TERMS AND CONDITIONS FOR DELIVERY OF GOODS Rev.1 Dated July 2, 2015
1. ONEX’S AND SELLER’S ACCEPTANCE OF TERMS AND CONDITIONS
These Terms and Conditions for Delivery of Goods (the “Terms and Conditions”), along with the written Quotation furnished by Onex, Inc. (“Onex”) to Buyer, shall exclusively govern the terms of the transaction contemplated therein. Onex’s acceptance of Buyer’s order for the products described herein is expressly made conditional on assent by Buyer to these Terms and Conditions in their entirety, and either Buyer’s failure to object in writing within five (5) days from the date of the Quotation or Buyer’s acceptance of any or all part of any products furnished by Onex, whichever first occurs, shall be deemed to constitute such assent.
Prices are subject to change without notice unless shipment is made within the firm price period, if any, specified in Onex, Inc.’s Quotation. All prices are conditioned upon Buyer’s acceptance of the terms and conditions herein specified. If for any reason, other than a delay willfully caused by Onex, shipment of all or part of Buyer’s order is not made within the shorter of any firm price period or 30 days from the date of Buyer’s order, then the unshipped balance shall be invoiced at Onex’s List Prices in effect at the time of shipment. Regardless of any firm price period, Buyer shall pay the actual charges for freight or transportation regardless of the freight rates or transportation charges shown on the Quotation. Onex shall not be liable for any transportation charges incurred at destination, including without limitation spotting, switching, drayage, demurrage, or pier unloading charges.
The prices set forth on the Quotation are exclusive of any present or future Federal, State, local, or other sales or use tax which may apply; any other present or future excise tax upon or measured by the gross receipts from this transaction or any allocated portion thereof or by the gross value of the product covered hereby; or any present or future property tax or similar charge which may apply. If Onex is required by applicable law or regulation to pay or collect any such tax or taxes on account of this transaction on the material or equipment or services covered hereby, then such amount of tax shall be paid by the Buyer in addition to the prices provided on the Quotation.
4. TERMS OF PAYMENT
All payment for items contained on the Quotation shall be made within thirty (30) days of the date of shipment. A finance charge equal to 1.5% of the unpaid balance per month (18.00% per annum) will be added to all delinquent accounts. All remittances must be made in U.S. dollars.
Delivery of products shall be made F.O.B. the place of shipment unless otherwise expressly indicated on the Quotation. Upon Onex’s delivery of the product described in the Quotation to a carrier for shipment to Buyer, the risk of loss shifts to Buyer and any damage or loss in transit is the responsibility of the Buyer.
All freight, transportation, delivery, and similar costs shall be borne by the Buyer. Manufacture, shipment, or delivery will be subject to any prohibition, restriction or regulation imposed by federal, state, or local law and Onex shall not be liable for any delay or failure to perform, in whole or in part, caused by any such prohibition, restriction or regulation, or by fires, floods, strikes, work stoppages, accidents, casualties, inability to procure supplies and raw materials, delays in transportation, shortage of cars or other force majeure causes beyond Onex’s control. If delivery of any special items is delayed by Buyer for more than thirty (30) days after completion, Onex may invoice for such items and hold for Buyer’s disposition for a reasonable period of time. Buyer shall make payment for such special items within thirty (30) days from date of invoice.
The parties agree that time is not of the essence to any contracting resulting from Buyer’s acceptance of the Quotation and these Terms and Conditions (the “Agreement”), and Onex may deliver any goods ordered by Buyer within a reasonable time before or after any specified date for delivery.
6. INSPECTION TOLERANCES
All materials sold by Onex to Buyer are subject to Onex’s standard manufacturing variations and practices.
The Agreement cannot be cancelled, terminated, or modified except in a writing signed by Onex.
Buyer shall promptly inspect the products upon receipt, and any claim respecting the condition of products, compliance with specifications, or any other matter affecting the products shall be made in a writing delivered to Onex within fourteen (14) days of receipt of the goods by Buyer or Buyer’s agent.
If Buyer is aggrieved by any other failure by Onex to render performance under the Agreement or otherwise wishes to assert a claim against Onex arising from or relating to this Agreement, Buyer shall, within fourteen (14) days of the occurrence of the facts or circumstances giving rise to Buyer’s claim, deliver to Onex written notice of the same.
Any written notice required by this Article 8 must set forth all of the facts or circumstances giving rise to the Buyer’s claim; shall include copies of all relevant documents evidencing such claim; and shall identify the names and contact information of all individuals with knowledge relevant to Buyer’s claim.
Buyer agrees that it is a condition precedent to any action, lawsuit, or claim of any kind in any forum against Onex arising from or relating to the Agreement that Buyer provide written notice of Buyer’s claim as set forth in this Article 8 as well as a period of ninety (90) days for Onex to attempt to resolve Buyer’s claim prior to bringing such action, lawsuit, or claim.
In the event that the goods sold hereunder are resold to third parties by Buyer, Buyer agrees and warrants that it will require the purchasers of resold items as a condition of purchase of the items to execute a written release of Onex from any and all liability, including without limitation from Onex’s own negligence or gross negligence.
10. PRODUCT WARRANTY
Except as otherwise provided in this Article 10, Onex makes no warranty of any kind concerning the goods set forth in the Quotation, and Onex disclaims any and all warranties, express or implied, whether arising by operation of law, custom, usage of trade, or otherwise. ONEX EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Onex warrants that the products sold to Buyer will substantially conform to the descriptions in the Quotation. Buyer’s sole remedy for failure of any products to confirm to the descriptions is, at Onex’s option, either (a) replacement of the deficient products by Onex or (b) credit for the original price thereof.
As a condition precedent to any remedy under this provision, Buyer must make a written claim as set forth in Article 8 above, and Buyer must allow Onex an adequate opportunity to inspect any goods that Buyer claims are deficient. In no event shall any replacement or credit be given if the product has been misused, abused, improperly stored or shipped, or used in an application for which the specific product was not suited.
Any claim for breach of any warranty hereunder shall be deemed forever waived unless Buyer provides notice in writing to Onex of any alleged nonconformity or other alleged failure within thirty (30) days after the date of delivery.
11. LIMITATION OF DAMAGES
Except as expressly provided in Article 10 above, Onex shall in no event, regardless of designation or characterization, be liable for loss of anticipated profits, loss of production or shutdown of operation, increased operating costs, claims of customers, cost of money, loss of use of capital or revenue, loss or expense as a result of soil or water pollution, or any other damages of any kind whether arising under contract, tort (including negligence), strict liability, or other theory of law or equity, nor shall Onex be liable for any claim, loss, expense or suit claiming indirect, special, incidental or consequential loss or damages of any nature, whether similar or dissimilar to those listed above, arising at any time or from any cause whatsoever.
Notwithstanding any other provision of the Agreement to the contrary, Onex’s maximum liability to Buyer for any and all claims, damages, actions, losses, or other liability of any kind, whether arising under contract, tort (including negligence), strict liability, or other theory of law or equity, shall not exceed the amount for which the parties have contracted in this Agreement.
Buyer agrees to indemnify, defend, and hold harmless Onex from and against any and all claims, damages, actions, losses, fines, assessments, and other liability of any kind arising from or relating to the transaction contemplated by the Quotation, these Terms and Conditions, or the Agreement, including without limitation any claims, damages, actions, losses, or other liability of any kind arising out of the resale of any goods furnished hereunder. This duty of indemnification applies even if such claims, damages, actions, losses, fines, assessments, or other liability is occasioned due to the negligence or gross negligence of Onex.
13. OCCUPATIONAL SAFETY AND HEALTH ACT
Onex makes no warranty that the use of products sold hereunder will not violate the Occupational Safety and Health Act or that they will comply with any of the standards promulgated under the Act. Except as provided to the contrary herein, Onex shall not be liable for any failure of any product furnished pursuant to the Agreement to satisfy any Occupational Safety and Health Act standards. Buyer certifies that it has undertaken the necessary investigation prior to accepting the Quotation to satisfy itself that the goods purchased will comply with all applicable federal, state, and local rules for the intended application.
Onex may ship and invoice for overages as follows:
Number of Pieces or Sets Allowable Overage
Specified on Order Extra Pieces or Sets
1 to 10 1 Shape
If in Sets, 1 complete set
11 to 100 10%
101 to 250 7%
251 to 750 5%
751 to 1,500 4%
1,501 to 5,000 3%
5,001 to 10,000 2%
Over 10,000 1%
15. NON-RETURNABLE CONTAINERS
Because Onex’s shipments are made in “single trip” non-returnable containers, in no event shall Onex provide any refund, credit, or reimbursement for any container returned by Buyer.
16. RETURN OF “LEFTOVERS”
Onex strongly recommends that Buyer retain any leftover materials in case of future needs rather than requesting to return them.
Should Buyer not follow Onex’s recommendation, Onex will not accept any material returned without Onex’s express, prior written permission. If such permission is granted, Buyer may return unused materials in saleable condition, with all transportation, freight, delivery, and similar costs paid by Buyer in advance. In no event will Onex pay for any such costs. If permission to return materials is granted by Onex, Onex will calculate the appropriate credit based upon the lower of price of the materials listed in the Quotation or the price of the materials at the time of return and shall subtract from that price reasonable costs of inspection and handling of returned materials.
‘Tooling’ shall mean all tools, machines, jigs, molds, dies, samples, plants and / or equipment, measuring and testing devices (gauges), templates, models, drawings, and similar items required for manufacturing and testing of parts to be supplied. In the event the Quotation includes charges for tooling, such charges do not convey to Buyer title to or right of possession of tooling, and Onex shall at all times retain title in and exclusive right to possession of such tooling. Onex will retain any tooling fabricated for Buyer for a period of three (3) years unless there is a change in the Buyer’s specifications or designs. After this three (3) year period has expired or Buyer’s specifications or designs change, Onex reserves the right to discard such tooling.
18. TECHNICAL ADVICE
Any technical advice provided by Onex is furnished solely as an accommodation to Buyer, and Onex assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer’s sole risk.
19. GOVERNMENTAL OBLIGATION
Buyer hereby agrees to take no action which may cause Onex to be in violation of any federal, state, local, or other applicable law or regulation relating to to this contract or the goods furnished hereunder.
20. ONEX’S REMEDIES
a. In case Buyer shall fail to make payments in accordance with the terms and conditions aforementioned herein, Onex, in addition to its other rights and remedies, may, at its option, defer further shipments until such payments are made, or may terminate the contract, and Buyer shall not have any cause of action or be entitled to any offset, counterclaim or recoupment against Onex by reason of any such action.
b. No failure of Onex to insist upon strict compliance by Buyer with the terms and conditions aforementioned herein, or to exercise any right accruing from any default of Buyer shall impair Onex’s rights in case Buyer’s default continues or in case of any subsequent default by Buyer.
c. Waiver by Onex of any breach of contract shall not be construed as a waiver of any other existing or future breach.
d. If any provision of this contract is held invalid under the applicable statute or rule of law, such invalidity shall not affect any other provision, and each provision or part hereof is declared to be severable.
21. CHOICE OF LAW
The Quotation, these Terms and Conditions, and the Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to its provisions concerning choice of law. Venue for any action arising from or relating to the Quotation, these Terms and Conditions, or the Agreement shall be proper exclusively in the courts situated in Erie County, Pennsylvania.
22. ENTIRE AGREEMENT
These Terms and Conditions, along with the Quotation, constitute the entire agreement between Onex and Buyer, and no agent, employee, representative, or other party is authorized to bind Onex by any agreement or warranty not expressed herein. No additions to or modifications of the terms and conditions hereof shall be effective unless reduced to writing and signed by an officer of Onex.
23. ATTORNEYS’ COSTS AND FEES
If Onex is required to take legal action to recover past due invoice amount from Seller, Onex shall be entitled to recover, in addition to all past due amounts, all costs of suit, reasonable attorneys’ fees, collections agency fees and service charges, and interest from the date such past due amounts were required to be paid at the rate set by law.
917 Bacon Street
Erie, PA 16511
1308 Main Street
Crescent, PA 16406