(1) Acceptance.
These Terms and Conditions govern any Quotation, Acknowledgment, Invoice and any agreement, order or sale that may result herefrom and any contract is expressly limited to and made conditional upon these Terms and Conditions becoming part of the Agreement between the Buyer and the Seller. Any of the Buyer’s terms in addition to or different from those contained herein, whether contained in a Request for Quotation, Purchase Order, or other document, are hereby objected to and shall be of no effect. Any Quotation offered or submitted by the Seller is not a firm offer and may be changed or revoked at any time. Acceptance of any offer made by the Seller is expressly limited to the exact terms contained in the offer and any attempt to alter or omit any such terms shall be ineffective.
(2) Price and Terms of Payment.
All prices quoted or acknowledged are f.o.b. Glenwillow, Ohio and do not include any present or future sales, use, excise or other taxes imposed upon the sale or any transportation or insurance charges. All such taxes are the responsibility of the Buyer and any tax or taxes will be added to the invoice as a separate charge to be paid by the Buyer. Prices are subject to change without notice. Buyer shall pay all invoices within thirty (30) days of receipt of an invoice. Should the Buyer’s financial responsibility become unsatisfactory to the Seller, cash payment or security satisfactory to the Seller may be required by the Seller for future deliveries and for the goods theretofore delivered. In the event the Buyer does not pay for any shipment when the same becomes due, then the past due amounts are subject to service charges of 1.5 percent per month or, if lower, the maximum permitted by law and the Seller may at any time thereafter suspend shipments, demand cash payments in advance, or terminate any contract in total, and the Buyer shall be liable for all costs incurred by the Seller including, but not limited to, attorney fees and collection agency fees.
(3) INVOICE DISPUTES.
ALL DISPUTES AS TO THE AMOUNT(S) INVOICED HEREUNDER SHALL BE MADE, IN WRITING TO THE FOLLOWING ADDRESS: CUSTOM PRODUCTS CORPORATION, 7100 COCHRAN ROAD, GLENWILLOW, OHIO 44139, ATTENTION: CREDIT MANAGER. PAYMENTS WHICH ARE INTENDED BY THE BUYER TO REPRESENT “PAYMENT IN FULL” FOR THE GOODS SOLD, AND WHICH ARE LESS THAN THE AMOUNT SHOWN ON THE INVOICE AS BEING DUE, SHALL BE SENT TO THE ABOVE ADDRESS. IF SAID “PAYMENT IN FULL” CHECK IS NOT MADE TO THE ABOVE ADDRESS THEN, PURSUANT TO OHIO REVISED CODE SECTION 1303.40 THE ACCEPTANCE OF SAID CHECK WILL NOT ACT AS A DISCHARGE OF THE REMAINING BALANCE DUE UNDER THIS ORDER. BUYER SHALL PAY TO SELLER, AT SELLER’S BILLING ADDRESS, ALL AMOUNTS THAT IT DOES NOT DISPUTE AND NOTHING HEREIN SHALL BE CONSTRUED TO RELIEVE BUYER FROM PAYING TO SELLER ANY SUCH AMOUNTS WHICH IT DOES NOT DISPUTE. THE ACCEPTANCE OF SAID PAYMENT WILL NOT ACT AS A DISCHARGE OF THE REMAINING DISPUTED BALANCE.
(4) Delivery and Returns.
Shipping dates are approximate and are dependent upon the prompt receipt by the Seller of all progress payments, data, and instructions for the manufacture, assembly and/or processing of the goods and all materials, supplies, and equipment required for the manufacture, assembly and processing of such goods, including, but not limited to all raw materials, component parts, packaging or other necessary products. If the Buyer delays the furnishing of any such items the dates of shipment shall be automatically extended to compensate for such delay. Unless otherwise specified by the Buyer, the Seller will select the most economical method and route of shipment. Transit insurance is the responsibility of the Buyer. In the event that the Buyer is unable or unwilling to take delivery of all or any part of the goods, the Seller shall place them into storage with all costs, including storage, insurance, demurrage, and transportation at the Buyer’s expense. Further, the date of completion of the goods by the Seller shall be regarded as the date of shipment and payments shall be due on the terms specified in the applicable invoice related thereto. In no case are goods to be returned without first obtaining the Seller’s written permission. Goods built to order are not subject to return for credit under any circumstances. If Seller authorizes the return of goods, goods must be securely packed by the Buyer in order to reach the Seller without damage.
(5) Bill As Shipped Services.
Custom Products provides many of its customers with vendor managed inventory programs that include a bill as shipped component. Custom Products Corporation reserves the right to invoice for any product in Customs possession being held on behalf of the customer on a bill as ship basis in the event of the following: (1) Customer is late paying for Customs invoices; (2) Seller discontinues the use and/or purchase of any item in Custom Products possession for benefit of a customer; (3) Such product becomes obsolete or its usage is significantly reduced; (4) Customer becomes insolvent or declares bankruptcy; (5) Any item or items have not been released for over thirty days; (6) Custom Products may at its discretion after invoicing for such products either ship such products to customer which customer agrees to accept or hold such products in Custom Products warehouse and, at Customs option, bill customer for storing such items at $10.00 per skid.
(6) Nonconformity.
All goods and services sold by Seller are to be inspected upon receipt and should any of such goods or services fail to meet the written specifications accepted by Seller, Buyer shall not return the same, but shall notify Seller, stating full particulars in supports of its claim. Seller will, at Seller’s option, either repair or replace nonconforming goods upon their return or refund the purchase price of such goods. Claims for goods or services failing to conform to Seller’s specifications, shortages, delays, or failures in shipment or delivery, or for any other cause shall be deemed waived and released by Buyer unless made in writing within thirty (30) days after receipt of goods or services.
(7) LIMITATION OF LIABILITY.
THE SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS OR SERVICES SHALL BE LIMITED TO REPAIRING OR REPLACING PARTS FOUND BY THE SELLER TO BE DEFECTIVE OR, AT THE SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS, PARTS OR SERVICES. AT THE SELLER’S DIRECTION, THE BUYER WILL SEND, AT THE BUYER’S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE GOODS TO THE PLANT OF THE SELLER WHICH MANUFACTURED AND/OR ASSEMBLED AND/OR PROCESSED THEM. If the Seller furnishes technical or other advice to the Buyer, whether or not at the Buyer’s request, with respect to processing, further manufacture, or other use or resale of the goods, the Seller shall not be liable for, and the Buyer assumes all risk of, such advice and the results thereof. Seller will not defend or indemnify Buyer except as expressly approved or agreed to in writing by Seller.
(8) DISCLAIMER OF CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL THE SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY TRANSACTION INVOLVING THE GOODS OR SERVICES PROVIDED BY SELLER, INCLUDING WITHOUT LIMITATION, BREACH OF ANY OBLIGATION IMPOSED ON THE SELLER HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF DELAY, INJURY, (INCLUDING DEATH TO ANY PERSON) OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION PROPERTY HANDLED OR PROCESSED BY THE USE OF THE GOODS). THE BUYER SHALL INDEMNIFY THE SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY THE SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY CAUSED BY OR RELATED TO THE ACTIONS OF BUYER.
(9) Conditions.
All orders or contracts are accepted with the understanding that they are subject to Seller’s current manufacturing schedules, and government regulations, orders, directives, and restrictions that may be in effect from time to time. The Seller shall not be liable for delays due to circumstances or acts beyond its control including, without limiting the generality of the foregoing, accident, strike or other labor troubles or disputes, flood, fire, war, or Act of God, civil commotion, lack of or inability to obtain labor or materials, embargo, delays in transportation, or because of compliance with any law or other governmental action, requirements, regulations or restrictions.
(10) Warranty.
Claims for defective goods, shortages, or failures in shipment or delivery, or for any other cause shall be deemed waived and released by the Buyer unless made in writing within thirty (30) days after arrival of goods. The Seller warrants that: (a) the goods to be supplied will conform to the description in the Seller’s quotation; and (b) the Seller will convey good title to the goods free from any valid security interest, lien, or other encumbrance unknown to the Buyer. Goods furnished by Seller are subject to Seller’s standard tolerances for variations. THE SELLER MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING WARRANTIES AS TO THE GOODS OR SERVICES, MERCHANTABILITY OR AS TO THE FITNESS OF THE GOODS FOR ANY PARTICULAR USE OR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, OR ARISING FROM THE USE OF SUCH GOODS OR SERVICES OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
(11) Patents.
In addition to other remedies afford Seller, Buyer shall indemnify and hold Seller harmless from, and release and not make claim or suit against Seller because of, any suits, claims, losses, expenses (including reasonable attorney fees), or other liability made against, or suffered by, Buyer arising from any claim of, or infringement of, patent, copyright, trademark, or other proprietary right, at common law, or claim of unfair trade or unfair competition, resulting from, or occasioned by, Buyer’s use, possession, sale, or delivery of the goods or services sold to Buyer by Seller under private label instructions of Buyer or in accordance to specifications provided to Seller by Buyer.
(12) Seller’s Property.
Unless otherwise agreed in writing, all personal property used to manufacture, assemble or otherwise make or process any goods delivered to Buyer, including, but not limited to, tools, jigs, fixtures, and dies shall remain Seller’s sole property and are retained in Seller’s possession regardless of any charges to Buyer to cover part or all of the cost of the same.
(13) Cancellation.
An order once placed with and accepted by the Seller can be cancelled only with the Seller’s consent, in writing, and upon terms that will indemnify the Seller against loss.
(14) Risk of Loss.
Unless otherwise agreed, the risk of loss to the goods shall rest with the Buyer upon delivery to the carrier at the Seller’s manufacturing facility, including risk associated with any goods subsequently returned to the Seller.
(15) Entire Agreement, Modification and Waiver.
Upon the Seller’s acceptance of the Buyer’s order, the terms and conditions set forth herein shall constitute the entire agreement between the Buyer and the Seller and no statement, correspondence, or other terms shall modify or affect the terms hereof. No change in these Terms and Conditions will be valid unless in writing approved by the Seller. These Terms and Conditions govern and control any transaction between the Seller and the Buyer notwithstanding the Seller’s use of Buyer’s purchase order number as an accommodation to the Buyer. No waiver by the Seller of a breach of any provision hereof shall constitute a waiver of any other breach of such provision or any other provision. No change in the order will be valid unless approved by Seller in writing. If any such change causes an increase in the cost of performing the order or in the time required by its performance, an equitable adjustment will be made and the order modified in writing accordingly.
(16) Governing Law and Severability.
Any dispute which may arise from a sales order and for any goods purchased hereunder shall be governed by the laws of the State of Ohio without regard to rules governing conflict of laws. Any provision hereof prohibited by law shall be ineffective to the extent of such prohibition and without invalidating the remaining provision hereof.
(17) Forum.
It is further agreed that any action to enforce this Agreement or any invoice related hereto or any related transaction or any portion hereof shall be commenced and prosecuted in the Court of Common Pleas of Cuyahoga County, Ohio, or in the United States Federal District Court for the Northern District of Ohio, Eastern Division.
(18) Assignment.
This order is not assignable by Buyer in whole or part without prior written consent of Seller.