TERMS AND CONDITIONS
1. Acceptance/Final Agreement. Seller's commitment hereunder is made expressly conditional on assent by Buyer to the terms and conditions included herein. Buyer and Seller agree that the following terms and conditions shall constitute an integral part of the complete and final agreement between Buyer and Seller in respect of the specified transaction and that such terms and conditions and the rights and duties of Buyer and Seller shall be governed by the laws of the State of New York. None of the terms and conditions hereunder may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of Seller, and delivered by Seller to Buyer, and the products received by Buyer from Seller shall be deemed to be delivered only upon the terms and conditions contained hereunder, except as they may be so added to, modified, superseded or otherwise altered.
2. Warranty, (a) Seller makes no warranty of merchantability or of fitness for any purpose, and no other express or implied warranties which extend beyond the description on the face hereof. In lieu of any warranty, whether express or implied by law or otherwise, products proving defective in material and/or workmanship in the hands of Buyer may be replaced, repaired or, credit may be allowed for the original price thereof, as appropriate, such determination to be made solely by Seller. Seller shall have the right to inspect such products in the hands of Buyer before making any such determination as to replacement, repair or credit.
(b) Seller shall not be liable for indirect, special or consequential damages, under any circumstances, including but not limited to damage or loss resulting from inability to use the products, increased operating costs or loss of production, or any other such damages, whether arising from causes similar or dissimilar to those enumerated. (c) In any event, Seller's maximum liability hereunder, whether resulting from breach of contract or negligence or otherwise, shall not exceed the contract price of the products furnished by Seller.
(c) In any event, Seller's maximum liability hereunder, whether resulting from breach of contract or negligence or otherwise, shall not exceed the contract price of the products furnished by Seller.
3. Delivery/Force Majeure. Delivery of products shall be made f.o.b. Seller's plant and Buyer shall assume all risk and liability for loss, damage or destruction after delivery to the carrier, unless otherwise expressly-indicated on the face hereof. Unless mutually agreed upon, shipping dates are approximate and based upon prompt receipt of all necessary information. Seller reserves the right to" ship items in a single or in multiple shipments. Manufacture, shipment or delivery will be subject to any prohibition, restriction or regulation imposed by the Federal or any State government or any subdivision or agency thereof, and Seller shall not be liable for failure to perform, in whole or in part, due to any cause beyond seller's control, including but not limited to any governmental prohibition, restriction or regulation, acts of God, fires, floods, strikes, work stoppages, accidents, casualties, inability to procure supplies and raw materials, delays in transportation or other causes beyond Seller's control.
4. Payment. The terms of payment for each order shall be net cash in 30 days from date of invoice. The unpaid portion of any amounts due to Seller shall bear interest at a rate equal to the lesser of 11/2% per month or the maximum monthly rate permitted by applicable usury laws, unless other terms are agreed to in writing and in advance by the parties. Buyer shall also be liable for any costs incurred by Seller for collection, including reasonable attorney's fees.
5. Buyer's inspection, (a) Buyer shall make an examination and test of any product delivered hereunder immediately upon receipt at Buyer's plant, and failure of Buyer to give notice of any claim within 10 days after the receipt of such product at its plant shall be an unqualified acceptance of said product. Any course of dealing between the parties to the contrary notwithstanding, any claim by Buyer shall be deemed waived unless presented in writing to Seller within 14 days from the date of receipt of the product to which such claim relates.
(b) If any of the products accepted by Buyer pursuant to the previous paragraph contain deviations, whether in accordance with standard trade practices or otherwise, such acceptance by Buyer shall be deemed to constitute a course of dealing between Buyer and Seller, and Seller shall thereafter have the right to manufacture products for Buyer in accordance with this course of dealing.
6. Changes/Tolerances. Buyer shall have the right to make changes in drawings, designs or specifications, where the products to be fur- nished by Seller are to be specifically manufactured for the Buyer in accordance therewith, and in the method of shipment, packaging, quan- tities and delivery schedules. If any such change causes an increase or decrease in the cost of or in the time required for performance of an order, and/or if such change results in rework and/or obsolescence charges, an equitable adjustment shall be made and the order modified in writing accordingly. Except in the particulars specified by Buyer and expressly agreed to by Seller, all products shall be produced in accordance with Seller's standard practices. All products, including those produced to meet an exact specification, shall be subject to tolerances and variations consistent with usages of the trade and shall also be subject to any course of dealing between Buyer and Seller.
7. Cancellation and Assignment. The terms and conditions set forth herein are binding between the parties and, except as otherwise' specifically provided herein, may not be cancelled or modified. Not with-standing the foregoing sentence, if Buyer become insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against Buyer under any state or federal law relating to bankruptcy, arrangement, reorganization, receivership or an assignment for the benefit of creditors, Seller shall have the right to either cancel this agreement or require payment in cash, security or other adequate assurance satisfactory to Seller. Neither the. rights nor the obligations of either party hereunder are assignable for transferable in whole or in part without the prior written consent of the other party, except that Seller may transfer or assign its rights and liabilities arising hereunder to any division or subsidiary without such notice.
8. Tooling. Any equipment (including jigs, dies and tools) which Seller constructs or acquires for use exclusively in the manufacture of products for Buyer will be used only for that purpose but shall be and remain Seller's property and in Seller's possession and control, and any charges therefor shall be for the use only, and not for the purchase, of such equipment.
9. Taxes. Prices specified do not include sales, excise or other taxes payable in respect of this transaction. Any and all such taxes which are currently in effect and/or hereafter levied which are applicable to this transaction are in addition to such prices and shall be paid by Buyer.
10. Disputes. The parties hereby expressly submit themselves to the exclusive jurisdiction of the Supreme Court of New York for this purpose and agree that any service of process may be made, or other documents may be sent, by registered mail, return receipt requested.
11. Indemnification. Buyer shall indemnify and hold harmless Seller against any and all claims of liability stemming from use of the products sold hereunder by any of Buyer's employees or third parties who have acquired the products through Buyer. If the products sold hereunder are to be prepared or manufactured according to Buyer's specifications, Buyer shall further indemnify and hold harmless Seller against any claims of liability for such preparation or manufacture, including but not limited to claims of liability for patent or trademark infringement.
12. Severability. All of the provisions set forth herein are separate and severable. If any provisions are held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the other portions hereof.
13. Credit. All sales are subject to the approval of Seller's credit department.
14. Waiver. Waiver by Seller of any term, provision or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same condition or provision.
15. Remedies. In addition to any remedies set forth hereunder, Seller shall be entitled to any and all remedies otherwise available to it under applicable law and remedies available to Seller shall be considered cumulative.