Gramberg Machine Inc.

Gramberg Machine Inc. STANDARD TERMS AND CONDITIONS OF SALE (Rev. 090107)

 

1.        Definitions.  As used in these terms and conditions, "Buyer"  means the purchaser of any of the Goods (as defined below) and all others liable for their purchase price, and their agents, successors and assigns; "Contract" means these terms and conditions and those on the front of this document, the description of the Goods and any attachments, schedules, or other writings annexed or referenced by Seller to it, and any future amendments or modifications agreed to by Seller in writing; "Goods" means the products sold by Seller and identified in this Contract or Quotation; and "Quotation" means Seller's standard quotation form and terms, which include these Standard Terms and Conditions of Sale, describing or referenced to any of the Goods; "Seller" means Gramberg Machine Inc. or any designated wholly-owned subsidiary, division or affiliate; “Services” means labor or services sold by Seller and identified in this Contract or Quotation.

2.        Acceptance.  Acceptance of Buyer's purchase order is expressly made conditional on Buyer's assent to the terms and conditions of this Contract, These terms and conditions supersede and are in lieu of any additional or different terms contained in Buyer's purchase order or any other document or communication of Buyer and Seller pertaining to Buyer's order. Buyer unequivocally consents to the terms and conditions of this Contract, by any of the following: (i) placing an order based upon, referring to or arising out of Seller's Quotation; (ii) receiving, after placing an order for any of the Goods, Seller's Acknowledgment, without objecting to it in writing within ten (10) days of receipt; (iii) instructing or requesting Seller whether orally or in writing to begin work on or to ship any of the Goods after receipt of this Contract or Quotation; or (iv) accepting or paying for all or any part of the Goods.

3.        Shipment Terms.  Buyer is responsible for all insurance, packing, crating, hoisting, rigging, transportation and shipping costs and Buyer assumes all risks of and responsibility for loss, damage to, delay in shipment or non-delivery of the Goods after their delivery to a common carrier or Buyer's designated shipper.

4.        Prices.  All prices and shipments are F.O.B. Seller's plant, and are exclusive of all taxes.   Buyer will be charged extra for all applicable taxes, packing, special tests or inspections, insurance, shipping costs, and other charges imposed by any governmental agency or authority, incurred by Seller.  Buyer shall be liable for interest on unpaid invoices or any portion thereof, at the rate of 1 ½ % per month on the unpaid balance.

5.        Assurances.  Production work, shipments and deliveries are at all times subject to the approval of Seller's Credit Department.

6.        Payment.  Unless otherwise expressly provided in this Contract, terms of payment are net cash payable at thirty (30) days from the date of shipment as evidenced by Seller's invoice date.

7.        Claims.  Any damages to, loss of, shortage in, or any other claim concerning the Goods which could be discovered by inspection upon delivery of the Goods must be reported to the delivering carrier, and, in writing, to Seller promptly and in no event later than thirty (30) days. 

8.        Delivery.  Delivery dates specified are target dates and not promised dates.  Seller shall not be responsible for loss, damage, delay or failure with respect to the Goods or this Contract if due to or arising from any cause.

9.        Modification.  Buyer may not cancel, modify or amend any terms of this Contract or hold up releases after the Goods ordered are in process, except with Seller's written consent and subject to conditions then to be agreed upon, including timely receipt of all change orders and reimbursement of Seller for all added expense. 

10.     Warranty.   Seller warrants that for a period of twelve months (12) from the date of delivery, its products will be free from defects in materials and workmanship.  No other warranty, expressed or implied, is provided.  Without limiting the generality of the foregoing, Seller does not guarantee results from use of the Goods or other information supplied by Seller.  Neither the receipt of information from the Buyer, nor Seller’s review of such information, nor delivery by Seller of Goods shall in any way imply a warranty on the part of Seller that the Goods will be suitable for any purposes disclosed by Buyer.  Responsibility for the correctness and feasibility of specifications for the intended application of the Goods is solely the responsibility of Buyer.  Seller disclaims all warranties, express or implied, including the IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.

11.     Limitation Of Liability.  Seller shall not be liable to Buyer or its customers whether in contract, in tort, under any warranty, in negligence, or otherwise for incidental, consequential or special damages or for costs of removal or shipment.  Under no circumstance shall Seller's liability or Buyer's remedy for damages against Seller exceed the cost to Buyer of the Goods.  In the event that Seller's warranty or any other obligation of Seller applicable to the Goods fails of its essential purpose, Buyer's exclusive remedy shall be the lesser of (i) repair or return of, or credit for so much of the purchase price as is applicable to the Goods which are non-conforming or defective, or (ii) Buyer's actual direct damages applicable to the defective or non-conforming goods, but not including incidental or consequential damages.  The price stated for the Goods is based upon and in consideration for limiting Seller's liability. No claim or action arising out of this Contract, Buyer's order or other document pertaining to the Goods, whether in contract, tort or otherwise, may be brought by Buyer more than twelve (12) months after the date of shipment of the Goods.

12.     Technical Advice.  Seller may, upon Buyer's request, furnish technical advice with reference to the Goods sold hereunder, if and to such extent as Seller has offered such advice is expressly agreed that it shall be given and accepted at Buyer's sole risk and Seller shall not be responsible or liable for the advice or assistance given or the results thereof.

13.     Solvency of Buyer.  Buyer warrants to Seller that it is solvent, that it is able and intends to pay each of its obligations when due, that all checks, drafts and other items tendered to Seller in payment for the Goods will be honored in accordance with their terms, that all financial data and statements heretofore furnished by Buyer to Seller. 

14.     Patents and Trademarks.  Buyer shall defend and hold Seller harmless from any claims made against Seller that the manufacture or sale of Goods hereunder to Buyer’s specifications constitutes infringement of any patent, copyright or trademark, and Buyer will indemnify Seller against all expenses, losses, judgments, and decrees arising from each claim of infringement, including its attorney’s fees and costs.

15.     Security Interest.  Seller reserves a purchase security interest in the Goods, all additions and accessions thereto, and all replacements, products and proceeds thereof to secure payment of the purchase price. 

16.     Invalid Term.  The invalidity of any term of this Contract shall not affect any other of its remaining terms.

17.     Non-Assignment.  Buyer may not assign its rights under this Contract without the written consent of Seller and any such purported assignment shall, at the election of Seller, be of no effect.

18.     Confidentiality.  Buyer acknowledges and warrants that the information contained in Seller’s quotation, or received from Seller during performance under this Contract, will be held in strict confidence and will be used only for the purpose(s) related to the Contract.  Buyer shall ensure that such information is not improperly used, or disclosed to third parties, and shall exercise not less than a reasonable standard of care concerning its handling and use of such information. Upon receipt of notice from Seller, or upon the expiration or termination of this Contract, Buyer shall return all information previously supplied by Seller.  Upon any breach of this provision, Seller shall be entitled to all available remedies in addition to attorney’s fees and costs.

19.     Termination for Default.  Seller may terminate this Contract in whole or in part for any default by Buyer, which is not cured within ten (10) days of written notice from Seller specifying the grounds for the asserted default.  If the Buyer disputes the asserted grounds for default the parties shall resolve their differences in accordance with the Disputes clause hereof, and failing resolution, the Seller may proceed with termination for the stated grounds, and seek such remedies, as may be available arising out of Buyer’s default.

20.     Disputes.  The parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Contract. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within five days with a statement of its position on and recommended solution to the dispute. If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority shall meet or confer at a mutually agreeable time and place within ten days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the dispute.