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Terms and Conditionschutchinson2017-02-20T15:38:33-07:00
- Unless specifically agreed otherwise, the Buyer’s agreement to purchase from Plasti-Fab Inc. shall constitute acceptance of the Terms and Conditions as stated herein.
- Plasti-Fab Inc. will sell only the goods, services, equipment, or materials specifically set forth in the proposal, and/or PO agreement, any modifications or revisions must be agreed to by Plasti-Fab Inc.
- Plasti-Fab Inc. undertakes no responsibility for furnishing any other goods, services, equipment, data or materials shown in any plans or specifications incorporated directly or by reference in the Buyer’s Purchase Document.
- Plasti-Fab’s quotation, Terms and Conditions, and the Buyer’s Purchasing Document, are hereinafter referred to as the Agreement.
- Specifications: Seller shall have no responsibility or liability for errors or conflicts in specifications, drawings or other technical information furnished to it by Buyer. Buyer agrees to indemnify and hold Seller harmless against all loss, liability, and expenses, incurred by Seller on account of any such error or conflict.
PRICE AND TERMS OF PAYMENT
- The purchase price for the goods, as quoted in US Dollars, shall be as set forth in this Agreement. Unless otherwise specified, the net purchase price shall be 1% 15 days, or payable in full thirty (30) days from date of invoice or delivery, whichever is earlier, provided that no invoice will be rendered prior to shipment. If shipment of the goods is made in units or lots, payment for each unit or lot shall be due on shipment of each unit or lot at the price for each unit or lot established in the Agreement, or in an amount equal to the percentage of the total purchase price represented by that unit or lot of the listed price established in the Agreement, if unit or lot prices are not listed.
- The price does not include operation manuals or instruction books unless specifically itemized.
- If Buyer requests that Plasti-Fab Inc. hold or warehouse goods after they are ready for shipment, Buyer will pay Plasti-Fab Inc. a sum to include all storage charges and moving and handling expenses to and from storage, dunnage, and storage materials. In connection with storage of goods. In addition, Buyer will pay the total purchase price within thirty (30) days from the date the Buyer is notified by invoice that goods are ready for delivery.
- Accounts past due shall bear interest at the rate of one and one-half percent (1 1/2%) per month, or the maximum legally permitted rate of interest of the governing law of Oregon, and if it is necessary to engage legal counsel or collection agent with regard to a past due account, Plasti-Fab Inc. will be entitled to collect all costs, expenses, and attorney’s fees. Acceptance of this service charge shall not be deemed a waiver of any right Seller may have by reason of non-payment by the Buyer.
TITLE AND — USE
- Plasti-Fab Inc. hereby warrants that it is the lawful Owner of any goods, materials, or equipment, proposed to be sold and that it will have a good title to such goods, materials, or equipment with the full right to sell and convey the goods.
DELIVERY AND RISK OF LOSS
- Unless otherwise specifically agreed, all sales will be made F.O.B. Plasti-Fab Inc. The Buyer will pay all costs of shipment and any payment by Plasti-Fab Inc. of freight or other charges that shall be for the account of the Buyer, and shall not extend the obligations of Plasti-Fab Inc. with respect to delivery. Risk of loss or damage shall pass to the Buyer on delivery to the carrier at Plasti-Fab’s plant, notwithstanding any provisions for payment of freight or insurance by Plasti-Fab Inc., or the form of the shipping documents. If the Buyer desires any particular mode or routing shipment, Buyer shall so notify Plasti-Fab Inc. of full details.
- The Buyer grants to Plasti-Fab Inc. a security interest in any goods, materials or equipment (“Collateral”) which will be purchased hereunder as security for the performance by the Buyer of all obligations due Plasti-Fab Inc. The Buyer agrees to protect and maintain the Collateral by all reasonable means and not to sell any part of the Collateral or any interest of the Buyer in the Collateral except with the prior written consent of Plasti-Fab Inc. If Buyer Defaults, Plasti-Fab Inc. may exercise all rights and remedies as secured party for Seller under the Uniform Commercial Code provided, however, provisions Herein shall in no way limit any other rights of Plasti-Fab Inc. in the event of Buyer’s default or failure to make payment. Buyer further grants Plasti-Fab Inc. the authority to execute and file any and all necessary financing statements to enable Plasti-Fab Inc. to perfect its security interest granted herein by filing or other public notice. Plasti-Fab Inc. shall retain all lien rights and payment bonds against Buyer, and the project. Seller hereby retains a security interest in goods until Seller has been paid in full. Seller reserves the right before making any delivery to require payment in advance.
- All deliveries shall be subject to approval of Sellers Credit Department, and if Buyer fails to comply with such requirement, Seller may terminate this contract. If the financial responsibility of the Buyer is materially adversely changed or otherwise becomes impaired or unsatisfactory to Plasti-Fab Inc., or the Buyer defaults under any contract with Plasti-Fab Inc., advance payments shall be given by the Buyer upon demand by Plasti-Fab Inc., and shipments will be withheld until such payment is received.
- All new taxes, excises, or other government charges which may hereafter be imposed on the production, sale, or transportation, of the materials which are to be sold, and which Plasti-Fab Inc. may be required to pay, shall become part of the price payable by the Buyer. Unless separately stated, all prices are to be quoted, all orders accepted, and all billings rendered, exclusive of all federal, state and municipal taxes of any kind. Except where required by law, Buyer agrees to reimburse Plasti-Fab Inc. for all such taxes where the applicable law requires Plasti-Fab Inc. to report and pay said tax. Plasti-Fab Inc. is not to report, collect or pay any tax which may be imposed, and Buyer is to report and pay all taxes so imposed, and is to hold Plasti-Fab Inc harmless thereof. (Except for California and Washington – Washington also subject to tax on freight). Buyer agrees to provide documentation to Seller if exempt from tax.
FIRM PRICE & TERMS OF PAYMENT
- Proposals shall remain firm subject to specific escalation provisions contained in the proposal. In the event of increases in the price of raw materials to Plasti-Fab Inc. in excess of 10%, as determined by the PPI industrial chemicals index, during the course of the project, the price of the balance of the project shall be escalated in direct proportion to the PPI industrial chemicals index, increase.
- Unless stated otherwise, the proposals shall remain valid for a period of ninety (90) days from the Proposal date.
FORCE MAJEURE AND LIMITATION OF DAMAGES
- Plasti-Fab Inc. is not to be liable for delays in delivery or failure to manufacture due to causes beyond its reasonable control, whether or not such causes are foreseeable such as acts of God, acts of Buyer, acts of civil or military authority, fires, floods, inclement weather, epidemics, strikes, lockouts, or other labor or industrial disturbances, quarantine restrictions, war, riot, government regulations, delays in transportation, inability due to causes beyond its reasonable control to obtain necessary labor, materials, manufacturing facilities, delays of subcontractors or suppliers, and failure of any subcontractor or supplier to perform.
- In no event shall Plasti-Fab Inc. be liable for any damages, whether direct, indirect, or consequential, resulting from failure to perform or delay in performing obligations under this Agreement whether or not any damages are foreseeable. If Plasti-Fab Inc. fails to deliver the materials or equipment ordered under this Agreement, Buyer’s sole and exclusive remedy shall be to cancel this Agreement and receive a refund of any amounts paid to Plasti-Fab Inc. for goods which will not be delivered.
CANCELLATION OF AGREEMENT
- Buyer may not cancel this Agreement except with the written consent of Plasti-Fab Inc. Plasti-Fab Inc. will not be required to permit Buyer to cancel the Agreement. However, if Plasti-Fab Inc. does permit cancellation, it will be entitled to a reasonable fee for cancellation equal to all costs incurred as a result of cancellation, including overhead and profit.
- If engineering services have been rendered and approval drawings furnished, a minimum cancellation fee of 15% of the dollar value of the agreement will be invoiced.
RETURN OF MERCHANDISE
- Merchandise is not to be returned without written permission from Plasti-Fab Inc. Any such returns shall be subject to a restocking fee.
- Seller certifies that its goods are produced in compliance with all applicable requirements of sections 6, 7, and 12, of the fair labor standards act, as amended. The applicable requirements dealing with equal employment opportunity under the civil rights act of 1964, as amended, and executive order No. 11246. The provisions of the section 204 of said order are hereby incorporated by reference.
JURISDICTION, VENUE AND GOVERNING LAW
- This Agreement is made with reference to and shall be construed in accordance with the laws of the State of Oregon. If a dispute arises under this Agreement, the parties agree that jurisdiction and venue shall be in the courts of the State of Oregon located in Washington County. Jurisdiction and venue as set forth shall be exclusive. Buyer consents to service of process in the manner provided under the Oregon long-arm statue. ORS 14.035
- When installed and operated correctly, Plasti-Fab guarantees this merchandise for 25 full years against functional failure due to corrosion of composite materials, and 24 full months against failure due to any defects in material and workmanship.
- If during the warranty period, the goods or any part of the goods is suspected to be defective and, through examination by Plasti-Fab Inc., is determined to be the fault of Plasti-Fab Inc., Plasti-Fab Inc. will, at Plasti-Fab’s option, repair or replace the goods, or that part of the goods which is defective.
- Plasti-Fab’s warranty does not cover normal maintenance, misuse, abuse, alteration, negligence, accident, or issues arising due to the repair of the goods and service herein proposed by someone other than Plasti-Fab’s personnel.
- If Buyer desires a defect to be corrected under this warranty at a place other than Plasti-Fab’s plant or at the site for Plasti-Fab Inc.’s installed products, or by personnel other than Plasti-Fab’s employees, the Buyer shall pay all additional travel expenses, and costs in excess of those which would have been incurred by Plasti-Fab Inc. at a straight time rate for the work performed at plant or installation site.
- The warranties for materials and goods manufactured by others and incorporated by Plasti-Fab Inc. as a part of the Scope of Work shall be pass-through warranties, and the Buyer shall revert to the original equipment manufacturer for remedies to any warranty problem associated with such materials and goods.
- This warranty does not cover removal and reinstallation expense for goods and services herein proposed.
- Plasti-Fab Inc. shall not be liable for any consequential damages, including downtime, to the Buyer, while the goods and services herein proposed are out of commission.
- All warranties and obligations of Plasti-Fab Inc. shall terminate if: (1) Buyer fails to perform its obligation under this or any other agreement between the parties; or (2) Buyer fails to pay any charges due Plasti-Fab Inc.
- LIMITATION OF LIABILITIES: Buyer’s exclusive remedies for Seller’s negligence, breach of warranty, breach of contract, strict liability, misrepresentation, or for any other liability in any way connected with or arising out of this transaction shall be as follows.
- The repair or replacement, at Sellers option, of goods or parts which are rightfully rejected by Buyer are presented to Seller within twenty-four months of the sale (Repair or replacement shall be F.O.B. point of manufacture or on site, at Sellers option) or
- If Seller fails to repair or replace within a reasonable time. The return of the purchase that has been paid and the cancellation of any obligation to pay unpaid portions of the purchase price of nonconforming goods which are presented to the Seller within twenty-four months of the sale.
- The forgoing paragraphs, A and B, are intended as a complete allocation of the risks between the parties, and the Buyer understands that even if Seller willfully chooses not to repair or replace, the Buyer will have no right to consequential damages, but will be limited to the return of the price as specified in paragraph B above. Buyer recognizes that it will not be able to recover consequential damages even though it may suffer such damages in substantial amounts. The price is based on the fact that the Seller would not have sold at this price if these two paragraphs were not part of the bargain, and this limitation shall not have failed of its essential purpose even if it operates to bar recovery for consequential damages. Damages awarded to Buyer in no event shall exceed the amount of the purchase price.
- Nuclear Facilities: Notwithstanding the above warranty, if the goods furnished hereunder are to be used in any capacity in connection with any nuclear facility, Buyer agrees to hold Seller harmless from all claims for damages arising out of injury from harm or destruction to the nuclear facility, or property threat.
- A “pass-through” warranty is offered for products that are manufactured by other companies and furnished as a component part of a Plasti-Fab product. Typical examples of such products include, but are not limited to: air conditioning units, electric actuators and gearboxes, thermostats, solenoids, gages, controllers, heaters, blowers, and fans. Warranties on these products are pass-through, meaning the equipment warranty will be limited to that offered by the equipment’s original manufacturer.
- UNLESS OTHERWISE SPECIFIED IN WRITING THIS WARRANTY IS BUYER’S EXCLUSIVE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF DESIGN, FITNESS FOR ANY PARTICULAR PURPOSE, OR MERCHANTABILITY, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
- Acceptance of shipment by the first carrier shall constitute a delivery to Buyer. If the shipment is designated “freight allowed”, then Seller will stand the cost of the freight as of the date of the proposal: any changes in cost of freight after the date of the proposal, but before shipment are for the amount of Buyer. If split shipments are required by Buyer, additional shipments will be made at Buyer’s expense. Seller shall not be required to ship the total amount of the subject goods in one shipment but may make partial shipments at Sellers convenience. If partial shipments are made, Seller, at its option, may invoice by or for such partial shipment and Buyer shall pay according to the terms thereof.
- Unless a preferred packing method is specified in the proposal or agreement, all of the equipment is to be packed for shipment and storage in accordance with reasonable commercial practices for goods of the same type. Provisions for special handling, preservation, waterproofing, weather and hazard protection and the like will be made only upon written request of the Buyer, and if made, will be subject to reasonable charges by Plasti-Fab Inc. for all additional costs.
- Inspection of equipment in Plasti-Fab’s plant by Buyer or Buyer’s representative will be permitted, however, prior to inspection Buyer will make necessary arrangements with Plasti-Fab Inc. to minimize disruption of Plasti-Fab’s production activities. Plasti-Fab Inc. reserves the right to restrict access to its plants by Buyer’s representatives. Access to Plasti-Fab’s plant requires the signing of a disclosure and indemnification agreement.
- No changes shall become effective until made in writing and signed by Buyer and approved by Plasti-Fab Inc., specifying the changes in the Scope of the Work, adjustment to the delivery date, and change in the purchase price of terms of payment. Provided, however, if Plasti-Fab Inc. makes any changes requested by Buyer, its agents or inspectors prior to execution of a written change order, Plasti-Fab Inc. shall nevertheless be entitled to an equitable adjustment to the delivery date, purchase payment, and terms of payment prior to completion or shipment.
TOOLING AND MOLDS
- All tools, dies, patterns, molds, and similar items, required to produce the goods shall remain the property of Plasti-Fab Inc. Buyer shall indemnify and save Seller harmless from and against any and all loss, liability, damage, injury or expense (including attorney’s fees) for actual or alleged infringement of any letters of patent, trademarks, or corresponding rights relating to the manufacture and sale of goods manufactured in accordance with patents, designs, patterns, or design information supplied by Buyer.
- The prevailing party in any actions shall have the right to recover its costs, expenses, and attorney’s fees.
- Neither party shall assign its rights under this Agreement, except that Plasti-Fab Inc. may subcontract portions of the work to be performed under this Agreement, and may assign its right to receive payment under this Agreement to its lenders.
OWNERSHIP AND — USE OF DRAWINGS & SPECIFICATIONS
- Drawings and specifications developed by Plasti-Fab Inc. shall remain the property of Plasti-Fab Inc. Buyer may retain copies of drawings and specifications for use in connection with goods purchased under this Agreement. Buyer shall not use the drawings and specifications for any other use including duplication of goods, and shall not disclose the drawings or specifications to any third party not directly involved with the approval process without the written permission of Plasti-Fab Inc.
DELAYS IN PRODUCTION OF THE WORK
- The proposed price is based on a scheduled and continuous production of the work. Buyer shall be responsible for such additional costs and/or delays as may be incurred by Plasti-Fab Inc. resulting from Buyer’s failure to approve drawings promptly, or give the necessary releases to purchase materials and proceed with fabrication and shipment, as well as any other Buyer/Owner delay.
- Should Buyer request a hold in fabrication, all costs associated with removal of order from production, storage, and rescheduling, reconditioning, restoring equipment to production after removal of Buyer’s hold, etc. shall be at Buyer’s expense. Plasti-Fab Inc. assumes no responsibility whatsoever for any delay or the consequences thereof, in restoring order to production.
- Any repairs or other work ordered by the Buyer without consulting Plasti-Fab Inc. and allowing Plasti-Fab Inc. to conduct the work, if necessary, shall be at the Buyer’s own expense. No claim or back charges will be honored by Plasti-Fab Inc. for any reason if Plasti-Fab Inc. was not given the opportunity to 1) determine that the work needed to be done, 2) conduct the work by Plasti-Fab Inc.’s personnel or 3) make arrangements for suitable personnel to conduct the work.
- Buyer shall indemnify, defend and hold Plasti-Fab Inc. harmless from and against any claims or liability (including attorney fees and costs) arising out of performance of this Agreement or use of products sold hereunder, in respect of personal injury or death or property damage, to the extent caused by the negligence of Buyer, its affiliates, officers, directors, employees or agents, or any third party. Neither party shall be liable for indirect, special or consequential damages of any nature.