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Risk Industries, LLC d/b/a Pines Technology and H&H Tooling (“the Company”) and the Buyer agree to the following conditions of sale regarding the purchase by Buyer from the Company, which are fully incorporated into any purchase order related to same.
Unless otherwise agreed by the parties in writing, terms of payment are as follows:
(a) The prices quoted are net F.O.B. Westlake, Ohio;
(b) Net 30 days;
(c) Orders for special machines and tools are subject to a progressive payment plan to be agreed by the parties;
(d) All orders subject to Approval of the Company’s Credit Department.
(e) The contract price many not exceed the maximum price permitted by any government agency,
(f) administering price controls applicable as of the date of delivery of the machine.
2. EXPORT TERMS.
Export orders must be accompanied by a confirmed irrevocable letter of credit in our favor with an accredited United States bank, subject only to our draft accompanied by invoices and signed bills of lading as evidence of shipment from our plant via rail and motor express, and payable in immediately available United States funds.
3. MINIMUM BILLING.
The minimum charge is $40.00.
4. PACKING CHARGE.
All machines on domestic orders are crated and skidded for shipment. A charge is made for export packing.
Any direct, excise, sales or other taxes imposed by any government authority (federal, state, or local) shall be added to prices.
6. RETURNED GOODS.
No material returned will be accepted for credit, repair or replacement, unless such return is first authorized by us and is accompanied by the Company’s RETURN TAG.
The Company shall not be liable for loss, damage, detention, or delay resulting from causes beyond its control, or caused by fire, strike, civil or military authority, insurrection or riot, embargoes, car shortages, wrecks or delays in transportation, or liability to obtain necessary labor materials, or manufacturing facilities due to such causes. Delivery of all or any part of this contract is contingent on the Company’s ability to get raw materials, and is further limited to the extent that Company’s ability to deliver may be affected by requirements or regulations of U.S. government or by Company’s acceptance of U.S. government contracts. Receipt of the machine by the Buyer upon its delivery shall constitute a waiver of all claims for delay. The Buyer agrees to assume all risk for loss of, or damage or injury to, the property from the time it is placed on cars at the Company’s factory at Westlake, Ohio, or if shipment is deferred by act or omission of the Buyer, from the time the property is completed and ready for shipment, and the purchaser shall be liable for the full purchase price whether or not the property is damaged or destroyed.”
The Company warrants all material to be free from defective materials or workmanship during the period of 90 days from the date of shipment. Defects in workmanship or material which may develop in the proper or normal use in its intended purpose and with competent supervision during the period of 90 days from the date of shipment will be repaired or replaced F.O.B. factory.
9. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SPECIFICALLY SET FORTH HEREIN, THERE SHALL BE NO OTHER WARRANTIES, EXPRESS NOR ANY IMPLIED, INCLUDING ANY WARRANY OF MERCHANTABILITY, WITH RESPECT TO THE MATERIALS SOLD HEREUNDER, ALL OF WHICH WARRANTIES ARE HERBY DISCLAIMED. FUTHERMORE, COMPANY MAKES NO WARRANTY THAT THE MATERIAL SOLD HEREUNDER IS FIT FOR ANY PARTICULAR PURPOSE OR INTENDED USE.
10. LIMITATION OF LIABILITIES.
It is expressly agreed by Buyer in purchasing the materials sold hereunder, that the liability of Company if any shall be limited to the replacement or the repair of the materials sold hereunder in accordance with the expressed warranties set forth herein. Company expressly disclaims liability for any special or consequential damages, including, but not limited to, lost profits or revenues.
All machines and tools are inspected and packed or crated for shipment. Company assumes no responsibility beyond delivery to carrier in good order and is not liable for loss, damage or delay appearing thereafter. Damages suffered in transit should be claimed from the transportation agent when the material is received.
All machines are tested to insure that they are in proper operating condition before shipment. It is always advisable for Buyer to send the party responsible for the machine’s performance to Company’s factory to be trained in its operation. All special tools and machines must be accepted by Buyer at our plant before shipment.
13. SPECIAL TOOLS. Title to and possession of special tools, patterns, jigs and dies required in the manufacture of goods to Buyer’s design and specification shall at all times be vested in Company except with respect to (A) such items which may be furnished by Buyer to Company and (B) such items for which Company demands payment from Buyer. No tools or improvements for machines already delivered shall be given gratis. Prices for such improvements shall be set by the Company and all sales shall be governed accordingly.
14. SPECIAL ENGINEERING.
All drawings and engineering data, patterns, dies, and jigs required shall be a part of engineering and remain the property of the Company. The Company reserves the right to deviate from Proposal, when engineering analysis proves to be of mutual benefit to Buyer and Company.
15. BLUEPRINTS AND TEST MATERIAL.
Buyer to supply complete detailed blueprints of all parts which are to be produced on machines or tools of our manufacture. Title to such blueprints shall remain with Buyer at all times. It is further agreed that the Buyer will furnish without charge and deliver to the Plant of the Company, sufficient material of the same kind and quality as used in production, to be used in testing operations before shipment of machine or tools. This material is to be of such temper and to be so annealed as to permit proper processing of material as specified by the blueprints furnished by Buyer.
The Buyer agrees that an order shall in no event be subject to cancellation except by mutual agreement and then only when the Company is reimbursed for work performed and material used. The cancellation charge to be made shall represent the accumulated cost incurred up to the time of cancellation plus 15%. This charge is not a penalty but is necessary to compensate the Company in the event of cancellation by the Buyer.
No agent, employee or representative of Company has any authority to bind Company to any affirmation, representation or warranty concerning the material sold hereunder, and unless an affirmation, representation or warranty made by agent, employee or representative of the Company with the necessary authority to do so and is made in writing, it shall not be enforceable against the Company.
18. ENTIRE AGREEMENT.
This Agreement constitutes the entire contract between and exclusively determines the rights and obligations of the parties hereto; any prior course of dealing, custom or usage of trade or course of performance notwithstanding. Furthermore, Buyer may, for operating convenience, utilize its own forms for the purchase of material hereunder, and any provisions in Buyer’s form which modify, conflict with, or contradict any provision of this Agreement shall be invalid and nonenforceable.
19. NONDISCRIMINATION IN EMPLOYMENT.
The Company agrees not to discriminate against any employee or applicant because of race, creed, color, or national origin as covered by the ruled and regulations of the President’s committee on equal employment opportunity.
The title and ownership of machines, machine parts or tools shall remain with the Company until fully paid for.
Buyer shall indemnify and hold the Company harmless from and release and not make claim or suit against the Company because of any suits, claims, losses or other liability, including reasonable attorney fees, made against or suffered by Buyer arising from any claim of, or infringement of, patent, copyright, trademark, or other proprietary right, at common law, or claim of unfair trade or of unfair competition, resulting from, or occasioned by, Buyer’s use, possession, sale, or delivery of goods sold to Buyer by the Company.
22. INFORMATION DISCLOSED.
No information or knowledge heretofor or hertoafter disclosed to the Company in the performance of or in connection with the terms hereof, shall be deemed to be confidential or proprietary, unless otherwise expressly agreed to in writing by the Company, and any such information or knowledge shall be free from restrictions, other than a claim for patent infringement, as part of the consideration hereof.
To the extent that Buyer’s agents, employees or subcontractors enter upon premises occupied by or under the control of the Company, or any of its customers or suppliers in the course of performance hereunder, Buyer shall take all necessary precautions to prevent the occurrence of any injury including death, to any person or any damage to any property arising out of any acts or omissions of such agents, employees or subcontractors. Except to the extent that any such injury or damage is due solely and directly to the Company’s negligence Buyer shall indemnify and hold The Company harmless against all losses, claims, liabilities, and expenses, including reasonable attorney’s fees arising out of any act or omission of Buyer, its agents, employees or subcontractors, and Buyer shall maintain such Public Liability Property Damage and Employee’s Liability and Compensation Insurance as will protect the Company from any claims under any applicable Occupational Health and Safety, Workmen’s Compensation and Occupational Disease Acts and shall provide evidence of such coverage to the Company upon reasonable request.
24. THE COMPANY’S RIGHT OF POSSESSION.
The Company shall have the right in addition to all others it may possess at any time for credit reasons or because of Buyer’s default or defaults to withhold shipments, in whole or in part, and to recall goods in transit retake same, and repossess all goods which may be stored with the Company for Buyer’s account, without the necessity of taking any other proceedings, and Buyer consents that all goods so recalled, retaken, or reposed shall become the absolute property of the Company in the event that Buyer defaults in the due performance of or compliance with any of the terms or conditions hereof or a proceeding in bankruptcy, assignment for benefit of creditors, insolvency, receivership or reorganization be instituted by or against Buyer or Buyer’s property or business, or Buyer is anywise liquidated. The Company may, at its option, terminate this agreement upon written notice and shall be relieved of all obligations hereunder. If the Buyer is in breach of the terms hereof, the Company shall have a right to receive as damages the price for the goods as stated herein. Upon recovery of the price the goods shall become the property of Buyer. The foregoing shall not be construed as limiting in any manner any of the rights or remedies available to the Company because of any default of the Buyer under the Uniform Commercial Code or other law as in force and effect on the date hereof.
Buyer shall not delegate any duties nor assign any rights or claims hereunder, without prior written consent of the Company, and any such attempted delegation or assignment shall be void. All claims for monies due or to become due from the Company shall be subject to deduction by the Company for any setoff or counterclaim arising out of this or any other transaction with Buyer whether such setoff or counterclaim arises before or after any such assignment by Buyer.
26. GOVERNING LAW.
These terms and the transaction contemplated hereby shall be governed under the laws of the State of Ohio.
27. NON-WAIVER REMEDIES, COST AND ATTORNEY FEES.
The remedies herein reserved or created shall be cumulative and additional to any other or further remedies provided at law or in equity. The Company may remedy any breach of the terms or conditions hereof and may waive any breach of the terms or conditions hereof without waiving the breach remedied or without waiving any other prior or subsequent breach. Buyer shall pay all of the Company’s costs and expenses including reasonable attorney fees, incurred by the Company in exercising any of its rights or remedies hereunder or enforcing any of the terms of conditions hereof.
Any provisions hereof prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions hereof.
The headings used herein are for reference purposes only and shall not affect the meaning of interpretation hereof.