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Terms and Conditions of Sale
for the all products sold (the “Goods”) shall be Carstens’ (the “Seller”) prices in effect on the date the Goods are shipped, whether or not the buyer of the Goods (the “Buyer”) has received any prior notice of changes in price. Wherever practicable, the Seller will provide the Buyer with prior written notice of price changes. The Seller may increase or decrease its prices for the Goods if the Buyer changes the quantity of Goods purchased or shipped hereunder.
All prices and shipments are F.O.B. Seller’s plant. The Seller will prepay freight and charge the Buyer for the cost thereof, and will comply with the Buyer’s routing instructions, if possible. However, this is provided that the method of delivery and routing shall be at the Seller’s discretion.
Unless otherwise stated, the Seller’s price for the Goods does not include the amount of any present or future taxes, tariffs or duties, export charges, license fees, royalties or any other fees or charges imposed by any state or local authority, the United States, any foreign government, or any other person or entity on the production, sale, or use of the Goods—all of which shall be paid by the Buyer, and any such amounts paid by the Seller shall be for the account of the Buyer.
The terms for payment for the Goods are net thirty (30) days. No discount will be allowed for any fixtures, gauges, designs, sketches, drawings, blueprints, patterns, dies, molds, masks, software, models, equipment, or other special appliances, or for any shipping or freight charges. The Buyer agrees to remit payment to the Seller at the location shown on the Seller’s invoice. The Seller reserves the right at any time to suspend or revoke any credit extended to the Buyer if the Buyer fails to pay any invoice at maturity or for any other reason deemed good and sufficient in the Seller’s sole discretion. In such case, in addition to any other remedies contained herein or provided by law, the Seller has the right to demand cash payment or satisfactory security from the Buyer prior to shipment. The Buyer’s failure to pay any invoice at maturity makes all subsequent invoices immediately due and payable irrespective of any terms contained herein or therein, and the Seller may withhold all subsequent shipments until the Buyer’s account is settled in full. The Buyer agrees that the Seller may, at its option, charge interest on delinquent accounts at the lesser of 1-1/2% per month or the highest rate allowed by applicable law. The Buyer hereby grants the Seller a lien or security interest in all Goods to secure all amounts owing to the Seller by the Buyer hereunder.
Notwithstanding any law to the contrary or the Seller’s agreement to prepay freight charges, the Buyer assumes all risks of and responsibility for loss or damage to, or delay in delivery of, the Goods after their tender by the Seller to a common carrier or other shipper. Notwithstanding Section 2-510(1) of the Uniform Commercial Code, after tender of the Goods to the Buyer, all risk of loss shall remain with Buyer regardless of any breach of warranty or nonconformities in the Goods.
The Seller reserves the right to ship usable portions of this order in installments. All such installments shall be separately invoiced and shall be paid for in accordance with the terms contained herein. Delay in the shipment of any installment shall not relieve the Buyer of its obligation to accept subsequent shipments. The Seller shall not be responsible for any delay or failure with respect to any shipment of the Goods if due to or arising from any shortage of raw materials, fire, labor trouble of any kind, accident, breakdown of machinery, government act of any kind, failure of any manufacturer, subcontractor or supplier to deliver materials or supplies or to provide services as agreed or contemplated by past dealings, transportation difficulties of any kind, act of God, act of the Buyer, or any other contingency reasonably beyond the Seller’s control, whether or not presently occurring or contemplated by either party. 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 the delay.
The Buyer agrees to inspect the Goods immediately upon its receipt thereof, and shall give written notice to the Seller of any claim that the Goods do not conform with the terms hereof within fifteen (15) days after delivery of the Goods to the Buyer or the destination designated by the Buyer. If the Buyer shall fail to give such notice, the Goods shall be deemed to conform with the terms hereof, and Buyer shall be bound to accept and to pay for the Goods, and shall have no remedy against the Seller, nor any right to revoke such acceptance, for any reason. In the event of a timely claim against the Seller, the parties shall promptly arrange to jointly inspect the Goods, and, where appropriate, to have representatives of the carrier present at such inspection. Any damage, loss or shortage occurring in transit shall be settled with the carrier by the Buyer, without any offset of the purchase price of the Goods. Buyer shall set aside, protect and hold those Goods which are the subject of its claim, without further processing, until Seller has an opportunity to inspect them and advise Buyer of the disposition, if any, to be made of them. In no case shall any Goods be returned without the prior written consent of the Seller.
The Buyer agrees to approve or reject any designs, specifications, part prints, and/or samples of the Goods (collectively, the “Seller’s Specifications”) within seven (7) days after Seller’s delivery of the Seller’s Specifications to the Buyer. If the Buyer rejects the Seller’s Specifications, then the Buyer shall give written notice to the Seller explicitly setting forth the reasons for such rejection. In such event, the Seller, at its sole option, may either modify the Seller’s Specifications pursuant to the Buyer’s written notice or terminate this order and charge the Buyer for the cost of any labor and materials paid or incurred by the Seller in connection with such Seller’s Specifications. If the Buyer fails to approve or reject the Seller’s Specifications within seven (7) days after delivery thereof to the Buyer, then the Seller’s Specifications shall be deemed approved by the Buyer. The Buyer acknowledges and agrees that the Seller’s Specifications constitute confidential and proprietary information of the Seller, and the Buyer shall not, directly or indirectly, (a) disclose the Seller’s Specifications to any person or entity other than employees of the Buyer who have a need to know; (b) use the Seller’s Specifications in any manner whatsoever, whether for commercial or non-commercial purposes, other than for the purpose of evaluating whether to purchase the Goods; or (c) fail to maintain the Seller’s Specifications in confidence or take suitable precautions to ensure that the Seller’s Specifications are not disclosed except as otherwise authorized hereunder.
The Buyer shall approve or reject any part prints and/or samples produced by the Seller pursuant to any designs, specifications or other written or oral instructions provided by the Buyer for the purpose of directing the manner in which Seller produces the Goods (collectively, the “Buyer’s Specifications”) within seven (7) days after the Seller’s delivery thereof to the Buyer. Shipment of any Goods produced by the Seller pursuant to any Buyer’s Specifications constitutes approval and acceptance by the Buyer of any part print and/or samples with respect to such Goods, and acknowledgement by the Buyer that the Seller is not the designer of such Goods. The Buyer agrees to indemnify and defend the Seller against any loss, cost, liability or expense resulting from any infringement or claimed infringement of any patent, trademark, or other intellectual property right arising from or relating to the Seller’s compliance with any of the Buyer’s Specifications.
For all Goods produced pursuant to the Buyer’s Specifications, the Seller reserves the right to fabricate the entire quantity of such Goods ordered by the Buyer in one production run, even though the Buyer has requested that shipments be made over time. In the event of the cancellation or termination hereof, the Buyer shall reimburse the Seller for the cost of all raw materials, components, sub-assemblies or finished assemblies for the entire quantity of such Goods ordered plus normal overruns which are in the Seller’s inventory on the date of cancellation or termination.
The seller assumes no responsibility for any damage, liability or loss, whether to persons or property, which arises from or relates to, directly or indirectly, the Buyer’s specifications for the design of the goods or the Buyer’s recommendations for the use of certain raw materials for their production. The Buyer agrees that the goods shall be deemed to have been produced, pursuant to the Buyer’s specifications, if the Buyer adopts any of the seller’s recommendations with respect to the goods.
The Seller warrants the Goods to be free from defects in material and workmanship under normal use and service in accordance with the Seller’s published warranty as in effect on the date the Goods are shipped. With respect to goods produced pursuant to the buyer’s specifications, the seller warrants only that the goods have been produced in accordance with such specifications. These warranties are expressly in lieu of all other warranties expressed or implied, including, but not limited to, the warranty of merchantability and fitness for a particular purpose, and of any other obligations or liabilities on the part of the seller, and the seller neither assumes nor authorizes any other person to assume for it any other obligation or liability in connection with the goods.
The Buyer’s sole and exclusive remedy for breach of the Seller’s warranty provided in Section 12 above shall be the repair or replacement of the defective Goods at the Seller’s expense, upon return of the Goods, transportation pre-paid, to the Seller at: 7310 West Wilson Avenue, Chicago, Illinois 60706, within the applicable warranty period. No return of Goods will be accepted without the prior written authorization of the Seller. All return shipments must be pre-paid and clearly marked with the return authorization number. The Buyer shall be responsible for all costs of removal and reinstallation of the Goods so returned. In the event that the seller’s published warranty or any other obligation of the seller applicable to the goods fails of its essential purpose, the Buyer’s sole and exclusive remedy for any claim, whether for breach of contract or warranty, or negligence or other tort, or otherwise, shall be returned or credited for so much of the purchase price as is applicable to the goods which are nonconforming or defective. The seller shall have no liability whatsoever, whether in contract, in tort, under any warranty, in negligence, or otherwise for incidental, consequential or special damages.
Goods may be returned only with the Seller’s prior authorization. The Buyer will be issued a full credit toward future purchases on all authorized returns, less a restocking charge of: the greater of 20% of the price of the Goods returned or $10.00. Returned Goods must be in unused and saleable condition. No return authorization will be issued more than thirty (30) days after delivery of the Goods to the Buyer. Returned Goods sent freight collect will not be accepted. Returned Goods which arrive damaged will be billed at full repair cost if not returned in original cartons or if improperly repacked. In addition, the Seller reserves the right to refuse such return shipments. Any return authorization issued by the Seller becomes null and void if the Seller does not receive the Goods within thirty (30) days from date of authorization. Goods made to the Buyer’s Specifications are not returnable. All Goods are shipped assembled, and any Goods returned in knocked-down, disassembled or used condition will not be accepted for return.
Any special tools, fixtures, gauges, designs, sketches, drawings, blueprints, patterns, dies, molds, masks, software, models, equipment, or other special appliances used by the Seller in connection with the Goods (collectively, the “Tooling”) shall be furnished by the Buyer or paid for by the Buyer if furnished by the Seller, and shall be the property of the Buyer upon the Buyer’s payment therefore. All Tooling shall be retained by the Seller to produce Goods for the Buyer until two (2) years after all such Tooling is last used in production, at which time the Buyer agrees that such Tooling may be disposed of by the Seller for the account of the Buyer. The Buyer hereby grants the Seller a lien or security interest in all Tooling to secure all amounts owing to the Seller by the Buyer.
Except as set forth in section 7 above, no claim or action of any nature whatsoever arising out of or relating to any goods may be brought by the Buyer more than twelve (12) months after the date of shipment of such goods.
The Buyer agrees that if any of the terms and conditions of its purchase order are inconsistent with the terms and conditions stated herein, then the terms and conditions stated herein shall control and be binding.
All of the remedies of the Seller herein shall be cumulative and in addition to any remedies provided by law.
Seller reserves the right to amend, revise, or modify these terms and conditions. Buyer acknowledges and agrees that Seller may change any term or part of these terms and conditions by sending Seller a written notice at least thirty (30) days before the change is to become effective. If Buyer does not agree to this change, Buyer must notify Seller within fifteen (15) days after the effective date of the change. If Buyer objects to the change in terms, then Buyer’s account will be closed and all outstanding invoices under the existing terms shall be due and payable. Placement of a new order after the effective date of the change shall be deemed acceptance of the new terms and conditions shall be deemed acceptance of the new terms and conditions, even if the fifteen days to object to the new terms have not expired. Otherwise, the terms and conditions hereof may not be altered, amended or waived except in a written document signed by the Buyer and the Seller. No failure by the Seller to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder by the Seller preclude any other or future exercise of that right or any other right hereunder by the Seller.
The laws of the State of Illinois shall govern the validity, interpretation and enforcement hereof.