TERMS + CONDITIONS
Terms and Conditions Agreement
Please read these terms and conditions carefully. They materially affect the parties’ obligations. EVCO Plastics (“Seller”) is bargaining for and will do business only on the terms and conditions on this form.
1. Acceptance and Filling of Orders; Contrary Terms; Entire Agreement. All orders for goods and/or services (“Articles”) are subject to acceptance by Seller at its home office. BUYER’S ORDER IS ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN AND THE PROVISIONS OF ANY PURCHASE ORDER OR OTHER WRITING INCONSISTENT HEREWITH SHALL NOT CONSTITUTE A PART OF THE CONTRACT OF SALE. Seller’s acceptance is conditional on Buyer’s assent to these terms and conditions and if any of these terms and conditions are not acceptable to Buyer, Seller must be notified promptly. This writing is intended by the parties to be the final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions thereof and that a contract be formed between the parties. No modification of any term or condition will be valid or binding upon Seller unless approved by Seller in writing by Seller’s duly-authorized personnel. The authority of agents of the Seller is limited to solicitation of orders and collection of debts.
2. Excuse From Performance. Seller is excused from performance if performance is rendered impracticable by any accident; breakdown; sabotage; riot; insurrection; war; delay; interruption in or failure of sources or subcontractors to supply materials and equipment; strike, labor or transportation problem; act of God; other causes and conditions, whether of like or different nature, that affect Seller; and orders, contracts, priorities, directives, requisitions or requests of the federal or state governments, whether or not voluntarily assumed.
3. Taxes and Fees. Unless otherwise specified on the front of this form, prices stated on this form do not include any manufacturers, sales, use or excise taxes, charges or duties. Buyer will pay all such taxes, charges, and duties. Buyer will also pay Seller any collection fees and reasonable attorneys’ fees incurred by Seller in enforcing this agreement or defending against any claim for breach of this agreement.
4. Prices; Stock Articles. Unless specifically held open for a length of time on Seller’s Quotation, all prices are subject to change without notice and any unshipped balances on purchase orders will be invoiced to and paid by Buyer at prices in effect at the time of delivery. Prices are based on the continued production of the quantity specified on Seller’s Quotation, and any change in the production run is subject to re-quote. Seller may impose a 50% tool charge if Buyer removes patterns, molds, tools, or related equipment within one year of order. Shipment in whole or part signifies acceptance by Seller to the extent of shipment only, at the prices stated on Seller’s shipping invoice. Unless otherwise specified, no Articles will be carried in stock by Seller.
5. Payment Terms. Unless otherwise specified on Seller’s Quotation, molding is 1% within 10 days of invoice date, net 30 days, and tooling is net 10 days of invoice date. Seller reserves the right to require payment in advance or C.O.D., or to otherwise modify credit terms. A finance charge of 12% per month, which is an annual percentage rate of 18% per annum, will be charged on past due accounts. All orders are subject to approval of Seller’s Credit Department. Remittance shall be made to Seller at address shown on invoice. Clerical errors in Quotations or invoices are subject to correction.
6. Freight Charges. Freight charges are for Buyer’s account and are payable to carrier on delivery. If Seller elects to prepay freight for Buyer’s convenience, the same together with applicable tax will be added to Buyer’s invoice. Buyer agrees to make all claims for Articles damaged against carrier. Order is accepted subject to any changes in freight rates.
7. Risk of Loss; Shipment. Unless otherwise specified on the front of this form, all shipments are F.O.B. Seller’s plant or shipping point. Shipping dates on any quotation, purchase order, sales acknowledgment, invoice, or material release order are estimates only. Risk of loss will pass to Buyer at the time the Articles are tendered for shipment. Title to the Articles will remain with Seller until payment is received in full by Seller. Seller will use every reasonable effort to meet the estimated shipping date, subject to Buyer’s prompt provision of all necessary, complete and correct plans, specifications, information and data, but Seller shall not be held responsible for failure to meet such estimated date. If Buyer requires special production service for unusual shipments, an additional charge shall be imposed, as agreed upon by the parties. All acknowledgments are based on Buyer accepting over-runs and under-runs not exceeding 10% of the quantity ordered. Limits, unless otherwise specified, will be considered plus or minus .010″.
8. Exclusive Warranty.
(a) Articles Made by Another. If Buyer’s order is for Articles made by another, Buyer acknowledges that Seller is not the manufacturer of the Articles and, therefore, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE ARTICLES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT. All Articles are warranted only to the extent of the manufacturer’s express warranties to Seller, which Seller will provide at Buyer’s request.
(b) Articles Made by Seller. If Buyer’s order is for Articles made by Seller, Seller makes no warranty to Buyer or to anyone else that the Articles are merchantable or fit for any particular purpose. Seller makes no warranty as to any design, construction or material specifications and such specifications are the sole responsibility of the Buyer. The sole responsibility of Seller shall be that it will manufacture the Articles using the Buyer’s molds, and that the Articles will be free from defects in material and workmanship. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Required Notices; Limitation of Remedies. Seller must be given notice of any rejection of Articles within 14 days of receipt of the Articles with respect to which the claim is being made. If samples are provided by Seller, Buyer must give notice of any rejection of the samples within 14 days of receipt of the samples. Seller’s liability and Buyer’s sole and exclusive remedy under this agreement for any claim against Seller will be limited to repair, replacement or credit, at Seller’s option, with respect to Articles returned to Seller at Buyer’s expense within 30 days after Buyer’s receipt of the Article. All return Articles are subject to inspection by Seller before any repair, replacement or credit will be issued and any Article which has been defaced, altered, or worked upon in any way, will not be subject to repair, replacement, or credit. Molded Articles are not considered to be rejectable because of variation from print specifications, if they are made to and are unchanged from samples provided by Buyer, or if Buyer has not rejected samples provided by Seller within 14 days of receipt of the samples. Buyer warrants that any and all plan and specifications provided to Seller meet all applicable design standards, whether mandatory or voluntary issued by any governmental body, testing laboratory, or industry association.
10. Exclusion of Consequential and Incidental Damages; Exclusion of Tort Remedies.
SELLER WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LABOR COSTS OR LOST PROFITS RESULTING FROM THE USE OF OR INABILITY TO USE THE ARTICLES OR FROM THE ARTICLES BEING INCORPORATED IN OR BECOMING A COMPONENT OF ANY OTHER ARTICLE. This is a commercial sales transaction. The parties want it to be governed by Article 2 of the Uniform Commercial Code and related commercial legal principles. NEITHER PARTY WILL HAVE ANY NEGLIGENCE OR OTHER TORT LIABILITY TO THE OTHER, OR TO ANY THIRD PARTY, ARISING FROM ANY BREACH OF THIS AGREEMENT. It is intended by the parties that the exclusions of consequential and incidental damages and tort remedies are separate and distinct from any limitation of remedies provided hereunder.
11. General Indemnity; Patent Indemnity.
(a) Seller shall not be liable for any loss or incidental or consequential damages, including without limitation lost profits, sustained by Buyer or any user of an Article arising from the production and/or distribution of Articles manufactured by the Seller for the Buyer. Buyer agrees to indemnify, defend and hold the Seller harmless from and against any and all claims, losses or liability (including attorneys’ fees and court costs) for which Seller may be or become liable in any manner arising out of the production and/or distribution of Articles manufactured by the Seller for the Buyer.
(b) Seller shall not be liable for any loss or incidental or consequential damages of any nature whatsoever, including without limitation lost profits, sustained by Buyer or any user of an Article, in the event the Article is claimed to infringe any United States patent, copyright, trademark or other trade designation, trade secret, or other intellectual property right. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS AGAINST ALL DAMAGES, COSTS OR EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS), PAID OR INCURRED BY SELLER IN CONNECTION WITH ANY CLAIM OF INFRINGEMENT OF A PATENT, COPYRIGHT, TRADEMARK OR OTHER TRADE DESIGNATION, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT WHICH ARISES OUT OF SELLER’S MANUFACTURE OF AN ARTICLE. Seller will also have no responsibility with regard to any settlement, admission or promise made by Buyer without Seller’s prior written consent.
12. Trademarks. Buyer warrants that any trademark Buyer requests Seller to affix to any Article is owned or authorized for use by Buyer.
13. Patterns and Related Equipment; Inserts. Unless otherwise specified on Seller’s Quotation, Buyer will provide patterns or related equipment (which will include but not be limited to machine work, tapping, special gauges, fixtures, molds, or tools) in accordance with the Quotation description or will authorize Seller, at Buyer’s expense, to provide same. If supplied by Buyer, patterns and related equipment must be in such condition to economically produce the quantity and quality of Articles required. Seller is not responsible for variations between blueprints and patterns and related equipment if they are made to and are unchanged from samples provided to or approved of by Buyer. Patterns and related equipment not in use for one year will be considered inactive. Buyer will be notified of such inactive status. If Buyer does not respond and provide a shipping destination within 30 days of such notice, inactive patterns and related equipment will be disposed of by Seller. Seller is not responsible for loss of or damage to patterns or related equipment. All patterns and related equipment owned by Buyer and in Seller’s possession are held by Seller at Buyer’s sole risk and responsibility. Buyer must insure and maintain its patterns, molding tools, and related equipment at all times while in Seller’s possession. Seller will, at Buyer’s request, furnish building specifications and protective details to the insurer. Any inserts must be supplied by Buyer unless otherwise specified on Seller’s Quotation, and must exceed the quantity of Articles ordered by 10% and be delivered to Seller at Buyer’s expense. Inserts are subject to Seller’s approval, and must be accurate, uniform, and without burns. Unless otherwise specified on Seller’s Quotation, the finish of the molded parts includes only such polish as is obtained directly from the dye.
14. Claims, Cancellation, Changes. All claims for error in weight or quantity must be made within 14 days of receipt of the Articles with respect to which the claim is being made. Seller reserves the right to accept or reject any such claim in whole or in part. Cancellation, modification, suspension, or delay in shipment of Buyer’s order will not be accepted on terms that will not fully indemnify and reimburse the Seller against loss. Such indemnity will include recovery of all direct costs incurred, including normal indirect and overhead charges and a normal profit. No change proposed by Buyer in any terms and conditions will be valid or binding upon Seller unless approved in writing by Seller’s duly authorized personnel.
15. Notices. Any notice relating to this agreement must be sent by first class mail and will be presumed to be given when deposited, postage prepaid, in a United States Post Office or authorized depository and addressed to the other party at the address given herein.
16. Setoff. Seller may set off any amount due from Buyer, whether or not under this Agreement, against any amount that may become due to Buyer hereunder.
17. Security Interest. Buyer hereby grants to Seller a security interest in all patterns, tools, molds, and related equipment now or hereinafter in Seller’s possession to secure all debts, obligations and liabilities of Buyer to Seller arising out of credit previously granted, credit contemporaneously granted or credit granted in the future by Seller to Buyer.
18. Assignment. Buyer may not assign any of its rights, duties or obligations under this Agreement without Seller’s prior written consent.
19. Controlling Law. The validity, construction and enforcement of this Agreement will be governed by and interpreted under the local, domestic law of the State of Wisconsin, including its provision of the Uniform Commercial Code.
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