Terms
& Conditions
OFFER OF SALE
Power Brushes, Inc. (“Company”) hereby offers to
sell the products described on the face hereof to Customer upon
and subject to the terms and conditions contained herein. Customer
accepts these terms and conditions by accepting delivery of the
products covered by this invoice and by placement of any future
orders for products with Company. Customer’s acceptance of
the terms and conditions will form the Contract between the parties. The
terms and conditions of this offer may not be modified or altered
except with the express written consent of an authorized representative
of the Company. The Company objects to and will not be bound
by any terms and conditions in Customer’s purchase order which
are in conflict with or in addition to the terms and conditions
hereof. Shipment by the Company to Customer is not an acceptance
of the terms and conditions of Customer's purchase order.
ENTIRE AGREEMENT
The terms and conditions set forth hereon and on
the face hereof constitute the entire agreement between the Company
and Customer for sale of the products or services specified herein,
superseding all other agreements between the Company and Customer
respecting the transaction contemplated herein, whether written
or oral, including, but not limited to, any documents, correspondence,
brochures, advertisements, e-mails or other electronically created
materials or writings, or other memoranda respecting the products.
PAYMENT
Unless otherwise specified on the reverse side,
payment for products offered hereunder will become due and payable
in lawful money of the United States, within thirty (30) days of
the date of the Company's invoice therefor. If shipment is
delayed at the request of the Customer, the Company will invoice
the Customer when the products are ready for shipment. All
amounts not paid within thirty (30) days after they are due shall
bear interest at 12% per month or, if lower, the highest rate permitted
by applicable law, from the date of the Company's invoice until
paid in full. Customer shall reimburse the Company for all
costs incurred by Company in attempting to collect any amounts
due to Company hereunder, including, but not limited to, attorneys’
fees and other costs of litigation.
TAXES
Prices indicated on the face hereof do not include
applicable excise, sales, use or other taxes or import, export
or customs fees or duties, which may be imposed on the sale or
delivery of equipment hereunder. All such taxes and charges,
when applicable, will be charged to and are payable by Customer.
CANCELLATION OF CUSTOM PRODUCTS
All work on custom products, once started by Company,
cannot be stopped without significant expense for the Company. Customer
acknowledges and agrees that Customer is responsible for all labor
and material costs associated with canceled Custom Products. A
“Custom Product” is defined as any product which is manufactured
by Company in accordance with Customer’s specifications.
SHIPMENT
Unless otherwise indicated on the face hereof,
all products offered for sale hereunder shall be shipped F.O.B.
the Company's location, Toledo, Ohio, and title to, right of possession
and risk of loss thereof shall pass to Customer upon delivery to
the carrier by the Company.
PERMISSIBLE VARIATIONS
Products shipped by Company shall be within Company’s
standard variations, and Company reserves the right to ship overages
or underages of quantity of up to ten percent (10%) in accordance
with Company’s standard policies.
PACKAGING
Company will use its reasonable efforts to comply
with any special packaging requirements specified in writing by
Customer in any order. Company will charge for compliance
with Customer’s special requirements in accordance with Company’s
price for extras in effect at the time of shipment. If no
special requirements are specified by Customer, Company shall comply
with the minimum requirements customarily applied by Company to
the method of transportation used for such products.
DELAYS IN DELIVERY
The Company shall endeavor to meet the delivery
schedule requested by Customer provided, however, that Customer
shall give Company reasonable notice of products, quantities and
shipping instructions. Company will not be obligated to ship
products if reasonable notice of quantities and instructions are
not given; if the amount is unreasonably disproportionate to the
scheduled amounts or, if none; if the amount exceeds estimates
provided by Customer to which the Company has agreed in writing,
or if none. The reasonableness of notice shall be determined
by company’s products’ availability and delivery capability and
other commitments. Notwithstanding the foregoing, the Company
does not guarantee specific dates of delivery and shall not be
liable to Customer for delays in delivery for any reason. All
shipping dates (including firm shipping dates) may change as a
result of circumstances over which the Company has no control.
DEFAULT
Company may delay shipment, reduce amounts shipped,
or terminate the Contract if (1) Customer fails to make any payment
promptly when due or otherwise fails to comply with the Contract,
(2) Customer ceases to conduct its operations in a normal course
of business, (3) Customer is or becomes unable to pay its obligation
as they mature, (4) any proceeding under the Bankruptcy Code or
any other insolvency laws is brought by or against Customer, (5)
a receiver for Customer is appointed or an application for a receiver
is filed, (6) Customer makes an assignment for the benefit of creditors,
or (7) Customer fails to provide adequate assurance of future performance
within thirty (30) days after demand by Company (which will be
a repudiation by Customer of the unperformed portion of the Contract). In
the event of such termination or reduction in the amounts shipped,
Customer shall be liable to Company for any and all damages sustained
by Company as a result of the defaults which gave rise to the termination
or reduction in the amounts of shipment.
SETOFF
Company shall have the right to credit toward the
payment of any monies that may become due Company hereunder any
sums which may now or hereafter be owed to Customer by Company.
WARRANTIES
The Company warrants that the products will conform
in all material respects to the description of the products contained
on the face hereof and will be free from commercially unreasonable
defects in material and workmanship for a period of ninety (90)
days (or for such longer period of time as is specified herein
with respect to any particular product) from the date of shipment
(the “Warranty Period”). THERE ARE NO WARRANTIES
WHICH EXTEND BEYOND THESE WARRANTIES AND THE COMPANY EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Any
information or technical advice that the Company may have given
to Customer has been given without consideration, and no such information
or advice relieves the Customer from the sole responsibility to
determine whether the products are suitable for the Customer’s
intended use, including the responsibility to test the products,
if desirable.
Warranty Remedies and Limitation of Liabilities. In
the event any product fails to comply with this warranty, Customer
may return the product to the Company within the Warranty Period,
freight prepaid. Customer’s sole and exclusive remedy for
the non-conformance of any product with the product description
or for defects in materials or workmanship in the product within
the warranty period shall be, at the Company’s election, (i) the
Company’s repair or correction of the non-conformance or defect,
(ii) the Company’s furnishing Customer, without charge and FOB
Toledo, Ohio, with a replacement for the non-conforming or defective
product, or (iii) the Company’s reimbursement of customer for the
prorated purchase price of the non-conforming or defective product. The
Company shall not be liable for defects caused by abuse or misuse
of its products. Except for the Company’s direct costs in
repairing, correcting or replacing any non-conforming or defective
product, the Company shall not be liable for any other expense
connected with the repair, correction or replacement of any product
or for any special, exemplary, incidental or consequential damages.
THE COMPANY SHALL HAVE NO LIABILITY TO
CUSTOMER FOR LOST PROFITS OR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY
OR INCIDENTAL DAMAGES OF ANY KIND WHETHER ARISING IN CONTRACT,
TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY
OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOST
PROFITS OR DAMAGES. IN NO EVENT SHALL THE COMPANY BE LIABLE
TO CUSTOMER FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE ACTUAL
PRICE PAID TO THE COMPANY FOR THE NON-CONFORMING OR DEFECTIVE
PRODUCT. CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR LOSS,
DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF ITS USE
OR POSSESSION OF THE PRODUCTS OFFERED FOR SALE HEREUNDER.
Customer shall indemnify the Company and hold the
Company harmless from all claims by third parties arising out of
or in connection with this offer or the products, including, but
not limited to, claims for personal injuries, property damage,
economic loss, or costs of litigation. Customer shall reimburse
the Company for all attorney’s fees and other costs of litigation
incurred in connection with the defenses of any such claim.
Customer acknowledges that the price of the products
is predicated on the enforceability of the foregoing limitation
of liability, that the price would be substantially higher if the
Company could not limit its liability as herein provided and that
Customer accepts this limitation of liability in exchange for a
lower price: The limitation of liability may not be altered
except by an agreement in writing signed by a duly authorized officer
of the Company.
Failure to submit a claim within the Warranty Period
shall be conclusive proof that the products are as warranted and
shall release the Company from any further liability with respect
thereto.
PATENTS
If the material covered by Customer’s written order
is to be made in accordance with Customer’s written specifications
and any suit or proceeding is brought against Company on a claim
that the material or any part thereof furnished under Customer’s
order constitutes an infringement of any patent of the United States,
Customer agrees to defend any such suit or proceeding and to pay
all direct and actual damages and costs awarded against Company
therein, provided in all instances that Customer is promptly notifed
in writing of such suit and given authority, information, and assistance
reasonably necessary for defense of same.
APPLICABLE LAW
This Contract shall be deemed to have been entered
into and shall be construed according to the Uniform Commercial
Code as adopted in the State of Ohio. Customer agrees and
submits to the exclusive jurisdiction of the courts of Lucas County,
Ohio for resolution of any disputes arising hereunder.
FORCE MAJEURE
The manufacture, shipment and delivery of the products
are subject to, and the Company shall not be liable for any delay
in or impairment of performance resulting in whole or in part from,
any war (whether or not declared), strike, difference with workmen,
accident, fire, flood, Acts of God, delay in transportation, shortage
of materials, equipment breakdowns, laws regulations, orders or
acts of any governmental agency or body or any cause beyond the
reasonable control of the Company, or if performance by Company
becomes impracticable due to the occurrence of a contingency, the
non-occurrence of which was a basic assumption on which the sale
was made. In any such event, Company shall have such additional
time to perform as may be reasonably necessary and shall have the
right to apportion its production among its customers in such manner
as it deems equitable.
STATUTES OF LIMITATION
Any action against the Company based on Company’s
alleged breach of its obligations hereunder must be commenced within
one (1) year after the cause of action has accrued, which shall,
at the latest, start to run from the date of shipment of the products.
Terms
and Conditions are available as a PDF document by clicking here.
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