1.0 PLANS, SPECIFICATIONS, AND RESPONSIBILITIES; ACCEPTANCE
Purchaser is engaging ProMoldGauer, Inc. (“PMG”) to manufacture a mold (the “Mold”) for Purchaser. Purchaser is responsible for the proper design of the Mold regardless of who engineers the Mold or produces the final plans for the Mold, and Purchaser will provide complete plans and specifications to enable PMG to manufacture the Mold. PMG will manufacture the Mold in accordance with the plans and specifications provided by Purchaser. PMG will not be responsible for products created with the Mold that are defective because of gassing, flow lines, gate location, or changes or departures from the approved Mold plans or specifications, or the filling of cavities or sections or any other molding process variations. Purchaser will furnish shrinkage factors to PMG to be used in calculating all dimensions and interpreting all critical tolerances with respect to the Mold. Purchaser’s order for the Mold (the “Purchase Order”) will not be deemed to have been accepted by PMG unless and until the same has been acknowledged and accepted by PMG in writing. All PMG quotations are subject to change or withdrawal by PMG at any time prior to the final acceptance of Purchaser Order in writing by PMG. When tool prices are quoted on pieces part drawings only, prices are subject to confirmation by PMG after receipt of final Mold design from Purchaser.
2.0 CONTROLLING TERMS AND CONDITIONS
PMG agrees to perform the requested services only on the express condition that Purchaser assents to the terms and conditions contained herein. PMG rejects, and will not be bound by, any term or condition on the Purchaser Order which is different from or in addition to these terms and conditions. No term, condition, description, price, quantity, or delivery schedule will be changed and no agreement or understanding in addition to or different from the terms and conditions stated herein will be binding upon PMG without written authority from PMG’s authorized representative. To the extent that Purchaser’s terms and conditions conflict with the terms and conditions contained herein, the latter will control. Any confirmatory action by Purchaser hereunder or any acceptance of the Mold or services described or referred to in the Purchase Order will constitute Purchaser’s assent to the terms and conditions herein.
3.0 CHANGES IN DESIGN, PLANS, OR SPECIFICATIONS
Any revisions to the Mold design after a Purchase Order is issued will be at Purchaser’s sole expense and must be authorized in writing by Purchaser and accepted by PMG. PMG will not be responsible for any work performed on the Mold by any third party unless authorized by PMG in writing. Purchaser must assume any additional costs resulting from any changes to the Mold that Purchaser requires or requests for any reason. If the Purchaser orders special heat-treating, chrome plating, and or welding relative to the Mold, Purchaser assumes any and all risks and additional expenses associated with these processes. PMG will notify Purchaser in advance regarding any such additional expenses that PMG may be aware of and will request written approval to proceed from Purchaser prior to any such work being completed. If any such “change in scope” work is completed by PMG, Purchaser shall be liable for all related expenses including direct costs, subcontract expenses as well as overhead and profit. Payment for any such changes must be made net 10 days upon completion of such work by PMG or its subcontractor.
4.0 LIMITED WARRANTY; LIMITATIONS OF LIABILITY AND NOTICE OF DEFECTS MOLDS
pmg warrants that the mold will be manufactured in accordance with the plans and specifications provided to pmg by purchaser (the “limited warranty”). pmg’s sole liability under this limited warranty, and purchaser’s sold remedy will be, in pmg’s sole discretion, limited to pmg replacing or repairing the mold without charge to purchaser, f.o.b. shipping point. pmg makes no warranties on unmodified vendor items not of pmg’s design or manufacture, but to the extent permitted by such warranty, pmg will extend to the purchaser its rights under any warranties that it obtains from manufacturers thereof with shipping and handling at the purchaser’s expense. except for the foregoing limited warranty, pmg makes no other warranties, and disclaims all other warranties, whether express or implied, written, oral, or statutory, including, without limitation, warranties of merchantability, non-infringement, or fitness for a particular purpose. any unauthorized alteration or modification to the mold after it is delivered to purchaser will automatically and immediately void the limited warranty provided hereunder. in no event will pmg or its successors or assigns be liable to the purchaser or any third party on any claim, whether in contract, tort (including negligence) or otherwise, for consequential, incidental, or special damages arising directly or indirectly from the provision of service or the sale or use of the mold and in no event will pmg’s maximum liability exceed the price allocable to the service or sale to which the claim relates. The Limited Warranty will be effective only if Purchaser complies with all of the terms and conditions contained herein. The Mold will be considered approved by the Purchaser unless written notice to the contrary is received by PMG within 15 days of Purchaser’s receipt of the Mold.
5.0 CHANGES, DELAYS AND CANCELLATIONS
In the event a design change is initiated by Purchaser or its agent, any reductions in scope of work will be credited back at 90% of the purchase price (as determined by PMG). In the event Purchaser delays shipment of the Mold for any reason, the entire purchase price, less any advance payment, shall become due and payable within 10 days after written notification to the Purchaser. In such event, when the Mold is ready for shipment, warehousing and storage fees and all other out-of-pocket expenses shall be reimbursed to PMG in addition to above costs, including overhead and profit before PMG will be obligated to deliver the Mold to Purchaser.
In the event Purchaser cancels shipment of the Purchase Order for any reason, all direct and indirect costs incurred to date by PMG including overhead and lost profit, less any advance payment, shall become due and payable within 10 days after written notification to the Purchaser. Purchaser shall have 10 days to pick up all Mold materials at its expense and remove them from PMG’s premises after cancellation of the Purchase Order, otherwise PMG may sell, scrap, donate or discard all such materials for PMG’s sole benefit and without any further obligation to Purchaser.
6..0 TITLE AND OWNERSHIP
The title and right of possession to the Mold and any components thereto covered by the Purchase Order shall remain with PMG until full and final payment therefore, in cash, shall have been made in accordance with the terms agreed upon, including any type of change orders, regardless of whether Purchaser has received payment from any third party. In the event of default in any payment herein provided for, PMG may repossess the Mold and all additions thereto, wherever found, free from all claims whatsoever, or assert a mechanics lien. PMG shall not be held liable, in any action at law on Purchaser’s part, for such reclamation. PMG shall retain all payment previously made as compensation for materials used and service. Notwithstanding this provision, Purchaser shall pay and be responsible for payment of all state and local taxes, including sales, excise, use, gross receipts, turnover, and added value, or other similar taxes, tariffs, and import duties, arising from ownership of the Mold from date of shipment. All hobs, tools, tracing, and jigs required to build the Mold are property of the PMG unless supplied by the Purchaser or otherwise specified in writing. PMG agrees to return hobs and patterns in existing condition if so supplied by the Purchaser within ___ days after completion of the Mold. PMG has no duty to keep or maintain any hobs and patterns or the like supplied by the Purchaser after ___ days from date of shipment of the Mold.
7.0 PAYMENT TERMS: DOMESTIC PURCHASER
Purchaser must provide PMG with a deposit of 1/3 of the total purchase price, subject to established credit rating, with the Purchase Order. An additional 1/3 of the total purchase price is due net 10 days upon shipment of the Mold, and the remaining 1/3 balance is payable net 30 days of the date of PMG’s final invoice.
8.0 PAYMENT TERMS: INTERNATIONAL PURCHASER
Purchaser must provide PMG with a deposit of 50% of the total purchase price with the Purchase Order, and the remaining 50% balance is due upon receipt of a T-1 Sample by Purchaser, and prior to shipment of the Mold. All accounts will be subject to a finance charge for late payment. The finance charge will be computed at an annual percentage rate of 18% (periodic monthly rate of 1-1/2%) on the total past-due balance. PMG reserves the right to withhold the further provision of services or products from the Purchaser if the Purchaser’s account is delinquent.
Until the Mold shall have been paid in full by Purchaser, Purchaser shall furnish and maintain with responsible insurance companies at Purchaser’s expense, insurance against loss or damage by fire or other casualty for the full amount of the purchase price covering the materials herein specified, naming PMG as additional insured as its interest may appear. Purchaser agrees to assume and hold PMG harmless against all loss or damage resulting from fire or other casualty damaging or injuring the materials or Mold. Purchaser hereby agrees to indemnify, defend and hold PMG harmless against claims for loss or damage from any cause to any person or to Purchaser’s own property or property of others as a result of the Mold use of any materials or services furnished by Purchaser in connection with the unloading, receiving, sitting, assembling and installation of the Mold.
Purchaser acknowledges and agrees that the shipping cost estimate provided by PMG is only an estimate and will be subject to any changes in design, plan or specification of the Mold. Purchaser acknowledges and agrees that PMG is not obligated to ship the Mold if Purchaser has not complied with these terms and conditions including those pertaining to payment. Unless otherwise agreed, all deliveries are F.O.B. place of shipment, possession of carrier. PMG shall not be held responsible for loss, damage, or excess cost resulting from the means of shipment or routing used or for any losses or damages arising while in transit; and the Purchaser agrees to make any claims therefore directly against the carrier. All costs of collecting amounts past due hereunder, including reasonable attorneys’ fees, will be borne by Purchaser. All risk of loss and damage and all other incidents of ownership will immediately pass to Purchaser upon delivery of the Mold to the carrier.
Purchaser represents and warrants to PMG that PMG’s manufacture of the Mold in accordance with Purchaser’s plans and specifications will not infringe upon or otherwise violate the intellectual property rights of any third party including without limitation those pertaining to patents, trademarks, service marks, copyrights, moral rights and/or trade secrets. Purchaser agrees to indemnify, defend and hold PMG, and its officers, directors, shareholders, agents, contractors, successors and assigns, harmless from any and all costs, damages, liabilities or expenses (including reasonable attorneys’ fees) associated with Purchaser’s breach of the foregoing representation and/or warranty.
12.0 TECHNICAL ADVICE AND OTHER SERVICES.
Purchaser acknowledges and agrees that it is not relying upon any representation, statement, or other assertion made by PMG with respect to the suitability of the Mold for any purpose, and that Purchaser has made its own inquiry, testing, and investigation, into, and based thereon has formed an independent judgment concerning the suitability of the Mold for use and/or resale, and will not assert any claim against PMG, or hold PMG liable in any manner.
13.0 FORCE MAJEURE
PMG will not be liable for any delay in or failure to make one or more deliveries hereunder when due if such delay or failure is due to any cause beyond the reasonable control of PMG, including, but not limited to, acts of God, strikes of labor differences, wars, blockades, embargoes, navigational hazards, epidemics or natural disasters, civil disturbances, acts of terrorism, explosions, breakage of or accident to machinery, restriction or unavailability of transportation facilities or fuel, compliance with any law, order, directive or regulation of government, or any other cause beyond PMG’s reasonable control. In the event of the occurrence of any of the foregoing, PMG may distribute its available material among its customers on such a basis as PMG deems fair and equitable without liability of Purchaser.
14.0 SECURITY INTEREST: OBLIGATIONS SECURED
Grant of Security Interest. In order to secure (a) the payment of the purchase price of the Mold described herein (“Collateral”) purchased by the Purchaser from PMG and (b) the observance and performance of any and all liabilities or obligations, whether direct or indirect, absolute or contingent, of the Purchaser herein set forth, arising in connection herewith (hereinafter collectively referred to as the “Obligations”), the Purchaser hereby grants to PMG a security interest in the Mold. The security interest granted hereby shall remain in full force and effect and continue to secure the Obligations until fully paid, observed or performed, as the case may be.
15.0 APPLICABLE LAW; JURISDICTION
These terms and conditions and any and all services performed or products provided by PMG will be governed by and construed in accordance with the laws of the State of Ohio, other than those relating to conflicts of law. All disputes arising hereunder must be resolved in the Summit County Court of Common Pleas or the U.S. District Court for the Northern District of Ohio and the parties agree to submit to the exclusive jurisdiction of said courts.
Waiver by PMG of any breach of these terms and conditions will not be construed as a waiver of any other breach.
A proposal, or any interest herein, is not assignable by Purchaser in whole or in part without the prior written consent of PMG.
No amendment, modification, waiver or any release of any provision hereof is binding upon PMG unless in writing and signed by PMG’s authorized representative. This Proposal constitutes the entire agreement between PMG and Purchaser with respect to the materials described herein and supersedes any prior or other agreements, written or oral, between the parties.
Purchaser agrees that PMG shall not be responsible or liable for any harm or damage resulting or allegedly resulting from any one or more of the following: (a) any alteration or modification of the Mold after Purchaser takes delivery of the Mold; (b) any unintended use or misuse of the Mold; (c) any failure to properly install and/or maintain the Mold; (d) any failure of the Mold to comply with any law, regulation, or safety requirement (hereinafter collectively referred to as “Indemnifiable Events”). Purchaser agrees to defend, indemnify, and hold PMG and its officers, directors, shareholders, agents, contractors, successors and assigns harmless from any and all claims, damage, losses and/or liabilities arising out of any of the aforesaid Indemnifiable Events. Purchaser further agrees to maintain adequate liability insurance covering claims and/or lawsuits seeking to recover damages for bodily injuries or property damage caused or allegedly caused by the Mold, its operation, and any product created by the Mold, and Purchaser further agrees to have PMG added as an additional named insured under Purchaser’s insurance policy.