Plas-Tanks Terms and Conditions
Sales
1. ACCEPTANCE
All proposals and the Buyer’s orders resulting therefrom, are subject to acceptance by Plas-Tanks Industries, Inc. (The Corporation) and are not binding on the Corporation unless and until so accepted. Acceptance of an order upon the Corporation’s standard acknowledgement form constitutes a complete and binding contract upon the Corporation’s terms and conditions, governed by the laws of the State of Ohio, and the rights, duties and benefits of said contract are not assignable or transferable by either party without the other’s prior written consent.
2. CANCELLATION
Following written acceptance of an order by the Corporation, cancellation of the order shall be allowed only upon the Corporation’s approval of such a cancellation charge equal to 10% of the acknowledged order and other expenses incurred for tooling, engineering, etc. It is conclusively presumed that by canceling an order, the buyer agrees to pay said cancellation charge, which charge shall be due within 15 days after the Buyer’s receipt of the Corporation’s statement therefore.
3. ORDER CHANGES
The corporation shall charge, and Buyer agrees to pay, a charge of $100.00 for processing any changes in the order or drawings after drawings have been returned to the Corporation by the Buyer as “approved’ or after orders have been accepted by the Corporation with “approval waived” by the Buyer.
4. COMPLETION DATE
The completion date, where stated, is approximate only and is subject to the Buyer’s return of approved drawings, and is further subject to delays or failure in delivery due to acts of God, acts of the Buyer, war, riots, explosions, floods, strikes, lockouts, injunctions, inability to obtain fuel, power, raw material, transportation facilities or other causes beyond the reasonable control of the Corporation. The Corporation assumes no liability for damages or costs of any kind or nature whatsoever incurred by the Buyer as a result of such delay or failure in delivery. Where agreed upon, the Corporation will accept an order with a specified delivery date only with a clause specifying a returned drawing delivery date. If liquidated damages are required by the Buyer, if such date is missed, then the Corporation requires a like sum as bonus payment, if equipment is ready for shipment, a like period prior to the specified date.
5. PRICE CHANGES
All quoted prices shall be confirmed prior to acceptance, if the price guarantee period has expired. Prices quoted by the Corporation are subject to escalation in an amount equal to the amount of any raw material, direct labor and overhead cost increase actually incurred by the Corporation prior to the date of acceptance. The Buyer shall be given prompt notice of such price increase and if it considers the new price to be unacceptable, it may cancel any such order without invocation of cancellation provisions.
6. TERMS OF PAYMENT
Terms of payment are 10% with order, 15% with drawing approval, balance Net 25 days after completion of the job. The Corporation reserves the right to amend such terms to include C.O.D., advance payments, or other terms of payment deemed necessary in the Corporation’s judgement because of the Buyer’s credit standing or the prevailing economic conditions. All amended terms shall be in writing. The Corporation reserves the right to require the Buyer to execute a Security Agreement and financing statement in accordance with the Ohio Uniform Commercial Code. Where the balance of the purchase price remains unpaid after thirty (30) days from the completion date, or date otherwise stipulated in the written amended terms of payments, a late payment finance charge of one and one-half percent (1 ½%) per month (annual percentage rate of eighteen percent (18%) shall be imposed on the unpaid balance, and the Buyer hereby agrees to pay the same.
7. DELIVERY
Each delivery shall constitute a separate sale and is subject to credit arrangements as to final payment of the purchase price. If payment is not made in accordance with terms agreed upon, or if at any time the Corporation in good faith believes that the prospect of payment, or other performance by the Buyer hereunder, is impaired, the Corporation may accelerate all payments due hereunder may file a Mechanic’s Lien against the property being impaired by the equipment delivered, or may withhold delivery of any goods called for hereunder, or under any other contract with Corporation, until satisfactory cash or credit arrangements have been established.
8. FREIGHT
Title to plant fabricated goods purchased hereunder passes to the Buyer upon execution by the carrier of bills of lading unless agreed to in writing. All responsibility for damage in transit rests with the Buyer, and it is the responsibility of the Buyer to carefully inspect all shipments upon arrival. Shipments arriving in damaged condition must be accepted and a claim for damages filed with carrier. In the event of any ruling or regulation resulting in increased freight costs, the Corporation may, at its option, increase its prices to reflect such additional freight costs, without advance notice, and the increased price shall apply to all goods shipped on or after the effective date of the rate increase, ruling or regulation.
9. RETURN OF GOODS
Goods sold by the Corporation may not be returned for credit unless prior permission is granted by the Corporation in writing. Goods returned to the factory shall not be accepted unless prior written approval has been given outlining the conditions governing such return of merchandise and unless shipped freight prepaid.
10. TAXES & DUTIES
Prices quoted do not include Foreign, Federal, state or local taxes applicable to this transaction nor any duty imposed on the goods sold herein. All such amounts shall be paid by Buyer, unless Buyer provides the Corporation with a proper exemption certificate. Where the Corporation is required by law to collect such taxes, the Corporation shall add such taxes to the sales price of the goods sold hereunder.
11. STATEMENTS AND RECOMMENDATIONS
Any statement or recommendation made or assistance given by the Corporation, or its representatives, to the Buyer or its customers in connection with the use or installation by the Buyer or its customers or any goods sold hereunder shall not constitute a waiver by the Corporation of any provision hereof or affect the liability of the Corporation as defined herein. The Buyer acknowledges that it has approved, prior to fabrication, all construction, drawings, designs, construction specification, material specifications, orientation, and dimensions. The furnishing of published or special design and installation information or field supervision does not constitute the Corporation’s acceptance of the Buyer’s design as its own or a guarantee of performance.
12. LABELS
All labels, tags or others means of identification affixed to the goods, or to any crate, carton or package containing the goods shall be identifying designations for the convenience of the Buyer only and SHALL NOT CONSTITUTE A WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. WARRANTY
(A) Except as provided in Section 12(B) and 13(C) below, the Corporation warrants (1) that the goods manufactured by it shall conform to he standards and specifications set forth in its current catalogue and/or any construction drawings approved by the Buyer, (2) that the goods shall be free from defects in material where said material was actually manufactured by the Corporation, (3) that the goods shall be free from defects in workmanship, (4) that the goods shall be made with the materials as specified, and (5) that the goods shall pass without objection in the trade under the contract description. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND EXPRESSED OR IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
(B) Where the Buyer has furnished the Corporation with plans and specifications for the goods to be purchased by the Buyer hereunder, the Corporation acknowledges receipt of the same and warrants that the goods manufactured by it, as amended by any written agreement between the Corporation and the Buyer prior to delivery, shall meet the specifications and plans furnished to it by the Buyer and shall be free from defects in workmanship. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(C) The Corporations MAKES NO WARRANTIES, EXPRESSED OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, as to any goods or materials used in any goods sold hereunder, which goods or materials were not actually manufactured by the Corporation. The Corporation assumes no responsibility for goods manufactured by others and such materials carry only the warranty of their original manufacture.
14. REPLACEMENT
The Corporation agrees that in the event any of the goods sold hereunder shall fail to comply with the provisions of the above warranty, it shall repair or replace the goods or any part thereof of its manufacture, which under normal installation, use, and service disclosed such defect, provided that the goods are intact for examination by the Corporation and it has received written notice of the specific defect within three (3) years from the date of invoice, and provided that such examination discloses in the judgement of the Corporation that the goods are thus defective. The warranty does not extend to any goods which have been subjected to misuse, neglect, accident, incorrect wiring, improper installation, or to goods used in violation of instructions furnished by the Corporation, or extend to goods which have been repaired or altered by anyone other that the Corporation’s authorized personnel.
15. LIMITATION OF LIABILITY
In the event of a breach or repudiation of this contract or any of its provisions by the Corporation, the Buyer shall not be entitled to recover incidental or consequential damages including those arising upon breach of IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY LOSSES, COSTS, EXPENSES, LIABILITIES AND DAMAGES (INCLUDING BUT NOT LIMITIED TO, LOSS OF USE OF PROFITS, EXPENSES OR OPERATION, DOWNTIME, RECONSTRUCTION OF WORK, DAMAGES TO PROPERTY, ALL LIABILITIES OF BUYER TO ITS CUSTOMERS OR THIRD PERSONS, AND ALL OTHER SPECIAL OR CONSEQUENTIAL DAMAGES) WHETHER DIRECT OR INDIRECT, AND WHETHER OR NOT RESULTING FROM OR CONTRIBUTED TO BY THE DEFAULT OR NEGLIGENCE OF THE CORPORATION, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS, WHICH MIGHT BE CLAIMED AS THE RESULT OF THE USE OR FAILURE OF THE GOODS DELIVERED HEREUNDER. The Corporation’s liability on its warranty shall in no event exceed its costs of correcting the defect in the goods sold hereunder or replacing the same with non-defective goods.
16. PATENT INFRINGEMENTS
Buyer shall, at its expense, protect, defend, indemnify and hold the Corporation harmless from and against any and all claims, damages, judgements, and loss arising from infringement or alleged infringement of any United States patent by any of the goods delivered hereunder, either alone or in combination with other goods or materials, or in the operation of any process, where said goods were manufactured in accordance with designs furnished by the Buyer; provided that in the event of suit or threat of suit for patent infringement, the Buyer shall promptly be notified and given the right to exclusive control of the defense of any such suit. All parties shall be entitled to be represented by counsel at their own expense. The Corporation shall not be bound in any manner by any settlement made in any proceedings without its written consent. The Corporation shall not be liable for any collateral, incidental or consequential damages arising out of any patent infringement or alleged patent infringement. In the event that a patent infringement is alleged prior to the delivery of goods hereunder, the Corporation shall have the right and privilege to refuse to ship any goods which allegedly infringe upon any patent, and such refusal shall not constitute a breach of this contract.
17. CERTIFICATION
The goods sold herein have been produced in accordance with the requirement of the Fair Labor Standards Act of 1938, as amended, and all regulations issued thereunder.
18. CHANGES IN TERMS AND CONDITIONS OF SALE
To the extent that any of the forgoing terms and conditions is inconsistent with terms set forth in any correspondence form the Buyer, purchase order, confirmation, etc., the foregoing provisions shall prevail. Any deviation from these general terms and conditions or those listed on the individual price sheets must be written on the face of the Corporation’s acknowledgement of the order.
19. SITUS
These general terms and conditions of sale and this purchase order shall be deemed to have been executed under the laws of the state of Ohio and shall be construed exclusively under the laws of such state.
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