Terms and Conditions
- Offer & Acceptance: These terms and conditions (these "Terms") are deemed part of all quotations, acknowledgments, invoices, purchase orders and other documents, whether electronic or in writing, relating to the sale of goods or development services (collectively, the "Goods") by PEER Bearing Company (together with its successors and assigns, "Seller") to the applicable buyer thereof ("Buyer"). Unless otherwise agreed by Seller in writing, Buyer accepts these Terms by delivering a purchase order or forecast for Goods with quantities and delivery dates acceptable to Seller after Buyer's receipt of these Terms (or receipt of quotations, acknowledgments, invoices, purchase orders or other documents incorporating these Terms by reference), Buyer's assent to these terms (which assent shall be deemed given unless Buyer notifies Seller in writing to the contrary within five (5) days after Seller's delivery of written confirmation/acknowledgement of such order which confirmation/acknowledgement incorporates these terms by reference), accepting delivery of the Goods or paying the price for the Goods set forth in the quotation (which quotation incorporates these terms by reference), whichever first occurs. Unless otherwise agreed by Seller in writing, Seller hereby objects to and rejects any terms or conditions proposed in Buyer's purchase order or other documents which are inconsistent with, or in addition to, these Terms, and these Terms shall supersede any such other terms and conditions.
- Quotation: Seller quotations are valid for 30 days from the published date. After 30 days, quotation is not valid. Quotation is cancellable on written notice from Seller.
- Prices: All prices stated are current, subject to change without notice by Seller, including (without limitation) between the date of Buyer's order and the date of shipment. Prices exclude all federal, state or local taxes and, therefore, are subject to increase in the amount of any such tax.
- Prototypes: If Buyer orders and/or Seller delivers a Good designated as a "Prototype" or "Sample", no guarantees, warranties or representations as to fitness for a particular purpose or merchantability are made with respect to such Prototype. Buyer shall have the duty and sole responsibility to test a Prototype or Samples prior to acceptance and/or incorporation into end-use applications. Further, a production Good based on a Prototype design may differ in assembly methods and materials from the Prototype. Buyer, therefore, shall have the duty and sole responsibility for testing and acceptance of production Goods that are based on Prototype or Sample designs.
- Payment Due Net 30: Terms are Net 30 days after the date of invoice (assuming credit application approval). All payments are to be made in United States currency (unless otherwise agreed in writing by Seller in advance of shipment).
- Tooling: "Tooling" shall mean such tooling, jigs, dies, gauges, fixtures, molds and/or patterns, as are required for the production of goods or parts that is beyond the prototype stage of engineering. When applicable, payment terms for customized Tooling, unless otherwise provided in Seller's quotation or the Tooling Purchase Order, shall be fifty percent (50%) of the price to be paid at order, with the remaining fifty percent (50%) to be paid at completion of Tooling.
- Attorney Fees: Buyer is liable and shall reimburse Seller for all costs, including attorney fees, court fees and other legal expenses, incurred by Seller in enforcing any of these Terms, including any attempt by Seller to enforce payment of overdue amounts against Buyer, or due to any breach by Buyer of any agreement, written or oral, between Buyer and Seller, including these Terms.
- Required Changes: If the Buyer requires engineering, design or other changes ("Required Changes"), such Required Changes shall be evidenced by one or more engineering change instructions, drawings, CAD data, or other similar documentation, and, if approved by Seller, all Required Changes will be made strictly in conformity with such forms. If the Required Changes have an associated cost, Seller will provide Buyer a quotation to implement Required Changes. If Required Changes affect Seller's costs of goods, an updated quotation will be submitted.
- Interest: Seller, at its option, may charge Buyer 1 1/2% interest per month or the maximum legal rate; whichever is less, on any balance not paid within the stated terms.
- Taxes: All taxes, duties and other governmental charges (other than general real property and income taxes), including any interest or penalties thereon, imposed directly or indirectly on Seller or required to be collected directly or indirectly by Seller for the manufacture, production, sale, delivery, importation, consumption or use of the Goods sold hereunder (including customs duties and sales, excise, use, turnover and license taxes) shall be charged to and remitted by Buyer to Seller.
- Financial: If the financial position of Buyer at any time becomes unsatisfactory to Seller, as Seller reasonably determines after written notice, Seller reserves the right to stop shipments or require satisfactory security or payment in advance. If Buyer fails to make payment or otherwise comply with these Terms or any related agreement, Seller may (without liability and in addition to other remedies) cancel any unshipped portion of Goods sold hereunder and stop any Goods in transit until Buyer pays all amounts, including amounts payable hereunder, whether or not then due, which are owing to it by Buyer. Buyer shall in any event remain liable for all unpaid accounts.
- Cancellation: No orders may be cancelled or rescheduled without Seller's consent, which consent may be withheld by Seller in its sole discretion. Notwithstanding any provisions of these Terms to the contrary, orders for special, custom or value-added and other nonstandard Goods, including work-in-process and Goods otherwise identified by Seller as "NCNR" or "Non-Cancelable and Non-Returnable," shall be non-cancelable and non-returnable.
- Force Majeure: Seller shall not be liable for any delay or failure in delivery resulting from causes beyond its control, including earthquakes, tornados, fires, floods, acts of terrorism, strikes or other labor disputes, shortage of labor or materials, accidents to machinery, acts of sabotage, riots, delay in or lack of transportation or the requirements of any government authority.
- Shipping Delivery: Unless otherwise expressly agreed in writing by Seller:
- Shipments shall be by a carrier selected by Seller;
- Buyer shall be responsible for all costs of transportation;
- Such carrier shall act as the agent of Buyer and delivery to such carrier shall constitute delivery to Buyer;
- All sales and shipments of Goods shall be FOB shipping point (unless otherwise stated in writing by Seller), at which point title to and all risk of loss of the Goods shall pass from Seller to Buyer, provided that Seller shall retain a purchase money security interest in the Goods until the full purchase price is paid by Buyer;
- Delivery, shipping dates and shipping rates are approximate and Seller will not be liable for any delays in delivery for whatever reason unless the parties have expressly agreed in writing to specific liquidated damages for late deliveries.
- Seller will package Goods as it deems proper for protection against normal handling and extra charges apply to special conditions.
- Inspection; Claims: Buyer must inspect delivered Goods and report in writing to Seller any claim for shortage and/or damage within 5 days of Buyer's receipt of the shipment; the Goods shall be deemed accepted and such claims waived if no such written claim is timely made. Damaged goods or boxes should include the original transportation bill signed by the carrier and Buyer noting that the Buyer received the Goods from Seller in the condition claimed.
- Storage Policy: With respect to firm purchase orders, If agreed upon by Seller, Seller will store goods up to a maximum of 45 days after the fabrication of product. After 45 days, Buyer agrees to pay a monthly storage fee that is equal to 3.5% of the invoiced cost of goods sold. The original delivery date for such orders may not be rescheduled beyond 12 months.
- Limited Warranty; Disclaimer of Warranties; Limitation on Liability: Seller warrants that the Goods will be free of defects in materials and workmanship under normal use and proper maintenance for a period of twelve (12) months from the date of shipment, provided that the application of the Good was approved by Seller and the defective Good is returned to Seller for analysis. SELLER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES NOT SET FORTH IN THESE TERMS, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCE SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND, HOWSOEVER CAUSED, INCLUDING BUT NOT LIMITED TO SUCH TYPES OF DAMAGE AWARDED TO THIRD PARTIES AGAINST BUYER, LOSS OF PROFITS AND LOSS OF REVENUE, ARISING DIRECTLY OR INDIRECTLY IN RESPECT OF THE SUPPLY OF GOODS HEREUNDER, EVEN IF SELLER IS AWARE OF THE POSSIBILITY OF SUCH LOSSES, AND WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY. If the parties agree on the existence of a damage or defect, Buyer's exclusive remedy and Seller's sole liability shall be the replacement of such Good or at Seller's sole option, a credit equal to the purchase price of the Good, if already paid. Seller's obligation shall be limited to such replacement and shall be conditioned upon Seller receiving written notice of any alleged defect no later than ten (10) days after its discovery within the warranty period. Seller reserves the right to satisfy all of its warranty obligations by reimbursing Buyer for all amounts Buyer has paid to Seller for such Good upon which Buyer shall immediately return the Good(s) to Seller. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SELLER UNDER OR AS A RESULT OF THESE TERMS EXCEED THE TOTAL REVENUE ACTUALLY COLLECTED BY SELLER FROM BUYER FOR THE GOODS PURCHASED HEREUNDER ON WHICH LIABILITY IS ASSERTED. SELLER SHALL NOT BE OBLIGATED UNDER THIS LIMITED WARRANTY OR OTHERWISE IN ANY WAY WHATSOEVER FOR NORMAL WEAR AND TEAR OR FOR ANY GOOD WHICH, FOLLOWING SHIPMENT BY SELLER AND AS DETERMINED BY SELLER IN ITS SOLE DISCRETION, HAS BEEN SUBJECT TO ACCIDENT, ABUSE, MISAPPLICATION, IMPROPER MOUNTING OR LUBRICATION, IMPROPER REPAIR OR ALTERATION, IMPROPER MAINTENANCE, NEGLECT, EXCESSIVE OPERATING CONDITIONS OR FOR DEFECTS CAUSED BY OR ATTRIBUTABLE TO BUYER.
- Intellectual Property Rights Confidentiality: Buyer acknowledges and agrees that Seller retains all right, title and interest in and to (a) all intellectual property rights in the Goods; (b) all processes, methods, formulae, ingredients, designs, procedures and other practices used by Seller or relating to the manufacture and sale of the Goods, including all intellectual property rights therein; and (c) all of Seller's equipment and Tooling used in the manufacture and sale of the Goods, including all intellectual property rights therein (collectively, "Seller Technology"). Buyer hereby assigns to Seller all right (including intellectual property rights), title and interest it may now or hereafter possess in and to the Seller Technology and in any derivative works of, and improvements to, the Goods and agrees to execute all documents and take all actions that may be necessary to effect such assignment. Seller is under no obligation to disclose any of the Seller Technology to Buyer for any reason. Buyer agrees that Seller Technology and all information furnished hereunder to Buyer by Seller shall be held in confidence and shall not be used or disclosed by Buyer without Seller's prior written consent, except for the fulfillment of these Terms. Buyer shall enforce against its employees and agents these obligations of confidentiality and shall return all such information and any copies thereof to Seller upon its request.
- Indemnities: Buyer shall indemnify and hold harmless Seller, its affiliates and its employees from and against all liabilities, losses, claims, costs and expenses (including reasonable attorney's fees and expenses) related to any claim, investigation, litigation or proceeding (whether or not Seller is a party) which arises or is alleged to arise from Buyer's acts or omissions under these Terms or in any way with respect to Buyer's use, operation or possession of the Goods. Without limiting the foregoing, Buyer (at its own expense) shall indemnify and hold harmless Seller and defend or settle any action brought against Seller to the extent that it is based on a claim that any Good made to Buyer's specifications infringed intellectual property rights of another party.
- Miscellaneous: (a) Waiver. No failure or delay by Seller in exercising any right and no course of dealing between Buyer and Seller shall operate as a waiver of rights by Seller. (b) Assignment. These Terms shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Buyer may not assign its rights hereunder without Seller's written consent, but Seller may assign its rights and obligations hereunder to a successor to substantially all of its assets and business (whether as a result of a sale of equity or assets or by merger). Seller also may subcontract any of its obligations hereunder. (c) Governing Law; Jurisdiction. These Terms are governed by Illinois law (without regard to conflicts of law principles). The parties submit to the exclusive jurisdiction of the federal or state courts located in Illinois for resolution of any dispute hereunder. (d) Amendment. These Terms constitute the entire agreement between Buyer and Seller relating to the Goods, and no provision may be changed or waived unless in writing signed by the parties. (e) Severability. If any provision hereof is rendered ineffective or invalid, such provision shall not invalidate any other provision. (f) Setoff. All claims hereunder against Seller are subject to setoff by Seller for any counterclaim arising out of any transaction with Buyer. (g) Definitions. As used herein, "including" means "including without limitation."
- Suitability For Use; Export Regulations: Seller shall not be responsible for conformity with any standards, codes or regulations that apply to the combination of the Good in the Buyer's application or use of the Good. Buyer will comply with the provisions of the United States Government's Export Administration regulations and related documentation requirements and internal control procedures. Buyer is responsible for obtaining any necessary export or import licenses and permits.
- Product Prohibitions: Buyer agrees to observe all prohibitions or warnings of use applicable to the Goods.
- Improper Use of Product: Buyer agrees to NEVER USE THE GOODS FOR AN APPLICATION INVOLVING SERIOUS RISK TO LIFE OR PROPERTY WITHOUT ENSURING THAT THE SYSTEM AS A WHOLE HAS BEEN DESIGNED TO ADDRESS THE RISKS, AND THAT THE GOODS SELLER PROVIDES ARE PROPERLY INSTALLED FOR THE INTENDED USE WITHIN THE OVERALL EQUIPMENT OR SYSTEM.
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