Terms & Conditions (Customer)

1. ACCEPTANCE OF ORDERS

All purchase orders must be addressed to Weiss North America, Inc.’s (“Seller”) home office, 3860 Ben Hur Avenue, Suite 3, Willoughby, Ohio 44094, for acceptance and formal acknowledgment. Buyer’s purchase order must be in writing and received by Seller prior to the expiration date of Seller’s proposal. Submission of Buyer’s purchase order to Seller shall constitute Buyer’s acceptance of these terms and conditions of sale, any terms or conditions appearing in Buyer’s purchase order which are either in addition to or modify these terms and conditions shall not be a part of the contract between Buyer and Seller and shall be of no effect unless specifically accepted in writing by Seller. The terms and conditions contained herein constitute the only agreement between Buyer and Seller with respect to all purchase orders.

 

2. PRICES

Prices are F.O.B. Willoughby, Ohio in US dollars and are subject to change without notice.

 

3. TITLE, RISK OF LOSS AND SECURITY INTEREST

Title to products shall remain, as a security interest only, with Seller until Seller has received the full purchase price of products sold and all other costs owed to Seller by Buyer, including without limitation, (1) any amounts conditionally retained by Buyer under Buyer’s purchase order and (2) any amounts representing interest due because of extended payment terms. Until payment is made in full, products shall remain personal property, regardless of the method or mode of attachment to realty, if any.<br/>For all other purposes title and risk of loss pass to Buyer when products are delivered to the carrier at point of entry or at Seller’s home office.<br/> In the event Seller has extended to Buyer financing for all or any portion of the purchase price of products, Buyer hereby grants to Seller a security interest in the products and replacements and all proceeds and products thereof to secure the principal amount of such financing, interest thereon, if any, and any amount conditionally retained by the Buyer until the full purchase price (including interest and additional charges) has been paid. Buyer’s failure to pay any amount when due shall give Seller the right to repossess and remove products. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity. Seller, at Seller’s sole discretion, may file any financing statement or other forms, including without limitation a UCC-1 Financing Statement or equivalent, necessary to perfect Seller’s security interest granted herein. Buyer further agrees that Seller may sign on behalf of the Buyer and file any such financing statement or other forms and to cooperate with Seller, at Seller’s request, to execute and deliver any additional documentation which Seller may reasonably request to protect its interest in product.

 

4. DELIVERY AND SHIPPING

Quoted delivery times are approximate estimates determined at the time of quotation and are subject to revision without any liability whatsoever to Seller. Under no circumstances shall Seller have any liability whatsoever for loss of use or for any indirect or consequential damages as a result of delayed delivery. Unless otherwise requested by Buyer, shipment will be made by carrier of Seller’s choice. Seller may deliver products in installments. If any shipment of products is delayed at Buyer’s request, Seller may invoice Buyer for such products, and risk of loss to such products shall pass to Buyer on the date Seller is prepared to make shipment.

 

5. INSPECTION, REJECTION, AND RETURNS

The construction, mechanical workings, and the performance of products shall be accepted by Buyer prior to shipment.
A demonstration or production run with Buyer’s parts may be made in Seller’s plant prior to shipment for such acceptance, if Buyer deems this necessary.<br/>Buyer will inspect products promptly upon their arrival at Buyer’s location identified in the purchase order to ensure no damage to products has occurred in transit. All rejected or damaged products must be reported within five days of receipt by Purchaser. No material may be returned without express written consent of Seller. Each product return shall be subject to a 25% restocking charge.<br/>Buyer may not reject or revoke its acceptance of any products unless the nonconformity of such products is substantial. No nonconformity or defect shall constitute grounds for claiming breach of the entire purchase order or sales agreement. Seller reserves the right to cure, by repair or replacement, any defects within a reasonable time after receiving written notice of such defects from the Buyer. Buyer has 10 days following delivery of products hereunder to give Seller written notice of any claimed defect in such products (other than latent defects not discovered by Buyer).
Buyer agrees that such notice period is reasonable.
Failure to give timely notice, as provided above, shall be deemed irrevocable acceptance of such products. Notwithstanding the foregoing, if Buyer has accepted products tendered under this sales contract in any manner provided in the Ohio Uniform Commercial Code, Buyer shall have no right to subsequently reject products for any reason and to revoke acceptance of nonconforming products, unless the acceptance of nonconforming products was given on the basis of an assurance by Seller or on seasonable cure of nonconformity.

 

6. INSTALLATION AND DEMONSTRATION SERVICE

All equipment shall be installed by and at the expense of Buyer. Seller shall furnish instructional literature (prints and manual) for use of Buyer in installation of products. Service requested by or required by Buyer, will be paid by Buyer at the current rates charged by Seller for service. Service calls made by Seller personnel at the request of Buyer on products not covered by the Warranty will be made at Seller’s then current rate per day (8 hours) plus transportation charges and living expenses, unless otherwise agreed by both parties in writing.

 

7. TERMS OF PAYMENT; UNLESS OTHERWISE AGREED

(a) For index tables, special machines and equipment:
1. Deposit and/or progress payments, if required by Seller’s proposal due and payable according to same.
2. Balance due and payable net cash 30 days from the date of invoice.
3. No cash discounts are allowed.

(b) For repair parts and service work: Net cash due on receipt of invoice.

(c) A contingent insurance fee not to exceed .2% (two tenths of one percent) shall be charged on all shipments to ensure payment for damaged claims not deemed collectable from the common carrier.

(d) In the event satisfactory credit is not established with Seller, Seller reserves the right to delay any shipment and/or require payment in full in advance or on delivery.

(e) Each shipment will be considered a separate and independent transaction, and payment therefore will be made accordingly.

(f) Any account unpaid more than (30) days after receipt of invoice is subject to a finance charge of (1.5%) per month on the unpaid balance.  Accounts placed for collection are subject to a 25% service charge and Buyer shall be responsible for any and all costs of collection, including reasonable attorney’s fees and costs, whether or not arbitration or legal proceedings are instituted.  Unless there is a mutually agreed upon exception to these terms, non-payment will result in voiding of warranties.

(g) The purchase price is exclusive of any sales, use or privilege tax, or excise tax based on gross revenue or any similar tax or charge which might be levied as a result of the production, sale or shipment of any products or the use of any products by Buyer.  Buyer agrees to pay and otherwise be fully responsible for any such taxes (except for taxes based on the net income of Seller). Any personal property taxes assessable on products after delivery shall be borne by Buyer.  Seller shall have the right, but shall not be obligated, to pay any such taxes directly, in which event Buyer shall promptly reimburse Seller in the amount thereof upon presentation by Seller of evidence of payment.

(h) Notwithstanding the foregoing paragraph, Seller shall have no responsibility to collect, report, or pay any tax imposed on the purchase of products by Buyer, and Seller shall not collect, report, or pay any such tax which may be imposed by any governmental or tax collecting authority outside of the United States of America.

 

8. SPECIFICATIONS AND PERFORMANCE

(a) Brochures, descriptions, specifications, drawings and other particulars however issued by or on Seller’s behalf are for informational purposes only and are not warranted and Seller will not be bound thereby, unless expressly confirmed by Seller in the proposal to which these terms and conditions are attached.

 

9. CANCELLATION

(a) By Buyer:  Each purchase order is considered an irrevocable offer to purchase and is non-cancelable after it has been accepted by Seller. Any cancellation by Buyer, if approved by Seller’s home office, is contingent upon payment to Seller of a charge computed to cover all of Seller’s costs incurred prior to receipt of the notice of cancellation and the lost profit on the entire order.

(b) By Seller: Seller shall have the right to cancel and refuse to complete this order if at any time:
(1) the terms and conditions governing this order, including any requirement of advance payment or posting of security, are not complied with by Buyer and such default or breach is not remedied within seven (7) days after receipt of notice from Seller specifying the default or breach; or
(2) Buyer becomes insolvent, enters into any extension agreement or general arrangement with creditors, or is admitted to any procedures for settlement of debts or bankruptcy.

 

10. PROPERTY AND PATENT RIGHTS

Seller retains for itself any and all property rights in and to all designs, engineering details and other data pertaining to any products designed in connection herewith or patent rights arising out of the work done in connection herewith or with any and all products developed as a result thereof, including the sole right to manufacture and produce any and all of the products designed as a result hereof.

 

11. PROPRIETARY TECHNICAL MATERIALS

Documentation, maintenance manuals and drawings relating to products  (collectively, “Proprietary Technical Materials”) which Seller may furnish shall be in Buyer’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which Buyer may use such Proprietary Technical Materials solely for the purpose of operating, servicing and repairing products and for no other purpose.  Buyer agrees to maintain the confidentiality of all Proprietary Technical Materials and to instruct and obligate its employees and agents to do the same.  Without limiting the generality of the foregoing, Buyer may not reproduce or copy any Proprietary Technical Materials or transfer, assign, sublicense, loan, disclose or otherwise make available all or any portion of such Proprietary Technical Materials to any other person or entity, without the prior express written consent of Seller.  Title to and ownership of the Proprietary Technical Materials shall at all times remain in Seller.  In addition to any other remedy Seller may have, Seller reserves the right to terminate this license if Buyer fails to comply with any term or condition hereof.  This license shall also terminate at such time as Buyer shall permanently cease to use products. Buyer agrees, upon notice from Seller of any termination of this license and in accordance with any more specific directions from Seller, to deliver immediately to Seller all Proprietary Technical Materials and all copies thereof.

 

12. PATENT AND TRADEMARK INDEMNITY

(a) Seller will defend, at its own expense, any suit or proceeding against Buyer in a court of the United States for the direct infringement of United States patents and trademarks by products purchased from Seller hereunder. Seller shall pay all damages and costs finally awarded against Buyer because of direct infringement; provided, however, that Seller shall not be obligated to defend or be liable for costs or damages awarded in any suit or proceeding for infringement of patents by any other products, or any completed equipment, system, assembly, combination, method or process, in which, or in the manufacture or testing of which, any products purchased from Seller may be used; and provided further that Seller’s obligation to pay such damages and costs shall not apply to any alleged infringement occurring after Buyer has received notice of such alleged infringement unless Seller thereafter gives to Buyer written consent for such continuing alleged infringement.

(b) Seller’s duties under this Paragraph 12 are conditioned upon Buyer giving Seller prompt written notice of commencement of any suit or proceeding or any claim of infringement and furnishing to Seller a copy of each communication relating to the alleged infringement and giving to Seller all authority (including the right to exclusive control of the defense of any such suit or proceeding), information and assistance (at Seller’s expense) necessary to defend or settle such suit or proceeding.  Seller shall not be bound by any settlement made without Seller’s prior written consent.

(c) If in any such suit or proceeding Buyer’s continued use of any item of products is enjoined, or if by reason of any claim of infringement Seller deems it advisable to do so, Seller may at its option and expense:
(1) procure for Buyer the right to continue using such products;
(2) modify or replace such products with non-infringing products, provided that such modification does not materially affect performance; or
(c) remove such products, grant Buyer a credit thereon as depreciated on a straight-line 2-year basis and accept its return.  If infringement is alleged prior to completion of deliveries of the Goods, Seller may decline to make further shipments without being in breach of this Agreement.
(d) Seller shall not be obligated to defend any suit or proceeding, or be liable for any costs or damages, if the infringement arises out of compliance with Buyer’s specifications or any marking or branding applied at the request of Buyer. Buyer agrees, at its expense, to defend and to pay costs and damages finally awarded in any suit or proceeding against Seller based on any such infringement, provided that Buyer is promptly notified by Seller in writing of the commencement or threat of such suit or proceeding or claim of infringement and is given all authority (including the right to exclusive control of the defense of any such suit or proceeding), information and assistance (at Buyer’s expense) necessary to defend or settle such suit or proceeding.

 

13. WARRANTY

(a) Seller warrants to the original Buyer the products of Seller’s own manufacture against defects in material and workmanship under normal operating conditions and service for the warranty period stated in Seller’s final proposal, or if no warranty period is stated in Seller’s final proposal for a period of 12 months from date of delivery.  This warranty does not cover perishable parts subject to wear or consumption. Buyer’s exclusive remedy under this warranty is limited to Seller repairing or, at Seller’s option, furnishing without charge F.O.B. point of manufacture a similar part to replace any part which is proven to have been defective at the time it was shipped, provided Buyer has given Seller written notice of any such claimed defect within 15 days of discovery thereof, and in any event within the term of this warranty. Seller shall have the option of requiring the return of the defective part, transportation paid, to establish the claim. Where required, the supervision of Seller’s serviceman will be furnished at no charge to correct such defects. No allowance will be made for repairs or alterations made without Seller’s prior written consent or approval. Any service performed by Seller’s personnel beyond the coverage of the warranty is chargeable at Seller’s regular rates. Seller’s obligations under the warranty provided herein shall not, under any circumstances, exceed the purchase price of the products. Seller shall not be liable for any incidental or consequential damages as Buyer’s sole remedy is limited above to repair or replacement. Any action for breach of this warranty or other action under those terms must be commenced within one year after such cause of action arises.

(b) Seller shall provide after-sales services to Buyer for the Products sold to Buyer hereunder.  The services provided hereunder shall include, as necessary, assistance to Buyer in installation, service, and repair of Products, as well as training of Buyer’s employees in the service of Products.  Such services shall be provided at times and upon conditions agreed to between the parties from time to time. Seller’s personnel providing such services shall not be engaged in construction activities and shall receive no remuneration or compensation from Buyer in exchange for the services provided.

(c) This warranty is limited to the original Buyer and is not transferable.

(d) Seller makes no warranty with respect to products manufactured by others and incorporated in or attached to product supplied, or to any product or part warranted herein, provided, however, that Seller shall pass on to Buyer such warranties as may be provided by the original product manufacturer.

(e) Seller’s obligation under this warranty is dependent upon the product being used and maintained in accordance with all operating and maintenance instructions set forth in the manuals and instruction sheets furnished by Seller.  This warranty shall be void with respect to product if
(1) there is any alteration or repair by any person other than Seller’s authorized personnel;
(2) if any product is operated at levels in excess of the stated throughput capacity;
(3) if Buyer does not maintain and operate such product in strict accordance with Seller’s written instructions and operating manuals provided by Seller to the Buyer; or
(4) if any such product has been subjected to abuse, vandalism, accident or similar deviations from normal operations.

(f) THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE.  SELLER MAKES NO OTHER EXPRESS WARRANTY.  SELLER DISCLAIMS, AND BUYER WAIVES ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SELLER SHALL IN NO CIRCUMSTANCES BE LIABLE IN CONTRACT, IN TORT OR OTHERWISE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE.  NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO MODIFY THIS WARRANTY, OR SELLER’S STANDARD WARRANTY FOR ANY PRODUCT.

 

14. OSHA; PRODUCT LIABILITY AND INDEMNIFICATION

(a) Because of differences in installation and Buyer’s control over the operation, use and maintenance of products, only Buyer can assure compliance with OSHA and ANSI Standards, and Seller shall have no liability to Buyer or Buyer’s agents, servants and employees or others for any failure of compliance. Upon Buyer’s request, Seller may, as an accommodation to Buyer, and without incurring any liability, quote additions or modifications required by Buyer to meet OSHA or ANSI requirements and advise Buyer on developing maintenance and operation procedures to comply with such requirements.

(b) Buyer shall use and shall require its employees to use all safety devices and guards, and follow proper safe operating procedures as set forth in manuals, instruction sheets and signs furnished by Seller. Buyer shall not modify any products.

(c) Buyer shall notify Seller promptly, and in any event within 30 days, of any accident or malfunction involving Seller’s products which results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining the cause of such accident or malfunction. In the event that Buyer fails to give such notice to Seller and so cooperate, Buyer agrees to indemnify and save Seller harmless from any claims arising from such accident or malfunction.

(d) Buyer agrees to indemnify and save Seller harmless from any liability or claim for loss or damage to persons or property or related expenses resulting from or related to Buyer’s failure to comply with its obligations pursuant to this paragraph.

 

15. LIMITATION OF LIABILITY

Seller, or any of its affiliates, shall in no event have obligations or liabilities to Buyer or any other person for loss of profits, loss of use or incidental, special or consequential damages, whether based on contract, tort (including negligence), strict liability or any other theory or form of action, even if Seller has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of the Goods or the Programs, or any failure or delay in connection with any of the foregoing. Without limiting the generality of the preceding sentence, Seller shall not be liable for personal injury or property damage.

 

16. FORCE MAJEURE

(a) If the performance of any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.

(b) In the event such excusable delay shall continue for a period of more than three consecutive months, then either party may at any time after the expiration of such three months’ period terminate the purchase order under these terms upon written notice to the other party, while such cause or causes of delay continue.  In the event of such a termination by
(a) either party by reason of Buyer’s delay in performance, or
(b) the Buyer by reason of Seller’s delay in performance, it is understood and agreed that Buyer shall pay Seller’s reasonable costs and expenses incurred or committed to prior to the date of such termination in respect of all work and services performed by Seller under these Terms of Sale.  Buyer agrees to pay such costs and expenses promptly following receipt of Seller’s invoice therefore, which shall be submitted as soon as practicable after such termination.

 

17. NON-WAIVER

Failure by Seller to enforce any rights hereunder irrespective of the length of time for which such failure continues shall not constitute a waiver of those or any other rights.

 

18. GOVERNING LAWS

The parties acknowledge that the purchase order(s) that are subject to these terms bear a reasonable relation to the State of Ohio, and agree that in the event of any dispute or disagreement between them relating to this agreement, the laws of the State of Ohio shall govern their rights and duties under this agreement. The parties specifically intend that the provisions of Article 2 of the Ohio Uniform Commercial Code will control as to all aspects of this agreement and its interpretation, and that all the definitions contained therein will be applicable to this agreement except where this agreement may expressly provide otherwise.

 

19. ARBITRATION OF DISPUTES

All disputes that may arise between the parties regarding the interpretation or application of these terms and the legal effect of these terms shall, to the exclusion of any court of law, be arbitrated and determined by a board of arbitrators, unless the parties can resolve the dispute by mutual agreement. Either party shall have the right to submit any dispute to arbitration 90 days after the other party has been notified as to the nature of the dispute. If the dispute goes to arbitration, each party shall select one arbitrator and the two arbitrators so selected shall jointly select a third arbitrator. The arbitration shall be governed by the rules of the American Arbitration Association. The arbitration proceeding shall be governed by the statutes of the State of Ohio, and the proceeding shall be held in the city in that state where the principal office of Seller is located.  Anything to the contrary contained in the above-mentioned rules and statutes notwithstanding, the parties consent that any papers, notices, or process necessary or proper for the institution or continuance of, or relating to any arbitration proceeding, or for the confirmation of an award and entry of judgment on any award made, including appeals in connection with any judgment or award, may be served on each of the parties by registered mail addressed to the party at the principal office of the party, or by personal service on the party in or without the above-mentioned state. The parties recognize and consent to the above-mentioned arbitration association’s jurisdiction over each and every one of them.

 

20. ATTORNEY'S FEES

If any legal action is brought to collect the purchase price hereunder, the prevailing party shall be entitled to receive its attorneys’ fees and court costs in addition to any other relief it may receive.

 

21.    SEVERABILITY; MODIFICATION

The invalidity in whole or in part of any of these terms and conditions shall not affect the validity or enforceability of any other term or condition.  If any clause of this agreement is held to be unconscionable by any court of competent jurisdiction, the clause in question shall be modified to eliminate the unconscionable element and as so modified the clause shall be binding on the parties. The remaining provisions of this agreement shall not be affected by the modification of any unconscionable clause. “Unconscionable” shall be deemed to mean that the enforcement of the entire agreement or a specific clause of the agreement will work oppression or cause unfair surprise to one of the parties. Unconscionability shall be determined as of the time when the agreement is made, but shall not be deemed established either by the fact that the agreement subsequently proved disadvantageous to one of the parties or by the fact that one of the parties has bargaining power superior to that of the other.

 

Rev. 11.07

Terms & Conditions (Vendor)

 

WEISS NORTH AMERICA, INC.
Standard Purchase Order
Terms & Conditions

 

These Purchase Order Terms and Conditions (“Terms and Conditions”), and the Purchase Order (with any and all appendices, and/or exhibits attached hereto or otherwise issued by WEISS North America, Inc. in connection herewith, collectively, the “Purchase Order”) by and between WEISS North America, Inc. (“Weiss”) and Seller (as defined in the Purchase Order) (WEISS and Seller, collectively, the “Parties,” each a “Party”), constitute the entire agreement between WEISS and Seller relating to the Goods and supersede and replace any and all prior discussions and agreements between the Parties. If any discrepancy, difference or conflict exists between the various provisions of the Purchase Order and these Terms and Conditions, these Terms and Conditions shall govern. Capitalized terms used but not defined herein shall have the meanings ascribed in the Purchase Order. WEISS hereby gives notice of its objection to any different or additional terms other than those terms and conditions set forth herein.

 

1. CHANGES

WEISS may make changes to the Purchase Order at any time, and Seller shall accept such changes. Any changes to the Goods (as defined hereafter) shall be negotiated in advance by the Parties and agreed to in writing. If a change causes an increase or decrease in cost and/or time required for performance of the services, an equitable adjustment shall be made and the Purchase Order shall be modified accordingly. If price, terms, shipping date or any other expressed condition of the Purchase Order cannot be achieved or met by Seller, WEISS must be notified and must accept in writing any variation prior to shipment or delivery.

 

2. PRICES

Prices or fees for conforming goods, items, or services specified in the Purchase Order (collectively, the “Goods”) shall include any applicable transportation charges, insurance costs, shipping and handling fees and taxes.

 

3. TERMS OF PAYMENT AND TITLE

Upon Acceptance (as defined hereafter) of the Goods pursuant to Section 6 herein, WEISS agrees to pay all amounts due within sixty (60) days of receipt of Seller’s invoice (less any deposits paid to Seller (if any)) unless otherwise agreed to by the Parties in the Purchase Order; provided, however, Seller shall invoice WEISS and WEISS shall only be obligated to pay such invoice if issued to WEISS subsequent to delivery, receipt and Acceptance of all Goods ordered under the Purchase Order.

 

4. DELIVERY OF GOODS

Seller hereby agrees to on-time delivery based upon the timeline set forth in the Purchase Order. If the Purchase Order does not specify a delivery date (the “Delivery Date”) or timeline, Seller shall provide the Goods as if time is of the essence. Changes, modifications or any delay resulting from WEISS that prevents Seller from achieving the Delivery Date shall not constitute a breach of this Purchase Order by Seller. If Seller anticipates a delay in the delivery of the Goods, Seller shall immediately notify WEISS. In the event that Seller fails to deliver the Goods by the Delivery Date, or Seller fails to deliver conforming Goods, WEISS may purchase substitute Goods elsewhere and charge Seller for any additional expense incurred relating to the purchase of such substitute Goods. Seller shall deliver all Goods in accordance with the terms of the Purchase Order. If delivery of the Goods is not complete by the Delivery Date, WEISS may, without liability, and in addition to its other rights and remedies, terminate the Purchase Order, by notice effective when received by Seller, as to Goods not yet delivered or rendered. Acceptance of any part of the Purchase Order shall not bind WEISS to Accept (as defined hereafter) any future shipments nor deprive it of the right to return Goods already Accepted (as defined hereafter).

 

5. SHIPPING

Seller shall substantially pack, mark, and ship all Goods in a manner to secure the lowest, reasonable transportation cost and in accordance with the shipping instructions contained in the Purchase Order and the requirements of common carriers. Seller shall be liable for any difference in shipping charges arising from its failure to follow the shipping instructions contained herein or properly describe the shipment. The Parties agree to assist each other in the prosecution of claims against carriers.

 

6. ACCEPTANCE

As a condition precedent to payment for the Goods by WEISS to Seller, WEISS shall Accept those Goods (in whole or in part thereof) on the Delivery Date or as otherwise set forth in the Purchase Order. For purposes of these Terms and Conditions, “Acceptance” means the point at which WEISS accepts or is deemed to accept the Goods in accordance with the terms set forth in the Purchase Order. Acceptance shall include the terms “Accept” and “Accepted”. The Goods shall be deemed to have been Accepted (i) in the absence of written notification of non-Acceptance by WEISS to Seller within a reasonable period of time, or (ii) upon timely delivery of the Goods identified herein to the shipping address specified on the face of the Purchase Order and the examination and confirmation that the Goods conform to their applicable specifications. Prior to Acceptance, title to the Goods remains with Seller; all risks of damage, injury, or loss thereto, or partial or complete destruction thereof, will be borne and assumed by Seller. By way of clarification, WEISS hereby retains the right to reject any non-conforming Goods and shall not be obligated to Accept any non-conforming Goods.

 

7. INSPECTION

Payment for the Goods provided under the Purchase Order shall not constitute Acceptance thereof. WEISS may inspect and test such Goods and reject any or all items that are, in WEISS’ sole judgment, non-conforming. Goods rejected or supplies in excess of quantities ordered may be returned to Seller at its expense. Failure by WEISS to inspect and/or test the Goods shall not be deemed Acceptance by WEISS.

 

8. WARRANTY

In addition to Seller’s standard warranty relating to the Goods, Seller warrants that the Goods to be delivered pursuant to the Purchase Order (i) are of merchantable quality and free from defects in material or workmanship, (ii) shall conform to all specifications or other descriptions furnished to and approved by the Parties, (iii) comply with all applicable international, federal, state and local laws, rules and regulations (including, without limitation, those concerning health, safety, and environmental standards) which bear upon Seller’s performance, (iv) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by WEISS, and (v) are not restricted in any way by any patents, copyrights, mask work, trademark, trade secrets, or intellectual property, proprietary or contractual rights of any third party. In addition, Seller warrants that WEISS shall have good and marketable title to all Goods (including components thereof) purchased pursuant to transactions contemplated under the Purchase Order, free of all liens and encumbrances and other restrictions, and that no licenses are required for WEISS to use such Goods. The terms of this Section 8 shall not be waived by reason of Acceptance of the Goods or payment therefore by WEISS.

 

9. CANCELLATION

WEISS may for any reason and at any time, at its option cancel any unshipped Goods. WEISS reserves the right to cancel the Purchase Order, or any portion of the Purchase Order, without liability, if; (i) delivery is not made when and as specified; (ii) Seller fails to meet contract commitments as to exact time, price, quality or quantity; (iii) Seller ceases to conduct its operation in the normal course of business; (iv) Seller is unable to meet its obligations as they mature; (v) proceedings are instituted against Seller under the bankruptcy laws or any other laws relating to the relief of creditors; (vi) a receiver is appointed or applied for by Seller; or (vii) any assignment is made by Seller for the benefit of creditors. WEISS also reserves the right to cancel for any other reason permitted by the Uniform Commercial Code then in effect in the state where WEISS has signed this order.

 

10. RISK OF LOSS

Seller assumes all risk of loss of or damage to all Goods ordered and all work in progress, materials, and other items related to the Purchase Order until the same are finally Accepted by WEISS. Seller assumes all risk of loss of or damage relating to any Goods, work in progress, materials, and other items rejected by WEISS until the same are received by Seller or Accepted by WEISS.

 

11. INDEMNIFICATION

To the fullest extent permitted by law, Seller shall indemnify, defend, protect, and hold harmless WEISS and its agents, personal representatives, assigns, parents, subsidiaries, affiliates, related entities, successors, transferees, shareholders, directors, officers, owners, members, managers, and employees (each an “Indemnitee”, and collectively, the “Indemnitees”) from and against all claims, losses, liabilities, damages, lawsuits, actions, proceedings, arbitrations, taxes, penalties, or interest, associated auditing and legal expenses, and other costs incurred by Indemnitee(s) (including reasonable attorneys’ fees and costs of suit).

 

12. INSURANCE

Seller shall maintain adequate insurance in any and all forms necessary to protect both Seller and WEISS against all liabilities, losses, damages, claims, settlements, expenses, and legal fees arising out of or resulting from performance or provisions of the Purchase Order. Although evidence of certain minimum coverage may be required, nothing contained herein shall abridge, diminish or affect Seller’s responsibility for the consequences of any accidents, occurrences, damages, losses, and associated costs arising out of or resulting from performance or provisions of the Purchase Order.

 

13. USE OF WEISS’ NAME; ADVERTISING, PUBLICATION; DOCUMENTS, OWNERSHIP, CONFIDENTIALITY, BUSSINESS INFORMATION

Seller shall not advertise, publicly announce or provide to any other party information relating to the existence of the Purchase Order or use WEISS’ name in any format for any promotion, publicity, marketing or advertising purpose, without WEISS’ prior written consent. All information, drawings, material, goods, equipment, apparatus or documents disclosed or delivered to Seller by WEISS or arising from work or services done for WEISS, and also all knowledge of any business relationship between Seller and WEISS, shall be treated by Seller as confidential proprietary information of WEISS and shall not be disclosed or made available to others by Seller without prior written permission by WEISS. Seller also agrees not to use any of such information, drawings, material, goods, equipment, apparatus or documents for the manufacture or production of products or components for any other party or for Seller. Such obligation shall not apply to any information, material, goods, equipment or apparatus which Seller establishes (i) is already known to Seller at the time of its receipt from WEISS as shown by Seller’s records, (ii) is or subsequently becomes available and accessible to the public through no fault of Seller, or (iii) is disclosed to Seller by a third party on a non-confidential bases.

The title to any tangible property, including but not limited to material, goods, equipment, apparatus, documents, calculations, illustrations, plans, tender documentation, profiles of requirements, requirements specification, designs, literary property, other documents and other data carriers such as models and other materials (e.g., tools), provided to Seller by Weiss or produced by Seller in submitting a bid or estimate or in carrying out the Purchase Order for WEISS shall be vested in WEISS, and Seller agrees to return or deliver such tangible property to WEISS upon request. Seller hereby expressly assigns WEISS all copyrights in and to any material, goods, equipment, apparatus, documents, calculations, illustrations, plans, tender documentation, profiles of requirements, requirements specification, designs, literary property, other documents and other data carriers such as models and other materials (e.g., tools) produced by Seller for WEISS.

 

14. INDEPENDENT CONTRACTOR

Seller, in the performance its duties hereunder, shall be an independent contractor only, and not an agent, employee, partner, or joint venture of, or with WEISS, and nothing herein shall be deemed to create or imply any relationship other than that of independent contractor. Seller shall have no authority to incur any obligations or expenses on behalf of WEISS or to act in any other manner on behalf of WEISS or in its name. Seller’s employees and contractors shall not be entitled to receive any compensation or employee benefits from WEISS.

 

15. NON-WAIVER

Except as otherwise provided in the Purchase Order, any waiver by WEISS of a breach of any provision of the Purchase Order must be in writing and shall not be deemed a waiver of any other or subsequent breach. No delay or omission by WEISS in the exercise or enforcement of any right or remedy provided in the Purchase Order or by law shall be construed as a waiver of such right or remedy.

 

16. SEVERABILITY

In the event that any provision of the Purchase Order shall be held invalid by any court, the remainder of the Purchase Order shall remain in force unless the invalid provision materially affects the rights of the Parties.

 

17. SUCCESSORS AND ASSIGNS; ASSIGNMENT

The Purchase Order is binding on WEISS and Seller and their respective successors, assigns, and legal representatives. Notwithstanding the foregoing, Seller shall not subcontract the work or assign the Purchase Order without the written consent of WEISS, and any assignment in violation of this Section 17 shall be void and of no effect.

 

18. GOVERNING LAW

The Purchase Order shall be governed by and construed in accordance with the laws of the State of Ohio without regard to its rules of conflict of laws. Seller submits to the exclusive jurisdiction of the courts of the State of Ohio and the United States of America located in the State of Ohio for any litigation arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any litigation relating thereto except in such courts), waives any objection to the laying of venue of any such litigation in the Ohio Courts and agrees not to plead or claim in any Ohio Court that such litigation brought therein has been brought in an inconvenient forum. Notwithstanding the foregoing, Weiss may seek and obtain injunctive relief against a breach or threatened breach of Seller’s obligations in any court having jurisdiction.

 

19. FORCE MAJEURE

WEISS may delay delivery, performance, or Acceptance of the Goods ordered hereunder in the event of causes beyond its reasonable control. Seller shall hold such goods or refrain from furnishing such services at the direction of WEISS, and Seller shall deliver the goods when the cause effecting the delay is eliminated. WEISS shall be responsible only for Seller’s direct additional costs incurred by holding the goods or delaying performance of the services at WEISS’ request. Causes beyond Weiss’ reasonable control shall include, without limitation, government action or failure to act where required, strike or other labor trouble, war, terrorism, civil commotion, failure of communications systems, fire or similar catastrophe, and severe weather or other acts of God.

 

20. SURVIVAL OF TERMS

The provisions of the Purchase Order which by their explicit terms or their manifest intent are to survive, including without limitation those which relate to indemnification and use of WEISS’ name, advertising, publication, documents, ownership, confidentiality, and business information, shall survive termination, cancellation or expiration of the Purchase Order.