Valco Industries Inc.
General Terms and Conditions
Unless otherwise agreed in writing and regardless of the language in any order acknowledgement, sales acceptance, sales order or other preprinted form, these Terms and Conditions constitute the only Terms and Conditions under which Valco Industries, Inc. (“Seller”) is willing to sell the products specified on the attached form to its customer identified on the same form (“Buyer”).
- Delivery and Risk of Loss
- Terms of Payment
- Reservation of Rights and Security Agreement
- Warranty and Claims; Limitation of Liability
- Conflicting Language
- Force Majeure
- Choice of Law
- Change Orders/Contract Cancellation
All proposal pricing will be valid for a period of thirty (30) days from the date printed on such proposal. If not accepted by Buyer prior to the end of this 30 day period, Seller reserves the right to cancel the proposal and reject any acceptance. Unless otherwise agreed, prices quoted are all FOB at Seller’s Dock in Springfield, Ohio. Buyer must place a minimum order of $75.
Any and all applicable sales, use or other taxes are not included in the proposal pricing and are the sole responsibility of the Buyer. Exclusion of any such taxes from Seller’s invoices will only be made when Seller is provided with a valid document authorizing the Buyer to be exempt from the collection by Seller of such tax.
Unless otherwise specified, delivery dates are 30 days from the time of order placement. Such dates for delivery provided herein or with proposals are estimates and may be revised at the time an order is placed based upon current business conditions. Reasonable efforts will be made to meet an estimated delivery date but such dates cannot be guaranteed. The title and risk of loss on the products shall pass to Buyer at the FOB Point which will be Seller’s dock in Springfield, Ohio. The Products ordered must be accepted by Buyer within thirty (30) days of the delivery date.
Payment terms are net 30 days after invoice, unless other terms are agreed to in writing by the parties. A 1% discount will be provided if the invoice is paid within 10 days from the date of the invoice. All accounts shall thereafter accrue interest at the rate of 1-1/2 per cent per month until fully paid. In the event the purchase price is not paid in full when due, Seller shall be entitled to recover all costs of collection including reasonable attorney fees.
Should Buyer be delinquent in the payment of any obligations due to Seller, Seller reserves the right to retain any materials, parts or accessories (as well as all finished goods and/or the proceeds from the sale thereof) described in and being purchased by Buyer (collectively, “Property”) until said account is paid in full. Buyer hereby grants Seller a security interest in said Property up to the full amount of the unpaid purchase price plus interest. Buyer authorizes Seller to file a financing statement on behalf of Buyer to perfect a security interest in such Property. Notwithstanding anything to the contrary herein, title to such Property does not transfer until the earlier of: (i)shipment of the Property per the terms of Section 3 above or (ii)Seller’s receipt of full payment from Buyer for such Property.
A. Warranty. Seller warrants that (i) the Products have been manufactured with workmanship consistent with industry standards; (ii) that all Products conform to Buyer’s specifications and (iii) at the time of shipment are free from cosmetic defects (“Warranty”).
B. Inspection and Notice of Claim.
(i) Buyer agrees to inspect the products within thirty (30) days from pickup or delivery for cosmetic defects and must provide Seller with a written notice of Warranty Claim within 45 days from shipment or such claim shall be deemed waived by the Buyer;
(ii) for any warranty Claim that the product has workmanship that is not consistent with warranty standards or that the Product does not conform to Buyer’s specifications then written notice of a warranty claim must be provided to Seller within 90 days from the date of pick up or delivery of the Product or such claim shall be deemed waived by the Buyer;
(iii) Seller must be given a reasonable opportunity to investigate the Product and the claimed defect. Buyer will preserve all Products for a reasonable time to permit proper testing and investigation;
(iv) Final determination as to whether or not a product is defective rests with Seller;
(v) Seller is not responsible for any claims related to defective materials or products that are not manufactured by Seller. Seller agrees to assign any warranties it may receive from the product manufacturers to Buyer (if permitted in Seller’s contract).
C. Limitations of Liability.
(i) Valco is a contract manufacturer and as such takes no responsibility for the design of the Product, including selection of material. Valco may have some knowledge of the nature of the intended use but is producing all Products to Buyer’s specifications, and thus takes no responsibility for the fitness of the Product for the customer’s intended use. Valco’s sole responsibility is to make the Product to the design specifications furnished by the customer, and Valco is not responsible for the correct interpretation or errors in the design or missing or deficient information in the Buyer’s documentation; and
(ii) If a Product is defective, Seller’s sole liability is to repair or replace any such defective Product.
D. EXCEPT AS SET FORTH HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER SPECIFICALLY DISCLAIMS ANY LIABILITY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR REVENUES, DAMAGE OR LOSS OF OTHER PROPERTY OR EQUIPMENT OR COST OF CAPITAL. SELLER’S LIABILITY TO BUYER AND/OR END USER HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL PURCHASE PRICE PAID HEREUNDER TO SELLER.
In the event of a conflict between these General Terms and Conditions and any other terms and conditions on any other contracts or invoices of Seller (collectively, the “Seller Documents”), and any purchase orders or other documents generated by the Buyer, the Seller Documents shall control and take precedence over the documents of Buyer.
Seller shall not be liable for its failure to perform hereunder, in whole or in part, due to contingencies beyond its reasonable control, including but not limited to strikes, riots, war, fire, acts of God, terrorist activities, injunctions, compliance with any law, regulation or order, whether valid or invalid, of the United States of America, or any other governmental body or any instrumentality thereof, whether now existing or hereafter created.
Buyer shall defend, indemnify and hold harmless Seller, its officers, directors, agents and employees from and against any and all losses, costs, liabilities, damages, expenses (including without limitation reasonable attorney’s fees and expenses), claims, demands, actions and causes of action (collectively, “Claims”) arising from or relating to the Seller’s performance of the work on the product(s) in any way occasioned by an act or omission of the Buyer or any of its officers, directors, agents, or employees, or any person or entity the Buyer deals with or sells to after the product leaves the control of the Seller.
The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
These terms and conditions, along with any other document generated by Seller shall be construed and interpreted in accordance with the laws of the State of Ohio.
Change orders will only be accepted if production has not commenced on the order. Any order for products manufactured by Seller may be terminated by Buyer only by written notice and upon payment of reasonable and proper termination charges. Termination charges include, but are not limited to, all costs incurred for personnel, facility, equipment and materials identified in the order, up to the date of notice of termination. Seller will, upon receiving a written notice of cancellation, prepare and submit a cost-to-date invoice recognizing all costs incurred to the date of such request. The invoice will include applicable credits for the return of any standard components to stock, if any, plus a 15% cancellation fee that will be based on the total contract price. All termination charges, credits and the cancellation fees, less any other payments previously made by Buyer, shall be due and payable within thirty (30) days from date of invoice.
THIS REPRESENTS THE TERMS AND CONDITIONS AGREED TO BY SELLER. NO OTHER TERMS SHALL APPLY UNLESS STIPULATED AND AGREED TO IN WRITING BY BOTH PARTIES UNDER A SEPARATE AGREEMENT.
SUBJECT TO CHANGE WITHOUT NOTICE Effective Date: July 20, 2014