A) As used herein, the term "Goods" shall collectively refer to the products, service, equipment or items sold to buyer. B) "Seller" shall be the Singleton Corp. of Ohio. C) "Buyer" shall mean any person, firm or corporation who contracts to purchase the Goods from the Seller.
No modification or amendment hereof shall be binding unless expressly agreed to in writing and signed by Seller. No modification, amendment or waiver shall be deemed effectuated by Buyer's order, acknowledgment or confirmation containing additional, inconsistent or different terms; all of such additional, inconsistent or differing terms shall be deemed material alterations within the meaning of Section 2-207 (2) of the Uniform Commercial Code and notice of objection to same is hereby given.
3) Delivery and Risk of Loss
The risk of loss of the Goods shall pass to the Buyer at Seller's plant upon delivery to the carrier. Seller is not responsible for Goods lost or damaged in transit, and any claim shall be made by Buyer to the carrier in accordance with carrier's requirements. At the time of such delivery, Buyer shall, at its own expense, be responsible for purchasing any insurance coverage applicable to the Goods and Seller shall have no responsibility for the placement of any insurance coverage.
4) Terms of Payment
Terms of payment are net (30) days from the date of shipment unless otherwise stated on the face hereof or otherwise expressly agreed to in writing. Interest will be charged on overdue accounts at the rate of one and one-half percent (1.5%) per month (18% per annum). Buyer agrees to purchase the Goods from the Seller for the indicated Purchase Price subject to the terms hereof. In addition, Buyer shall pay all federal, state, and local sales, use privilege or excise taxes levied upon the Purchase Price. If Seller shall later learn that the tax should be collected from Buyer as a result of this transaction, the fact that sales or similar tax is not rejected on the reverse side hereof at the time of execution shall not be deemed to be a waiver by Seller of its right to collect same from Buyer. Any personal or other property taxes assessable on the Goods after delivery to the Buyer or carrier will be borne by Buyer.
5) Title / Security Interest
Title to the Goods passes to Buyer upon delivery of the Goods to the carrier by Seller, except that Seller reserves a security interest in each component of the Goods in the amount of their Purchase Price. In addition, Buyer agrees and does hereby grant and authorize Seller to execute, and to file with the appropriate government authority, any and all UCC Financing Statements (and other documents) on behalf of Buyer necessary or appropriate to protect Seller's security interest in the Goods and the Buyer, and for this purpose only, hereby appoints Seller, its representatives and designers as attorneys-in-fact, agents and authorized signatures for such purposes. Seller's security interest(s) will be satisfied by payment in full of all amounts due from Buyer hereunder. Such UCC Financing Statement and related documents may be filed with appropriate state and local officials at any time after execution thereof by Buyer in order to perfect Seller's security interest.
6) Cancellations and Returns
Orders are not subject to cancellation except with Seller's prior written consent. Upon cancellation for any reason, Seller reserves the right in addition to its other remedies to require payment in full for materials previously delivered and for all costs incurred by Seller in connection with the order including, without limitation, direct and indirect costs, selling and overhead costs, and cancellation charges incurred by Seller, plus a handling charge of fifteen percent (15%) to recover costs of restocking and packing. Seller reserves the right to reject any items returned without prior written authorization of Seller. Items of a special nature are not subject to return; sales on these items are final. Under no circumstances will Seller accept a return shipment unless authorized in writing by the factory. Upon authorization all returned items will be prepaid subject to credit, if warranted.
7) Limited Warranty
Seller warrants its products only to be free from defect in materials and workmanship for one year from the date of purchase but limits its obligation under this warranty to replacement, or at its option, reimbursement of the purchase price of product shown to Seller's satisfaction to have been defective at the time Seller sold it. Any repairs attempted or completed by anyone other than the Seller or an authorized agent of the Seller voids any Warranty. THE SELLER NEITHER MAKES NOR SHALL BE BOUND BY ANY OTHER WARRANTY, EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE. UNDER NO CIRCUMSTANCES WILL THE SELLER BE LIABLE FOR ANY LOSS, DAMAGE, EXPENSE OR CONSEQUENTIAL DAMAGE OF ANY KIND ARISING IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, ITS PRODUCT. The following do not constitute warranties: 1. Specifications, other descriptive information and recommendations published in the Seller's price lists, catalogs, product brochures and elsewhere. 2. Results of tests and recommendations set forth in technical service reports furnished by the Seller. All such information and recommendations though based upon Seller's research and believed to be reliable, are furnished and the product is sold upon the understanding that purchasers will independently determine the suitability of the product for their purpose. No agent or representative of the Seller is authorized to change this warranty or to give any other warranty, expressed or implied; and no such agent or representative is authorized to make any representations concerning the Seller's product which are not subject to qualifications and to the limitations of liability hereinabove expressed. THE SELLER MAKES NO WARRANTY OF ANY KIND WHATEVER, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH HEREIN. THE OBLIGATIONS AND LIABILITIES OF SELLER HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND BUYER HEREBY WAIVES ALL OTHER REMEDIES, WARRANTIES, GUARANTEES, OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY OBLIGATIONS OF THE SELLER WITH RESPECT TO FITNESS, MERCHANTABILITY AND CONSEQUENTIAL DAMAGES. THIS WARRANTY SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN OFFICER OF SELLER AND BUYER.
8) Exclusive Remedy
Except for any wear parts that are sold individually or incorporated into the Goods, if within one (1) year from date of shipment by Seller, Buyer discovers that the Goods were not as warranted and notifies Seller in writing within twenty (20) days thereafter specifying the defect, Seller shall, at Seller’s sole option, adjust, repair or replace the Goods or any affected part of the Goods.Seller shall bear reasonable expense of any parts and Seller’s labor in connection with the foregoing remedies.Buyer shall be responsible for all other expense including expenses for removal, reinstallation and freight in connection with the foregoing remedies.Replacement parts may be, at Seller’s option, new or repaired parts and Singleton shall have the right to keep any parts replaced by it.The adjustment, repair or replacement shall be subject to the same warranties set forth above for a period of thirty (30) days or the remaining warranty period on the original item, whichever is longer.the remedies set forth in this paragraph contain Buyer’s exclusive remedies against Seller relating to the Goods, whether in contract or in tort or under any other legal theory, and whether arising out of warranties, representations, instructions, installations or defects from any cause.
Seller shall not be liable or deemed to be in default for any delay or failure to perform or interruption thereof resulting directly or indirectly, from acts of God, Civil or Military authority, acts of public enemy, war accidents, fires, explosion, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any other causes beyond the reasonable control of Seller.
10) Default or Delinquency of Buyer
Buyer shall be in default upon the happening of anyone or more of the following events or conditions (hereinafter called "an event of default"): (a) Failure to make payment when due of any of the purchase price including payment of any promissory note issued with respect to the contract price, or failure to perform any instrument evidencing any of the Buyer's obligations to the Seller; (b) Suit is filed in connection with any levy, seizure, or attachment of or on the Goods; (c) Buyer's dissolution or other termination of existence, merger, or consolidation with another, insolvency, forfeiture of right to do business, business failure, appointment of a receiver of any part of the property of the Buyer, the calling of any meetings or the assignment for the benefit of creditors by Buyer, or the commencement of any proceedings under any bankruptcy or insolvency laws by or against Buyer or an guarantor or surety for Buyer. Upon the occurrence of any event of default: (a) The full amount of the contract price for the Goods which is unpaid, shall become immediately due and payable at the Seller's option; (b) Seller shall have the right to enter upon the Buyer's premises where the Goods which are the subject of this Quotation are located and shall have the right to take immediate possession of said Goods, and any and all claims for damages caused or necessitated by said repossession are hereby waived by the Buyer; (c) Seller shall have the right to retain any and all payments made by Buyer for said Goods as liquidated damages and/or reasonable rental for the use of said Goods; and (d) Seller shall have the right to sell said repossessed Goods, at public or private sale, with or without notice to the Buyer, upon such terms and in such manner as Seller deems appropriate, and the proceeds from any such sale shall be applied to the payment of the balance of the purchase price and all expenses incurred by Seller in connections with the repossession, including but not limited to, reasonable attorney's fees. The balance of the proceeds, if any shall be remitted to Buyer. In the event of a deficiency due and owing Seller after the application of the proceeds of the aforesaid, Buyer shall remain obligated to Seller for said deficiency until paid in full. If for any reason it becomes necessary for Seller to initiate any legal proceedings against Buyer for the total or any portion of the purchase price of the Equipment sold hereunder any other charges due hereunder or for any other breach of this contract, Seller shall be entitled to recover all costs incurred by it in connection with such proceedings, including, but not limited to reasonable attorney's fees.
11) Compliance with Certain Federal Laws
Seller represents that with respect to the production of articles and for the performance for the service covered by this Invoice, it has fully complied with Section 1212(a) of the Fair Labor Standards Act of 1938, as amended, is an equal opportunity employer, and also conforms with the General Ceiling Price Regulation issued by E.S.A.
12) Limitation of Liability
Seller shall NOT be liable, whether in contract or in tort or under any other legal theory for: (a) loss of use, revenue or profit; (b) for cost of capital; (c) for substitute use or performance; (d) for incidental, indirect, special or consequential damages; (e) for any other loss or cost of similar type; or (f) for claims by Buyer for damages of Buyer’s customers or any third party. Seller shall have no obligation as to any Goods that have been improperly stored or handled, or which have not been installed, operated or maintained according to instructions in Seller’s furnished manuals, or have been modified. Seller shall not be liable for the fault, negligence or wrongful acts of Buyer or Buyer’s employees, or Buyer’s other contractors and suppliers.
13) Governing Law, Jurisdiction and Venue
These Terms of Sale shall be governed by the laws of the State of Ohio. Buyer irrevocably consents to and confers personal jurisdiction on, and consent to venue in, the state and federal courts located in Cleveland, Ohio, and expressly waives any objects to the venue of such courts. Buyer agrees that service of process may be made on Buyer by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, or by overnight carrier, to Buyer’s address listed on its purchase order or such other address as Buyer has provided to Seller in writing.
Statements about the Goods may have been made to Buyer by representatives of Seller. Such statements do not constitute warranties and shall not be relied upon by Buyer and are not a party of any agreement between Buyer and Seller. Notwithstanding any different, conflicting or additional terms or conditions that may appear on any purchase order or other business forms submitted by Buyer, such different, conflicting or additional terms will not become a part of any contract for sale between Buyer and Seller and are expressly rejected by Seller.