Any quotation for the sale of goods by AMF-Bruns of America LP (“Seller”), and any order for the purchase of goods from Seller, will be subject to the terms and conditions set forth herein and in Seller’s limited warranty, and such terms and conditions supersede any provision of any purchase order or other document which is at variance with or purport to be in addition to these terms and conditions. There are no understandings or agreements, written or verbal, other than as set forth herein and in Seller’s limited warranty and no additions, deletions or modifications of these terms or any matter proposed by Buyer in its printed forms or otherwise will bind Seller unless expressly accepted by Seller in writing, regardless of whether such other terms would materially alter the terms hereof. Any quotation issued by Seller is for informational purposes only, does not constitute an offer, expires forty-five (45) days after its date, and may be reinstated only by written confirmation by Seller. Stenographic and clerical errors are subject to correction.
Prices are F.O.B. Hudson, Ohio unless otherwise indicated on the face of Seller’s acceptance and are subject to change without notice at any time prior to Seller’s acceptance of Buyer’s order. Unless specifically otherwise set forth, prices do not include the cost of shipping or freight or any applicable sales, use, transfer, excise or other taxes, tariffs or custom duties; Buyer will pay Seller, on the terms provided for in Section 3 below, for all costs of shipping and freight and either pay directly or be charged by Seller for any such taxes, tariffs or custom duties levied upon the sale, transfer, import, or use of the goods sold hereunder.
Terms of payment, unless otherwise expressly agreed in writing, are net thirty (30) days from Invoice date. All payments will be made in United States currency. Payment will not prejudice Buyer’s timely claims on account of omissions or shortages in shipment. Payments not received when due are delinquent. Interest at the rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by law, whichever is less, may be assessed on a monthly basis on delinquent accounts, and Buyer agrees to pay the same. Buyer further agrees to reimburse Seller for all costs of collection, including reasonable attorneys’ fees and court costs.
The goods will be shipped F.O.B. Hudson, Ohio, and Seller will exercise sole discretion in selecting a method of shipment unless a preferred method of shipment is specified in writing by Buyer, and Seller does not object to such method by notice to Buyer. Title to the goods and all risks of loss will pass to Buyer upon delivery of the goods to the applicable carrier.
Shipping dates are approximate only, and Seller is not responsible for delays or nonperformance resulting from (a) delays in receipt of final specifications, instructions or other required information from Buyer; (b) changes in specifications; or (c) force majeure, including, without limitation, strikes, labor disturbances, material shortages, nonperformance by subcontractors or suppliers, or other abnormal manufacturing conditions, delays or failures of carriers or communications, fire, flood, storms, accident, riot, war and invasion, governmental requisitions or priorities, acts of God, or other causes beyond Seller’s reasonable control. IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF DELAY OR FAILURE TO DELIVER.
Orders are not subject to cancellation or modification by Buyer, in whole or in part, after Seller’s acceptance, except with Seller’s express written consent; custom goods are not subject to cancellation except by payment of the full sales price. Seller may require, as a condition to such consent, payment by Buyer to Seller of an amount specified by Seller to compensate Seller for: (a) the price of all goods that have been delivered and not previously paid for; plus (b) the actual cost incurred by Seller that is properly allocable to the goods not delivered at the time of decrease or cancellation, including, without limitation, the costs of materials or other items purchased for use in producing such goods; plus (c) the profit, including reasonable overhead, that Seller would have realized from full performance by Buyer; plus (d) the reasonable costs incurred by Seller in making settlement and effecting collection hereunder. Seller may, at its option, cancel Buyer’s order if (x) Buyer’s payments are in default or Buyer breaches any material provision hereof, (y) any cause specified in the Paragraph captioned “Delivery” makes it commercially impracticable in Seller’s judgment to deliver the goods within a reasonable time, or (z) Buyer becomes insolvent or the subject of a proceeding under any bankruptcy law. Cancellation by Seller will not prejudice Seller’s right to any amounts then due or affect any other rights Seller may have.
7. LIMITED WARRANTY/DISCLAIMER
REFERENCE IS MADE TO THE ATTACHED LIMITED WARRANTY WHICH IS INCORPORATED HEREIN AS FULLY AS IF SET FORTH AND WHICH SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY PROVIDED BY SELLER. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, NOR ANY AFFIRMATION OF FACT OR PROMISE IS MADE BY SELLER WITH RESPECT TO THE GOODS WHICH ARE SOLD PURSUANT HERETO. SELLER WILL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL LOSSES, DAMAGES, OR EXPENSES DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, HANDLING, OR USE OF THE GOODS, OR FROM ANY OTHER CAUSE RELATING THERETO, AND SELLER’S LIABILITY HEREUNDER IN ANY CASE IS EXPRESSLY LIMITED TO THE REPLACEMENT (IN THE FORM ORIGINALLY SHIPPED) OF GOODS NOT COMPLYING WITH THIS AGREEMENT OR, AT SELLER’S ELECTION, TO CREDITING BUYER WITH AN AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH GOODS, WHETHER SUCH CLAIMS ARE FOR BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. IN NO EVENT WILL SELLER BE LIABLE FOR PENALTIES OF ANY DESCRIPTION.
8. INSPECTION; ACCEPTANCE OR REJECTION; DAMAGED GOODS
Buyer agrees to inspect and accept or reject goods delivered by or for Seller within ninety-six (96) hours after delivery to Buyer’s facility, and all goods delivered will be conclusively deemed accepted and to conform to contract requirements unless rejection is made or specific objection or notice of shortage, omission, or nonconformity is given to Seller in writing within such ninety-six (96) hour period. Claims for goods damaged or lost in transit should be made by Buyer to the carrier, as Seller's responsibility for damage ceases upon tender of goods to Buyer, Buyer's representative or common carrier.
9. LIMITATION OF ACTIONS
Any action for warranty, breach of contract, or otherwise arising in relation to goods supplied by Seller must be commenced within one (1) year after the cause of action has accrued and, thereafter, all such claims will be barred notwithstanding any statutory period of limitations to the contrary.
10. PRODUCT LIABILITY; ILLEGALITY; INFRINGEMENT
Buyer will indemnify and hold harmless Seller, its officers, agents and employees against all expense, loss, cost, damage, or liability, including attorneys’ fees, arising from any claim or action for defect or illegality where the alleged defect or illegality is caused, in part or in whole, by design, labeling, or manufacture specifications supplied by Buyer or Buyer’s use of the goods in conjunction with goods not supplied by Seller. At the request of Seller, Buyer will defend at its own expense all such claims or actions, provided that Seller will be entitled at its election to participate in such defense. Buyer will indemnify, defend, and hold harmless Seller, its officers, agents and employees against any expense, loss, cost, damage or liability, including attorney’s fees, arising out of any claims or actions for infringement of patents or copyrights, misappropriation of trade secrets, or wrongful use of designs, trademarks, or trade names based on designs or specifications supplied by Buyer or Buyer’s use of the goods in conjunction with goods not supplied by Seller. In all cases, Buyer will not settle any claim or action against Seller without Seller’s consent, which consent Seller will not unreasonably withhold.
11. THIRD PARTY MODIFICATIONS
SELLER EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY WHATSOEVER FOR ANY GOODS MODIFIED BY ANY PARTY OTHER THAN SELLER.
12. SEVERABILITY; ENTIRE AGREEMENT
In the event that one or more of these terms and conditions are held unenforceable in any respect, the remaining terms and conditions will be construed as if such unenforceable provision(s) had not existed. These terms and conditions supersede all other representations, warranties or undertakings of the parties with respect to the subject hereof and may not be modified except by a writing signed by an authorized employee of Seller.
13. GOVERNING LAW; REMEDIES; FORUM
Buyer and seller agree that their rights and obligations and the construction and effects of any contract formed pursuant hereto is governed by the laws of the State of Ohio, and the federal and state courts of Cuyahoga County, Ohio have exclusive jurisdiction and venue over disputes relating to the goods or these Terms and Conditions arising between the parties. If Buyer fails to fulfill the terms of payment of any invoice or if the financial or business condition or responsibility of Buyer will become impaired or unsatisfactory to Seller, Seller reserves the right to suspend work on the contract and withhold delivery of all or part of the goods subject hereto, without prejudice to any other legal or equitable remedy, until past due payments are made and satisfactory assurance of payment is received. Seller will, in addition to the rights and remedies herein set forth, be entitled to all rights and remedies provided for under the Uniform Commercial Code and other applicable law as from time to time amended, and at equity.