Page 154 - GoodYear Rubber Products 1-866-711-4673 HBD Thermoid Inc

ENTIRE AGREEMENT
The parties agree that there are no understandings, agreements or
representations, express or implied, not specified herein, respecting
this offer or sale, and that this instrument contains the entire agree-
ment between Seller and Buyer. No prior waiver, course of prior
dealing or usage of the trade shall be relevant to supplement or to
explain terms used in this agreement.
CONTROLLING TERMS
All sales are expressly limited to, and the rights and liabilities of the
parties shall be governed exclusively by, the terms and conditions
herein. In the event any purchase order or offer from Buyer states
terms additional to or different from those set forth herein, this document
shall be deemed a notice of objection to such additional or different
terms and a rejection thereof. Any acknowledgment or shipment
of product by Seller to Buyer subsequent to Seller’s receipt of a
purchase order or offer from Buyer shall not be deemed to be an
acceptance by Seller of an offer to contract on the basis of any
Buyer’s terms and conditions. Receipt and acceptance by Buyer of
products shall be conclusive evidence of Buyer’s acceptance of the
terms and conditions set forth herein as the sole controlling terms
and conditions of the contract between Seller and Buyer.
Stenographic and clerical errors by Seller are subject to correction.
ACCEPTANCE OF ORDERS
Seller possesses the exclusive right to accept or refuse any and all
orders. No bid, offer, or quotation shall be valid or binding upon
Seller, and no order shall be accepted and no sale shall be final,
until such bid, offer, quotation, order or sale shall be acknowledged
in writing by Seller. See price pages for minimum order amount.
PRICES
All prices are subject to change without notice and shall be adjusted
to the Seller’s prices in effect on the date of shipment. Prices reflect
standard packaging for domestic shipment only. All prices are in
U.S. Dollars. All tooling and equipment Seller produces or acquires
for purposes of filling this order shall remain property of Seller. All
intellectual property associated with the products shall remain the
sole property of Seller.
DELIVERY
Delivery dates are estimates and not a guaranty of a particular day
of delivery and are based on the prompt receipt of all necessary
information from the Buyer. Seller shall not be liable for failure or
delay in shipping goods hereunder if such failure or delay is due to
an act of God, fire, flood, war, labor difficulties, accident, strikes,
lockouts, civil disorders, governmental priorities or embargoes,
inability or difficulty in obtaining raw materials or supplies at customary
terms and prices or any other causes or failure of presumed conditions
of any kind whatsoever which are either beyond the reasonable
control of the Seller or which would make impracticable the fulfillment
of Seller’s obligations hereunder. Buyer shall not refuse to accept
deliveries so delayed. Seller shall be compensated for any and all
extra costs and expenses occasioned by delays attributable to Buyer.
TRANSPORTATION AND RISK OF LOSS
All shipments are freight collect unless eligible for a freight
allowance expressly set forth in current price sheets or on the face
hereof. Seller reserves the right to select the method and type of
transportation. If a method of transportation other than that selected
by Seller is requested by Buyer, excess packing, shipping and
transportation charges resulting from compliance with Buyer’s
request shall be for the Buyer’s account. All shipments are F.O.B.
point of shipment and risk of loss shall pass to Buyer after products
are delivered to carrier. Claims for damage or loss in transit must be
filed by Buyer against the carrier.
CANCELLATION OR MODIFICATION
Buyer may not cancel or modify any order, either in whole or in
part, without Seller’s prior written consent and then only upon pay-
ment to Seller for all applicable costs incurred by Seller, including,
without limitation, costs of materials, labor, equipment and supplies,
and for lost profits on cancelled or modified orders. Order changes
or additions received after original order has been processed will be
treated as a new order.
TAXES
Any taxes which Seller may be required to pay or collect with
respect to the sale, delivery or storage of the products, including
taxes upon or measured by the receipts from the sales thereof,
shall be for the account of Buyer who shall promptly pay the
amount thereof to Seller upon demand, or in lieu thereof, furnish
Seller with a tax exemption certificate acceptable to the taxing
authorities.
WARRANTY AND DISCLAIMER
Seller warrants that its products shall be free from defects in
material and workmanship under normal use and service for a
period of 12 months from date of shipment. On equipment and
materials furnished by Seller but manufactured by others, Buyer
shall accept in lieu of any liability or guarantees on the part of
Seller, the benefits of guarantees as are obtained by Seller from
such manufacturers or vendors. SELLER MAKES NO WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED,
EXCEPT AS IS EXPRESSLY SET FORTH HEREIN. Failure by
Buyer to object to or reject products or materials delivered hereunder,
in writing within 30 days from the date of shipment of the products
or materials, shall constitute an acceptance and waiver by Buyer of
all claims hereunder on account of alleged errors, shortages,
defective workmanship or material, breach of warranty or otherwise,
discoverable upon inspection by Buyer.
LIMITATION OF LIABILITY
Buyer’s exclusive remedy on any claim of any kind for any loss or
damage arising out of, connected with, or resulting from this contract,
or from the performance or breach thereof, or from the design,
manufacture, sale, delivery, resale, or repair or use of any products
covered by or furnished under the contract, including but not limited
to any claim for breach of warranty, negligence, strict liability or
other tort, shall be the repair or replacement, F.O.B. Seller’s factory,
as Seller may elect, of the product or part thereof giving rise to
such claim, except that Seller’s liability for such repair or replace-
ment shall in no event exceed the contract price allocable to the
products or part thereof which give rise to the claim. SELLER
SHALL IN NO EVENT BE LIABLE FOR DIRECT, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES.
RETURN OF MATERIAL
Seller’s permission must be obtained in writing before any products
are returned to it by Buyer. If products are returned without such
permission, Buyer authorizes Seller, in addition to such other
remedies as it may have, to hold the returned products at Buyer’s
sole risk and expense. All returns must be freight prepaid by Buyer.
Seller will in no event accept the return of any product that upon
return is in the opinion of Seller altered, damaged, used, or in other
than first class salable condition.
INDEMNITY
Buyer agrees to indemnify, defend and hold harmless Seller from
any claims, loss or damages arising out of or related to Seller’s
compliance with Buyer’s designs, specifications or instructions in
the furnishing of products to Buyer, whether based on infringement
of patents, copyrights, trademarks or other rights of others, breach
of warranty, negligence, strict liability or other tort.
STOPPAGE IN TRANSIT
If Seller determines that Buyer’s credit position has changed
materially, prior to or during shipment, or at any time before
acceptance of the goods by Buyer, then Seller may stop delivery of
goods to the carrier or other bailees, or goods in the possession
of a carrier or other bailee. Such action by Seller will not constitute
a breach of this agreement with any resulting damages to Buyer.
PAYMENT
All invoices are due net 30 days from date of invoice. Payments not
made when due shall bear interest at the prime rate plus 5% per
annum or, if lower, the highest rate legally permissible, until paid.
Credit balances will be applied against future purchases only and
must be claimed within one year of creation or are waived.
GOVERNING LAW AND ARBITRATION
Any dealings or contract between the parties shall be governed by
and construed in accordance with the law of the state of Ohio,
excluding its choice of law provisions. Any controversy arising under
or in any way related to the subject matter hereof shall be settled by
arbitration by a single disinterested arbitrator in Columbus, Ohio,
U.S.A., in accordance with the commercial rules of the American
Arbitration Association then obtaining. Each party shall bear its own
costs and expenses, including attorneys fees. The fee for the
arbitrator shall be shared equally by the parties.
800/543-8070 Fax 800/423-4354 www.hbdthermoid.com
154
Product information is subject to change. For full details, visit our website or contact Customer Service.
TERMS & CONDITIONSTERMS & CONDITIONS OF SALE
CAUTION: USE OF DAMAGED HOSE OR MISAPPLICATION MAY RESULT IN
PROPERTY DAMAGE OR SERIOUS PERSONAL INJURY. INSPECT HOSE REGULARLY.
Revised 03/06
Reprinted 02/15/08