ATEK Metal Technologies objects to the inclusion of any different or additional terms proposed by Purchaser in any purchase order or other response to this offer, and if such different or additional terms are included in buyer’s purchase order or other response, Purchaser’s response will, nevertheless, be deemed an acceptance of this offer and a contract for sale will result upon the terms stated herein. The conditions of sale printed below, which terms include warranties made and disclaimed, are hereby made a part hereof.
To the extent that this proposal is deemed an acceptance of any offer made by Purchaser, such acceptance is made expressly conditional on assent by Purchaser to each of the conditions of sale printed below. Seller objects to the inclusion of any different or additional terms proposed by Purchaser on Purchaser’s order or otherwise. Any reference to Purchaser’s Purchase Order herein is not intended as an expression of assent to any of the terms and conditions set forth herein.
1. PRICES AND TERMS:
(a) Payment terms subject to credit approval. Unless otherwise stated, terms are Net cash 30 days from invoice date – F.O.B. point of origin. Seller will charge two percent (2%) interest per month (24% per annum) on all balances not paid by the Purchaser within the designated net terms.
(b) Firm upon Seller’s acceptance of Purchaser’s order as evidenced by Seller’s formal acknowledgement.
(c) Firm upon Seller’s acceptance of Purchaser’s order as evidenced by Seller’s formal acknowledgement unless escalation terms are included in the terms of sale. Quotations must be accepted and releases scheduled to the Seller within thirty (30) days from date of quotation, with the additional provision that quotations are subject to any changes in metal price structure between date of quotation and date of shipment.
(d) All orders for less than $10,000 per individual part number will be assessed a low volume production charge to cover Engineering/Quality development activities and order processing expenses. Prices do not include any applicable sales, use, excise or similar taxes, which are the responsibility of the Purchaser.
2. SHIPPING SCHEDULE:
(a) Computed from the date of acknowledgement of the order or, in the case of special items, from the date Seller receives complete information necessary to proceed with design and manufacture.
(b) The shipping date is estimated but not guaranteed subject to the following:
1) Seller shall have no liability for loss or damage resulting from a delay in scheduled delivery caused by circumstances beyond Seller’s control, including strikes and delays caused by suppliers or Purchaser.
2) Under no circumstances shall Seller have any liability whatsoever for loss of use or for any incidental or consequential damages due to delay in scheduled delivery.
(c) All shipments normally will be made via the most economical means and routing consistent with service requirements and type of product involved. Unless otherwise instructed, Seller will select the means of transportation and the routing.
(d) Special production service to secure unusual deliveries not in accordance with original delivery instructions shall be given on written request and at Purchaser’s expense.
3. WARRANTY: Any casting, products, or parts covered by Seller’s quotation which prove defective in material or workmanship within ninety (90) days from the date of shipment from Seller’s plant will be replaced free of charge, F.O.B. factory, provided that Purchaser promptly sends to Seller notice of the defect and establishes that the casting has been rejected due to foundry defects and has been applied within the rated limitations of the metal alloy specified and within the general accepted limitations of cast products. All material and equipment not manufactured by ATEK Metal Technologies but included as purchased components and assemblies, shall receive only such warranty, if any, as given by the manufacturer thereof and which are hereby assigned to Purchaser without recourse to ATEK Metal Technologies. ATEK Metal Technologies obligation of this warranty is limited to and shall be fully discharged by repairing any defective part, or supplying without charge F.O.B. its works, a similar part to replace any which within three (3) months from date of shipments is shown to have been defective as to material or workmanship when shipped, provided the equipment is operated in accordance with the conditions for which it is designed. Seller shall have the option of requiring the return of these defective materials, transportation prepaid, to establish the warranty claim. Seller shall in no event be held liable for damages or delay caused by the defective materials, and no allowance will be given by Seller for repairs or alterations unless made pursuant to its written consent and approval. Seller is not responsible for machine work, welding or any other work done, inserts or chills furnished by Purchaser, labor charges or any other losses or damage caused by defective castings. Seller is not responsible for loss of or damage to pattern equipment by fire or other casualties beyond its control. It is the responsibility of the Purchaser to carry all forms of insurance that he deems necessary. When quotations involve the making of piece prices, weights as nearly definite as possible shall be established and agreed upon and quotations shall be subject to revisions on any variation from the established weights. Claims for error in weight or number must be made within ten (10) days after the receipt of castings. The Seller shall not be liable in any manner for loss or damage by reason of the manufacture and sale to the Purchaser of any patented device or parts thereof made in accordance with drawings, designs, models or patterns furnished by the Purchaser. The provisions in the specification hereto attached are descriptive unless expressly stated as warranties.
4. LIMITATION OF WARRANTY AND REMEDY: Except as stated above, there are not warranties, express or implied, including the warranties of merchantability and fitness for a particular purpose, applicable to this transaction. Seller and Purchaser acknowledge the Purchaser’s sole and exclusive remedy against Seller shall be repair or replacement of defective parts as provided for herein and the warranty as stated above is in lieu of any other warranty or remedy. In no event, be it due to a breach of any warranty or any other cause arising from the performance or nonperformance of the goods sold hereunder, shall Seller be obligated or liable to Purchaser in any manner for consequential or incidental damages, including but not limited to lost profits, plant downtime or suits by third parties.
5. PRODUCTION ESTIMATES AND PERFORMANCE:
(a) All working drawings or other materials provided by Seller are for general informational purposes only, and may or may not relate to Purchaser’s order. Any specification contained therein are not binding on Seller except as expressly so stated in this form or other written form.
(b) All castings sold are unmachined castings, with heads, gates, fins, and similar extraneous metal removed to approximately the contour of the castings, F.O.B. transportation agency.
(c) Inquiries from Purchasers shall give actual or estimated rough weight of castings and an accurate detailed description of pattern and core box and other equipment to be furnished. This description should indicate whether the pattern and core box is plated, gated single, skeleton or sweep, metal or wood. When new patterns are to be made, the Purchaser should submit blueprints to the Seller to obtain suggestions concerning the best method for constructing the pattern equipment. Quotations will be made on Purchaser’s information.
(d) Should Purchaser require special treatment of castings, such as heat treat, special analysis, chemical and physical specifications, test bars, pressure tests, x-rays, etc., his inquiry shall set forth such requirements in detail. All special treatment shall be at Purchaser’s expense.
(e) Purchaser shall supply pattern and core box equipment in proper condition to produce the quantity and quality of castings agreed upon. All repairs and changes necessary to place equipment in proper condition shall be the Purchaser’s obligation.
(f) Production data, where given is based on Seller’s careful analysis and understanding of the limits of accuracy, machineability of materials, amount of material to be removed, handling facilities provided, and locating points, but is nonetheless an estimate only and is not guaranteed or warranted. In no event shall Seller be responsible for performance figures supplied by Seller’s suppliers, Distributors or other parties. If the equipment is to be subject to acceptance tests before shipment, rejections under this clause must take place prior to shipment.
(g) Seller is not responsible for variations existing between blueprints and pattern and core box equipment supplied by Purchaser. If requested by Purchaser, Seller will check pattern and core box equipment with blueprints at Purchaser’s expense unless otherwise agreed to by the Seller.
(h) All patterns, core boxes and loose pieces thereof, shall be marked properly for identification. Follow boards, core dryers and similar devices when required are to be furnished by Purchaser.
(i) The Seller is to make an effort at all times, as operating conditions will permit to furnish, as near as possible, the exact quantity specified. However, unless otherwise stipulated, the Purchaser shall accept an overrun or underrun of not to exceed ten percent (10%) of the quantity specified on order.
(a) Following acceptance by Seller, this order may not be cancelled without consent of the Seller.
(b) Seller shall have the absolute right to cancel and refuse to complete this order (1) if at any time all terms and conditions governing this order (including any requirements or progress payments) are not strictly complied with by the Purchaser, and/or (2) if at any time the Purchaser becomes bankrupt or insolvent.
(c) In the event cancellation by Seller as set forth above or if the Seller consents to the request by the Purchaser to stop work or to cancel the whole or any part of an order, the Purchaser shall make payment to the Seller as follows:
(1) Any and all work that can be completed with ten (10) days from date of notification to stop work on
(2) For work in process and any materials and supplied procured or for which definite commitments have account of cancellation shall be completed, shipped and paid in full. been made by the Seller in connection with the order, the Purchaser shall pay to the Seller the actual costs and overhead expenses determined in accordance with general accepted accounting practice plus fifteen percent (15%).
7. STATUTE OF LIMITATIONS: Any action for breach of this contract must be commenced within one (1) year after the cause of action has occurred.
8. PLACE OF CONTRACT: This contract shall be construed in accordance with the laws of the State of Minnesota. Purchaser hereby consents to the jurisdiction of the courts of the State of Minnesota and such courts shall have sole and exclusive jurisdiction over this contract and any controversies arising out of this contract.
9. GENERAL: The foregoing comprises of the Seller and Purchaser’s entire agreement, and constitutes a final written expression of all the terms of the agreement between the Seller and Purchaser, and is a complete and exclusive statement of those terms. Any and all representations, promises, warranties or statements by Seller’s agents or employees that differ in any way from the terms of this written agreement shall be given no force or effect. On any order placed pursuant hereto, the above provisions entirely supersede any prior oral or written correspondence, quotation or agreement. There are no agreements between Seller and Purchaser in respect to the product quoted herein except as set forth in writing and expressly made a part of this agreement. Acceptance of this proposal is limited to the terms, conditions, specifications and prices set forth herein or attached hereto and any additional terms, conditions, specifications and/or prices are rejected unless expressly agreed to in writing by Seller. Purchaser may not assign this agreement without the written consent of Seller. Whenever used herein, Seller shall mean ATEK Metal Technologies and Purchaser shall mean the customer placing the purchase order with the Seller.