1. ACCEPTANCE. All sales are subject to and expressly limited to, the terms and conditions stated herein and any order acknowledgement and/or quotation supplied by Gremada Industries, Inc. & Laser Cladding Services (Seller), and all different or additional terms and conditions proposed by Buyer are expressly rejected. Any other agreement between the parties whether written or verbal with respect to the subject matter shall be null and void. Buyer’s acceptance made by any commercially reasonable means, including return of Seller’s order acknowledgement form or acceptance by Buyer of goods covered hereunder, constitutes agreement to these terms and conditions.
2. SPECIFICATIONS. Specifications applicable to goods sold hereunder shall be limited solely to those furnished by Seller or expressly agreed to in writing by Seller. Unless otherwise specified, tolerances are to be commercially accepted standard.
3. CHANGES. Seller reserves the right to make product, design and process changes in goods or services ordered which will not adversely affect form, fit or function requirements, with any changes including price approved by Buyer. All changes requested by Buyer in the process, design, manufacturing, repair or remanufacturing of goods are subject to written approval by Seller and to reasonable changes in delivery or price as Seller determines is necessitated thereby.
4. LIMITED WARRANTY. (a) Seller warrants that goods manufactured, remanufactured or repaired by Seller shall be free from defects in material and workmanship for a period of one year from delivery. Seller’s liability shall be limited to repair or remanufacturing, at Seller’s option, of the goods or of any part thereof determined by Seller to be defective under proper and normal use and wear which are shipped prepaid to Seller’s factory within the one year warranty period. (b) All warranty claims must be made in writing during the warranty period. Prior to Buyer’s return of the goods, Seller may inspect at Buyer’s plant any items claimed to be non-conforming, but in any event may reject claims determined not covered by warranty, and may return goods at Buyer’s expense. Seller assumes no liability for results from the use of any goods including any risk or liability for damages resulting from the improper use of Buyer’s products that were manufactured, remanufactured or repaired by seller. The giving of or failure to give any advice or recommendations by the Seller shall not constitute any warranty by or impose any liability upon Seller. This Limited Warranty constitutes Seller’s sole warranty. (c)SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM PATENT INFRINGEMENT.
5. LIMITATION OF DAMAGES AND ACTION, EXCEPT AS OTHERWISE PROVIDED HEREIN FOR A BREACH OF WARRANTY, SELLER’S LIABILITY HEREUNDER SHALL BE LIMITED TO SELLER’S INVOICED PRICE FOR THE GOODS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE GOODS COVERED HEREBY, WHETHER ARISING FROM BREACH OR WARRANTY, NEGLIGENCE OR STRINT LIABILITY OF SELLER, OR OTHERWISE, OR FOR ANY MACHINE WORK, LABOR CHARGES, OTHER EXPENSE, LOSS OR DAMAGES, CAUSED BY DEFECTIVE MERCHANDISE. ANY ACTION HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR OF ACCRUAL OF CAUSE OF ACTION.
6. PATENTS – COPYRIGHTS – TRADEMARKS – PROPRIETARY RIGHTS. If any good ordered by Buyer is manufactured, remanufactured or repaired by Seller according to designs or processes specified by Buyer, Buyer agrees to indemnify and save Seller, its affiliates, officers, agents and employee, harmless from any expenses, loss, attorneys fees, cost damages or liability which may be incurred as a result of actual or alleged infringement of patent, copyright or trademark rights.
7. TITLE – RISK OF LOSS – TERMS – SHIPMENT. Title of goods and risk of damage or loss shall pass to Buyer FOB Seller’s dock upon delivery of goods by Seller to common carrier or other means of transportation. Seller will ship best way overland if Buyer’s order does not specify method of shipment. Unless otherwise specified, terms shall be net 30 days, FOB Seller’s dock subject to credit approval. Freight charges may be added to invoice or billed separately. Insurance is responsibility of Buyer, unless otherwise provided on face hereof, in which case Seller may add charges to invoice or bill separately. Each shipment hereunder shall constitute a separate sale. Failure to make one or more deliveries shall not constitute cause for cancellation hereof by Buyer.
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8. SELLER’S REMEDIES. (a) If Buyer fails to fulfill the terms of payment for any shipment, or the financial ability of Buyer becomes impaired in the judgment of Seller, Seller may demand cash or payment of satisfactory security with respect to all or part of the order, defer or discontinue final shipment or cancel the order pursuant to the provisions of Paragraph 11. Seller may also withhold shipments on any other order of Buyer upon failure to pay an order as due. (b) All invoices are due and payable within 30 days and if delinquent shall become subject to a late charge of 1 ½% per month or portion thereof from invoice date (or the legal maximum allowable in Buyer’s state if lower.) (c) If Buyer fails to make any payment as due, if a receiver shall be appointed for Buyer, if Buyer shall make an assignment for the benefit of creditors, or if a petition in bankruptcy shall be filed by or against Buyer, then a default shall exist hereunder, and Seller shall be entitled to all remedies and rights of a secured party under the North Dakota Uniform Commercial Code. In addition, Seller may declare all amounts owing from Buyer immediately due and payable and may enter, without legal process, on the premises where the goods are located and repossess the same, and thereafter hold the same absolutely free from all claims of the Buyer. Buyer hereby waives all claims and rights of action for trespass or damages by reason of such entry, possession and removal. Seller may exercise all or any of the above remedies in addition to and not in lieu of any other remedy at law or equity to which Seller is otherwise entitled.
9. DELAYS. If a specific shipping date is not agreed to in writing by Seller, Seller shall not be liable for any loss or damages resulting from such delays. Whether or not Seller agrees to a specific shipping date, Seller shall not be liable for delay or failure to deliver due to wars, civil disturbances, strikes, accidents, fires, floods, storms, Acts of God, and inability to obtain necessary labor, energy, water, raw or finished materials or facilities, government priorities or allocations, delays in transportation or other causes beyond Seller’s control.
10. EXPERIMENTAL SALES. In the event the goods or any portion thereof furnished to Buyer are identified as “prototypes”, “samples”, “for approval”, “on consignment”, “for evaluation”, or in similar terms, Buyer agrees that such material or information is confidential and that it will be liable for any disclosure of such material or information other than to employees required for evaluation by Buyer.
11. RETURNS. Returned materials will not be accepted unless authorization has been given by Seller. This authorization will be given a Return Goods number. This Return Goods number must be marked on the outside of each carton or the product will be refused at the door. Authorized returns must be received at Seller’s dock no later than 30 days from the date of issuance of the Return Goods number. Returned Goods past that time will not be honored. Buyer’s rights to repair or replacement are governed by the terms of Paragraph 4. Issuance of credit for returned items shall be made at Seller’s discretion upon Buyer’s request. Buyer will not be entitled to return defective goods for cash refunds. Buyer must inspect goods immediately and no rejection or revocation of acceptance shall be permitted more that fifteen (15) days after delivery or upon use by Buyer of the goods, whichever occurs first.
12. CANCELLATION. No order once accepted by Seller can be cancelled by Buyer without Seller’s written consent and only upon payment to Seller of all losses and expenses, including lost profits for the entire order. Seller may cancel this order if (a) Buyer’s payments are in default on this or any other order, or Buyer breaches any other material provision hereunder, (b) substantial changes occur in the availability of raw materials, components or services provided by third party vendors, (c) events beyond Seller’s reasonable control make it impossible to assure shipment, (d) Buyer becomes insolvent or is the subject of the filing of bankruptcy petition, or makes an assignment for the benefit of creditors or fails to pay its debts as they come due, (e) Seller has reasonable belief that Buyer is insolvent or will not pay in accordance with the terms herein.
13. TAXES. All applicable state and local taxes including, but not limited to, use, occupation, privilege, excise, rental and sales taxes shall be in addition to purchase price and shall be paid by Buyer to Seller or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to all applicable taxing authorities. This obligation shall survive Buyer’s payment.
14. WAIVER. The failure of Seller to insist in any one or more instances upon the performance of any of the terms or conditions herein, or to exercise any right hereunder, shall not be construed as a waiver of any other terms or conditions herein nor of the future performance of any term or condition or the future exercise of any such rights.
15. CLERICAL ERRORS. Clerical errors are subject to correction.
16. GOVERNING LAW. The contract for the purchase of the goods which are the subject of this invoice shall be governed by the substantive laws of the State of North Dakota.
17. HEADING. Headings are for convenience of reference only and shall not affect or limit the meaning of the provisions herein.
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