1. GENERAL – This agreement relates to an offer by Indak Manufacturing Corp. (“Seller”) to Buyer. If Buyer issues a Purchase Order or other contract in response to Seller’s offer, then each such order constitutes Buyer’s acceptance of Seller’s offer and of these Terms & Conditions to the exclusion of any provisions of Buyer’s order. Any quotation issued by Seller is valid only within 30 days of the quotation date.
2. QUANTITIES – Seller is allowed a ten percent (10%) over-or-underrun leeway on the quantities stated in any order Buyer places, and Buyer agrees to accept such over-or-underrun as fulfillment of Seller’s delivery responsibility. Any deviation from these Terms & Conditions by Seller does not constitute a waiver of these Terms & Conditions for any purpose.
3. PRICES AND TERMS OF PAYMENT – If Seller changes specification, testing, inspection, marking, packaging, or other requirements, or if the cost of materials or components that Seller buys increases during the Purchase Order’s life, or if the actual quantity Buyer orders differs from Seller’s quoted volume by more than 10%, or if low volume service orders by Buyer increase Seller’s costs, Seller may increase prices to reflect Seller’s increased costs. All prices are ex-Works Seller’s factory.
4. TAXES – Prices exclude all taxes which, if due, Buyer must pay. Buyer must supply Seller with evidence of tax exemption.
5. CREDIT & COLLECTION – Buyer agrees to pay Seller for all goods within 30 days of shipment by Seller. Seller will charge 18% APR interest on late payments. Seller reserves the right to modify credit terms at any time without notice. Seller may, in its sole discretion demand future payments C.O.D. if Buyer ever pays late. Buyer shall pay Seller’s reasonable costs of collection, including attorney’s fees.
6. PACKAGING – Seller reserves the right to determine how products are packaged. Special requirements for packaging will be subject to extra charges.
7. CANCELLATION OR DELAY – Purchase Orders accepted by Seller cannot be countermanded or deferred by Buyer except with Seller’s written consent.
8. DELAYS – Seller is not liable for Buyer’s damages arising from delay due to fire, flood, acts of God, war, labor difficulties, power, shortage of material or supplies, transportation delays or any other cause (whether or not similar in nature to any of those herein above specified).
9. QUALITY INSPECTION AND ACCEPTANCE – The products shall be deemed finally inspected and accepted within ten (10) days after Buyer’s receipt thereof unless Buyer gives Seller written notice of claim within that period. The products covered by this quotation shall be manufactured to the Seller’s standard quality level. Any changes from this quality standard must be agreed upon in writing signed by the Buyer and the Seller.
10. LIMITED WARRANTY – Seller will replace free of charge or issue credit at the established price for parts that Seller supplies if such parts fail during the first twelve months of Buyer’s use if such failure is due to Seller’s defective material or Seller’s defective workmanship. To determine Seller’s responsibility as outlined above, any parts claimed to be defective due to Seller’s fault must be returned to Seller at Buyer’s expense for inspection. If this inspection indicates that the defective parts are Seller’s responsibility, then Seller will make proper settlement by replacing parts at no cost or by issuing credit at the established production price, in Seller’s sole discretion.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS PROVIDED IN THIS PARAGRAPH. SELLER EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, PERFORMANCE, OR FITNESS FOR A PARTICULAR PURPOSE. Seller shall not be liable for any incidental, consequential, punitive, treble, or other type of damages of any kind. If Buyer wants financial protection for such damages, or for damages it incurs as a result of any recall of Buyer’s product that incorporates Seller’s product, or any recall of a third-party’s product that incorporates Seller’s and Buyer’s product, then Buyer agrees to buy insurance for such risks and agrees not to attempt to hold Seller responsible.
If parts or components not made by Seller are damaged in any way during the repair, replacement, or inspection of any part sold by Seller to Buyer, then all costs associated repair or replacement of such parts or components not made by Seller is Buyer’s responsibility.
11. RETURNS – Buyer cannot return any product without Seller’s prior written authorization.
12. TOOLS – All tooling necessary to produce the product is Seller’s property, even if Buyer pays Seller a charge for tooling. If Buyer has not ordered product for a period of twelve months, Seller may consider the product obsolete and may dispose of tools, drawings and inventory at Seller’s discretion, without notice to Buyer, even if Buyer has paid Seller a charge for tooling.
13. CHOICE OF FORUM – Illinois law governs the rights and obligations of Buyer and Seller without giving effect to principles of conflicts of law. Any lawsuit between Buyer and Seller shall be filed exclusively in Cook County Illinois Circuit Court, or the United States District Court for the Northern District of Illinois.
14. CONFLICT OF FORMS – These Terms & Conditions shall be deemed included as part of any Purchase Order or other contract placed by Buyer with Seller in accordance with or as a result of Seller’s offer. Seller’s terms supersede the terms contained in Buyer’s Purchase Order or other forms. Seller deems any additional or different terms in Buyer’s Purchase Order or other forms material alterations to any contract between Buyer and Seller, and this document constitutes Seller’s notice to Buyer of Seller’s objection to any additional or different terms in Buyer’s Purchase Order or other forms.
15. OBSOLESCENCE – Buyer and Seller both recognize that some components that Seller buys to manufacture Buyer’s products have varying lead times. These lead times may be longer than the time between Buyer’s FIRM orders to Seller and Buyer’s desired delivery dates. To help ensure timely delivery to Buyer, Seller may commit in advance to buy components to be used to fill Buyer’s orders. Seller may need to reasonably rely on Buyer’s planning estimates, or Seller may estimate Buyer’s future needs, when ordering such components. Buyer therefore agrees to pay Seller for any and all components that Seller orders, and/or to reimburse Seller for cancellation charges that Seller incurs in reasonably anticipating Buyers future requirements, even if such components do not become part of finished parts actually ordered by and delivered to Buyer. Buyer will pay Seller for all such components within thirty (30) days of any significant change in Buyer’s order releases, or when this Agreement ends for any reason.
16. CHANGES IN SELLER’S SUPPLIERS – Seller reserves the right to change vendors of any components without notice to or approval of Buyer.
17. ENGINEERING CHANGES – Seller reserves the right to modify any design or process without notice to or approval of Buyer.
18. PRODUCTION FACILITIES – Seller may change the location of production processes within or between any of Seller’s plants, or may outsource some or all of the production to third-parties’ plants without notice to or approval of Buyer.
19. SELLER’S RIGHT TO TERMINATE – Seller may terminate any agreement between Buyer and Seller at any time for any reason upon thirty (30) days advance written notice to Buyer. Upon termination, Seller retains all rights to all tools, drawings, records, designs, and intellectual property.
20. DRAWINGS AND SPECIFICATIONS – All drawings, models, data, designs, patents, instructions, software, specifications, and other technical information of any kind, (“Designs”), supplied or prepared by Seller or its subcontractors are and shall remain Seller’s property. Buyer shall not use or disclose such Designs without Seller’s prior written consent, and Buyer shall return all Designs to Seller upon request.