Terms And Conditions: Sale
ALL QUOTATIONS ARE MADE AND ALL PRODUCTS ARE SOLD SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS (rev. February 2018):
BFGW Sale Terms & Conditions, QD221, rev. H (February 2018)
- TERMS OF OFFER. Prices quoted are open for acceptance for thirty (30) days after the date of quotation. Prices quoted are subject to adjustment to Seller’s price in effect at the time of shipment.
- ACCEPTANCE, GOVERNING PROVISIONS AND CANCELLATION. No order for products or services of Seller shall be binding upon Seller unless accepted in writing by an authorized official of Seller at its home office. Any such order shall be subject to these terms and conditions, and any acceptance of an order by Seller shall be expressly conditioned on assent to such terms and conditions, which assent by Buyer shall be deemed given unless Buyer shall expressly notify Seller to the contrary within ten (10) days after receipt of acknowledgement or confirmation of an order, and in all events prior to commencement of any delivery or performance of such order. No modified or other terms or conditions will be recognized by Seller unless specifically agreed to by Seller in writing, and failure of Seller to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these terms and conditions, nor an acceptance of any such provisions. Stenographic or clerical errors are subject to correction. No order accepted by Seller may be altered or modified by Buyer unless agreed to in writing by Seller; and no such order may be cancelled or terminated except upon payment of Seller’s loss, damages and expenses arising from such cancellation or termination.
- PRICE
- a. The price of the products or services shall be as stated on the applicable order; however, Seller’s prices are subject to adjustment to take account of any variation in the Seller’s costs (beyond the reasonable control of Seller) including (but not limited to) variations in the cost of materials, exchange rate fluctuation, alterations of duties and tariffs, changes to the specifications by the Buyer and other costs outside of the control of Seller since the issuance of the order. Seller accordingly reserves the right to adjust the price by the amount of any increase in such cost after issuance of the order. Buyer agrees to issue a new purchase order with the adjusted purchase price. The invoice so adjusted shall be payable as if the price set out therein were the original agreed upon price.
- b. All prices are FOB Seller’s plant. All charges for service field work, which is charged on a per diem basis plus transportation and living expenses, shall be billed to Buyer and paid separately from the price quoted. Prices are exclusive of any use, sales, excise or other tax, federal, state, county or municipal taxes, which may be imposed or levied on the sale of Seller’s products or services, and Buyer agrees to pay any such taxes. If Seller pays such taxes, Buyer shall reimburse Seller the amount of Seller’s payment. Prices are based on running the full quantity for shipment at one time and to one destination unless otherwise agreed to in writing.
- DELIVERY. Delivery shall be FOB Seller’s plant. Delivery of products to a carrier at Seller’s plant or other shipping point shall constitute delivery to Buyer, and title and risk of loss shall pass to Buyer at that time; regardless of freight payment, all risks of loss or damage in transit shall be borne by Buyer. Delivery estimates are based on Seller’s best judgment, and Seller will attempt to fill orders at the agreed time. However, Seller shall not be liable for any damages claimed to result from any delays in delivery due to any cause whatsoever.
- TERMS OF PAYMENT. All invoices are due and payable net thirty (30) days from date of invoice, or a 1% discount can be taken if paid within ten (10) days from date of invoice. Delays in transportation shall not extend terms of payment. Any amounts not paid when due will be subject to a late payment fee computed daily at a rate equal to the lower of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law. Buyer agrees to pay Seller’s reasonable attorneys’ fees and other costs incurred in the collection of any amounts not paid when due.
- Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payment or satisfactory security may be demanded by Seller, and in default of such cash payment or said security, deliveries herein may be discontinued at the option of Seller and a charge rendered covering the value of any partially finished articles that are being manufactured on this order or contract.
- WARRANTY. SELLER WARRANTS ITS MANUFACTURED PRODUCTS TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR A PERIOD OF EIGHTEEN (18) MONTHS FROM DATE OF SHIPMENT OR ONE YEAR IN SERVICE (WHICHEVER OCCURS SOONER), AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MECHANTABILITY, FITNESS AND ANY OTHER IMPLIED WARRANTIES AND ANY EXPRESS WARRANTIES CONCERNING ITS PRODUCTS EXCEPT THE WARRANTY STATED ABOVE.
- Buyer’s sole and exclusive remedy for breach of the aforesaid warranty and for any damages resulting from, caused by or arising out of the use or operation of any products Seller sells to Buyer shall be limited to the repair or replacement (at Seller’s option) of products defective in workmanship or material. Seller shall be notified in writing within ten (10) days after any alleged breach of the aforesaid warranty. Seller shall have the option of inspecting the products at Buyer’s facility or Seller’s plant before allowing or rejecting Buyer’s claim. If the products are inspected at Seller’s plant, then all shipping, crating, handling and other charges with respect to the transfer of the products to and from Seller’s plant shall be paid by Buyer. Claims for shortages or other errors must be made in writing to Seller within ten (10) days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. No claim for correction will be allowed except for work done with the prior written consent of Seller. No claim will be allowed for products misused by Buyer or damaged in transit. Defects that do not impair the service of the product shall not be a cause for rejection.
- BUYER’S MATERIAL. When Buyer furnishes the material that is to be worked by Seller, and it proves defective or involves expenses not normally contemplated by Seller at the time the order is placed, Seller will bill Buyer and Buyer will pay for all expenses involved up to the time of discovery of the defect, or the need for such additional expense. Seller shall, after discovery of any defect in the material, notify Buyer of the discovery and obtain authorization to proceed with the work. Seller shall not be liable for any costs of the material or other damages in the event of spoilage or rejection for whatever cause or reason.
- PATTERNS AND TOOLING. Seller shall not be liable for loss of patterns, tooling or merchandise by reason of circumstances beyond Seller’s control.
- DEVELOPMENT, DRAWING, PATTERN AND/OR TOOL CHARGES. Development, drawing, pattern and/or tool charges quoted in any proposal represent Buyer’s proportionate cost thereof, and it is expressly understood that such drawings, patterns and/or tools remain the property of Seller, unless otherwise agreed in writing.
- PATENTS, ETC. Buyer will indemnify, defend and save Seller harmless from any claims, damages, cost or expenses arising out of any claim of infringement of any patents, designs, copyrights or trademarks with respect to any goods supplied or services rendered pursuant to Buyer’s designs, plans or specifications.
- ALTERATIONS. No alterations in specifications, either for total quantity, delivery, mechanical, chemical or other details, may be made without written consent of an authorized official of Seller at its home office and readjustment of price.
- DEFERRED DELIVERY AND WORK STOPPAGE. Should Buyer for good and sufficient cause desire that Buyer’s order be held up or delivery deferred until some later time, approval of the deferred delivery or work stoppage must be obtained from Seller in writing, and Seller may grant said requests subject to the following conditions:
- a. As to work completed prior to Seller’s consent to a deferred delivery or work stoppage, said work shall be held by Seller for Buyer for a period of time not to exceed thirty (30) days. If at the expiration of said period, Buyer has not informed Seller as to the disposition of the completed products, then Seller may ship the products to the destination specified in this agreement, or if Buyer notifies Seller of a destination, Seller may ship the products to said destination. Buyer shall pay all charges and costs, as determined by Seller, concerning all the products covered by this agreement.
- b. As to work which is uncompleted prior to Seller’s consent to a deferred delivery or work stoppage, Seller shall stop all work and hold the unfinished products for Buyer for a period of time not to exceed ninety (90) days. If by the expiration of said time period, Buyer does not notify Seller to proceed with the work upon the same terms and conditions contained herein and give a delivery date acceptable to Seller, then Seller may declare Buyer in default of Buyer’s obligations hereunder and assess damages against Buyer.
- FORCE MAJEURE. Seller shall not be liable to Buyer or any other party for any delay, failure of delivery or other nonperformance caused in whole or part by any contingency or event beyond Seller’s reasonable control, including, without limitation, acts of any government or any agency or subdivision thereof, war, terrorism, riots, equipment breakage, labor trouble, weather conditions and acts of God.
- LIMITATION OF DAMAGES. SELLER SHALL HAVE NO LIABILITY TO BUYER OR ANY OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY SORT.
- GOVERNING LAW AND FORUM. The validity, performance and construction of the agreement and relationship between Seller and Buyer shall be governed by the laws of the State of Wisconsin, notwithstanding any other laws which may apply under applicable conflicts of law rules, and all related disputes shall be resolved exclusively in state or federal courts within the State of Wisconsin, which courts shall have personal jurisdiction over the parties.
- EXPORT. Buyer acknowledges that products manufactured by Seller may be subject to U.S. export laws and regulations, and that any foreign use or transfer of such products must be authorized under those laws and regulations. Buyer agrees that it shall (i) comply with all U.S. export laws and regulations which control the products Buyer purchases from Seller, (ii) not use, distribute or transfer such products (even if incorporated into other goods or products) except in compliance with all U.S. export laws and regulations, and (iii) not sell, export, transfer, ship, or otherwise divert any such products to any person, entity or country to the extent prohibited by U.S. export laws and regulations.
These terms and conditions are subject to change from time to time, without notice, at Seller’s sole discretion. Revised February 2018.