TERMS AND CONDITIONS
1. General. The terms and conditions on both sides of this form (the “Terms and Conditions”) shall be the complete and exclusive terms and conditions applicable to the agreement between ID Castings, LLC (IDC) and the buyer identified on the applicable IDC quotation (“Buyer”). IDC shall not be bound by Buyer's terms and conditions unless expressly agreed to in writing. In the absence of written acceptance of these Terms and Conditions by Buyer, either acceptance of or payment for the products shall constitute Buyer's acceptance of these Terms and Conditions. Any different or additional terms or conditions in any order, proposal, acknowledgement form or any other document of Buyer are hereby deemed material alterations and are null and void and superseded by these terms and conditions.
2. Payment. Payment shall be net 10 days date of shipment unless otherwise agreed to in writing. Production, shipment, and delivery shall at all times be subject to the approval of IDC's credit department. IDC reserves the right at any time to modify or withdraw credit terms without notice and to require guarantees, security, or payment in advance of the amount of the credit involved. If IDC at any time doubts Buyer's financial responsibility, IDC may decline to make shipments hereunder except upon cash payment in advance or receipt of security or other proof of responsibility satisfactory to IDC.
3. Title. Title to all products shall remain in IDC until the complete purchase price and all additional costs and charges, as adjusted, are paid by Buyer. IDC shall retain a security interest in, and right to repossess, any such product until it is paid in full. Risk of loss shall pass to Buyer upon delivery to the carrier.
4. Price. Prices as quoted are in U.S. dollars and are firm for thirty (30) days from the date of IDC’s quotation. Thereafter, they are subject to change without notice to the prices prevailing at time of acceptance. Prices are F.O.B. carrier’s equipment at IDC’s factory and are exclusive of all taxes–federal, state or local. If IDC is required to pay or collect any tax or duty owed by Buyer, such payment or collection shall be added to the price. If there is a delay in completion or shipment of order, due to any change requested by Buyer, or as a result of any delay on Buyer’s part in furnishing information necessary for completion of the order, the price initially agreed upon at time of acceptance is subject to change.
5. Surcharges. Notwithstanding anything in these terms and conditions to the contrary, IDC reserves the right, at the time of order, to charge Buyer a surcharge on each product ordered by Buyer, to cover increased commodity costs, duties, tariffs or other related items, in each case, which have impacted IDC. If Buyer does not agree to pay such surcharge, IDC reserves the right to cancel the applicable order.
6. Delivery Date. The promised delivery date is the best estimate possible, based upon current and anticipated factory loads, of when the products will be shipped. IDC shall have no liability for lost profits or incidental or consequential damage due to delays. If any contingency beyond the control of IDC occurs that prevents IDC from shipping the products on time, IDC may allocate production and delivery among IDC’s customers without liability.
7. Changes. Any change order by Buyer will not be considered effective until mutual agreement has been reached between the Buyer and IDC as to the effect of any changes in prices, delivery, and other conditions of the order.
8. Inspection and Notice of Defect. Unless otherwise specified, the products to be furnished hereunder shall be subject to IDC’s standard inspection at the place of manufacture. If inspection by the Buyer at the place of manufacture is provided for, Buyer’s inspectors shall be deemed agents of Buyer to accept the products on Buyer’s behalf regardless of deviation from formal specifications. Notice of any defects or claims of any nature (except warranty) must be made within ten (10) days of delivery.
9. Returns. Returns will not be accepted for any reason without IDC’s prior written authorization. If IDC does provide written authorization of a return, Buyer shall be responsible for paying all return shipping costs, as well as any handling, restocking and related fees associated with the return, as determined by IDC in its sole discretion.
10. Warranty: IDC warrants to the original Buyer only, that its products have been made according to the specifications submitted by the Buyer and that the products will be free from defects due to poor workmanship and defective materials under normal use. IDC’s obligation under this warranty is strictly limited to either the repair, replacement, or allowance of credit for defective products, as the Seller may choose in its absolute discretion, provided that: (a) IDC is notified in writing of the defect within thirty (30) days from the date of shipment; (b) if necessary to determine root cause, IDC be permitted to inspect the products before Buyer attempts to rework or further process the products; and (c) the defects are not the result of the Buyer’s misuse, neglect, improper installation, or repair. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
11. Modifications and Specifications. In the event Buyer modifies the products sold hereunder without the express written consent of IDC, or Buyer fails to implement any changes in the products directed by IDC, or where products are manufactured from patterns, plans, drawings, or specifications furnished by Buyer and such manufacturing results in an infringement or other intellectual property claim, Buyer agrees to indemnify, defend, and hold IDC harmless from any and all claims, demands, suits, costs, and expenses (including but not limited to attorneys’ fees and litigation costs) incurred thereby, whether in contract, tort, or otherwise, resulting from such modification, failure or infringement.
12. Limitation of Liability. In the event Buyer claims that IDC has breached any of its obligations, whether in warranty or otherwise, IDC may request and require return of the product and refund the Buyer’s purchase price upon IDC’s receipt of the returned product. If IDC so requests the return of the product, the product shall be redelivered per IDC’s instructions at IDC’s expense. In such event, IDC shall absolutely have no further obligation to Buyer except to refund the purchase price. THE REMEDY PROVIDED FOR IN THIS PARAGRAPH SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST IDC FOR BREACH OF ANY OF IDC’S OBLIGATIONS, WHETHER THE CLAIM IS MADE IN TORT, CONTRACT, OR IN ADMIRALTY, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, IN NO EVENT SHALL IDC BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL IDC’S LIABILITY FOR ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH THESE TERMS AND CONDITIONS, OR THE MANUFACTURE, SALE, DELIVERY, OR USE OF THE PRODUCT EXCEED THE PURCHASE PRICE THEREOF.
13. Proprietary Information–Confidentiality. Any specifications, drawings, plans, notes, instructions, engineering notices, or technical data of IDC furnished to Buyer shall be deemed to be incorporated herein by reference the same as if fully set forth herein. IDC shall at all times retain title to all such documents, and Buyer shall not disclose such to any third party without IDC’s prior written consent. Upon IDC’s request, Buyer shall promptly return to IDC all such documents and copies thereof.
14. Termination. IDC may terminate an order or these Terms and Conditions upon immediate written notice to Buyer on the happening of any of the following events: (a) Failure of Buyer to accept delivery of products or to pay any indebtedness to IDC when due, accompanied by a failure within ten (10) days after demand therefor, to fully pay the same or provide assurance of payment satisfactory to IDC; (b) Failure by Buyer to honor any promise on Buyer’s part contained in these terms and conditions or to perform any of its obligations under these Terms and Conditions, other than the payment of any indebtedness to IDC, after Buyer shall have been notified by IDC of such failure and in IDC’s opinion shall have failed to correct the same within thirty (30) days after receipt of such notice; (c) Repetition by Buyer of a failure which is the same or substantially the same as the one previously corrected by Buyer after notice as provided in subparagraph (a) above; (d) The material inaccuracy of any information set forth in any application, claim, schedule, certificate, or other document heretofore or hereafter furnished by Buyer to IDC; and (e) If Buyer shall cease to function as a going concern, or makes an assignment for the benefit of creditors, or any proceeding under any federal or state bankruptcy, receivership, or insolvency laws is instituted by or against Buyer, or the liquidation, dissolution, merger, or consolidation of Buyer occurs, or a receiver or trustee for Buyer or any of its assets or property is appointed or applied for. Termination shall not release or affect, and these terms and conditions shall remain fully operative as to, any obligations or liabilities incurred by Buyer prior to the effective date of such termination; provided, that all indebtedness of Buyer to IDC shall become immediately due and payable on the effective date of termination without demand, and IDC may deduct from any sums it owes to Buyer sums owed by Buyer to IDC. Any orders received from Buyer, whether or not accepted by IDC, which have not been shipped prior to Buyer’s receipt of notice of termination or the effective date of termination or expiration, whichever shall occur first, shall only be shipped C.O.D. or cash in advance.
15. Miscellaneous. Buyer's rights and obligations hereunder may not be assigned or delegated without the prior written consent of IDC. IDC may freely assign its rights and obligations. These Terms and Conditions shall be governed by and construed in accordance with the Uniform Commercial Code as adopted by Indiana under which jurisdiction Buyer consents. These Terms and Conditions supersede all prior written or oral agreements with respect to the subject matter hereof. The invalidity of any part of these Terms and Conditions shall not affect the validity of the remaining provisions. All claims or suits against IDC must be made within one (1) year of the date the cause of actions occurred (regardless of when they were discovered) or be forever barred. No waiver shall be effective against Buyer unless Buyer agrees to same in writing. Paragraph headings found herein are for convenience only and are not to be considered in interpreting any of the provisions hereof.
16. Contingencies. IDC shall not be liable for any default or delay in performance if caused directly or indirectly by acts of God; war; force of arms; fire; the elements; riot; labor disputes; picketing or other labor controversies; ·sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material, or equipment used in the manufacture of the products; failure of any party to perform any contract with IDC relative to the production of the product; or from any cause whatsoever beyond IDC's control, whether or not such cause be similar or dissimilar to those enumerated. IDC shall promptly notify Buyer of the happening of any such contingency and of the contemplated effect thereof on the manufacture and delivery of the product.