1. CONTRACT BETWEEN BUYER AND SELLER: Taylor Made Glass Systems/Taylor Made Glass Ohio, LLC (hereafter “Seller”) acceptance of Buyer’s purchase order and Buyer’s agreement to purchase goods from Seller are subject to and expressly governed by the terms and conditions set forth herein, which shall constitute the entire agreement and contract between Buyer and Seller regarding Buyer’s purchase of goods from Seller. Buyer further agrees that none of the terms or conditions in its purchase order or any other document it sends Seller in connection with its purchase of goods from Seller shall apply to or govern this transaction and further agrees that its acceptance of any goods shipped by Seller shall constitute Buyer’s assent and agreement to be bound by the terms and conditions herein, whether or not Buyer signs this invoice, acknowledgement, or contract.
2. CHANGE IN PRICE AND PRODUCT LINE: Prices are based on existing conditions and are subject to change upon 30 day written notice. Prices are based on quantity shipped per release. Seller reserves the right to make minor changes in product specifications that enhance safety, use, manufacturing processing or appearance.
3. TERMS: Terms will be indicated on Seller’s quotation. Standard terms are Net 30 FOB Plant of Manufacture. Terms may be changed after order is acknowledged at the discretion of the Sellers Credit Department.
4. CREDIT: All shipments shall be subject to the approval of the Seller’s Credit Department. If the financial status of the Buyer is unsatisfactory, or becomes impaired, or if the Buyer fails to make any payment in accordance with the terms of the contract; the Seller may defer or decline to make any shipment until receipt of satisfactory security or cash payments, or the Seller may terminate the contract upon unsatisfactory response.
5. RETENTION OF SECURED INTEREST: Seller retains title and security interest in and to and buyer grants to seller a security interest in and to the goods and merchandise described on the reverse side hereof, hereinafter referred to as “collateral” to secure the performance and payment of the obligations of buyer to seller to pay total purchase price reflected on the reverse side hereof to seller together with any other indebtedness owed by the buyer to the seller whether heretofore or hereinafter incurred. Any payments received by seller on buyers account shall be applied against the total indebtedness of buyer to seller. Buyer agrees that the collateral shall not be removed, sold, pledged, mortgaged or a security interest therein given to any person other than seller without the consent of the seller in writing. Buyer assumes all risks of loss incidental to the full and complete ownership of the said collateral.
6. TAXES: All prices are subject to the addition of all Federal, State, or Municipal taxes or charges, which may be established or levied upon or assessed against merchandise under contract. It is the responsibility of the Buyer to furnish a Sales Tax Certificate for all shipments made into the states of Ohio or Tennessee or other states where required. If these certificates are not furnished, appropriate sales tax will be collected.
7. DELAYS: The Seller will indicate an Estimated Shipping Date on order acknowledgement. Seller shall not be liable for any delay based on this estimate. Buyer is responsible for determining shipping time and to release items based on this calculation. Buyer’s request to delay shipments will be evaluated by Seller and delays of up to thirty (30) days may be approved at Sellers discretion.
8. FOB: Products are quoted FOB plant of manufacture unless written agreement is made. The Buyer may select a freight method and carrier. If not selected by Buyer, Seller will ship products by the best-known method. Extra packing charges may be incurred for air, international or special shipments. If Seller has trucks with space available between plants or is in vicinity of customer, deliveries may be made at Sellers Option.
9. PRODUCT: The Seller reserves the right to sell the exact or similar product to any other buyer unless a written exclusive agreement is issued.
10. SHIPMENT QUANTITY: The Seller reserves the right to under ship or over ship plus or minus 10 percent.
11. MINIMUM ORDERS: Orders are subject to a minimum order. In some cases a blanket order may be required with releases in a minimum quantity. The blanket order is to guarantee materials and to recapture development costs. A blanket order is a guarantee to allow the Seller to purchase and stock material. This is not a guarantee that all items on blanket will be immediately available for release. Blankets are to be released within one calendar year unless written exception is made.
12. CANCELLATION: Cancellations must be requested in writing by Buyer. Said contract is subject to cancellation only upon Seller’s acceptance of said cancellation in writing and the effective date of said cancellation shall be the date of such acceptance. Buyer shall make payment of cancellation charges upon receipt of statement of same. Cancellation charges shall not exceed the purchase price of cancelled portion of the contract plus pro-rated development costs.
13. EQUIPMENT: All equipment, dies, jigs, molds, fixtures, tooling, prints, drawings and processes are the property of Seller even if a development charge was paid unless a written exception is issued by the Seller.
14. LIMITED EXPRESS WARRANTY AND DISCLAIMER OF LIABILITY: Seller warrants for one year from the date of manufacture, to the original purchaser only, that its products shall be free from defects in material and workmanship and shall conform to specifications of the approved prototype for that product. Seller’s obligation under this warranty is limited to the repair or replacement of any item deemed defective by Seller. Seller’s decision upon evaluation of the alleged defective items shall be final. If an item is thought to be defective, the item purchased is to be returned, properly packaged, to the nearest authorized dealer, after proper authorization is given by Seller. All shipping costs are the obligation of purch¬aser. Under no circumstances shall Seller’s costs and total liability to Buyer exceed the original price of the allegedly defective item.
This warranty does not apply to:
1. Shipping damages unless delivered on Seller’s truck; 2. Damages caused by mishandling or storage by the customer; 3. Damages caused by misuse or improper installation of the product;
4. Installation and removal cost of any product; 5. Glass breakage after receipt and acceptance of material by the customer; 6. Painted surfaces after installation by customer; 7. Painted surfaces damaged by solvents, or other corrosive chemicals; 8. Painted surfaces on products that have been modified, drilled, contacted by non-compatible metals or materials, or show evidence of elecrolysis; 9. Damage to any product caused by corrosion or electrolysis.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. THE FOREGOING LIMITED EXPRESS WARRANTY IS IN LIEU OF AND EXPRESSLY EXCLUDES ALL OTHER WRITTEN, IMPLIED, OR ORAL WARRANTIES OR CONTRACTUAL AGREEMENTS OF ANY KIND NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY LAW OR OTHERWISE, AND SELLER EXPRESSLY DISCLAIMS LIABILITY FOR, AND BUYER HEREBY RELEASES AND DISCHARGES SELLER FROM, ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION OR LIABILITY FOR, INTER ALIA, BREACH OF THE UCC-BASED IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NEGLIGENCE, STRICT LIABILITY, CONTRIBUTION, CONTRACTUAL AND COMMON LAW INDEMNITY, SUBROGATION, AND ANY AND ALL OTHER TORT-BASED, CONTRACT-BASED, OR STATUTORY-BASED BREACHES, MISCONDUCT, OR OTHER LIABILITY ARISING FROM BUYER’S PURCHASE OF GOODS, MATERIALS, OR SERVICES FROM SELLER.
15. EXCLUSIVE REMEDY: Buyer agrees that its exclusive remedy against Seller in the event the goods, materials or services supplied by Seller are defective or otherwise cause Buyer to suffer damages of any kind, whether caused by Seller’s breach of the terms and conditions herein, Seller’s breach of the foregoing express or implied warranties, or Seller’s negligence, strict liability, or other tortuous or statutory violations, shall be limited to an action against Seller for breach of the limited express warranty set forth above. Buyer further agrees that Seller’s maximum liability to Buyer for any such breach, negligence, strict liability, tortuous misconduct or statutory violations shall be limited to, and shall not exceed, the purchase price Buyer paid for the goods, materials, or services it purchased from Seller and that Seller shall not be liable to Buyer for any other damages or losses of any kind, including, but not limited to, lost profits, lost wages, lost revenue, attorney fees, costs, and any and all indirect, incidental, consequential, compensatory, special, delay, punitive, or other similar damages.
16. RETURNED GOODS AUTHORIZATION: Seller must be notified in writing of the complete model number, quantity and discrepancy prior to issuing a Returned Goods Authorization (RGA). A written RGA will be forwarded to Buyer with written shipping instructions. Items not listed on RGA or not properly packed will not be accepted.
17. ELECTRONIC SIGNATURE: Seller agrees to accept as binding purchase order electronically transmitted documents for routine orders and reorders. Buyer must provide as a minimum name or logo of company, a purchase order number, buyer or purchasing agents name and title. Purchase orders may be transmitted by FAX, E-mail or EDI. EDI transmissions are acceptable in format as agreed upon by both parties. In some cases, such as development costs, large blanket orders or when specifically requested by the buyer, a signed copy may be required.
18. PROTOTYPE OR SPECIFICATION APPROVAL: Seller will accept approval of specifications in writing from employees of Buyer authorized to do so. Seller will accept signature from the Buyer with following titles: Owner, Corporate Officer, Manager, Engineer, Purchasing Agent and Buyer. If the Buyer limits the authority to approve specifications to specific titles or individuals by name, the Seller must be notified in writing in advance. Any changes in specifications makes item subject to re-quote.