STANDARD TERMS AND CONDITIONS
1. ENTIRE AGREEMENT: This contract constitutes the entire agreement between the parties, and there is no understanding, representation, or warranty of any kind, expressed or implied, not expressly set forth herein. No modification of this contract shall be of any force or effect unless in writing signed by the parties and no modification shall be effected by the acknowledgement or acceptance of the purchase order forms containing different terms or conditions.
2. CONTINGENCIES: In the event of war, fire, flood, strike, labor trouble, accident, riot, act of governmental authority, acts of God or contingencies beyond the reasonable control of parties, interfering with production, supply transportation, or consumption of the goods covered by this contract; or with the supply of any raw material used in the connection therewith, quantities so affected shall be eliminated from the contract without liability, but the contract shall otherwise remain unaffected. Seller may, during any period of shortage due to any said causes, prorate its supply of such goods among itself, for its own manufacturing uses and its customers.
3. FREIGHT: Terms FOB Shipping Point, unless otherwise specified.
4. SAFE HANDLING: Buyer assumes full responsibility and liability for compliance with federal, state and local regulations governing unloading, discharge, storage, handling and use of product supplied by Seller under this contract including the use of such product or container alone or in combination with other substances, compliance or noncompliance with any laws or regulations relating thereto. If any provision of the contract is or becomes in violation of any law, or rule, order or regulation issued thereunder, Seller shall have the right, upon notice to Buyer, to cancel such provision without affecting the other provisions of this contract, or to cancel this contract in its entirety.
5. WARRANTIES: Seller makes only the following warranty that Products sold here under are of commercial quality, that it conforms to the Buyer’s specification as set forth, and that the sale and use will not infringe the claims of United States patent covering the product itself. Such warranty is exclusive and Buyer hereby waives all other conditions and warranties applicable to the Product whether statutory or implied, including without limitation, any implied warranties of merchantability or of fitness for a particular purpose, and all other obligations and liabilities whatsoever whether arising in contract, tort or otherwise, of Seller to Buyer.
6. LIMITATION OF LIABILITY: Seller’s liability with respect to this contract and the product purchased under it shall not exceed the purchase price of the portion of such product as to which liability arises and Seller shall not be liable for any injury, loss or damage resulting from the handling or use of the material shipped hereunder whether in manufacturing process or otherwise. In no event shall Seller be liable for loss of use or any other damages including without limitation lost profit, incidental, consequential or special damages. Seller shall not be liable in any manner whatsoever for any damages suffered by Buyer which may in any degree be attributable to the adoption either by Buyer or any third party of technical information, data or advice given by or on behalf of Seller in relation to use of the product.
7. ACCEPTANCE: If Buyer’s purchase is for product to be used for Photo Engraving applications, Buyer’s failure to give notice of any claim within 180 days of delivery shall constitute an unqualified acceptance of such goods and a waiver by Buyer of all claims with respect thereto. However, where shelf life may become an issue with regards to Photo Engraving coatings (defined as 1 year from coating date) Seller will provide Buyer the opportunity to return material for scrap value or re-coating at Buyer’s expense.
If Buyer’s purchase is for product to be used in applications other than Photo Engraving, Buyer’s failure to give notice of any claim within 30 days of delivery shall constitute an unqualified acceptance of such goods and a waiver by Buyer of all claims with respect thereto. In all circumstances, Buyer assumes responsibility for proper storage and handling.
8. NON-CONFORMITY: In the event of non-conformity of goods, Buyer shall reject and return of non- conforming goods. Seller shall evaluate the returned material and either issue credit in the amount of the invoiced rejection or replace with conforming goods at Seller’s discretion. Seller’s weight and measure shall govern, except in the case of proved error.
9. INCREASED OR NEW TAXES: Any tax or governmental charge or increase in the same hereafter becoming effective which increases the cost to Seller of producing, selling or delivering the product or of procuring materials used therein, and any tax now in effect or increase in same payable to the Seller because of the sale of the product, such as sales tax, use tax, retailer’s occupational tax, gross receipts tax, may, at Seller’s option, be added to the price herein specified. Buyer agrees to indemnify and protect Seller against any and all such taxes or liability for nonpayment by Buyer thereof as well as any legal fees or costs incurred by Seller in connection with said tax or increased tax.
10. PAYMENT AND CREDIT: The price shall be paid in the legal tender of the United States. Seller reserves the right, among other remedies, either to cancel this contract or to suspend further deliveries under it in the event the Buyer fails to pay for any one shipment when payment becomes due. Should Buyer’s financial responsibility become unsatisfactory to the Seller, cash payments or satisfactory security may be required by Seller. If Buyer becomes insolvent and goods are in the hands of a carrier, Seller may stop delivery of the goods in transit by notifying the carrier. At the option of the Seller, interest can be charged at 1-1/2% per month on any accounts over 30 days.
11. ASSIGNABILITY: Neither party may assign this contract or its rights under this contract, except as to its own corporate affiliate without specific written consent to the assignment by the other party. If a Buyer shall make an assignment for the benefit of creditors, or file a voluntary petition in bankruptcy , or be adjudicated as bankrupt, or if a receiver for Buyer be appointed by reason of insolvency, or if an involuntary petition in respect of Buyer’s bankruptcy shall be filed and not discharged within 60 days thereafter, Seller shall be at liberty in every such case by notice in writing forthwith to terminate this Contract, without prejudice to any rights accrued or damages already incurred. This contract shall bind the respective successors and assigns of the parties hereto but none of the Buyer’s rights or obligations hereunder shall be assigned without Seller’s prior written consent.
12. PATENT INFRINGMENT:
Seller’s recommendations or instructions are not intended to suggest operations which would infringe any patents and Seller assumes no liability or responsibility for any such infringement. Buyer agrees to indemnify and hold harmless the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of any such infringement. Seller may, without liability to Buyer of any kind, decline to continue deliveries of any product, the manufacture, sale or use of which, in Seller’s opinion would infringe any patent now or hereafter issued.
13. NOTICE: For the purpose of any notice required to be given by this contract or under an applicable provision of the Commercial Code or pursuant to other pertinent law, notice to Seller shall be sent to: Luxfer Graphic Arts 1001 College Street, Madison, Illinois 62060. Buyer consents to notice at its principal place of business or place of agreed delivery of product.
14. GOVERNING LAW: This contract shall be governed by and construed in accordance with the law of the State of Illinois. The invalidity or unenforceability of any one or more phrases, sentences, clauses or sections contained in this contract shall not affect the validity or enforceability of the remaining portions of this contract or any part thereof. Seller certifies that in production of products covered hereby Seller has complied or will comply with the provisions of the Fair Labor Standards Act of 1938 as amended.
15. LITIGATION: In any litigation arising out of the terms of this contract, the court shall award to the prevailing party in addition to all other relief the reasonable attorney’s fee for counsel for the prevailing party.