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Terms and Conditions of Quotation
Rev: B – Revised: Nov 2003
1. Acceptance of this Quotation is limited to the terms hereof, and no other terms or conditions appearing in any writing of the Buyer shall be binding upon Seller.
2. Unless otherwise provided herein, Seller warrants title and that all goods sold hereunder shall conform to this Quotation. Except as otherwise expressly stated herein, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS.
3. Seller shall not be liable for any consequential or incidental damages resulting from any breach of these terms and conditions of quotation or any agreement resulting therefrom.
4. Any suggestions by Seller concerning design and construction of the mold or tooling, when approved by the Buyer, shall become the sole responsibility of the Buyer. Unless this Quotation otherwise assumes responsibility therefore, the Seller has no responsibility or liability should the mold or tool fail to perform any particular function, produce any particular part or product, or to meet the particular requirements of the Buyer or any third party for any particular function, part, or product.
5. Buyer warrants and guarantees the Seller that there are no patents, copyrights, or claims of third persons for infringement of any product to be produced by use of the mold or tool, or to interfere with the manufacture of the mold or tool; Buyer agrees to hold the Seller free and harmless of and from, and to indemnify the Seller against any and all damages, costs and attorneys’ fees incurred by Seller resulting from any claim, demand, or cause of action that may be instituted by anyone claiming such infringement.
6. Buyer shall have 15 days after delivery of the mold or tool to notify the Seller of any claimed defect in or failure of the mold or tool to conform to the description and specifications for the mold or tool. If it is determined by the Seller that there is such a defect or failure to conform, then at the option of the Seller: (1) the defective part shall be returned to Seller, at Seller’s expense, to be corrected or reworked; or (2) the parties shall agree upon an amount to be deducted from the purchase price for the correction or reworking of the part by others. Buyer’s failure to notify the Seller of any such defect or failure within said 15 days after delivery shall be conclusive evidence that there is no defect or failure to conform, and that Buyer has accepted the mold or tool.
7. Any cause for action whatsoever arising under or by virtue of this Quotation and any Agreement based thereon shall be filed only in the Courts of the Elkhart County, Indiana for which purpose the parties hereto agree and do hereby expressly waive any and all objections to the jurisdiction of said Court. It is the express agreement of the parties hereto that this agreement is made and executed at the Seller’s place of business; and the law of the State of Indiana shall govern all rights and duties of Buyer and Seller hereunder.
8. Prior to delivery by Seller, Buyer may cancel its acceptance of this Quotation by delivering written notice thereof to Seller. In that event, the Buyer shall be liable to the Seller for the sum of the following: (1) All labor and material costs expended or incurred by the Seller on the mold or tool, (2) cost of all materials specifically ordered or on hand for the mold or tool and not yet in process, (3) all other costs expended or incurred by Seller by reason of the mold or tool, including indirect and overhead costs, and (4) 15% of the full purchase price. Seller shall deliver an invoice to the Buyer, setting forth these amounts owed and Buyer agrees to pay said invoice within the payment terms of said invoice.
9. The mold or tool is to be specially made and manufactured by the Seller for the Buyer, and therefore, the Seller shall have the right to recover the full purchase price if the Buyer rejects delivery, revokes acceptance, fails to make payment(s), repudiates or in any way breaches this agreement. The Seller further has all rights and remedies under the Indiana statute for liens on dies, molds, forms and patterns, codified as Indiana Code 32-33-16 et. seq.
10. Title to the tool(s), die(s), mold(s), equipment and accessories, including all component parts thereof, which constitutes the subject matter hereof, shall remain in the Seller until full payment by the Buyer of the purchase price to the Seller, and Seller shall have the right to recover possession of such of them as may be in the possession of the Buyer or its agents or sub-contractors. However, risk of loss caused by whatever reason shall pass to the Buyer upon delivery to the carrier. Upon such delivery, in case of loss, in whole or in part, the Buyer shall be obligated to the Seller for the entire balance of the purchase price.
11. No right or interest in this agreement shall be assigned by either Seller or Buyer without written consent of the other.
12. Any action for breach of this Agreement, in whole or in part, not filed within two (2) years after the cause of the action shall have first accrued, shall be barred.
13. Unless the Buyer provides Seller with appropriate tax exemption certificates, the amount of any taxes that may be applicable to the sale of the mold or tool shall be added to the purchase price paid by the Buyer.
14. Seller is entitled to recover from the Buyer its reasonable attorney fees, costs and expenses in enforcing the terms of this Quotation and in collecting all sums owing to the Seller as a result of Buyer’s breach of this Quotation or any obligation owing to the Seller.