STANDARD TERMS AND CONDITIONS OF SALE
These terms and conditions govern the sale of Products by K S Tooling, Inc. (“KS”). These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither KS’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. KS’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products from KS shall be deemed to constitute acceptance of the terms and conditions contained herein.
1. Orders: All orders placed by Buyer are subject to acceptance by KS. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices and requested delivery dates of the Products being purchased.
2. Prices: The prices stated herein are based upon current costs and are firm for thirty (30) days. The prices of all shipments scheduled for delivery more than six (6) months beyond the date of a purchase order based on these prices may be increased upon thirty (30) days notice to reflect the higher costs due to increases in wage rates and material prices.
3. Delivery Point: All shipments shall be made to carrier F.O.B. York, PA, and risk of loss or damage to, or destruction of, the goods from and after their delivery to the carrier shall be with Buyer unless expressly provided herein to the contrary.
4. Warranty: KS warrants only that all goods manufactured by KS shall be free from defects in material and workmanship. However, this warranty shall be limited to goods found to be defective within a period of three (3) months from initial use or six (6) months from the date of shipment, whichever expires first. This warranty shall not apply to any goods delivered hereunder which have been damaged or subjected to alteration or negligible treatment after delivery or any defects which are due to artwork or drawings furnished by Buyer. Also, unless otherwise specifically stated, the warranty does not extend to the electrical performance of any assemblies or subassemblies to which the goods furnished hereunder are affixed but is restricted to the electrical continuity of such goods. KS’s only obligation for breach of this warranty shall be the repair or replacement without charge, or any goods, or part thereof, which within such three (3) month period is proven to KS’s satisfaction to have been defective, provided that: (1) Buyer shall have notified KS of the defect within such three (3) month period; and, (2) KS shall have the option of requiring the return, at Buyer’s expense, of the defective material or goods to establish the claim; provided, however, that KS will bear any transportation costs incurred in repairing or replacing any goods which are shown to be defective during the warranty period. The cost of any repairs made by KS to goods no longer covered by this warranty shall be borne by Buyer. KS shall in no event be liable for Buyer’s manufacturing costs, lost profits, good will or any other special, consequential, incidental or other damages resulting from a breach of the foregoing warranty. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE WARRANTY SET FORTH HEREIN OR WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS CONTAINED HEREIN.
5. Delivery Delay: Scheduled shipping dates are approximate and are subject to prompt receipt from Buyer of all information necessary to design and manufacture the products. Time is not of the essence in the sale contemplated by the contract arising out of acceptance of Buyer’s order and KS shall be entitled to a reasonable period of grace in the event of any delay in delivery beyond the scheduled shipping date. KS shall in no event be liable for any special, indirect, or consequential damages arising from any delay in delivery, irrespective of the reason therefor. KS shall in no event be liable for any damages arising from delay in design, manufacture, shipment or delivery of any goods hereunder if such delay is due to a cause beyond the reasonable control of KS. Such causes shall include, but not be limited to, outbreak of war, governmental regulations or restrictions, demands of the United States or any governmental subdivisions, restraining orders or decrees of any judge or court of competent jurisdiction, fires, strikes, floods, lockouts, labor disputes slowing down production, epidemics, accidents, delays in routing, shortages in fuel, raw material or transportation facilities, and default of suppliers. The happening of any contingency beyond KS’s 2 reasonable control shall not constitute cause for cancellation of the order but shall extend KS’s time to deliver for a period equal to the duration of such contingency.
6. Price Adjustment: Inspection of any material or parts at KS’s facilities, whether by purchaser or by any governmental entity, will be just cause for a price increase in the goods described herein.
7. Payment: Terms of payment are net thirty (30) days on each shipment invoiced, unless otherwise expressly provided herein. Notwithstanding any specified payment terms, KS may require payment in advance before making any shipment if Buyer’s credit shall at any time, in the sole judgment of KS, become impaired. The total contract price shall be immediately due and payable, and KS may cancel the unperformed portion of this contract upon Buyer’s failure to make any payment when due. In the event KS elects to cancel, any increase in KS’s per unit cost of the goods already delivered or then enroute to Buyer shall be payable by Buyer
8. Cancellation: Buyer may cancel its order only upon written notice to KS and upon payment of reasonable cancellation charges, which will take into account any expenses incurred by and commitments made by KS in reliance upon such order. The cancellation charge for all cancelled orders respecting standard equipment shall be at least ten percent (10%) of the purchase price.
9. Buyer’s Specifications: Buyer will indemnify, protect and hold harmless KS against all suits, and from all damages, claims, demands, costs and expenses, including attorneys’ fees, for actual or alleged infringement of any letters patent arising out of design or manufacture by KS in accordance with special specification by Buyer.
10. Taxes: The prices of the goods do not include sales, use, excise or other similar taxes. Consequently, in addition to the prices quoted, the amount of any present or future sales, use, excise or other similar tax applicable to the sale of the materials hereunder shall be borne and paid by Buyer, or in lieu thereof, Buyer shall provide KS with a tax exemption certificate acceptable to the taxing authorities involved.
11. Consequential Damages; Limitation of Liability: KS WILL NOT BE LIABLE FOR ANY LOST PROFITS, INDIRECT, SPECIAL, INDCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. In no case will KS’s liability exceed the amount paid to KS by Buyer for the specific goods giving rise to such liability. Buyer agrees to indemnify and hold KS harmless from and against all liabilities, claims and demands of third parties of any kind relating to the goods and their use arising after shipment of the goods.
11. Assignment: No assignment of this contract shall be valid or binding upon KS unless such assignment shall be in writing and duly approved by KS by endorsement thereon or consent thereto.
12. Governing Law and Forum: All questions relating to the construction, validity, interpretation and application of the contract arising out of KS’s acceptance of Buyer’s order and the construction, validity, interpretation and application of these Standard Terms and Conditions of Sale shall be governed and construed under the laws of the Commonwealth of Pennsylvania, excluding its conflicts of laws provisions. KS and Buyer expressly disclaim any applicability of the United Nations Convention on the International Sale of Goods to the order. Any dispute arising from the sale of goods by KS to Buyer shall be initiated only in the Court of Common Pleas of York County, Pennsylvania, U.S.A. or in the Federal District Court for the Middle District of Pennsylvania.
13. Entire Agreement: All prior representations, conversation or preliminary negotiations shall be deemed to be merged into the contract formed by KS’s acceptance of Buyer’s order and no waiver, alteration or modification of any of the provisions hereof shall be binding unless in writing and approved by KS at its main office.
STANDARD TERMS AND CONDITIONS OF PURCHASE
1. Acceptance of Terms: This document creates a binding legal agreement between K S Tooling, Inc. (“KS”) and the party contracting to provide goods hereunder (“Seller”). Seller agrees to be bound by and to comply with all terms set forth herein and in the purchase order to which these terms are attached and are expressly incorporated by reference, together with any written amendments, supplements, specifications and other documents referred to herein or therein. Acknowledgement of this Purchase Order by any means, including without limitation, by beginning performance of the work or supply of the goods called for by this Purchase Order, shall be deemed acceptance of this Purchase Order. If Seller allows ten (10) days to lapse from the time the Purchase Order is received by Seller, neither accepting the order in the manner indicated above nor giving KS written notice of rejection of the order, then the Purchase Order will be deemed accepted by Seller. Any attempted confirmation or acknowledgement by Seller that contains terms inconsistent with or in addition to the terms of this Purchase Order is not binding unless specifically accepted by KS in writing. This Purchase Order expressly limits acceptance to the terms of this offer and Buyer hereby objects to and rejects any different or additional terms contained in any of Buyer’s previous proposal(s) or response(s) to this purchase order.
2. Prices and Payments: All pricing shall be set forth in detail in the Purchase Order and the prices specified in the Purchase Order are firm and not subject to any additional charges for packing or preparation for shipment or because of increased costs of operation or because of any taxes or excises levied on processors, manufacturers and wholesalers, or otherwise. The Purchase Order shall not, without written authorization from Buyer, be filled at higher prices than specified therein. Any price reduction made in the goods described in the Purchase Order prior to the delivery of such goods shall be applicable to the Purchase Order. Any state or local sales, use, excise and/or privilege taxes, if applicable, will not be included in Seller’s price but will be separately identified on Seller’s invoice. Unless otherwise stated on the face of this Purchase Order, payment terms are net due ninety (90) days from the later of the required date identified on the Purchase Order or the received date of the goods. KS shall be entitled to reject Seller’s invoice if it fails to include KS’s Purchase Order number or is otherwise inaccurate, and any resulting delay in payment shall be Seller’s responsibility.
3. Warranties: Seller covenants, represents and warrants to KS, in addition to all warranties expressed or implied at law, that the goods and the use, design, construction, assembly, production, shipment, sale, packaging, labeling, instructions and warning (or lack thereof) and other printed matter furnished or authorized by Seller shall be new and of merchantable quality, free from defects in design, workmanship and/or materials, including without limitation such defects as could create a risk of injury or damage to persons or property. The above warranties shall apply for twentyfour (24) months from delivery of the goods, or such longer period of time as customarily provided by Seller or as provided under Uniform Commercial Code, as extended for delays such as those due to non-conforming goods. If any of the goods are found to be defective or otherwise not in conformity with the warranties in this Section during the warranty period, then, KS, in addition to any other rights, remedies and choices it may have by law, contract or at equity, and in addition to seeking recovery of any and all damages and costs emanating therefrom, at its option and sole discretion and at Seller’s expense may: (a) require Seller to replace nonconforming goods with goods and/or services that conform to all requirements of this Purchase Order; (b) take such actions as may be required to cure all defects and/or bring the goods into conformity with all requirements of this Purchase Order, in which event all related costs and expenses (including, but not limited to, material, labor and handling costs) and other reasonable charges shall be for Seller’s account; and/or (c) reject and return all or any portion of such goods. Any repaired or replaced goods shall carry warranties on the same terms as set forth above, with the warranty period being the greater of the original unexpired warranty or twenty-four (24) months after repair and replacement.
4. Changes: KS may at any time make changes in written, electronic or facsimile form to any Purchase Order, including changes in the drawings or specifications, methods of shipment, warranties, packing or time or place of delivery at any time. Any Seller claim for adjustment will be deemed waived unless asserted within ten (10) days from Seller’s receipt of the change or suspension notification, and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change.
5. Delivery and Passage of Title: Time is of the essence of this Purchase Order. KS shall be entitled to recover damages that it incurs as a result of Seller’s failure to perform as scheduled. Unless expressly stated to the contrary, KS’s remedies are cumulative and shall be entitled to pursue any and all remedies available at law or equity. Time is hereby made of the essence of the Purchase Order. If delivery of goods is not completed by the date set forth in the Purchase Order, KS reserves the right, without liability and in addition to its other rights and remedies at law, in equity or under the terms of the Purchase Order, to purchase elsewhere and hold Seller liable for any additional loss, cost, damage or expense incurred thereby. Seller shall pay any loss, cost, damage or expense resulting from the untimely receipt of the goods ordered. Seller shall notify KS immediately if it is unable to ship timely. KS shall have the right to refuse any goods with untimely delivery and to cancel the balance of the Purchase Order for any part of the goods due after the untimely delivery of any installments. By accepting the untimely delivery of any installment, KS shall not be bound to accept future shipments nor be deprived of its right to return goods already accepted nor to claim damages for untimely delivery. If KS accepts any advance shipment (other than required by it) under any Purchase Order, payment terms on such shipment shall be computed form the required shipping date.
6. Order Termination Without Cause: In addition to KS’s right to terminate a Purchase Order for cause as provided below, KS may terminate a Purchase Order, in whole or in part, at any time upon notice to Seller. On receipt by Seller of such notice, Seller shall, to the extent specified therein, stop work and the placement of work with subcontractors, terminate work under subcontracts outstanding and take any necessary action to protect property in Seller’s possession in which Buyer has or may acquire an interest. Any termination by KS whether for cause or otherwise, shall be without prejudice to any claims for damages or other rights of KS against Seller and Seller shall continue performance of the Purchase Order to the extent not terminated.
7. Right to Refuse Goods: Without limiting any other right of KS herein, KS shall have the right to reject and refuse goods that are not in strict accordance with the terms of the Purchase Order, the specifications or industry standard, or which are different in quality or quantity from that ordered, or which are shipped other than as specified under the Purchase Order or which are believed by KS to violate a third party’s Proprietary Rights or is alleged to violate a third party’s Proprietary Rights. KS may, at its sole discretion, either return rejected goods or hold same at Seller’s risk and expense and may, in either event, charge the Seller with the cost of transportation, shipping, unpacking, examining, repacking, storing, reshipping and other like expenses. If Seller fails to accept goods returned by KS, then KS shall have the right to dispose of such goods by any means. If within thirty-six (36) days after a request by KS for direction regarding disposition of rejected goods, Seller does not respond to KS, then KS shall have the right to dispose of the goods by any means. Acceptance of any prior shipments contrary to the Purchase Order shall not be considered a waiver of KS’s right to return any or all of the goods and receive full credit therefore. Authorization for substation of style, color, size, quantity or other departure from the terms of the Purchase Order, Is permitted only upon the written, signed and dated consent of KS. Any claims made by KS for defective goods, shortages, returns, damages or other claim of set off asserted as a result of Seller’s failure to comply with this Purchase Order will be charged back to Seller and the mount thereof deducted from payments to be made to Seller or, at KS’s option, will be promptly refunded to KS.
8. Right to Reject and Return Goods: Without limiting any other right of KS herein, KS may at any time after delivery of the goods (and whether or not the same have been accepted by KS) reject and return all or part of the goods if any part is found to be in a damaged or defective condition, if believed by KS to violate a third party’s Proprietary Rights, or if alleged to violate a third party’s Proprietary Rights. Seller shall refund to KS in full the price paid by KS for such returned goods. Any goods so returned shall be at Seller’s risk, expense and Seller shall be responsible for all freight and handling charges.
9. Intellectual Property Indemnification: Seller shall indemnify, defend and hold KS harmless from all costs and expenses related to any suit, claim or proceeding brought against KS or its customers based on a claim that any article or apparatus, or any part thereof constitution goods or services furnished under this Purchase Order, as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent, copyright, trademark, trade secret or other intellectual property right of any third party. KS shall notify Seller promptly of any such suit, claim or proceeding and give Seller authority, information, and assistance (at Seller’s expense) for the defense of same, and Seller shall pay all damages and costs awarded therein.
10. Governing Law and Forum: All questions relating to the construction, validity, interpretation and application of the contract arising out of KS’s acceptance of Buyer’s order and the construction, validity, interpretation and application of these Standard Terms and Conditions of Sale shall be governed and construed under the laws of the Commonwealth of Pennsylvania, excluding its conflicts of laws provisions. KS and Buyer expressly disclaim any applicability of the United Nations Convention on the International Sale of Goods to the order. Any dispute arising from the sale of goods by KS to Buyer shall be initiated only in the Court of Common Pleas of York County, Pennsylvania, U.S.A. or in the Federal District Court for the Middle District of Pennsylvania.
11. Entire Agreement: All prior representations, conversation or preliminary negotiations shall be deemed to be merged into the contract formed by KS’s acceptance of Buyer’s order and no waiver, alteration or modification of any of the provisions hereof shall be binding unless in writing and approved by KS at its main office.
