Purchase Agreement:The purchase agreement shall be between the Manufacturer (defined as Tappan Wire & Cable, or its Agent) and the Buyer (defined as the party issuing the purchase order to the Manufacturer), and shall consist solely of the terms, conditions, and specifications contained within or addressed by the Manufacturer’s quotation or as modified by subsequent negotiations between the Buyer and Manufacturer. The Manufacturer’s acceptance and execution of the Buyer’s Purchase order shall not constitute acceptance of any responsibility, obligation, penalty, unless such responsibility, obligation, penalty or liability is expressly accepted in writing by the Manufacturer.
Order Acceptance: Manufacturer’s quotation is merely an offer to sell product on the terms and conditions stated herein and is not an acceptance of any offer or the confirmation of an existing agreement. Orders which require Buyer’s approval of engineering data, technical drawings, etc., after a purchase order has been submitted to the Manufacturer, shall be valid for thirty (30) days from the date of transmittal of approval documents to the Buyer unless specified otherwise. Approvals received by Manufacturer after thirty (30) days will require re-confirmation and acceptance, and will be subject to possible price adjustment and change in delivery schedule. No reference herein to Buyer shall constitute Manufacturer’s acceptance of any term or condition contained herein. If this instrument is deemed to be an acceptance of an offer or the confirmation of an existing agreement, such acceptance or confirmation is expressly conditioned upon Buyer’s assent to the terms and conditions set forth herein. Any different or additional terms set forth in Buyer’s purchase order or other communications are hereby objected to and rejected by the Manufacturer and shall be deemed accepted by Buyer without such additional or different terms. The contract which results from Manufacturer’s quotation and Buyer’s acceptance thereof is intended to be complete, and cannot be subsequently modified or assigned except by a writing signed by the Manufacturer. Such contract shall not be deemed to created rights in any party other than the Manufacturer and Buyer. Shipment by the Manufacturer and acceptance by the Buyer of any part of the products, which are the subject of this instrument, shall constitute assent to the terms and conditions contained herein. As noted in these Terms and Conditions, the term’s “product” and “products” include cable and all other goods sold to the Buyer by the Manufacturer.
Credit Terms: Manufacturer reserves, at any time, the right to alter or suspend credit and/or change credit terms when, in its sole opinion, the financial conditions of the Buyer warrants such action. In such case, in addition to any other remedies herein or by law provided. Manufacturer may require Buyer to make cash payment or provide security satisfactory to Manufacturer in Manufacturer’s sole discretion before making shipment. If such payment or security is not provided by the Buyer, Manufacturer may retain possession of product not yet shipped to Buyer and stop product in transit to Buyer. Without limiting the generality of the foregoing, all of the foregoing remedies, and all other remedies of Manufacturer are cumulative and not alternative. The acceptance by Manufacturer of partial payment shall not be a waiver of any rights of Manufacturer. Overdue accounts will be subject to a service charge of the lesser of one and one-half percent per month on the unpaid balance or the maximum amount by applicable law.
Cable Warranty: Manufacturer warrants its products against defects in workmanship and materials for a period of one year from date of purchase. This warranty shall be ineffective and shall not apply to products that have been subjected to misuse or abuse, neglect, accident, damage or improper application, installation or maintenance. Buyer will inspect the products upon delivery and will notify an authorized Manufacturer’s representative within (7) days in writing of any order errors, defects or shortage in the products from the date products are received by Buyer, otherwise such claims shall be waived. In the event of a defect or other failure not caused by misuse or damage to the product, Manufacturer will, at its option, repair or replace the product or refund the purchase price. To obtain warranty performance, return all disputed product to the sales representative from whom it was purchased.
Manufacturer’s sole obligation under these warranties will be limited to either, at Manufacturer’s option and expense, repairing or furnishing a replacement F.O.B first point of shipment for the products or parts thereof which Manufacturer reasonably determines do not conform with these warranties, and Buyer’s exclusive remedy for breach of any such warranties will be enforcement of such obligation of Manufacturer. Only an officer of Manufacturer has the authority to bind Manufacturer to any representation, affirmation or warranty concerning the products and any such representation, affirmation, or warranty shall not be deemed to have become part of the basis of this sales contract and shall be unenforceable. Manufacturer will perform the services in accordance with Seller’s customary procedures.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESSED OR IMPLIED. IN ADDITION, MANUFACTURER’S WARRANTIES HEREIN SHALL NOT BE ENLARGED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, SELLER’S RENDERING OF ANY TECHNICAL ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS OR OTHERWISE, UNLESS AGREED TO IN WRITING. IN NO EVNET SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, nor shall Manufacturer’s liability on any claims for damages arising out of or connected with the sales contract or the manufacture, sale, delivery or use of the products exceed the purchase price of the products and/or services. Manufacturer shall not be liable for any failure to perform its obligations under the sales contract resulting directly or indirectly from or contributed to by circumstances beyond Manufacturer’s reasonable control.
Delivery Dates: Acts of God or of belligerent powers, wars, sabotage, explosions, riots, strikes, slowdowns, lockout, fire, floods, lightening, tornado or wind, shortage of labor, fuel, power, materials or supplies, inability to secure materials, insufficient transportation facilities or delays in transportation of product or material or supplies, or accidents to plant or machinery, Government control limiting production or prices, allocation, Government take-over of product or facilities, and other Government interference or embargoes, or other contingencies, the non-occurrence or which was a basic assumption of Buyer and Manufacturer shall give to Buyer and Manufacturer the rights and obligations set forth in Sections 2-615 and 2-616 of the Uniform Commercial Code.
Buyer Indemnity:Buyer shall indemnify, defend and hold harmless Manufacturer from and against any loss, cost, damages or expenses (including attorney’s fee and expenses) due to (a) infringement by Buyer of the proprietary rights of any third party, arising out of the use of the products, and (b) personal injury, property damage or economic loss or damage or loss incurred by Buyer or any third party as a result of the unintended or not reasonably foreseeable use of the products or the use of products manufactured by Manufacturer to Buyer’s specifications.
Seller Indemnity: Seller shall indemnify, defend and hold harmless Buyer from and against any losses, costs, damages or expenses: including reasonable attorney’s fees and expenses (collectively, “Damages”) incurred by Buyer as a result of third party claims asserted against Buyer to the extent that Buyer would have been entitled to recover such Damages from Seller under these Terms and Conditions, assuming that such Damages had been incurred directly by the Buyer, rather than by third party claimants.
Make Order Cancellation: If the Buyer cancels its order for manufactured items after acceptance thereof, and the Manufacturer receives the cancellation notice prior to the start of manufacturer, the Buyer shall be subject to reasonable cancellation charges for Manufacturer’s raw materials and any manufacturing or administrative costs. If such cancellation notice is received after the manufacture of the Buyer’s order has commenced, a cancellation charge will be advised based on the value for work-in-process, less scrap value, and all raw materials, will apply. We cannot allow cancellations on completed make-order items - see Returns section below.
Stock Order Cancellation: If the Buyer cancels its order for inventoried items, the Manufacturer shall receive compensation from the Buyer only if the Manufacturer has cut said order into special cutting lengths, or if Manufacturer has specifically manufactured the stock order for the Buyer due to the quantity on the Buyer’s order which would not normally be kept as the standard stock level for the Manufacturer.
Changes:After acceptance of Buyer’s order by the Manufacturer’s, Buyer shall not be entitled to change any quantity, size, specification, etc. unless given the express right to do so by the Manufacturer. Any requests for changes by the Buyer must be made in writing to the Manufacturer and confirmed written acceptance by Manufacturer to Buyer must be obtained prior to any changes being made by the Manufacturer.
Invoicing:Manufacturer reserves the right to invoice Buyer after having held finished product at Manufacturer’s facility for thirty (30) days from acknowledged shipping date. In addition, after thirty days, storage charges may be charged to Buyer at a minimum rate of one-half of one percent of the invoice amount per month.
Errors and omissions:Clerical errors as to any term are subject to correction.
Taxes and Duties: Unless otherwise noted, selling prices for cables covered by Buyer’s orders are exclusive of Federal, State, or Municipal sales, use or similar taxes. Such taxes shall be for Buyer’s account, and added to the invoice as a separate item (if applicable) or separately invoiced, and paid by the Buyer.
Damage Claims:No claims by Buyer of any kind for damages shall be greater than the purchase price of the cable in respect for which such damages are claimed. The remedies and limitations thereon, which are contained in this paragraph and in the Manufacturer’s Warranty shall be the sole and exclusive remedies of the Buyer, and any right to incidental or consequential damages is excluded. When freight damage occurs, Buyer is responsible for signing freight bills as damaged in order for Tappan Wire to assist in filing claims on said carrier. If freight bill is not signed for as damaged, Buyer is responsible for filing the claim on the carrier.
Buyer Delayed Shipments: In the event the timely shipment of finished cable is delayed beyond the scheduled date of shipment by Buyer’s instructions or as a result of Buyer’s action or inaction, Manufacturer reserves the right to invoice Buyer on the scheduled date of shipment. Manufacturer’s decision not to invoice on the scheduled date of shipment, shall not negate or otherwise affect Manufacturer’s right to invoice Buyer on a future date. In addition, after having the aforementioned finished product at Manufacturer’s facility for seven (7) days, Manufacturer reserves the right to charge Buyer storage charges at a minimum rate of one-half percent of the invoice amount per month
Returns: Authorization to return material must be obtained prior to it's return. Tappan Wire will consider return of material, subject to a negotiated restocking charge, and reivew of the resale ability of the product. Cable that is not currently a standard stock inventoried item, or any cable that has been cut or altered after delivery, and / or is in non-sellable lengths, is not subject to return. In addition, any stock cable that is older than (90) ninety days, is not subject to return. Cable that is being returned because of defects in materials or workmanship, as determined in Tappan Wire & Cable's Warranty, and have been granted an authorization to return the cable for inspection, is not subject to restocking charges.
