1. Price. Purchase orders are accepted only in accordance with Seller’s regular scheduled prices, terms and conditions. Shipping allowances and prices are subject to change without notice. Prices acknowledged herein are based on labor, freight and material costs prevailing at time of acknowledgement. Increases in such costs before completion of contract, plus applicable overhead, may be invoiced to Buyer. Labor costs are based on a standard forty-hour week. Premium time in excess of forty hours per week as required by Buyer will be invoiced as an extra item. Purchase prices on order shall be paid in full with thirty (30) days upon credit approval. After thirty (30) days, payment is subject to twelve percent (12%) annual late charge. For shipments without credit approval: no C.O.D. shipments, payment must be received in advance.
2. Delivery. Full Freight costs are allowed on shipments of thirty (30) or more cases east of the Mississippi and one hundred twenty-five (125) cases west of the Mississippi. All other deliveries are F.O.B. collect point of shipment. Upon delivery of the material covered hereunder to carrier, the Buyer assumes the risk of all loss thereof or damage thereto resulting from any cause whatsoever.
3. Shipment. Shipping dates are approximate and are not guaranteed. Seller shall not be liable for delays in delivery or failure to manufacture or deliver due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of Buyer, acts of military or civil authorities, fires, strikes, flood, epidemic, war, riot, delays in transportation or car shortages, or inability to obtain necessary labor, materials, components or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of such delay. In the event of impossibility of performance resulting from any of the above causes. Seller shall have the right to cancel this contract without further liability to Buyer. Cancellation of any part of this order shall not affect Seller’s right to payment for any product delivered hereunder. Orders with indefinite delivery dates are accepted upon the understanding that Seller shall have the right to fill said order as it sees fit in the course of its manufacturing schedules and to hold the goods for Buyer’s account at Buyer’s expense and risk, pending receipt of definite delivery instructions. On any individual order or release against an order for goods. Seller reserved the right to ship and invoice for a quantity of goods, which may vary up to ten percent (10%) over or under the quantity specified in the individual release, and Buyer shall accept delivery and pay for such revised quantity and consider the shipment to be complete.
4. Warranty. Unless otherwise specified, Seller warrants to Buyer that the products sold hereunder are free from defects in materials and workmanship for a period of one year from the date of shipment. If it appears within one year from the date of shipment that any product sold hereunder does not meet the warranties specified above, and the Buyer notifies Seller promptly, Seller shall thereupon correct any such defect by repairing any defective product or products, or at Seller’s option by making available at Seller’s plant a repaired or replacement product: provided, however, that Buyer shall pay all transportation charges. Seller will make no allowance for repairs or alterations to the product made by the Buyer, unless made with the advance written consent of the Seller. Material furnished by suppliers to Seller are warranted by Seller only to the extent that the original manufacturer’s express warranty to Seller. The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral or implied, including any warranty of performance, merchantability or fitness for a purpose. The foregoing shall constitute the sole remedy of the Buyer and the full liability of the Seller.
5. Limitation of Liability. Seller’s liability on all claim of any kind, including negligence, for any loss or damage arising out of, connected with or resulting from this contract, or the performance or breach thereof, or from the manufacture, sale, delivery, resale, repair or use of any product covered by or furnished under this contract, shall be limited to the cost of repair or replacement of such product on a straight time basis and such liability shall terminate upon expiration of the warranty. Seller shall not be liable for any special, indirect, incidental or consequential loss or damage arising from any cause whatsoever, including, but not limited to, loss of anticipated profits, loss by reason of shutdown, no-operation of other equipment or damage to equipment or property. Any action for breach of this contract by Seller must be commenced within one year after Buyer’s cause of action has accrued.
6. Returned Materials. Products may not be returned within the prior written consent of Seller. Requests for return must be made within ninety (90) days of shipment. Returns shall have attached to them the authorized labels furnished by Seller. When return is permitted by Seller, a credit will be issued to Buyer for such return, less a twenty-five percent (25%) restocking charge and any transportation of handling costs.
7. Indemnification and Waiver. Buyer shall defend, indemnify and hold harmless Seller from any loss or damage sustained directly by Seller and from and against all claims asserted against Seller with respect to the goods or services covered hereunder arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees, or customers to comply with all applicable legal requirements, including the Occupational, Safety & Health Act of 1970, (c) misuse of the goods by Buyer, its agents, employees or customers, (d) misrepresentation by Buyer, its agents, employees or customers, (e) the sole or contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark, trade secret or copyright as a result of Seller’s performance in accordance with Buyer’s designs, plans or specifications. Buyer hereby waives and releases Seller from all rights of contribution or indemnity to which it may otherwise be entitled. As used in this paragraph, the term “Seller” shall mean Seller, its officers, directors, agents, employees, subcontractors, parent, subsidiaries, divisions and affiliates.
8. Cancellation. Buyer may cancel this contract only upon written notice to Seller and upon payment to Seller of reasonable and proper cancellation charges, including, but not limited to (1) the proportionate contract price for all material completed, whether shipped or not, prior to the Seller’s receipt of notice of cancellation; (2) all costs theretofore incurred by Seller in connection with material completed at the time of the notice of cancellation received; (3) an amount equal to the percentage of profits on all such costs; and (4) the expenses incurred by Seller by reason of such cancellation, including reimbursement for any charges arising from the termination of subcontract claims.
9. Taxes. All taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the goods or services (other than income taxes) shall be paid by Buyer. Buyer shall defend, indemnity and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by Seller in connection therewith.
10. Proprietary Rights. All drawings, inventions or improvements made by or for Seller in connection with the performance of this contract shall be Seller’s property. Buyer shall not use or disclose any of Seller’s trade secrets or confidential information, whether or not designated as such, except as required in connection with the use of the goods or services covered hereunder.
11. Security Agreement. To secure payment of all sums due Seller hereunder, or otherwise, Seller shall retain a security interest in goods delivered hereunder and this contract shall be deemed a security agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect such security interest. Seller is relying upon Buyer’s representation of solvency with regard to credit approval and if Seller at any time reasonably believes that Buyer is insolvent or that Buyer’s credit is impaired, Buyer shall be in material breach hereof and Seller may, without liability to Buyer, withhold performance hereunder, change the payment terms, and/or repossess goods theretofore delivered. Seller may charge Buyer finance, service or late charges in an amount not greater than that allowed by law, and if Buyer fails to make payment when due, Buyer shall be liable to Seller for all costs of collection, including attorney’s fees.
12. Miscellaneous. Quotations are subject to immediate acceptance and to withdrawal or change at any time prior to final acceptance by Seller. Quotations are subject to correction for clerical and typographical errors. Seller’s failure to insist upon strict performance of any of the terms and conditions hereunder shall not be deemed a waiver of any rights or remedies that Seller may have and shall not be deemed a waiver of any subsequent breach or default in the terms and conditions herein contained. This contract shall be interpreted under the laws of the Commonwealth of Pennsylvania, United States of America. This contract constitutes the entire agreement between the Buyer and Seller relating to the goods or services covered hereunder. No modifications shall be binding upon the Seller unless in writing, signed by the Seller’s duly authorized representative. No waiver by Seller of default by Buyer shall be deemed a waiver of a subsequent default.