Terms and Conditions
Standard Terms and Conditions of Sale
SELLER: Beemer Precision, Inc.
BUYER: Seller's Customer or Prospect
UNLESS OTHERWISE AGREED TO IN A WRITING SIGNED BY AN AUTHORIZED BEEMER REPRESENTATIVE, THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL SALES
1. ORDER ACCEPTANCE BY SELLER:
a. All orders received from BUYER are subject to acceptance by SELLER unless quotation specifies that it is a bid in response to an invitation for bids in which event the order or award shall constitute acceptance of the bid in accordance with the bid terms.
b. Terms and Conditions contained in the BUYER's order form or in the BUYER's standard terms and conditions at variance with or in addition to these Standard Terms and Conditions of Sale are proposals for additions to the contract which were not accepted. The contract between the parties shall consist of the SELLER's Quotation, Order Acknowledgment, and these Standard Terms and Conditions of Sale. Any contract shall be construed as an agreement made in Chester County, Pennsylvania. Commercial Code sections 2207(a) and (b) but not (c) shall apply.
c. Orders accepted by SELLER cannot be canceled by BUYER except with SELLER's written consent and upon terms that will indemnify SELLER against loss.
2. QUANTITY VARIANCES: SELLER reserves the right to ship and BUYER agrees to accept an under-or-over-run of any quantity up to and including 10%. If SELLER ships part of an order, BUYER will promptly pay for the part of the order shipped.
3. SAMPLES: In the event samples are furnished BUYER, SELLER will not assume any liability in connection with the furnishing or use thereof and there will be no agreement of warranty collateral to or affecting the furnishing of such samples.
4. PRICE AND PAYMENT:
a. Unless otherwise stated, all prices are FOB SELLER's plant, and prices do not include transportation charges, which are BUYER's responsibility. Price quotes will remain in effect for sixty (60) days only. The price of orders calling for delivery after sixty (60) days from the date of the Quotation will be increased to incorporate any price increases experienced by SELLER up to and including the date of shipment.
b. Taxes not included in price. Except where otherwise prohibited by law, all sales, excise, use or other taxes or charges by the federal, any foreign, or any state or local government, which SELLER may be required to pay or collect shall be in addition to price stated and shall be paid by BUYER unless a valid exemption certificate is furnished.
c. Payment. All accounts are payable within thirty (30) days. SELLER may in SELLER's sole and absolute discretion demand payment either in advance of production or in advance of shipment.
d. Payments where shipments are delayed. Where BUYER requests delay in shipment, SELLER shall have the option of billing for goods when ready for shipment. If material is not ordered out within sixty (60) days after goods are ready. SELLER will have the option of billing storage charges.
e. All invoices unpaid after the due date will bear interest at the rate of 1-1/2% per month and BUYER will pay this interest in addition to the invoice amount. In the event SELLER refers the BUYER's unpaid account to an attorney for collection, BUYER will also pay SELLER's reasonable attorney's fees, which will be in the minimum amount of $2,500. In addition, if BUYER fails to make a timely payment on any invoice, SELLER may stop work on all goods ordered by BUYER under any order. BUYER grants SELLER a security interest in all goods sold as collateral for payment of any amounts owed to SELLER. SELLER is entitled to invoke all of the remedies contained in these standard terms and conditions as well as any other remedies available at law or in equity not only in the event of an actual breach but also in the event of anticipatory breach or a failure to provide adequate assurances. For example, and not by way of limitation, any statement by one of BUYER's employees or contractors that BUYER does not intend to pay in full, that BUYER has cancelled its project, or that BUYER is putting its project "on hold" shall constitute an anticipatory breach of the contract between SELLER and BUYER. For another example, and again not by way of limitation, any failure by the BUYER to assure SELLER that it will pay for the goods, or any failure by the BUYER to provide sufficient evidence that the BUYER has the financial means with which to pay for the goods shall constitute a breach of the contract between the parties.
5. SHIPMENT:
a. Shipping dates. Shipping dates are approximates only and are subject to change.
b. Routing. All goods will be shipped via the cheapest or most expeditious means of transportation under the circumstances, unless BUYER indicates otherwise. If BUYER provides no routing instructions SELLER shall be the sole judge of the best method of routing shipments.
6. DELAY OR NON-SHIPMENT: SELLER will not be liable for any delay in shipment or failure to ship when shipment is made impracticable by fire, embargo, strike, differences with employees, accidents, acts of God, failure or inability to secure materials from usual sources of supply at prices consistent with the price set forth in the Quotation, or any other circumstances beyond SELLER's control, either of the foregoing nature or of any other nature. When either SELLER or the BUYER is excused from performance by force of this paragraph, or the Uniform Commercial Code, the other party shall have the rights given by Sections 2-615 and 2-616 of the UCC and the procedure provided in those sections shall be followed. The provisions of this section are in addition to and not in place of the provisions of section 5.a.
7. TITLE AND RISK OF LOSS: Title to and risk of loss for the products subject to the Quotation shall shift from SELLER to the BUYER upon SELLER's delivery of the products to the carrier. Thereafter, the BUYER will bear all responsibility for loss or damage of any kind. The BUYER is responsible for insuring the goods in transit and all insurance claims for damage in transit must be prosecuted by the BUYER.
8. BUYER’S DUTY TO DETERMINE SUITABLE BEARING: Buyer alone bears all responsibility for selecting a suitable bearing for BUYER’s product or application. BUYER’s duties include but are not limited to designing their product or application with adequate clearances and tolerances, investigating the type and dimensions of a suitable bearing, and testing for whether the bearing works as wished.
9. BEARINGS ARE WEAR ITEMS: BUYER acknowledges that bearings are wear items that require periodic inspection and replacement. BUYER alone bears all responsibility for establishing schedules and procedures for inspecting and replacing bearings.
10. LIMITED WARRANTY AND LIMITATION OF DAMAGES: SELLER warrants that if any product of its manufacture upon examination as found by a SELLER's representative to be defective in either workmanship or material under normal use and service, SELLER, at its option, will repair or replace same free of charge including lowest transportation charges, but not cost of installation or removal or will refund the purchase price thereof, provided that SELLER receives written claim specifying the defect within ninety (90) days from the date of distributor sale or one (1) year from date of factory shipment, whichever occurs first. In no event shall SELLER be liable for any claims whether arising from breach of contract or warranty or claims of negligence or negligent manufacture, in excess of the purchase price. EXCEPT AS SET FORTH IN THIS PARAGRAPH, SELLER MAKES NO WARRANTY OF FREEDOM FROM PATENT INFRINGEMENT, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE OR OTHER LIKE OR DIFFERENT EXPRESS OR IMPLIED WARRANTIEES, ALL OF WHICH ARE DISCLAIMED. The foregoing expresses all of SELLER's obligations and liabilities with respect to the quality of items furnished by it and Seller shall under no circumstances be liable for incidental, consequential, collateral or special losses or damage.
11. SPECIAL TOOLING: All tooling required to produce the goods shall remain the property of SELLER unless specifically agreed otherwise in writing. BUYER is responsible for costs resulting from (1) requested alterations, (2) substantial repairs or replacements caused by normal ware, (3) additional costs incurred when factors are introduced such as shorter lead time and/or increased rate of shipment.
12. INSPECTION: The BUYER will inspect the goods within 48 hours after their arrival and will immediately give written notice to SELLER of any claim if the goods do not conform with the terms of the contract. If the BUYER fails to give such notice the goods will be deemed to conform with the terms of the contract, and the BUYER will be bound to accept and pay for the goods in accordance with the terms of the Quotation and these Standard Terms and Conditions of Sale.
13. CANCELLATION AND CHANGES: No orders may be cancelled or changed without the written agreement of both parties. No goods may be returned by BUYER for any reason without SELLER's prior written approval.
14. EXCLUSION OF DAMAGES: Under no circumstances, will SELLER be liable for incidental, consequential, collateral, or special losses or damages, lost revenues or lost profits, whether in contract or tort, including but not limited to negligence, gross negligence and product liability. SELLER's obligations and potential liabilities to BUYER are exclusively stated in the Limited Warranty clause of these Standard Terms and Conditions of Sale.
15. PATENTS AND TRADEMARKS: SELLER makes no warranty that the goods sold will be delivered free of the rightful claims of any third party by way of patent or trademark infringement or the like. If the goods are furnished to the BUYER's specifications, BUYER agrees to indemnify SELLER and its successors and assigns against all liabilities and expenses, including attorney's fees, resulting from any claim of infringement on any patent or trademark in connection with the production, sale or use of such goods. All inventions and any resulting patents made by SELLER in connection with the design of products for the BUYER shall, except as otherwise specifically agreed in the Quotation, be the sole and exclusive property of SELLER.
16. TITLE TO DRAWINGS/SPECIFICATIONS: SELLER retains title to all drawings and specifications. BUYER shall not disclose or use any drawings and specifications prepared or supplied by SELLER except for the purpose of confirming the quality of the design and manufacture of the products set forth in the Quotation. BUYER will not photocopy, duplicate or in any other way copy any drawings or specifications which may be supplied by SELLER.
17. INTELLECTUAL PROPERTY RIGHTS: SELLER retains all intellectual property rights in any products that it sells to BUYER. Copyrights, trademarks and rights to patents are included among the rights that SELLER retains. BUYER will not reverse engineer any products and will not retain anyone else to reverse engineer any products purchased from SELLER.
18. IDENTIFICATION OF PRODUCTS: SELLER may at its sole option place its name, address and trademark on any item included in the Quotation.
19. LIMITATION OF ACTIONS/FORUM SELECTION: Any action or suit based on or related to the contract between the parties, including but not limited to actions and suits brought in contract and tort, must be commenced within one year after the cause of action accrues, and no such action or suit that is not commenced within such period may be maintained, except an action for non-payment of the purchase price. The parties submit to the jurisdiction of the Court of Common Pleas of Chester County, Pennsylvania, which shall constitute the exclusive forum for litigation of any dispute arising under or related to the contract between the parties and the performance of that contract.
20. APPLICATION OF TERMS AND CONDITIONS TO "EXTRA": If SELLER sells additional goods to BUYER in addition to those that are stated in the Quotation, these standard terms and conditions shall automatically apply to the sale of such additional goods, even if the writing between the parties does not expressly incorporate these standard terms and conditions.
21. CONSTRUCTION AND INTERPRETATION: No principle of law or equity construing or interpreting ambiguities against the drafting party shall apply in the construction or interpretation of the contract between the parties.
22. EFFECT OF BREACH ON RISK OF LOSS: Breach of the contract between the parties will have no effect on the provisions of these standard terms and conditions controlling the risk of loss of the goods, and Sections 2-510(a) and 2-510(b) of the Uniform Commercial Code will not apply to this contract.
23. QUOTATIONS: Quotations are valid for 30 days.
24. GENERAL PROVISIONS:
a. Modifications of contract. It is agreed that there is no other contract in force between BUYER and SELLER and no alteration shall be binding unless agreed to in writing by SELLER.
b. Waiver. Should SELLER by any words, acts or writing, waive or be deemed to have waived any of the provisions of this agreement, or should SELLER fail to insist upon performance by BUYER of one or more of the terms herein, such action or failure on SELLER's part will in no way be deemed to imply or constitute a waiver of the other terms contained in this agreement.