1. Definitions. As used herein, the word “Seller” refers to Toledo Metal Spinning Company, the word “Purchaser” refers to the party to which Seller has furnished a written or oral quotation or proposal or from which Seller has received a written or oral purchase order for a product and/or service to be supplied and/or provided by Seller to Purchaser; and the word “Product” refers to the product or products and/or service or services, the design and/or sale of which is the subject of such written or oral quotation, proposal or purchase order.
2. Applicability. The following terms and conditions shall exclusively govern the furnishing of design and engineering services and the sale of the Product and other personal property by Seller to Purchaser in connection with or as contemplated by the Seller’s written or oral proposals, quotations and sales to Purchaser and/or Purchaser’s written or oral purchase orders to Seller and shall continue in effect until terminated in writing by Seller. Acceptance or use by Purchaser of Seller’s proposals, specifications or designs, or the issuance of a purchase order or similar form for the purchase of the Product shall constitute Purchaser’s acceptance of these terms and conditions. Modifications of these terms and conditions may be made only with Seller’s prior express, written consent and attempts to alter such terms and conditions with printed purchase orders, acknowledgments or similar documentation shall be void
3. Payment Terms; Excess Product; Scrap Factor for Purchaser Materials. Unless different payment terms are specified in Seller’s quotation or on the reverse side hereof, Purchaser agrees to pay the purchase price set forth in Seller’s quotation or proposal within thirty (30) days from the date of Seller’s invoice (“net 30”) Seller may ship to Purchaser and charge Purchaser for quantities up to 10% above or below quantities quoted in Seller’s quotation or proposal or requested in Purchaser’s purchase order. Product for which some or all of the materials are furnished by Purchaser will be subject to a scrap factor determined by Seller based on the manufacturing process utilized for such materials. If Seller ships 10% below quantity ordered, then Seller may consider the order complete.
4. Tooling. Purchaser agrees that the amounts charged by Seller for designing and/or constructing tooling, dies, and other special equipment (the “Tooling”) to enable Seller to produce Products for Purchaser do not fully compensate Seller for the Tooling and therefore all Tooling shall at all times remain the property of Seller. At such time as the tooling becomes obsolete or otherwise unusable, Seller may scrap the Tooling and the scrap value thereof shall belong to Seller. In the event that Purchaser provides tooling to Seller, Purchaser shall be responsible for insuring such Purchaser-owned tooling. Any Purchaser -owned tooling that is not used for a period of five years may be disposed of by Seller at its discretion.
5. Taxes. The prices set forth in Seller’s quotation or proposal do not include any taxes of any nature whatsoever and shall be increased by any amounts Seller may be required to pay or collect in connection with the sale to Purchaser contemplated hereby. Purchaser shall remit such amounts to Seller upon receipt of documentation of same.
6. Price Changes. The prices quoted in Seller’s quotation or proposal are firm for a period of thirty (30) days from the date of such quotation or proposal. After such 30-day period, prices are subject to escalation in accordance with any cost increases incurred by Seller. Prices quoted are for a specific quantity as set forth in the quotation. Any change in the quantity from the quantity quoted could affect the per item price. Unit prices may change at any time due to material market fluctuations beyond the control of Toledo Metal Spinning Company.
7. Samples; Delivery; Storage by Seller. Product samples will be provided by Seller to Purchaser upon request and Purchaser shall pay Seller’s reasonable charges for such sample(s). . All Product delivery or shipment times are estimated and approximate only and run from the date Purchaser has furnished Seller with all information and/or sample approvals requested by Seller in connection with the transaction contemplated by Seller’s proposal/quotation and/or Purchaser’s purchase order. Unless the Seller’s proposal/quotation provides otherwise, any Product sold by Seller in connection with a proposal or quotation by Seller shall be shipped F.O.B. Seller’s plant in Toledo, Ohio freight collect and title to such Product shall pass to Purchaser upon delivery to the carrier which at all times shall be deemed to be Purchaser’s agent. Unless Purchaser specifies otherwise, Seller shall select the carrier for shipment of the Product. Seller shall deliver all Product upon completion +/- 10% of the quantity ordered. If shipped quantity varies from the quantity ordered by 10% or less, +/-then Seller may consider sales order from the Purchaser complete. In the event delivery of finished Product is delayed by Purchaser, Seller may charge a storage fee which shall be paid by Purchaser in accordance with the payment terms applicable to the Product.
Seller reserves the right to stop deliveries, including the right to stop materials in transit, except for cash whenever, in Seller’s judgment, reasonable doubt exists as to the Buyer’s ability to pay for deliveries all without liability and without prejudice to other remedies available to seller. Interest on all past due accounts shall be charged at the rate of twelve percent (12%) per annum.
8. Force Majeure. Seller shall incur no liability whatsoever for any delays in completion or delivery of the Product which are caused by events or circumstances beyond the reasonable control of Seller; including, without limitation, fire, floods, acts of God, strikes, boycotts, labor difficulties, unavailability of materials or unavailability of transportation, .
9. Compliance. Seller represents to Purchaser that it will comply with applicable laws and regulations in connection with the design and manufacture of the Product. Notwithstanding the foregoing, however, in the event Purchaser knows or is aware of any law, rule, ordinance or regulation, including, without limitation, safety or insurance regulations (the “Regulations”) which would adversely impact the transaction(s) contemplated by Seller’s proposal/quotation and/or Purchaser’s purchase order, Purchaser shall immediately advise Seller of same. If the Seller, in its sole discretion, determines that the effect of the Regulations is a material increase in Seller’s risk with respect to such transaction, the Seller may, without cost, liability or penalty of any kind, withdraw its proposal or quotation and/or revoke its acceptance of Purchaser’s purchase order.
10. Express Warranty; Limitation of Remedy. TMS warrants that all Parts produced pursuant to this Agreement shall meet all specifications provided in writing by Purchaser to TMS and shall be free of material defects in workmanship or material at time of delivery to Purchaser. Purchaser shall notify TMS promptly in the event it discovers that one or more Parts do not meet the foregoing warranty. Failure of Purchaser to provide TMS with such notification within sixty days of shipment of the Parts shall constitute conclusive evidence that the Parts satisfy the aforementioned warranty, In the event that any Part fails to meet the foregoing warranty, the Purchaser shall notify TMS in writing and shall provide such documentation of the claim. TMS shall rework, repair, or replace any Part(s) found to be non-conforming. Such rework, repair, or replacement shall constitute the sole obligation of TMS and the sole and exclusive remedy of the Purchaser for claims involving defective Parts, regardless of the legal theory upon which such a claim may be based.
11. Limited Design Warranty; Exclusive Remedy. Seller and Purchaser acknowledge that the design criteria for the Product have been furnished or approved by Purchaser. Seller warrants that the Product will be designed in accordance with this design criteria. With respect to Product components manufactured or designed by the Seller to Purchaser’s specifications, the Seller warrants only that the Product components so manufactured or designed by Seller shall be in accordance with the specifications furnished by Purchaser. In the event the Product is not manufactured in accordance with this design criteria, provided Purchaser returns the Product to Seller within sixty (60) days from the date of shipment of the Product to Purchaser, Seller shall, at Seller’s sole cost and expense, redesign or reconfigure the Product so that it meets the design criteria. Such redesign by Seller shall constitute Purchaser’s sole and exclusive remedy against Seller in this circumstance.
12. EXCLUSION OF IMPLIED WARRANTIES. WITH THE EXCEPTION OF THE EXPRESS WARRANTIES SET FORTH IN PARAGRAPH 10 AND PARAGRAPH 11 HEREOF, THE SELLER MAKES NO OTHER EXPRESS WARRANTY AND NO IMPLIED WARRANTY INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR MERCHANTABILITY AND WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE.
13. Damages Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ELSEWHERE HEREIN, UNDER NO CIRCUMSTANCES SHALL THE SELLER BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY CLAIMING THROUGH PURCHASER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGE WHATSOEVER REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED INCLUDING, WITHOUT LIMITATION, CONTRACT, WARRANTY OR TORT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL SELLER BE LIABLE TO PURCHASER FOR LOST PROFITS OR LOST SAVINGS.
14. Changes and Cancellation. Purchaser shall not defer or revise any order placed with Seller (by purchase order or other authorization) or return any conforming Product without, in any case, Seller’s express prior written consent and authorization. In the event Seller consents to a revision of any order or return of any conforming Product, Seller’s delivery schedules and/or price shall be subject to modification by Seller as Seller deems appropriate. If Purchaser cancels any order placed with Seller, Purchaser shall pay to Seller within thirty (30) days of such cancellation all costs and expenses incurred by Seller in connection with Purchaser’s order (including, without limitation, engineering expense, materials, direct labor with factory burden, commitments to order cancellation fees charged by Seller’s supplier’s and subcontractors, and a pro rata portion of Seller’s overhead).
15. Tolerances; Variations; Errors. All goods shall be subject to tolerances and variations consistent with usual trade practices regarding dimension, straightness, section, composition and/or chemical properties and normal variations in surface and internal conditions and quality and shall also be subject to deviations from tolerances and variations consistent with practical testing and inspection methods. Any clerical errors are subject to correction.
16. Governing Law; Jurisdiction and Venue, This Agreement shall be governed by the laws of the State of Ohio. Purchaser and Seller irrevocably and unconditionally: (a) agree that any suit, action or legal proceeding arising out of or relating to this Agreement, or for recognition and enforcement of any judgment in respect thereof, shall be brought in the courts of record in the State of Ohio in Lucas County or the District Court of the United States having jurisdiction over said county, and appellate courts from any thereof; (b) consent to the jurisdiction of each such court in any such suit, action or proceeding; (c) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts; and (d) agree that service of any court paper may be effected on such party by mail, as provided in this Agreement, or in such other manner as may be provided under applicable laws or court rules in said State.
17. Assignment. Neither party may assign or transfer its rights hereunder without the prior written consent of the other.
18. No Waiver. The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of such provisions or the right of such party to enforce such provisions thereafter.