Terms & Conditions

Selling to Customers

  1. SELLER’S OFFER. Notwithstanding any contradictory terms and conditions which may appear on Buyer’s forms, the shipment and/or delivery of the goods by Seller and the Seller’s delivery of an invoice shall not constitute an acceptance by the Seller of any prior written or oral offer by the Buyer which contains terms and conditions different from or additional to those set forth below. Seller’s acceptance of any such offer is expressly conditioned on the terms and conditions set forth below. Buyer’s acceptance of the goods and/or services provided by Seller shall constitute confirmation of Buyer’s acceptance of the terms and conditions set forth below. Seller hereby objects to and rejects all terms and conditions of Buyer’s order or purchase order which are inconsistent with these terms and conditions and the Seller’s invoice.
  2. PRICE AND QUANTITY. The price of the products to be supplied hereunder shall be Seller’s price for such products as of the date of shipment thereof. Seller reserves the right to adjust prices from time to time without Buyer’s prior notification or consent. Buyer represents and warrants that Buyer has a valid Seller’s Permit or equivalent exemption certificate. Buyer shall provide Seller, on request, with properly completed exemption certificates from any tax from which Buyer claims exemption. Seller shall charge Buyer, and Buyer agrees to pay applicable state and local sales tax on every item for which sales tax exemption certificates have not been provided. Seller’s prices reflected in the invoice are wholesale prices and include all trade discounts.
  3. TAXES. Any tax, excise or other governmental charge imposed upon the production, value added, sales, or transportation of or to any material sold hereunder, which Seller may be required to pay, shall be paid by Buyer directly to such taxing authority or agency or to Seller in addition to the purchase price.
  4. TITLE: RISK OF LOSS. Title to the goods sold hereunder shall remain with Seller until payment in full by the Buyer. The goods sold hereunder, however, shall be at the risk of the Buyer, and Buyer shall bear all risk therefor, upon delivery by the Seller to the carrier F.O.B at Seller’s place of business.
  5. TERMS OF SALE. Unless otherwise specified, Seller’s standard terms of sale are net thirty days from date of shipment. If payment is not made in accordance with the payment terms hereof, the account will be subject to a service charge of one and one-half percent (1½%) per month on the unpaid balance. If Seller commences an action to collect amounts due on this account, Buyer shall pay all court costs, collection expenses, and reasonable attorneys’ fees in connection therewith. Cash or anticipation discounts are not allowed. All payments must be in U.S. Dollars. If Buyer fails to make payment within thirty (30) days, Seller may defer shipments until such payment is made, or may, at its option, cancel all or any part of any unshipped order. If the financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, advance cash payments or satisfactory security shall be given by Buyer upon demand by Seller, and shipments may be withheld until such payment or security is received.
  6. LIMITATION OF WARRANTIES. Unless an express written warranty is otherwise furnished by Seller by a separate document, the Seller makes no warranty, express or implied, with respect to the goods sold by Seller hereunder. ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT.
  7. INSPECTION: NOTICE OF CLAIM. Buyer shall inspect and test the products delivered hereunder for damage, defect, or shortage immediately upon receipt at Buyer’s plant or such other location as determined by Buyer and provide Seller with notice of any damage, defect, or shortage within ten (10) days of receipt. Seller shall pay for the shipping and other transportation charges in returning such defective or nonconforming products. Seller shall inspect such returned products and determine, in its sole discretion, whether such products are damaged or defective. If Seller determined such products are damaged or defective, Seller shall, in its sole discretion but within a reasonable time from Seller’s receipt of such defective or nonconforming products, either (i) replace such defective or nonconforming products without additional charge to Buyer, or (ii) refund the purchase price to Buyer. All claims for any cause whatsoever, whether based in contract, negligence, or other tort, strict liability, breach of warranty, or otherwise (“Claims”) shall be deemed waived unconditionally and absolutely unless Seller receives written notice of such claim not later than ninety (90) days after Buyer’s receipt of the products as to which such claim is made.
  8. LIMITATION OF LIABILITY. Notwithstanding any other provision in these terms and conditions and regardless of the circumstance, SELLER’S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS IN RESPECT TO WHICH SUCH CAUSE OF ACTION AROSE. IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF USE OR FOR ANY OTHER INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES FOR PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR DELAY. THIS DISCLAIMER OF CONSEQUENTIAL DAMAGES WILL CONTINUE IN FULL FORCE AND EFFECT EVEN IF BUYER’S LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Seller is not liable for any Claim, if such Claims arise out of or are related to the misuse, negligence, neglect, improper cleaning, repair, installation, or maintenance, modification of the goods, or use or operation of the goods sold hereunder in a manner inconsistent with the product design. Any cause of action that Buyer may have against Seller and which may arise under this contract must be commenced within one (1) year after the cause of action has accrued.
  9. USE OF GOODS. Buyer, or Buyer’s customer, whichever the case may be, is responsible for determining of the suitability of the goods for the use contemplated by Buyer or Buyer’s customers for such goods and Seller has no responsibility in connection therewith. Buyer assumes all risk and liability for loss, damage, or injury to persons or property of Buyer or others arising out of the use or possession of the goods furnished hereunder.
  10. DELAYS BEYOND SELLER’S CONTROL. Seller shall not be responsible for delays in performance caused by delays at manufacturing plants or in transportation or due to strikes, fires, floods, earthquakes, storms, war, insurrections, riots, any governmental regulation, order, act, or instruction, or any other circumstances beyond the Seller’s reasonable control, and Buyer’s acceptance of goods shall constitute a waiver of any claims for damages due to delay. Under no circumstances shall the Seller be liable for any loss of use by Buyer or for any direct or consequential damages arising from such delays.
  11. FOREIGN SHIPMENT. In the event his sale involves a foreign shipment, Seller declares the invoice to be true and correct in every respect and declares the goods described on the reverse side hereof to be the product of the industry of the United States of America, except as otherwise noted.
  12. ASSIGNMENT. Buyer shall not assign any order or interest therein without the written consent of Seller. Any actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel such order upon notice to Buyer.
  13. RETURNED GOODS. Buyer may not return any goods without prior written authorization of Seller. Seller may charge Buyer an amount determined by Seller for handling and restocking returned goods. Goods may only be returned for credit toward future purchases. Goods may only be returned within ten (10) days after receipt and must be accompanied by our invoice number and date of purchase. Custom items or special merchandise including all nonstandard material or goods are not returnable. Buyer shall pay all shipping and other transportation charges in returning such materials and goods to Seller.
  14. PROPRIETARY RIGHTS. Seller shall retain all rights to any invention, technical data, information, drawings, sketches, blueprints, vellums, samples, products, specifications, or any other matter, technical data and/or information, whether or not patentable, arising out of or resulting from goods sold or furnished by Seller to Buyer hereunder. Buyer agrees not to enforce against Seller, or customers of Seller, any proprietary rights arising out of or resulting from the goods sold hereunder, including, without limitation, a system incorporating any product sold hereunder. Buyer shall treat such information of Seller as confidential and Buyer shall not use such information other than in connection with the use of such goods. Buyer shall, upon request from Seller, return all drawings, designs, specifications, and written data, and copies or reproductions thereof to Seller. Buyer shall not make any copies or reproductions of drawings, designs, specifications, or written data without Seller’s prior written approval.
  15. BLANKET ORDERS. Seller changes its prices from time-to-time and prices are not guaranteed with respect to any order. If a blanket order is cancelled Buyer shall pay for all goods actually received by Buyer and any goods Seller has produced at the time of such cancellation which are not resalable within thirty (30) days. All goods ordered in a blanket order must be delivered within (6) months of date of purchase.
  16. CANCELLATIONS. Prepay orders must be paid within thirty (30) days of notification of charges or order will be considered cancelled. Orders for standard goods may not be cancelled less than two (2) weeks prior to delivery date, unless such goods are resalable, as determined by the Seller in its sole and absolute discretion; provided that in such event Buyer shall pay Seller an amount determined by Seller for restocking such salable standard goods. Custom orders may not be cancelled less than two (2) weeks prior to delivery date. Buyer will be liable for all custom goods produced. All orders on a will call basis must be picked up within two (2) weeks of notification for readiness or order will be considered cancelled with Buyer liable for any or all charges for merchandise which is not resalable within thirty (30) days.
  17. RELEASES. Buyer may change shipment due dates only if goods have not been produced and the new shipment date does not exceed six (6) months from the original order date; provided that any goods already produced by Seller prior to such notice must be accepted by Buyer on the original shipment due date.
  18. ENTIRE AGREEMENT. No agent, employee or representative of Seller has any authority to bind the Seller to any affirmation, representation, or warranty concerning the goods sold hereunder unless such representation of warranty is specifically included herein. No modification or alteration of the foregoing disclaimer of warranties or limitation of remedies provisions shall be valid or enforceable unless set forth in a separate document issued and executed by a duly authorized officer of the Seller. If a purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in this invoice, Seller’s acceptance of any order shall not be construed as assent by Seller to any such additional terms and conditions, nor will that constitute a waiver by Seller of any terms and conditions contained in these terms and conditions and
    the invoice.

Purchasing from Suppliers

  1. TERMS AND CONDITIONS: These terms and conditions control the purchase of the goods and services set forth in this Purchase Order (the “Order”). The issuance of this Order to Seller constitutes an offer expressly limited to the terms contained herein. These terms and conditions may not be waived or modified except as specifically set forth in writing by Buyer. SELLER’S ACCEPTANCE OF THIS ORDER IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY ADDITION, CHANGE OR DELETION BY SELLER IN ANY PRIOR PROPOSAL, ACKNOWLEDGMENT FORM OR OTHERWISE SHALL BE DEEMED A MATERIAL ALTERATION AND IS EXPRESSLY REJECTED BY BUYER.
  2. PLANS, SPECIFICATIONS AND TOOLING: All plans, specifications, drawings, notes, instructions or other information referred to on the face of this Order or contained in attachments or exhibits hereto or are otherwise provided to Seller are deemed to be incorporated herein by reference. All property, including without limitation, all tools, equipment, material, drawings, manufacturing aids and replacements (i) furnished by Buyer, either directly or indirectly, or (ii) as acquired or manufactured by Seller for use in the performance of this Order for which Seller has been reimbursed by Buyer, is the property of Buyer and shall be plainly marked as the property of Buyer, safely stored separate from Seller’s property, and protected to prevent unauthorized access or disclosure.
  3. PRICE AND DELIVERY: Seller shall furnish the goods or services in strict accordance with the price and delivery schedule stated herein. TIME IS OF THE ESSENCE with respect to all of Seller’s performance hereunder. If delivery or performance is not effected within the time stated in this Order, Buyer may charge Seller for any resulting expense, loss or damage and/or cancel this Order.
  4. PAYMENT: Seller shall issue invoices in accordance with the instructions on the Purchase Order and only after delivery of the goods and/or completion of the services ordered by Buyer hereunder. Buyer shall issue payment within 30 days from the date the invoices are received. Buyer’s payment is contingent upon Seller’s delivery of conforming goods and/or satisfactory completion of services. Payment made for rejected goods or services shall be refunded by Seller within ten (10) days after Buyer’s request therefor or, at Buyer’s option, shall be deducted from any other or subsequent payments due or to become due to Seller
  5. INSPECTION; ACCEPTANCE: Payment before or after inspection shall not constitute acceptance of non-conforming goods or services, and neither inspection, testing nor acceptance of the goods or services shall relieve Seller from its responsibility for latent or patent defects in the goods or other failures to meet the requirements of this Order, fraud or Seller’s warranty obligations. All replacements shall be delivered or undertaken immediately, and if not, Buyer may either replace or correct such goods and effect substitute performance for services and charge Seller for the costs incurred thereby, or terminate this Order for cause
  6. PACKAGING AND SHIPPING: Seller shall package, mark and ship the goods: (a) in accordance with the terms of this Order and good commercial practices; (b) in a manner acceptable to common carriers that will protect against the hazards of shipment and storage; (c) at the lowest practicable rate; and (d) in accordance with all applicable laws. Each package shall legibly be marked with proper handling instructions, shipping information, Order number, part or item number, if any, and the names of Buyer and Seller. An itemized packing list shall accompany each shipment.
  7. WARRANTY: SELLER WARRANTS THAT: (A) ALL GOODS DELIVERED HEREUNDER ARE FREE FROM DEFECTS IN DESIGN, MATERIAL AND WORKMANSHIP AND ARE OF A QUALITY OF WORKMANSHIP THAT IS REQUIRED BY THE BEST PROFESSIONAL PRACTICES AND PROCEDURES IN SIMILAR MANUFACTURING INDUSTRIES; (B) ALL SERVICES ARE PERFORMED IN A GOOD AND WORKMANLIKE MANNER; (C) THE GOODS OR SERVICES PURCHASED HEREUNDER STRICTLY CONFORM TO APPLICABLE SPECIFICATIONS, DRAWINGS, SAMPLES AND OTHER DESCRIPTIONS REFERENCED HEREIN AND OTHERWISE PROVIDED TO SELLER; AND (D) THE GOODS DELIVERED HEREUNDER PROVIDED BY SELLER DO NOT INFRINGE ON THE COPYRIGHT, PATENT, OR OTHER PROPERTY RIGHTS OF OTHERS. All warranties set shall run to Buyer, its successors, assigns, customers and users of its products. Any goods repaired or replaced and services reperformed shall be further warranted as set forth above.
  8. CANCELLATION: Buyer may cancel, suspend, delay or interrupt this Order or any part thereof upon thirty (30) days prior written notice or at any time for good cause by written notice to Seller specifying the effective date and the extent of such cancellation, suspension, delay or interruption. Upon receipt of such notice, Seller shall immediately terminate any affected work under the Order and take all actions to reduce its costs in connection with any affected goods or services. The occurrence of any of the following shall constitute “good cause”: (a) the goods or services or any part thereof fail any inspection or test hereunder or are defective or non-conforming; (b) the goods or services are not or cannot be delivered to Buyer as scheduled; (c) Seller makes a general assignment for the benefit of creditors or any action under any bankruptcy or similar laws is filed by or against Seller; (d) Seller fails to comply with any of the terms or conditions of this Order; or (e) any reason outside of the reasonable control of Buyer, including force majeure events. Seller shall reimburse Buyer for Buyer’s reasonable expenses that are properly and directly allocable to and result from such cancellation for good cause under clause (a), (b) or (d) above, as determined by Buyer according to generally accepted accounting principles. If Buyer cancels this Order pursuant to (a), (b), or (c) above, Seller shall pay Buyer all losses, damages, and expenses Buyer incurs as a result of such cancellation.
  9. LEGAL MATTERS: To the fullest extent provided by law, Seller shall indemnify, defend and hold harmless Buyer from and against all demands, claims, losses, liens and liabilities of whatever kind or nature, including attorneys’ fees and costs (collectively a “claim”), incurred by or asserted against Buyer arising from or related in any way to the acts, omissions or breaches of Seller or those for whom Seller is responsible. The prevailing party to any legal action arising out of this Order shall be entitled to recover attorneys’ fees and other costs it incurred in bringing such action.
  10. DEPOSIT. In the event this Order is cancelled for good cause, Seller shall return any deposit made by Buyer to Seller within three (3) business days of the same. In the event this Order is cancelled for any reason without good cause but prior to Seller’s manufacture of custom goods, Seller shall be entitled to retain half of the Deposit. In all other cases of cancellation, Seller shall be entitled to retain the Deposit. Buyer hereby retains a security interest in any Deposit made with respect to the goods or services to be delivered hereunder, together with the proceeds from the sale or other disposition thereof, until Seller has satisfied its obligation hereunder. Seller shall, upon request of Buyer, execute all documents and financing statement necessary to perfect such security interest.
  11. APPROVAL OF CHANGES. For any custom Smooth-Bor component, Seller shall obtain Smooth-Bor’s written approval prior to making any change to the production method/materials (including those of a sub-contractor); a sub-contractor; test methods/equipment; and/or relocating production sites supplier must notify the buyer of any changes to the supplied products or services.