Invoice Terms and Conditions
1. Controlling Terms and Conditions.
Acceptance of this Invoice is expressly limited to the terms and conditions stated herein and any additional or different term or condition on Buyer’s purchase order or acknowledgement form or otherwise communicated or proposed by Buyer is hereby objected to and rejected by Seller. Any such term or condition shall be totally inapplicable to this Invoice unless specifically agreed to in writing signed by an authorized representative of Seller. Shipment of the Goods covered by this Invoice shall not constitute acceptance by Seller of Buyer’s terms and conditions. Any correspondence, proposal, purchase order or other communication from Buyer characterized as an offer is hereby rejected in full, and in such situation this Invoice constitutes Seller’s counter-offer.
This Invoice is an offer to sell the goods and perform the services as set forth on the face hereof (the “Goods”). Buyer shall immediately and irrevocably accept the Goods when tendered and shall, in the case of nonconforming Goods, follow only the procedures and remedies outlined in this Invoice. If Buyer refuses to accept such goods, Seller shall be entitled to exercise all rights and remedies available to it pursuant to the Uniform Commercial Code. Upon acceptance, this Invoice shall constitute the entire agreement between the Seller and the Buyer with respect to the Goods.
3. Changes; Taxes.
The quantities, prices, terms, conditions or other pertinent specifications of the Invoice shall not be changed except by Seller's written authorization. Notwithstanding the foregoing, Buyer and Seller acknowledge and agree that all prices for the Goods, whether quoted or set forth in this Invoice shall be adjusted to Seller’s prices in effect at the time of shipment of the Goods. If transportation charges are included in the prices quoted or set forth in this Invoice, then any changes in such transportation charges shall be adjusted to the charges in effect at the time of the shipment of the Goods. Seller’s prices do not include sales, use, excise, value added, customs duties, or other similar taxes; therefore, the amount of any such present or future taxes applicable to the sale of the Goods, the use of the Goods by Buyer, or applicable to the shipping destination shall be paid by the Buyer.
4. Permissible Variations.
Except as otherwise agreed to in writing by Buyer and Seller, all Goods shall be produced in accordance with Seller’s standard practice. All Goods and materials incorporated into the Goods, including those produced to meet exact specifications, shall be subject to deviations and variations consistent with usages of the trade, manufacturing processes, testing and inspection.
5. Solvency and Credit Approval.
Buyer acknowledges and agrees that by placing its order for the Goods Buyer hereby represents and warrants that Buyer is solvent. In the event that Buyer becomes insolvent before accepting the Goods, it will notify Seller in writing of such insolvency. Failure to notify Seller shall constitute a written reaffirmation of Buyer’s solvency at the time of acceptance. Ordering, shipment and deliveries shall at all times be subject to Seller’s approval (in Seller’s sole discretion) of Buyer’s creditworthiness. If at any time Seller believes that its prospect from receiving payment from Buyer has been impaired, or if Buyer is insolvent or has repudiated its agreement with Seller or failed to make payment in full for any prior installment, then Seller may at any time, at Seller’s sole option do all or any of the following: (i) decline to make any shipment or delivery of Goods except upon receipt of prior payment or security, or upon such other terms and conditions as determined in Seller’s sole discretion; (ii) suspend production until any payments are received by Seller; or (iii) stop delivery of Goods at any time prior to delivery to Buyer. In addition to the foregoing, Seller shall have no obligation to make any further shipments of Goods until all payments for prior shipments have been received by Seller.
6. Payment, F.O.B., Title and Risk of Loss.
Payment shall be made by Buyer in United States dollars or other medium acceptable to Seller. Payment shall be made by Buyer upon Seller’s presentation of this Invoice to Buyer, subject to the terms and conditions of payment stated herein. Seller’s prices are quoted F.O.B. Seller’s plant (at the location indicated on the face of this Invoice) unless otherwise stated on the face of this Invoice. The risk of loss or damage to the Goods shall pass to Buyer at the F.O.B. point, Seller’s plant (at the location indicated on the face of this Invoice). Notwithstanding the foregoing, title to the Goods shall transfer to Buyer on delivery at Buyer’s designated shipping destination.
7. Delivery; Force Majeure.
Each delivery of Goods shall stand as a separate sale and is subject to credit arrangements in accordance with Section 5. All delivery dates specified by Seller are approximate and are based upon its best estimate and are subject to change due to conditions beyond Seller’s control, including, but not limited to: (i) acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority or quasi-governmental authority, war (declared or undeclared), riot, revolution, priorities, fires, strikes, explosions, floods, quarantine restrictions, sabotage or epidemics, (ii) inability due to causes beyond Seller’s control to timely obtain, at normal prevailing market prices, necessary and suitable labor, materials, components, manufacturing facilities, transportation or instructions from Buyer, and (iii) any other cause beyond Seller’s reasonable control if by reason of any such circumstances Seller is unable to supply the total demand for the Goods to be delivered hereunder. Seller may make partial delivery of Buyer’s order shown on this invoice or may distribute the available supply of Seller among any or all purchases on such basis as it may deem appropriate without liability for any failure of performance which may result therefrom. In the event of any such delay or failure, the date of delivery shall be extended for a period of time equal to the time lost by reason thereof.
8. Limited Warranty.
For a period of twelve (12) months from the date of delivery of the Goods to the F.O.B. point, the Seller warrants to the original Buyer of the Goods that: (i) all Goods provided for under this Invoice will conform to the requirements of this Invoice; and (ii) at the time of delivery of the Goods, the Goods will be free of defects in materials and workmanship. This warranty does not cover any defects or costs caused by: (i) modification, alteration, repair, or service of the Goods by anyone other than Seller; (ii) physical abuse to, or misuse of, the Goods or their operation in an incorrect manner; (iii) any use of the Goods other than that for which they were intended; or (iv) damage during any shipment of the Goods. This warranty excludes all costs arising from routine maintenance, including the replacement of any parts required by such maintenance. THE WARRANTY PRINTED ABOVE IS THE ONLY WARRANTY APPLICABLE TO THIS PURCHASE AND THE GOODS; SELLER MAKES NO WARRANTIES (EXPRESS OR IMPLIED) OTHER THAN AS SET FORTH IN THIS SECTION 9. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE SELLER SHALL NOT BE DEEMED OR HELD TO BE OBLIGATED, LIABLE OR ACCOUNTABLE UPON OR UNDER ANY GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR BY OPERATION OF LAW OR OTHERWISE AND SELLER EXCLUDES ALL IMPLIED WARRANTIES (WHETHER IMPLIED IN FACT OR IMPLIED IN LAW OR IMPOSED BY LAW), INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY NOT PROVIDED HEREIN, AND ANY REMEDY THAT, BUT FOR THE WARRANTY CONTAINED HEREIN, MIGHT ARISE BY IMPLICATION OR OPERATION OF LAW, IS HEREBY EXCLUDED AND DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IT IS UNDERSTOOD AND AGREED THAT SELLER’S LIABILITY AND BUYER’S SOLE REMEDY, WHETHER IN CONTRACT, UNDER ANY WARRANTY, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER, AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, COSTS OF RENTING REPLACEMENTS, AND OTHER ADDITIONAL EXPENSES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SELLER WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, OR EXPENSES AS A RESULT OF THE BUYER’S NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE, AND WHETHER OR NOT ANY SUCH NEGLIGENCE IS THE SOLE CAUSE OF ANY SUCH DAMAGE, LOSS OR EXPENSE.
9. Buyer’s Remedies.
Buyer’s sole and exclusive remedy for any alleged breach of the Seller’s warranties set forth in Section 8 or for any delivery of alleged nonconforming Goods shall be as set forth in this Section 9. Within ten (10) days after learning of any alleged defect or failure to fulfill the warranties set forth in Section 8, or in any event not more than twelve (12) months from the date of delivery of the Goods to the F.O.B. point, Buyer shall deliver written notice to the Seller stating with reasonable detail any alleged defect or any failure to fulfill the warranties set forth in Section 8. Upon receipt of such notice, Seller shall, at Seller’s option, either: (i) issue a credit to Buyer for the Goods provided, however that Buyer shall return, by prepaid shipment at Buyer’s sole cost, all allegedly nonconforming Goods, only after first obtaining and following such instructions as Seller may require for authorizing any return by Buyer; or (ii) correct such failure by repairing or replacing such Goods found to be in fact nonconforming. Buyer’s retention of the Goods and failure to notify the Seller as set forth herein shall constitute a waiver of all claims with respect to the Goods.
10. Intellectual Property Indemnity.
The Buyer agrees to indemnify and hold harmless the Seller, its successors, assigns, against any loss damage, liability, costs and expenses which may be incurred as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of any patents, trademarks or copyrights, or for unfair competition, arising from compliance with Buyer’s designs, specifications or instructions. The Buyer agrees that it will, when so requested, assume the defense of the Seller and/or its successors and assigns against any such suits, claims or demands.
11. Other Indemnifications.
Buyer agrees to protect, defend, hold harmless and indemnify Seller from and against any and all liability and expense resulting from: (i) Buyer’s failure to comply with the terms and conditions of this Invoice; or (ii) any violation of any law, statute, ordinance, administrative order, rule or regulation connected with the Goods.
Buyer may not assign, without the Seller’s prior written consent: (i) this Invoice or any portion hereof; (ii) or any duty or right herein; or (iii) any claim arising hereunder. This Invoice may not be assigned by operation of law or a merger or judicial sale or otherwise without the prior written consent of Seller. Any unauthorized assignment or attempted assignment by Buyer shall constitute a material breach of this agreement. This Invoice may be assigned by Seller to any of its successors or assigns without the Buyer’s prior written consent. This Invoice shall be binding upon and inure to the benefit of Buyer and Seller and their permitted successors and assigns.
13. Occupational Safety & Health Act.
All items supplied by Seller shall be certified by Seller to be in compliance with requirements and standards of the Occupational Safety & Health Act of 1970. In addition, where required, hazardous material data sheets will be supplied on all applicable products. Failure of Buyer to contest a citation resulting from non-compliance of these items will not relieve the Seller of liability under this warranty.
14. Department of Labor Compliance.
In compliance with the Executive Order 13496 and Executive Orders 11246 and 11375, Equal Employment Opportunity and Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Veterans Readjustment Assistance Act of 1974, the acknowledgment is a certificate of compliance which includes a certification of nondiscrimination with regard to race, creed, color, national origin, sex or age.
15. Chemical Substances.
By this Invoice, Seller certifies that all Goods supplied to Buyer will comply with provisions of 40 CFR 82.100 and do not contain and were not manufactured using Class l or Class II substances as defined by 40 CFR 82.104.
16. Compliance with Laws
. Buyer shall comply with the provisions of all applicable federal, state and local, regulations, rules and ordinances from which liability may accrue to Seller from any violation thereof by Buyer.
17. Proprietary Rights.
1Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer, or which may hereafter be acquired by Buyer, in connection with the Goods described herein, including manufacturing information, shall be deemed to be Seller’s proprietary information and confidential and shall not be disclosed by Buyer.
18. Special Equipment.
In the event that Seller manufactures or purchases special tools, dies or other equipment in connection with Buyer’s order of the Goods, such tools, dies and equipment shall remain the sole and exclusive property of Seller, notwithstanding that part of the cost thereof is included as part of the price specified herein.
19. Waiver of Terms and Conditions.
The failure of Seller in any one or more instances to insist upon performance of any terms or conditions contained herein, or to exercise any right or privilege hereunder, or the waiver by Seller of any breach by Buyer of these terms and conditions shall not be construed as a waiver of any such term, condition, right or privilege or any subsequent breach thereof, and the same shall continue and remain in full force and effect as if no failure or waiver had occurred.
20. Governing Law.
This transaction shall be a contract made in the State of Missouri and governed by the laws thereof.
21. Jurisdiction and Venue.
Seller and Buyer agree that any dispute arising hereunder shall be subject to the exclusive jurisdiction of the State or Federal Courts in or for St. Louis County, Missouri.
The prevailing party in any litigation brought hereunder shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, incurred in such litigation.
23. Entire Agreement.
These terms and conditions, any other special conditions contained in any schedules hereto or any specification or other documents delivered in connection herewith and specifically incorporated herein by reference constitute and represent the complete and entire agreement between Buyer and Seller and supersede all previous communications, either written or verbal with respect to the subject matter of this Invoice.
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