PDQ Workholding LLC Terms and Conditions of Sale

Transcription

1 PDQ Workholding LLC Terms and Conditions of Sale Unless otherwise specifically stated in the offer to sell goods submitted herewith ( Sales Quotation ), these Terms and Conditions establish the rights, obligations and remedies of PDQ Workholding LLC ( PDQ ) and Buyer, which apply to this offer and any resulting order. All production and sales by PDQ are subject to these Terms and Conditions. PDQ hereby rejects any and all Terms and Conditions on Purchase Orders or any other documents which purport to reject or modify these Terms and Conditions for production and sales. 1. Entire Agreement. This document contains all of the terms and conditions of the agreement between PDQ and the Buyer of the goods and any related services (collectively, Goods ) to be sold to Buyer, to the exclusion of any other statements and agreements, and to the exclusion of any terms and conditions incorporated in Buyer s order or other documents of Buyer. PDQ s acceptance of Buyer s order is expressly conditioned on Buyer s acceptance of the terms and conditions contained herein, and Buyer, upon placing an order, is presumed to have accepted all the terms and conditions without modification. No alteration, waiver, modification of or addition to the terms and conditions herein shall be binding on PDQ unless set forth in writing and specifically agreed to by an officer of PDQ. No course of dealing, usage of trade or course of performance will be relevant to supplement or explain any terms used in this agreement. 2. Offer. These Terms and Conditions of Sale apply to all Goods sold and/or performed by PDQ and are incorporated into each and every Sales Quotation or other document relating to such Sales Quotation issued by PDQ. The Sales Quotation constitutes PDQ s offer to the Buyer identified in the Sales Quotation to sell the Products identified in the Sales Quotation and otherwise to enter in the agreement the Sales Quotation describes and the Sales Quotation shall be the complete and exclusive statement of such offer and agreement. 3. Acceptance. The issuance of purchase order documents against this offer shall constitute an acceptance of the offer and not a counteroffer and shall create a contract of sale (hereafter referred to as Contract ), subject to final credit approval and acknowledgment by PDQ. Provisions contained in the purchase order documents issued against this offer which materially add to or subtract from the provisions of this offer shall not be a part of the Contract unless specifically agreed to by PDQ in a written acknowledgement. 4. Delivery, Title and Risk of Loss. All delivery under the Contract and all costs for transportation shall be borne by the Buyer, except where otherwise indicated in the Sales Quotation. Except as otherwise expressly agreed in writing by PDQ, title and risk of loss of or damage or delay to the goods supplied under this Contract shall pass to Buyer when PDQ delivers the goods to the carrier, which shall be designated by Buyer. Buyer shall contact PDQ within seven days of receipt of all goods delivered hereunder to report any product defect or variation from specification. Buyer s failure to inspect the

2 product within seven days of receipt, or to contact PDQ within seven days to report a defect or specification variation or Buyer s use of the product or delivery to the Buyer s customer, will serve to void all warranties, expressed or implied, and waive all of PDQ s liabilities for any and all injury or damage to Buyer, Buyer s Customer or any third party, caused by product defects or failure to follow product specifications. 5. Delivery. PDQ will make every effort to fill orders within the time stated, but the stated delivery date is approximate only, and PDQ reserves the right to readjust shipment schedules without liability. Acceptance by Buyer of the Goods waives any claim for loss or damage resulting from a delay, regardless of the cause of the delay. If shipment is delayed or suspended by Buyer, Buyer will pay the invoice price for the Goods as per payment terms, together with PDQ s handling and storage charges then in effect, if any. PDQ will not be responsible for delivery delays caused by failure to receive timely design approvals or necessary information, including specifications and/or process changes, from Buyer. 6. Prices. Unless otherwise stated in the Sales Quotation, prices for all products and services hereunder shall not include shipping, handling, transportation, storage, packaging, federal, state, local, sales, excise or other taxes assessed on the sale of products and do not include duties, customer or import/export expenses of any kind. Prices for machining and assembly services will remain fixed during the period stated in the Sales Quotation but prices for finished products which include raw materials will fluctuate based directly upon pricing changes of the raw materials. 7. Cancellation. Buyer may not cancel orders placed with PDQ, except with PDQ s written consent. If PDQ consents in its sole discretion, Buyer shall indemnify PDQ against loss, including paying to PDQ an amount for the sum of (a) charges for design work at PDQ s prevailing hourly rate, (b) the cost of all labor hours incurred by PDQ and the cost of raw materials purchased or ordered by PDQ which can not be used by it in the ordinary course of its business, (c) the costs of cancelling any orders issued by PDQ to produce the Goods ordered, and (d) a rescheduling fee equal to 50% of the original price of the Goods. 8. End Use. Determination of the suitability of the goods purchased by Buyer for the use contemplated by Buyer or Buyer s customer is the sole responsibility of Buyer or Buyer s customer, whichever the case may be, and PDQ shall have no responsibility in that connection. Buyer assumes all risk and liability for loss, damage or injury to property of Buyer and others arising out of the use or possession by Buyer of the goods furnished to Buyer by PDQ under this Contract. 9. Excusable Delay. PDQ shall not be responsible for production or performance delays or stoppages caused by elements beyond its control including, but not limited to, (i) an act of God or of public enemy or war (declared or undeclared) or of persons engaged in subversive acts, espionage or civil commotion, (ii) an act of governmental or quasi-governmental persons, government regulations or restrictions imposed by law or by court action, (iii) a fire, flood, earthquake, explosion or other

3 catastrophe, (iv) an epidemic or quarantine restriction, (v) a strike, slowdown, lockout or labor stoppage, or (vi) a failure of usual sources of supply of materials, parts, power or transportation. 10. Warranty. All components manufactured by PDQ are guaranteed against defects in material and workmanship for a period of two (2) years from the date of shipment. During this period, any such material will be repaired or, at the PDQ s discretion, replaced free of charge, providing the components have been properly installed, used, and maintained, and have not been subjected to circumstances and conditions for which the components are not designed. Purchased components used in manufacture shall be warranted only to the extent of the warranty provided by the component manufacturer and PDQ provides no warranty with respect to such components. Except as otherwise specifically set forth in the Contract, THIS WARRANTY IS IN LIEU OF ALL OTHER WRITTEN OR UNWRITTEN, EXPRESSED OR IMPLIED WARRANTIES. Buyer waives all rights against PDQ for any damages to its property or that of a third party, or for injury to any person, however caused, except where such damages or injury is proximately caused by the sole negligence of PDQ, its agents subcontractors, employees, or other representatives, and in no event shall PDQ s total liability exceed the purchase price of the products shown to be defective. No person is authorized to give any other warranties or to assume any other liability on the part of PDQ, unless agreed to in written by an authorized officer of PDQ. 11. Limitation of Liability. PDQ s liability and Buyer s remedies under these Terms and Conditions (including without limitation the warranty provisions hereof), shall be limited solely to repair, replacement or credit, at PDQ s option, of Goods which do not conform to its limited warranty. Such non-conforming Goods must be returned to PDQ, at Buyer s expense, promptly upon discovery of the defect. IN NO EVENT SHALL PDQ BE LIABLE UNDER ANY CIRCUMSTANCES: (a) FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LABOR COSTS) ARISING FROM THE SALE, USE OR INSTALLATION OF THE GOODS; (b) FOR GOODS THAT HAVE BEEN INCORPORATED INTO ANOTHER PRODUCT; (c) FROM ANY BREACH OF ITS OBLIGATIONS TO BUYER; OR (d) FOR ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, OR ON TORT OR OTHER THEORY OF LIABILITY, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY PDQ CONCERNING THE DESIGN, MANUFACTURE, SALE, USE OR INSTALLATION OF THE GOODS. 12. Final Pricing. The Sales Quotation is based on the current process information in the RFQ relayed to PDQ. Upon PDQ s receipt of the final part process, machine specifications, and tooling information PDQ will confirm pricing and delivery quotations. Any part print revisions or customer requested fixture concept design changes that require additional labor or materials by PDQ will be quoted upon receipt of the changes.

4 13. Price Changes. If Buyer makes or requests design changes, alters the quantities of scheduled shipments or shortens or extends the shipping schedule, PDQ reserves the right to revise prices on any unshipped balance of Buyer s order by giving Buyer prompt written notice of the revision in price. The revision will be effective upon notice to the Buyer unless Buyer by written notice refuses such price revision within ten (10) days of receipt of notice of revision. If Buyer refuses PDQ s price revision, PDQ shall have the option of canceling that portion of Buyer s order to which the price revision is applicable, or of completing Buyer s order at the original price quoted for the order. 14. Machine and Tool Capabilities. PDQ is responsible for ensuring that all fixtures properly hold components to defined datum structure and is not responsible for machine or tooling capabilities. 15. Tooling Project Cancellation. Any tooling or workholding purchase order cancellation will require payment of 20% of the total purchase price plus payment in full for all direct expenses already incurred including, but not limited to, labor, materials, subcontractor expenses, project management and assembly. All materials will be shipped to customer upon request and receipt of payment in full of the above amounts. 16. Governing Law. These terms and conditions, the Contract and all agreements that arise from the Sales Quotation shall be construed and governed in accordance with the Laws of the State of Indiana. 17. Infringement. PDQ at its own expense will defend and hold Buyer harmless from and against all damages, costs and expenses arising from any valid claim of infringement by a third party with respect to any patent or other intellectual property rights (collectively, the Intellectual Property Rights ) caused by Goods originally manufactured by PDQ, provided Buyer (i) has not modified such Goods, (ii) gives PDQ immediate notice in writing of any claim or commencement or threat of suit, and (iii) permits PDQ to defend or settle the same, and gives all immediate information, assistance and authority to enable PDQ to do so. In the event any such originally manufactured Goods are held to infringe an Intellectual Property Right and if Buyer s use thereof is enjoined, PDQ will, at its expense and option: (i) obtain for Buyer the right to continue using the Goods, (ii) supply non-infringing Goods, (iii) modify the Goods so that they become non-infringing, or (iv) refund the then market value of such Goods. In no event shall PDQ s liability exceed the sale price of the infringing Goods. THE FOREGOING REPRESENTS PDQ S ENTIRE AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY CHARGE OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT AND IS IN LIEU OF ANY STATUTORY WARRANTY RELATING TO INFRINGEMENT. Notwithstanding the foregoing, PDQ shall have no liability as to any Goods or parts thereof that are manufactured or modified by Buyer or a third party, or that are manufactured or modified by PDQ in accordance with Buyer s specifications. Buyer will defend and hold PDQ harmless from and against all damages, costs and expenses whatsoever arising from any claim for infringement of any Intellectual Property

5 Rights relating to Goods that have been manufactured or modified by PDQ according to specifications provided by Buyer.