFTER DATE THEREOF
AND CONSTITUTE OFFERS; provided that, budgetary quotations and estimates are for preliminary information only and shall neither constitute
offers, nor impose any responsibility or liability upon Seller.
(c) Unless otherwise stated in writing by Seller, all prices quoted shall be exclusive of transportation, insurance, taxes (including without limitation, any sales, use, or similar tax, and any tax levied on or assessed to Seller after Product delivery by reason of Seller’s retention of title as provided herein), license fees, customs fees, duties and other charges related thereto, and Customer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto, and shall hold Seller harmless therefrom; provided that, if Seller, in its sole discretion, chooses to make any such payment, Customer shall reimburse Seller in full upon demand.
(d) Stenographical, typographical and clerical errors are subject to correction.
(e) Prices quoted are for Products only and do not include technical data, proprietary rights of any kind, patent rights, qualification, environmental or other than Seller’s standard tests and other than Seller’s normal domestic commercial packaging unless expressly agreed to in writing by Seller.
(f) Published weights and dimensions are approximate only. Certified dimension drawings can be obtained upon request. Manuals, programs, listings, drawings or other documentation required hereunder must be referenced specifically.
Transportation and Risk of Loss
Transportation will normally follow Customer’s shipping instructions, but Seller reserves the right to ship Products freight collect and to select the means of transportation and routing when Customer’s instructions are deemed unsuitable. Unless otherwise advised, Seller may insure to full value of the Products or declare full value thereof to the transportation company at the time of delivery and all freight and insurance costs shall be for Customer’s account. Risk of loss or damage shall pass to Customer upon delivery of the Products to the transportation company at the FOB point, whether or not installation is provided by or under supervision of Seller. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Customer therefor. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss or damage shall remain in Customer until the Products are returned at Customer’s expense to such place as Seller may designate in writing, Customer, at its expense, shall fully insure Products against all loss or damage until Seller has been paid in full therefor, or the Products have been returned, for whatever reason, to Seller. All Products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of shipping damage, either concealed or external. As used in the clauses appearing herein or attached hereto, “delivery” shall occur when the Product is delivered at the FOB point, which shall be the point of manufacture or such, other place as Seller shall specify in writing, notwithstanding installation by or under supervision of Seller.
Performance
Seller will make all reasonable effort to observe its dates indicated for delivery or other performance. However, Seller shall not be liable in any way because of any delay in performance hereunder due to unforeseen circumstances or to causes beyond its control, including, without limitation, strikes, lockout, riot, war, fire, act of God, accident, failure or breakdown of components necessary to order completion, subcontractor, supplier or Customer caused delays. Inability to obtain labor, materials or manufacturing facilities, or compliance with any law, regulation or order, whether valid or invalid, or any cognizant governmental body or any instrumentality thereof whether now existing or hereafter created. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution. Whenever such circumstances or causes have been remedied. Seller will make and Customer shall accept performance hereunder. In addition: Sellers’s inventories and current production must be allocated so as to comply with applicable Government regulations. In the absence as such regulations, Seller reserves the right, in its sole discretion, to allocate inventories and current production and substitute
suitable materials when, in its opinion, such allocation or substitution is necessary due to such circumstances or causes. No penalty clause of any kind shall be effective. As used herein. “performance” shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing, and warranty repair or replacement, as applicable.
Blanket Orders
For our mutual convenience and economy, large-volume, steady-running items may be ordered for extended delivery periods up to one (1) year from date of first shipment. To realize economy from this, minimum release quantities and Customer obligation in the event of unexpected cancellation must be mutually agreed and specified on the purchase order before acceptance can be given. With or without Customer releases, all parts not shipped within one (1) year from date of first shipment will be shipped and billed. The order will be closed. In the event of early cancellation, retroactive billing to correct quantity price will be necessary.
Tooling
A tooling charge may be applicable to cover partial tooling costs tor new and revised parts. This will be a one-time service charge covering a portion of the preparatory operations necessary to manufacture your parts, but does not constitute payment tor any resulting dies or special tools which remain the property of ELCON. Tooling will be reserved for exclusive use in serving you, and there will be no charges for maintenance unless specifically stated on the face of the quotation. When tooling has not been used for you over a three-year period, we reserve the right to scrap it without notice.
Quantity Factor
In the custom manufacture of components it is difficult to predict accurately the quantity of parts that will be lost in processing or in rejections by our final inspection department. Therefore, prices will be premised on the right to ship over or under by ten percent of the quantity ordered, unless this quotation specifies differently.
Acceptable Quality Level (AQL)
Quotations are based on Acceptable Quality Levels commensurate with normal processing. If particular AQL values are required, the Customer should state them on the original request.
Defective Materials
Materials not in accordance with agreed specifications shall be called to our attention in writing within ninety (90) days after delivery. Customer waives any right to reject or revoke acceptance thereafter. If authorization is given for return, a return material authorization number (RMA No.) will be issued. No returns will be accepted without an RMA number. Parts must be packaged properly for the returned shipment to prevent damage. Authorized return shipments shall be shipped within 30 days of receipt of RMA No. Our only obligation shall be to replace such quantity of the product proved to be defective. We shall not be liable for any injury, loss or damage, direct or consequential, arising out of the use of, or the inability to use, the product. Before using, user shall determine the suitability of the product for their intended use; and user assumes all risk and liability whatsoever in connection therewith. The foregoing may not be changed except by an agreement signed by an officer of the Seller, AND IS OFFERED IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED.
Terminations
No order may be terminated by Customer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions.
(1) Customer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Customer at the time of Seller’s receipt of notice of termination; (2) Customer will pay all costs, direct and indirect, which have been incurred by Seller with regard to Products which have not been completely manufactured at the time of Seller’s receipt of notice of termination, plus a pro rata portion of normal profit on the contract; (3) Customer will pay a termination charge on all other Products affected by the termination. Seller’s normal accounting practices shall be used to determine costs and other charges. To reduce termination charges, Seller will divert completed parts, material or work-in-process from terminated contracts to other Customers whenever, in Seiler’s sole discretion, it is practicable to do so.
Patents and Trademarks
Orders -tor special parts made to Purchaser’s design are accepted with the understanding that the Purchaser will defend at their own expense any suit that may be brought against them or us by reason of our manufacture of such parts.
Unless otherwise stipulated, we reserve the right to have our name or trademark appear on each piece, and to use in our display on advertising any pieces or illustrations of same.