Although each member of the Industrial Perforators Association, Inc. establishes its own terms and conditions, the following trade practices and terms of sale prevail generally throughout the industry.
1. Description of Goods Sold.
Perforated materials provided under this contract shall be in accordance with Seller's quoted specification and/or drawings (specifications). The industry Perforating Standards and Practices, provided for in Designers, Specifiers and Buyers Handbook for Perforated Metals 1978 shall prevail unless specifically excluded or modified.
No changes may be made in the specifications after the acceptance date unless agreed to by Seller in writing. In the event any such changes are made, Seller may revise its prices and delivery schedule accordingly.
2. Units of Weights and Measure.
Any reference to units of weight or measure for perforated material shall apply after perforating.
3. Pre-Production Samples.
Prices stated shall not apply to any pre-production samples.
4. Inspection Procedures.
Seller's prices are based on normal inspection and testing procedures as determined and performed by Seller.
Seller will pack all shipments in accordance with normal industry standards. Upon request, Seller will provide special packaging, but reserves the right to change its price and delivery schedules if such packaging requires additional risk, expense or time.
6. Sales, Use and Other Taxes.
Buyer shall pay or reimburse Seller for any sales, use, excise, occupational, or other tax arising directly or indirectly from the sale transaction or the performance thereof, or from the use by any person of the perforated material sold, which Seller may be required to pay or collect, and any legal fees or other expenses incurred by Seller in connection herewith. Such taxes are not included in the quoted price.
7. Over-runs and Under-runs.
Where mill quantity is involved, the permissible mill quantity variation applies. In the case of coil, unless otherwise agreed upon, the quantity expressed in pounds or footage will be subject to published mill variations.
Where an exact quantity must be delivered, this agreement must contain an explicit statement that the order is for an exact quantity and that mill and industry standards for variations do not apply.
All prices and deliveries are F.O.B. Shipping Point and risk of loss shall pass to Buyer upon delivery to the carrier. Buyer shall specify type of carrier and routing. In the absence of such specifications, Seller will use its best judgment in selecting a carrier and shipping the goods, but shall not be liable for any delays or charges resulting from its selection.
The purchase price specified shall be adjusted to include any net increases in Seller's material and labor costs occurring between the date of acceptance of this contract and the date of shipment. Seller shall maintain records of the material and labor costs for manufacturing the perforated materials and labor costs for manufacturing the perforated materials and shall compute such costs upon the date of acceptance of this contract and the date of shipment in order to arrive at such adjustment to the purchase price.
10. Payment Terms.
Terms for payment and discount are specified in the sale documents. Any discount allowed applies only to the invoiced value of the perforated material and not to any part of the transportation charges, taxes and/or other charges.
Quotations are effective for thirty days only from date of issuance and acceptance must be received by Seller in writing at its main office and no other acceptance, oral or written, will be binding on Seller. Acceptance of this quotation is expressly limited to the Terms and Conditions of this quotation and rights of the parties shall be governed exclusively by the Terms and Conditions hereof. If this quotation is accepted and Buyer's order form is used for the purpose, it is expressly understood and agreed that the Terms and Conditions herein shall prevail insofar as the same may in any way conflict with the provision set forth in such order forms of the Buyer, and the issuance of such order form by Buyer shall be deemed to the Buyer's assent to the foregoing.
12. Quotations on Buyer's Specifications.
If quotation, or any part thereof, is made pursuant to drawings or blueprints furnished by the Buyer, Seller reserves the right to recheck quotation before accepting order at the quoted prices and to adjust prices in the case of any error.
13. Buyer's Credit on Default.
If, in the judgment of Seller, the financial condition of Buyer at any time does not justify initiation or continuance of production or shipment on the terms specified, Seller may require full or partial payment in advance.
Seller shall not be liable for loss or damage due to delay in manufacture or delivery resulting form any cause beyond Seller's reasonable control, including, but not limited to, compliance with any regulations, orders or instructions of any Federal, State or Municipal Government or any department or agency thereof, acts of God, acts or omissions of the Buyer, acts of civil or military authority, fires, strikes, factory shutdowns or alterations, embargoes, war, not, delays in transportation or inability due to causes beyond the Seller's reasonable control to obtain necessary labor, manufacturing facilities or materials from the Seller's usual sources and any delays resulting from any such cause extends to delivery date accordingly. IN NO EVENT SHALL THE SELLER BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY DELAY FOR ANY CAUSE.
15. Errors in Weight or Number Delivered.
Seller shall have no liability for errors in weight of quantity delivered unless claim is made by Buyer within ten (10) days after receipt of shipment. If such timely claim is made by Buyer, Seller may either ship the quantity necessary to make good the deficiency or, at Seller's option, credit Buyer with the invoice price of the deficiency. This shall be Buyer's exclusive remedy for such errors.
16. Patent infringement.
Buyer shall save the Seller harmless from all loss, damage or liability, including attorneys' fees, arising out of the manufacture by Seller for the Buyer of any patented device or a part thereof or on account of the use of such articles by Buyer, the patents for which Seller does not own or control.
17. Government Price Controls.
Seller reserves the right to cancel orders in the event selling prices are established by government regulations which are lower than prices quoted.
18. Government Production Standards.
Seller hereby certifies that the perforated material was produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and all regulations and orders of the U.S. Department of Labor issued under Section 14 thereof.
19. Correction of Errors.
Seller reserves the right to correct all typographical or clerical errors which may be present in the prices of specifications.
20. Warranty Matters.
(a) Consumer Products. Since the Seller is supplying perforated material for incorporation into another product by Buyer which may or may not be considered a "Consumer Product" as defined in the Magnuson-Moss Warranty Act, it is agreed that SELLER MAKES NO WARRANTY OF ANY NATURE WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO MATERIAL WHICH MAY BECOME INCORPORATED INTO A CONSUMER PRODUCT. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE WITH RESPECT TO SUCH GOODS.
(b) Commercial Products. Seller warrants only to Buyer the perforated material sold against defects in material and workmanship for a period of thirty (30) days after Buyer's receipt of shipment. THE OBLIGATION OF SELLER UNDER THIS WARRANTY SHALL BE LIMITED TO REPAIRING OR REWORKING F.O.B. SELLER'S PLANT, OR ALLOWING CREDIT AT SELLER'S OPTION, ANY PERFORATED MATERIAL WHICH MAY PROVE TO BE THUS DEFECTIVE, PROVIDED THAT BUYER GIVES SELLER PROMPT NOTICE OF THE DEFECT OR DEFECTS DURING THE WARANTY PERIOD AND INSPECTION, IF REQUIRED BY SELLER, CONFIRMS THE DEFECT OR DEFECTS. IT IS EXPRESSLY AGFEED THAT THIS REMEDY OF REWORKING, REPLACEMENT, OR CREDIT, AT ALL SELLER'S OPTION, IS THE EXCLUSIVE REMEDY UNDER THIS WARRANTY.
Goods returned without prior notification to Seller will not be accepted and will be returned to Buyer F.O.B. Seller's Plant. Expenses incurred by Buyer in repairing of replacing any defective product will not be allowed except by written permission of Seller.
THIS SALE IS MADE ON THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT, AND THAT THERE ARE NO IMPLIED WARRANTIES THAT THE GOODS SHALL BE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE.
THE SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM THE GOODS SOLD OR THE USE THEREOF OR FROM ANY OTHER CAUSE WHETHER BASED ON BREACH OF THIS CONTRACT BY SELLER, OR WARRANTY (EXPRESS OF IMPLIED) OR TORT OR CONTRACT.
21. Products Liability Indemnity.
Buyer agrees at its own expense to defend and hold Seller harmless in the event any suits are instituted or claims are made against Seller, whether groundless or not, asserting any damages or liability relating to any product of Buyer's indemnification shall include, but not be limited to, all Seller's cost, damage expenses, attorneys' fees and liabilities associated with any such suit or claim.
All tooling used by the Seller in the processing of the perforated material shall remain the property of Seller. Invoices for tooling charges may be rendered prior to commencing the processing of the perforated material.
Scrap material resulting from the processing of the perforated material shall be the property of Seller.
24. Customer's Material.
Despite the best precautions taken by the Seller, material may be spoiled in processing due to operator's oversight, failure of tool or equipment, or inherent characteristics of the material beyond the processor's control.
Where a customer chooses to supply the raw material, he assumes responsibility for any spoilage that takes place in the course of processing or during transportation to the Seller's plant and while it is awaiting processing. The charge for perforating services covers only the labor involved and doesn't include replacement of material.
For these reasons, the Seller will provide credit for perforating services only and the replacement of the material is the Buyers obligation.
Material furnished by the Buyer shall be shipped to the Seller freight prepaid and all risk of loss or damage to the material shall remain with the Buyer. Buyer hereby indemnifies and holds Seller harmless against any and all claims for loss, liability, injury of damage arising out of or in connection with the perforated material and/or workmanship applied to or used in connection with the Buyer's material. In the event Buyer-supplied material is defective, Seller reserves the right to change its price and delivery schedules if such defects cause additional risk, expense or time in repairing the goods.
25. Use of Lubricants.
The perforating process requires the use of lubricants. The natural condition of perforated material may vary from light to heavy concentration of oils. Quoted prices do not include degreasing, and if Buyer specifies that the material must be degreased, there will be and additional charge for degreasing. If Buyer specifies total removal of lubricants, Seller is not liable for any surface corrosion resulting from the absence of lubricants.
26. Cancellation, Changes or Alterations.
Orders placed cannot be canceled or altered nor can referred deliveries of goods completed or in process be extended beyond original specified delivery dates, except with Seller's express written consent and upon terms which will indemnify Seller against loss.
27. Limitation on Waiver of Breach.
The waiver by Seller of any breach of this contract shall be limited to the particular instance and shall not operate or be deemed to waive any future breach of the same provision or any other provision on the same or any other occasion, nor operate as a waiver of Seller's right to enforce any rights by such remedies as may be appropriate.
28. Seller's remedies Cumulative.
The rights and remedies of Seller under this contract shall be cumulative and the exercise of any one of them shall not be exclusive of any other right of remedy provided by this contract of allowed by law.
29. Assignment of Contract.
This contract may not be assigned by Buyer without the prior written consent of Seller. Any assignment without such prior consent shall be void.
30. Entire Agreement.
This contract contains the entire agreement between the parties and is not subject to modifications except by written agreement signed by both parties.
31. Law Governing Contract.
This contract shall be governed by the internal laws of the State in which Seller's mail office is located.