BLUE CHIP ENGINEERED PRODUCTS, INC.
INVOICE TERMS AND CONDITIONS
- ACCEPTANCE: THE TERMS AND CONDITIONS SET FORTH ON THE INVOICE AND BELOW CONSTITUTE ALL OF THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND SELLER. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY ANY AGENT OR EMPLOYEE OF SELLER THAT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS HEREOF SHALL HAVE NO EFFECT. Buyer accepts the terms hereof by acknowledging or confirming this invoice, commencing performance, by accepting delivery of goods from Seller or by any other means manifesting assent to be bound. Any additional contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the goods described on the front side hereof (the “Goods”) are hereby objected to and shall be of no effect. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. All orders are subject to the approval by Seller at its offices in Erlanger, Kentucky. No waiver or alteration of terms herein shall be binding unless in writing, signed by an executive officer of Seller.
- DELIVERY DATE: All estimates of delivery time are approximate, and failure to effect shipment of an accepted order by such estimated delivery date will not be considered sufficient cause for cancellation without prior agreement confirmed in writing by our authorized agent.
- TRANSPORTATION AND DELIVERY: Unless otherwise specifically provided on the front side hereof, the price of any Goods sold is F.O.B. Seller’s plant. Title to any Goods sold and the risk of loss of such Goods passes to Buyer upon delivery by Seller to the carrier, and any claims or losses or damage in transit shall be filed by Buyer directly with the carrier. Seller reserves the right to ship goods via the most economical routing; if shipped otherwise upon the Buyer’s request, Buyer shall pay the difference in the rate of transportation.
- CANCELLATION OR SUSPENSION OF ORDERS: Cancellation or suspension of orders will be accepted by Seller only upon terms that will indemnify Seller for liabilities and expenses incurred and for commitments made by Seller and which will provide for profit on work in process and for the contract value of Goods completed and ready for shipment. Postponement of deliveries at Buyer’s request, if for a period of more than thirty (30) days, will not be made without Seller’s approval first being obtained. This provision shall not preclude Seller from recovering all damages and costs of whatever nature permitted under the Uniform Commercial Code.
- TAXES: Unless otherwise specifically provided for on the front side hereof the price for the Goods purchased is net of sales, use, excise or similar taxes, whether federal, state, or local. The amount of any such taxes applicable to the Goods shall be paid by Buyer unless Buyer provides Seller with a valid exemption certificate acceptable to Seller and the appropriate taxing authority. All orders are subject to an increase in price in the event any federal or state legislation, including tax legislation, comes into effect and increase the cost of production of any Goods purchased. Such price increase shall not be greater than the increased cost of production.
- PAYMENT: Payment for Goods purchased hereunder shall be net thirty (30) days after the date of invoice. The unpaid balance after thirty (30) days shall be subject to a late charge of 1.5% per month or portion thereof or, if lower, the highest rate allowed by applicable law. In the event of installment deliveries, Seller shall be relieved from making any further shipments if Buyer fails to make payment for any installment when due. If Buyer defaults in any payment, Seller may ship subsequent deliveries with sight draft attached to the Bill of Lading. Seller specifically does not waive any lien rights, but if so requested, partial waivers will be delivered in return for partial payments and final waiver will be delivered in return for final payment. All payments shall be made in U.S. currency unless otherwise agreed to by Seller in writing.
- COST OF COLLECTION: If Buyer defaults with respect to any payment described here and above, it shall pay Seller for all costs and expenses, including legal expenses and attorney’s fees, incurred by Seller in exercising any of its rights or remedies.
- LIEN: Buyer grants Seller as security for all debts, liabilities and obligations owing by Buyer to Seller, whether under this Agreement or otherwise, a lien and security interest in Buyer’s rights, title and interest in the Goods and the proceeds thereof, including without limitation any accounts receivable from the sale of Goods. Buyer authorizes Seller to file all UCC financing statements and other documents Seller may deem necessary to perfect the security interest granted herein.
- GENERAL CONDITIONS:
(a) Seller will not accept the return of any Goods without its prior written consent or unless a Returned Goods Authorization (RGA) Number is issued by Seller. Seller shall not be required to accept the return of any sterile, outdated or discontinued goods. All returned goods are subject to a minimum 30% restocking fee.
(b) In any case in which Seller is specifically obligated to pay freight on shipments, any increase in freight rates paid by Seller arising subsequent to the acceptance by Seller of the order of the products, may at Seller’s option, be added to the purchase price of the Goods and in that event shall be paid by the Buyer.
(c) No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not constitute a bar to or a waiver of any such rights or remedy on any future occasion.
(d) If any provision of the Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Agreement.
(e) Buyer shall not assign its rights or obligations under this Agreement without Seller’s prior written consent.
- LIMITED WARRANTY/LIMITATION OF LIABILITY: Seller warrants only that Goods delivered will be free from defects in workmanship and material, and will conform to any approved sample or specifications. The foregoing warranties shall expire 90 days from the date of delivery of the Goods to Buyer.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER. SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY LOSS, CLAIM, DEMAND, LIABILITY, COST, DAMAGE OR EXPENSE OF ANY KIND CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY THE GOODS OR BY ANY INADEQUACIES THEREOF, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF BUSINESS, PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER DAMAGE OF ANY NATURE, WHETHER ARISING IN TORT, CONTRACT, WARRANTY OR STRICT LIABILITY.
Seller has the option of either replacing defective Goods or crediting Buyer for the purchase price for such Goods. In no event shall Seller be responsible for incidental, consequential, special, or punitive damages from any defect in the Goods or breach of warranty including, but not limited to, Buyer’s, user’s or any other person’s loss of material or profits, increased expense of operation, downtime or reconstruction of work, or damages arising out of any products liability claim and, in no event shall Seller’s liability (whether under the theories of breach of contract or warranty, negligence, or strict liability) exceed the contract price paid for the Goods delivered by Seller. These remedies are the exclusive and sole remedies for any breach of warranty. Buyer shall give written notice to Seller of any claim for breach of warranty or of nonconforming Goods within thirty (30) days after receipt of the Goods if the breach or defect in the goods was or should have been discovered upon inspection of the Goods; and Buyer shall give written notice to Seller of any other claim for breach of warranty within ninety (90) days after it discovers or should have discovered such breach. All claims for clerical error or shortage must be made within ten (10) days of delivery of the goods to Buyer. Any remedy of the Buyer against Seller shall be barred unless notice is given in accordance with the foregoing provisions. All actions by the Buyer for breach of warranty against Seller shall be brought within one year after the cause of action thereon accrues. Seller shall be given a reasonable and prompt opportunity to investigate any Goods concerning which a claim is made.
- INDEMNIFICATION: If the Goods are manufactured by Seller in accordance with Buyer’s instructions or specifications, Buyer shall indemnify, defend and hold Seller, its parents, subsidiaries and affiliates and its and their directors, officers, agents and representatives harmless from and against any claim, lien, loss, cost, damage, expense or judgment (including attorneys fees) due to any alleged or actual infringement or violation of any patent (domestic or foreign), copyright or other intellectual property right of any person or entity arising out of the manufacture, sale, use, installation or resale of the Goods
- MODIFICATION AND WAIVER: The terms set forth herein constitute the entire agreement between Buyer and Seller and there are no understandings or representations of any kind except as herein expressly set forth. Any alterations or modifications thereof shall be by mutual agreement of the parties and shall not be binding on Seller or Buyer unless made in writing and agreed to by a duly authorized official of Seller and Buyer. No claim or right arising out of breach of this contract can be discharged in whole or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is in writing.
- FORCE MAJEURE: Seller shall not be liable for any loss, damage, delay, changes in shipment, schedules or failure to deliver, whether arising in tort, contract or warranty, caused by accident, fires, strikes, riots, civil commotion, terrorism, embargoes, failure of carriers, inability to obtain transportation facilities, foreign or local governmental requirements, acts of God, prior orders from customers or limitations on Seller’s or its suppliers’ production or any other causes of contingency beyond Seller’s control. In such event, Seller shall not be liable for any consequential, incidental or special damages to Buyer. Seller may, at its option and without liability, cancel all or any portion of this Agreement and/or extend any date upon which performance hereunder is due.
- EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Unions, and the jurisdictions in which Seller and Buyer are established or from which items may be supplied, will apply to its receipt and use of goods and services. In no event shall Buyer use, transfer, release, import, export or re-export goods or products in violation of such applicable laws, regulations, orders or requirements.
- APPLICABLE LAW AND FORUM: All matters arising from or relating to the sale of the goods subject to this order shall be governed by the laws of the Commonwealth of Kentucky, without reference to the principles of conflict of laws. Any suit, action or proceeding arising out of the sale hereof shall be instituted by either party in the courts of the Commonwealth of Kentucky, Boone County, or United States District Court for the Eastern District of Kentucky and Seller and Buyer irrevocably and unconditionally submit and consent to the jurisdiction and venue of any such court for such purpose, and each waives any obligation it may have as to the venue of any dispute arising out of or in connection with this transaction.
BLUE CHIP ENGINEERED PRODUCTS, INC.
PURCHASE ORDER TERMS AND CONDITIONS
- Applicable Terms. This order may be accepted by Seller only in accordance with the terms hereof. Any acceptance herein of an offer of Seller, or any confirmation herein of a prior agreement between Blue Chip Engineered Products, Inc. (“Buyer”) and Seller is expressly made conditional on Seller’s assent to the additional or different terms contained herein. Any additional or different terms proposed by Seller are expressly rejected unless assented to by Buyer in writing.
- Acknowledgement and Shipment. Seller shall acknowledge this order immediately, advising Buyer of when shipment will be made and confirming method of shipment. Dispatch of Seller’s acknowledgment form or any other written documentation will act as an acceptance if it agrees with this order with respect to the description, amount, price and time of delivery of the goods or services ordered. Unless otherwise specified, time is of the essence and immediate shipment is required. Seller shall give prompt notice of any delay. A shipment will be considered on time if delivery is made by the requested delivery date or up to two business days early. If an order does not meet Seller’s minimum billing requirements, Seller shall promptly notify Buyer, in which event Buyer, reserves the right to either cancel or increase order.
- Delivery/Title. Unless otherwise agreed, delivery shall be F.O.B. point of destination and title shall pass to Buyer upon acceptance at the final delivery point. Risk of damages or loss following shipment and prior to acceptance by Buyer shall be the responsibility of the Seller. No charges for boxing, packing, or crating will be allowed unless agreed to in writing, and signed by Buyer’s authorized agent. If Seller fails to deliver the goods in full on the required delivery date, Buyer may terminate this Order by providing Seller written notice and Seller shall indemnify Buyer against any losses, claims, costs and expenses directly attributable to Seller’s failure to deliver the goods as required.
- Inspection & Acceptance. Items purchased hereunder are subject to preliminary inspection and approval at Buyer’s destination. Buyer reserves the right to reject and refuse acceptance of items which are not in full accordance with Buyer’s instructions, specifications, drawings or designs, as the case may be. Final inspection and acceptance of the product shall be by the Buyer’s customer if the product is not destined for use by Buyer and shall not in any way reduce or limit Seller’s continuing responsibility existing under this document. Items not accepted will be returned at Seller’s expense. Payment for any item shall not be deemed an acceptance thereof. All substitutions must be agreed to, in writing, prior to shipment.
- Invoices. Invoices must contain the following information: Purchase Order number, Seller’s item number, Buyer’s material number, description of supplies or services, sizes, quantities, unit prices and extended totals. All invoices must be issued in the same unit of measure as shown on the purchase order. In connection with any discount offered for prompt payment, time for earning the discount will be computed from the date the correct invoice is received.
- Changes. Buyer may at any time, by written notice, make changes in: (a) drawings, designs or specifications (where the items to be furnished are to be specially manufactured for Buyer in accordance therewith); (b) method of shipment or packing; and (c) time or place of delivery. If any such changes cause an increase or decrease in the cost of, or time required for, performance of this order, Seller shall advise Buyer of such increase or decrease in writing. Buyer shall in turn advise Seller if it agrees that an adjustment will be made in the price or delivery schedule, or both. No variation in the quantity of any item will be accepted unless agreed to by the Buyer. Seller shall notify Buyer immediately of any events which will delay the Seller’s performance of this order. If this order refers to any third party contract, plans and/or specifications, any delay in performance by Seller which shall subject Buyer to damages for delay to such third party shall be the obligation of Seller and Seller shall hold Buyer harmless in that behalf.
- Warranty: Seller warrants to Buyer that all goods sold by Seller to Buyer will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. In addition to any and all other remedies provided to Seller by law or equity, items found to be defective in workmanship or material after date of acceptance shall be repaired or replaced, at Buyer’s option, at no charge to Buyer. All freight charges involving the shipment of defective items shall be charged to the Seller.
- Indemnity: By accepting this order, Seller agrees to defend, protect and save harmless Buyer, its successors, assigns, employees, customers, distributors, dealers, agents and users of its products, against all liability suits at law or in equity, and from all damages, claims and demands, for actual or alleged infringement of any United States or foreign Patent, Trademark or Copyright relating to the goods ordered, for Seller’s breach of these terms, or for Seller’s negligence, including reasonable counsel fees and costs of litigation.
- Cancellation. Buyer, by written notice, may cancel this order, in whole or in part at any time with or without cause for undelivered goods. In addition to any other remedy available at law, Buyer may terminate this order as a result of Seller’s default, and the Seller shall be liable for all damages allowed in law or equity, including the excess cost of procuring similar items. If this order is cancelled by Buyer without cause, Seller shall be entitled to the purchase price for items that have been accepted by Buyer prior to the effective date of cancellation. Other than to this extent, Buyer shall not be liable to Seller for any damages on account of its failure to accept all of the items ordered.
- Confidentiality. All specifications, data and other information furnished by Buyer, or its agents, to Seller in connection with this order remain the exclusive intellectual property of Buyer and shall be treated by the Seller as proprietary and shall not be disclosed or used, outside the limitation of this order, without prior written approval of the Buyer.
- Infringements. If suit is brought against Buyer alleging that the items as such or any parts or equipment covered by this order or their use as such constitute an infringement of any patent, trademark, or other right of any third party, Seller shall defend Buyer and pay any awards against Buyer, including reasonable attorney’s fees, for such infringement provided Buyer gives Seller prompt written notice and permits Seller to defend.
- Compliance with Laws. Seller will comply with all federal, state, municipal and local laws, codes, regulations and ordinances effective where the work under this order is to be performed.
- Severability. The invalidity of any term set forth herein shall not invalidate or otherwise affect any other terms hereof.
- Governing Laws. All matters arising from or relating to this order or the goods subject to this order shall be governed by the law of the Commonwealth of Kentucky without giving effect to any choice or conflict of laws provision or rule, and any legal proceeding arising from or relating to this order or the goods subject to this order shall be instituted in the state or federal courts located in Boone County, Kentucky. Seller irrevocably and unconditionally consents to the jurisdiction and venue of such courts for such purpose.