STANDARD TERMS AND CONDITIONS
Goods and services sold by Seller are expressly subject to the terms and conditions set forth below. Any different or additional terms and conditions in Buyer’s purchase order or similar communication are objected to, shall not be binding on Seller unless expressly agreed to in writing by Seller and this shall not constitute an acceptance of any of them. Buyer’s acceptance of shipment or performance and/or payment for the goods or services constitutes acceptance of Seller’s terms and conditions.
- GOVERNING PROVISIONS: This offer of sale or quotation, except for price, shall be deemed open for acceptance for a period of 30 days. Cancellations, modifications and waivers of this order or any of the underlying rights or obligations shall not be effective without Seller’s written consent. These terms and conditions shall not be modified by any course of dealing or trade customs and usage.
- PRICES: Published and quoted prices are subject to change without notice. All orders are accepted with the understanding that Seller reserves the right to adjust prices to Seller’s prices prevailing at time of shipment. There shall be added to the purchase price the amount of all sales, excise, and other taxes payable or accruing by reason of sales to Buyer.
- PAYMENT: Full payment is due 30 days after date of invoicing. Interest will be charged on past-due accounts at a monthly rate of 1.5% or the highest rate permitted by applicable law, whichever is lower, on the unpaid balance until paid in full. Buyer shall pay Seller all costs incurred by it in collecting any past-due account from Buyer, including all court costs and attorneys’ fees.
- DELIVERY TERMS; RISK OF LOSS: Delivery dates are based on estimated manufacturing periods and shall not be deemed to represent fixed or guaranteed delivery dates. Delivery shall be F.O.B. Seller’s facility or point-of-origin, as applicable, and title shall pass upon delivery to carrier at point-of-manufacture and thereafter all risk of loss and damage shall be upon Buyer. Seller’s delivery obligation shall be contingent upon Seller’s approval of Buyer’s credit at time of shipment.
- FORCE MAJEURE: Seller shall not be liable for any claim, damage, loss, expense or liability as a result of any delay or failure to ship or provide services due in whole or in part to any cause beyond Seller’s reasonable control including, but not limited to, restrictions imposed by any governmental legislation, rules or regulation, any act or omission of Buyer, strikes, slowdowns or other labor unrest, embargoes, riots, storms, fire, accidents, war, act of terrorism, delay in transportation, or inability to obtain necessary labor, materials, or manufacturing facilities. Any such failure or delay by Seller shall not be considered a breach of contract. The date of shipment or for delivery of services shall be extended for a period equal to the time lost because of the delay. Should Seller’s shipment of product or provision of services become impossible, Seller’s obligation will be terminated and Seller will be compensated for products or services provided until that point.
- ACCEPTANCE; CLAIMS: Buyer shall inspect products delivered hereunder. Products shall not be subject to acceptance on the basis of any destructive or non- destructive testing unless expressly stated in Seller’s quotation or offer of sale. Any claim must be made by Buyer in writing within 20 days of receipt, and all ascertainable defects and nonconformities shall be stated with particularity or be deemed waived. Under no circumstances shall products be returned to Seller without Seller’s written permission. A claim that products are nonconforming shall not entitle Buyer to deduct any sum from any invoice unless such claim has been allowed in writing. Invoices shall be paid in full in accordance with the terms of sale. Upon verification by Seller of the defect or nonconformance, Seller may repair, replace or, in Seller’s sole discretion, credit or pay to Buyer the amount so allowed.
- CHANGES; ALTERATIONS: Seller may make such changes in the design and construction of products as shall, in its judgment, constitute an improvement. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or because materials are unavailable from suppliers.
- PATTERNS AND TOOLING: Seller shall have no responsibility for errors or variations in tooling, patterns, specifications, drawings, or designs furnished to it by Buyer. Buyer agrees to pay for changes in tooling or patterns made necessary by Buyer’s change in specifications, drawings or designs, and agrees to assume all risks of damage thereto resulting from such changes when such damage occurs without fault of Seller. Subject to Buyer’s approval, pattern and tooling changes, repairs or replacements which become necessary on account of ordinary wear shall be made at Buyer’s expense. Seller shall not be liable for damages to tooling and pattern equipment except those due to Seller’s gross negligence. Pattern and tooling storage facilities are provided by Seller for active patterns and tooling only. Patterns and tooling not in use for a period of 12 months are subject to storage charges or return to Buyer at Buyer’s expense. Seller accepts no liability for the continued existence or availability of the pattern or tooling after such period of inactivity.
- INDEMNIFICATION OF SELLER: Buyer shall indemnify, save harmless and defend Seller against any claim, demand, loss, expense or liability, including attorneys’ fees, in any way related to the manufacture and sale of products manufactured in accordance with tooling, patterns, specifications, drawings or designs supplied by Buyer, including, but not limited to, (i) actual or alleged infringement of any patents, trademarks or other intellectual property and (ii) product liability claims of any kind from any third party, unless solely the result of Seller’s negligence.
- LIMITATION ON WARRANTIES: Except as to express warranties stated in the applicable warranty policy in effect at date of sale, Seller warrants its products to be as specified in Seller’s catalog and on the face hereof for a period of one year from date of delivery. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the products shall not be construed as a warranty unless confirmed to be such in writing by Seller. For products not manufactured by the Seller, it extends to Buyer the warranties of the manufacturer only. THIS WARRANTY IS EXCLUSIVE AND SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY SERVICES, INCLUDING WITHOUT LIMITATION CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION SELLER MAY MAKE, INCLUDING ANY WARRANTIES CONCERNING THE USE, APPLICATION, PERFORMANCE, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF RECOMMENDATIONS OR DELIVERABLES.
IF ANY MODIFICATION, ALTERATION OR REMOVAL OF ANY PART OR PRODUCT NOT AUTHORIZED IN WRITING BY SELLER RESULTS IN ANY INJURY TO A PERSON OR DAMAGE TO PROPERTY, THEN NO WARRANTY HEREIN SHALL APPLY, AND BUYER SHALL INDEMNIFY SELLER AGAINST ANY CLAIM, DEMAND, LOSS, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS’ FEES, IN ANY WAY RELATED TO SUCH INJURY OR DAMAGE.
- LIABILITIES AND DAMAGES: Buyer agrees that if products are nonconforming, Buyer’s exclusive remedy shall be one of the following, at Seller’s option, (a) repair or replacement of the nonconforming products or (b) repayment to Buyer of the purchase price. IN NO EVENT SHALL BUYER BE ENTITLED TO (NOR SELLER LIABLE FOR) ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES OF ANY KIND, WHETHER ARISING OUT OF (A) THIRD PARTY CLAIMS AGAINST BUYER, OR (B) BREACH OF CONTRACT, TORT, WARRANTY (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS, OR OMISSIONS RELATING THERETO.
- LIMITATIONS ON SUITS AND ACTIONS: No action or suit to enforce Buyer’s rights or remedies arising from this sale shall be commenced later than one year from the date of shipment.
- PURCHASE MONEY SECURITY INTEREST: Buyer grants a purchase money security interest to Seller in all goods in Buyer’s possession manufactured by Strickland Manufacturing and its subsidiaries for which Strickland has not received full payment, including but not limited to, all Strickland earthmoving and crushing parts, wearing parts and teeth, adapters, buckets, bucket parts, cutting edges and accessories thereof. Buyer authorizes Strickland to file one or more financing statements pursuant to the Uniform Commercial Code, and any amendments thereto, in form satisfactory to Strickland, and will pay all costs of filing any financing, continuation or termination statement, with respect to the security interest created by this agreement.
- APPLICABLE LAWS: All orders, sales and these terms and conditions shall be governed by the laws of the Commonwealth of Virginia, excluding conflict of law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. All laws and regulations required to be incorporated in agreements of this character are incorporated herein by this reference. If any provision of these terms and conditions is invalid or unenforceable in any respect for any reason, the validity and enforceability of such provision in any other respect and of the remaining provisions will not be in any way impaired and will remain valid to the fullest extent permitted by law.
- FINAL AGREEMENT: These terms and conditions constitute the entire agreement between Seller and Buyer with respect to the subject matter thereof, and there are no understandings, agreements or representations, express or implied, which are not contained herein.
Sale v. 6/08