DEFINITIONS: “Buyer” as used herein shall mean the purchaser of goods from Evergreen Machining Services. “Seller” shall mean Evergreen Machining Services.
“Product” shall mean goods purchased by Buyer and shall include the plural.
This document from Seller contains the entire terms and conditions associated with this transaction. Any different or additional terms or conditions contained in any RFQ, PO or other Buyer document, shall not be effective or binding upon Seller unless agreed to in writing and signed by an Officer of Seller. If the Buyer issues a PO or other correspondence addressing this transaction that shall be for the Buyer’s internal purposes only and the terms and conditions contained therein shall have no force or effect.
Until an order is accepted by Seller, quoted prices are subject to change without notice. Prices quoted are based on Seller’s labor and material costs as of the date of the quotation. Unless specified otherwise, prices are based upon the quantity released for Seller’s production and/or shipment as specified in a purchase order or communicated to Seller in written form.
ORDERS & DELIVERY
If after placement of an order, Buyer reduces quantities, Buyer shall pay Seller any increased cost caused by the manufacturing of a lower quantity. The cost shall be implemented into all parts shipped and any balance of any revised order. Order acceptance may be based on the Buyer accepting over-run or under-run on each individual item not exceeding 5% of quantities ordered. Additional charges to the Buyer may be applied if material supplied by Buyer does not meet specification and causes additional manufacturing costs to Seller. Delivery dates are set at the time of Order acceptance and terms are FOB Seller’s facility unless mutually agreed upon by Seller and Buyer.
PRICES, INVOICING AND PAYMENT
Buyer shall pay Seller the Purchase Price as set forth in the Sales Order Acceptance or in any invoice pertaining to a modification or cancellation. The Purchase Price is exclusive of packaging, shipping and insurance costs and any custom, state and local taxes, which shall be borne by Buyer. Seller shall invoice Buyer concurrently with each Product shipment. An invoice will include the invoice date, the Order number, and the total price and name and address where payment is to be sent. Buyer shall pay all invoices within thirty (30) days of the shipment date of product unless other arrangements have been agreed upon by Seller. Payment shall be made in U.S. dollars. Payment not received when due shall bear interest at the rate of 1 ½% monthly from its due date until paid.
For shipments made outside of the United States, Seller reserves the right, prior to shipment, to require a documentary irrevocable commercial letter of credit. This letter cannot be revoked or changed without the agreement of all parties.
Due to the proprietary nature of the Seller process, all engineering data, tooling, fixtures, programming, process design and control systems developed by Seller, collectively the “Tooling,” are proprietary and are generally not compatible with or transferable to other equipment. Notwithstanding any tooling or engineering charges imposed by Seller, all such Tooling produced by Seller shall be and remain the sole and exclusive property of Seller. However, Seller shall not use Tooling developed specifically for the Buyer, and for which the Buyer is separately charged by Seller, in the production of goods for any other customer of Seller without Buyer’s express permission.
CHANGES & CANCELLATIONS
Seller shall not be responsible for any changes in specifications unless such changes are confirmed in writing by Buyer and accepted in writing by Seller. Any price variation resulting from such changes shall become effective immediately upon the acceptance of such changes. Upon acceptance by Seller, an order can only be cancelled effective with the date of Seller’s written consent and upon terms that indemnify Seller against loss. Upon effective cancellation, Seller shall have the option to continue the processing of materials or articles affected to the point at which the processing can be halted with the least inconvenience to Seller. If any prior inventory in Seller’s possession shall become obsolete due to such changes or cancellations by Buyer, Buyer agrees to be immediately invoiced for the value of the obsolete inventory.
ENGINEERING (NRE) CHARGE
Engineering (NRE) charges may be quoted to cover the cost of process design required for Seller to perform the Buyer’s manufacturing requirements, which may include fabricating special tooling fixtures, machine programming and specific quality control systems as examples. Generally, the engineering charge is made on the original order only. When revisions are made, an additional engineering charge may apply as necessary in Seller’s sole discretion.
If Seller agrees to use materials supplied by Buyer, then Buyer shall be solely responsible for supplying and delivering such material in a timely manner at no cost or expense to Seller, in sufficient quantity and quality, including any loss, waste, or scrap that may occur for any reason, as Seller deems necessary to complete the order. Buyer hereby acknowledges that Seller shall not be liable for, and Buyer shall pay any previously negotiated delivery premiums if failure or delay is caused by Buyer’s inability to supply and deliver such materials in a timely manner or in sufficient quantity and quality as Seller deems necessary.
SPECIAL ORDERS AND INTELLECTUAL PROPERTY
If any material shall be specially manufactured or sold by Seller to meet Buyer’s specifications, Buyer will indemnify, hold harmless and defend Seller from and against any claim, suit, damage, cost, expense, fine, liability or cause of action whatsoever, including all reasonable attorney’s fees, on account of, relating to, or arising out of any claimed infringement of the rights of any third party due to the use of the Product by Buyer, or the further use, distribution or sale of the Product.
If customer pre-production approvals are required, deliveries will be based on date of receipt of the approval. If approvals are not received in a timely fashion, additional set-up charges may apply and/or delivery dates may be delayed.
Seller will be excused from the obligations of this contract to the extent that performance is delayed by an act of God or prevented by any circumstances reasonably beyond its control or by war, fire, explosion, mechanical breakdown, strikes or other labor troubles, unavailability of or interference with the usual means of transporting the product, unavailability of materials, or compliance with any law, regulation or request of any governmental authority. The occurrence of such a Force Majeure event shall act to suspend performance. Either party shall have the right to terminate any unperformed portion of the contract as a result of a Force Majeure situation. However, the duty of the Buyer to pay for product received is never suspended.
Claims by Buyer for non-conforming Product, shipment, delivery or for any other cause associated with Seller’s performance, shall be deemed waived unless submitted in writing within 30 days of receipt of shipment.
Seller’s obligation and Buyer’s exclusive remedy for any claim or cause of action is limited to repair or replacement of Product not conforming to specifications. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT OR CONSEQUENTIAL DAMAGES, OR EQUIVALENT THEREOF NO MATTER HOW CLAIMED, COMPUTED OR CHARACTERIZED, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RELATED TO LABOR, DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF RETURN ON INVESTMENT, COST OF CAPITAL, LOSS OF OPERATING TIME OR PRODUCTION, LOSS OR REDUCTION OF USE OR VALUE OF ANY FACILITIES, EXPENSE OF REPLACEMENT PRODUCTS OR POWER, OR INCREASED COSTS OF OPERATIONS OR MAINTENANCE, ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF WARRANTY OR NONCONFORMANCE OR DEFECT IN THE PRODUCT, REGARDLESS OF WHETHER SUCH LIABILITY SHALL BE CLAIMED IN CONTRACT, WARRANTY, EQUITY, TORT OR OTHERWISE.
Seller warrants only that the quality of the Product shall conform to specifications. THESE ARE THE ONLY REPRESENTATIONS OR WARRANTIES SELLER MAKES AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES UNDER STATUTE OR ARISING OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY OTHER WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED.
Buyer agrees to indemnify, defend and hold harmless Seller, its officers, agents, employees, successors, assigns, customers and users of the Product, from and against any and all losses, expenses (including without limitation, reasonable attorneys’ and other professional fees), costs, damages, demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by whomsoever suffered, sustained or alleged to have been sustained by reason of any act, error or omission, whether negligent or not, of Buyer or its agents, employees, or affiliates, provided that such injury, death, damage or destruction is not occasioned by the sole negligence of Seller or its agents and employees.
CHOICE OF LAW AND VENUE
The transaction between Buyer and Seller shall be governed by the laws of the State of Illinois and Buyer and Seller mutually agree that the United Nations Conventions on Contracts for the International Sale of Goods does not apply to the transaction between Buyer and Seller. In the event of any dispute between the parties arising out of the transaction, the parties agree and consent to exclusive jurisdiction and venue in the state or federal courts of Northern Illinois.
ENTIRETY AND MODIFICATION
This document contains the entire agreement of the parties and all proposals, negotiations and representations, if any, made prior to and concerning this contract are merged herein. Any subsequent modifications to this contract shall be at the discretion of Seller, must be in writing stating an intention to modify the agreement and signed by an authorized representative of Seller.