Customer is hereby notified that acceptance of Customer’s order is expressly made conditional on assent to the following terms and that I. Schumann & Co., LLC (hereafter “Seller”) objects to any additional terms proposed by Customer.   

 

1.         Contract Documents; Entire Agreement:  The contract documents for each transaction governed by these terms, referred to herein as the Agreement, shall consist solely of (1) the Seller’s quotation, sales order, and sales invoice, and (2) these Standard Terms and Conditions of Sale, which documents shall form the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.  These terms prevail over any of Customer's general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Any terms and conditions contained in Customer's order or related documents which are different from or in addition to the terms and conditions stated herein, are expressly objected to by Seller and not binding on it.  Fulfillment of Customer’s order does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these terms.

 

2.         Limited Warranty:  Seller warrants that the materials and other goods supplied hereunder (the “Goods”) shall conform to Seller’s published specifications set forth in Seller’s certificate of analysis issued to Customer in connection with a specific order.  Seller’s warranty shall be valid until the earlier of (a) such time as the Goods are consumed or otherwise modified or (b) three (3) months following shipment of the Goods from Seller’s facility, and Customer bears the sole risk for any defects or other warranty issues discovered after such period.  SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT OF ANY PATENT), EXCEPT AS EXPRESSLY REFERENCED HEREIN.

 

3.         Limitation of Liability:  IN CONSIDERATION OF THE LIMITED WARRANTY AND OTHER TERMS REFERENCED HEREIN, CUSTOMER AGREES THAT CUSTOMER’S EXCLUSIVE REMEDY AND SELLER’S SOLE LIABILITY ON ANY CLAIM, WHETHER TORT, CONTRACT OR WARRANTY, SHALL BE LIMITED TO REIMBURSEMENT OF THE PURCHASE PRICE (NET OF SCRAP VALUE) AND NO OTHER REMEDY SHALL BE AVAILABLE TO CUSTOMER.  ACCORDINGLY, IN NO EVENT, INCLUDING ANY BREACH OR DEFAULT BY SELLER, SHALL SELLER HAVE ANY MONETARY LIABILITY TO CUSTOMER IN EXCESS OF THE CONTRACT PRICE PAID TO SELLER FOR THE GOODS ALLEGED TO HAVE CAUSED ANY CLAIM, LOSS, DAMAGE OR LIABILITY.

 

WITHOUT LIMITING THE FOREGOING, SELLER SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, OPPORTUNITY, REVENUE OR PROFIT, OR EQUIPMENT DOWNTIME, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

 

4.         Inspection:  With respect to any claim made by Customer (including warranty claims), Customer will allow Seller a reasonable time to inspect the goods in place and to remove samples for testing and analysis, at Seller’s expense.  Customer will not alter or remove the goods until Seller has made such inspection or waived its right to do so.

 

5.         Limitation of Actions:  Any legal action against Seller for a default of its obligations to Customer must be commenced within six months from the date the Goods were delivered to Customer.

 

6.         Prices and Delivery Terms:  All prices are in U.S. dollars, EXW (INCOTERMS 2020) Seller’s shipping plant of origin, unless otherwise stated.  In case of prepaid shipments on a delivered basis, the actual material and freight charges at the time of shipment will apply.  If Customer requests that all or any part of the Goods be scheduled for delivery more than 30 days from the agreed upon order delivery date, the Seller reserves the right to increase the sales prices if its costs have increased.  If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice, or if Seller is unable to deliver the Goods at the on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations, then as of such date the Goods shall be deemed to have been delivered and Seller, at its option, may store the Goods until Customer picks them up, and Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).  Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase requirements.  Seller reserves the right to charge a logistics surcharge if Seller’s transportation costs increase from the time of the order.

 

7.         Taxes:  The price of the Goods does not include sales, use, excise, duty or other taxes now or hereafter imposed on the sale, delivery, or use of the goods.  Customer will pay such taxes directly or reimburse Seller for any such taxes which Seller may be required to pay.

 

8.         Payments:  The terms of payment shall be as set forth on the face of Seller’s invoice/acknowledgment or, if no terms as set forth therein, payment is due within 30 days of the date of invoice.  All payments shall be made in U.S. Dollars in such manner or mode as is required by Seller.  Each shipment shall be considered a separate and independent transaction and payment therefore shall be made accordingly.  If the financial condition or credit of Customer at any time shall, in the judgment of Seller, not warrant shipment of goods offered, Seller may at its option, require full payment prior to shipment or refuse to ship and terminate any order outstanding without liability to Customer.  A service charge will be imposed on all overdue accounts and delinquent payments shall bear interest at one and one-half percent per month.  Customer agrees to pay Seller’s costs of collection of overdue accounts, including, but not limited to reasonable attorneys’ fees.

 

9.         Title and Lien Rights:  The Goods shall remain personal property regardless of how they are stored or affixed to Customer’s real property and Seller reserves a purchase money security interest in the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, until the purchase price has been duly paid in full.  Customer agrees to execute any documents requested by Seller which are necessary for attachment and perfection of its security interest.  If Customer defaults, Seller shall have all the rights of a secured creditor under the Uniform Commercial Code as enacted in the State of Ohio.

 

10.       Indemnity:  Customer shall defend, indemnify and hold harmless Seller and its agents, employees, representatives, officers and directors, and its and their respective successors and assigns, from and against any and all claims, actions, damages or causes of action at law or in equity, together with any and all losses, costs, and expenses and attorneys’ fees arising in connection therewith or related thereto, caused by, arising out of, or relating to Customer’s use of the Goods or the design or use of any end product incorporating the Goods Customer’s.

 

11.       Enforcement Costs:  Customer expressly agrees that where permitted by law, Customer shall be liable for all reasonable expenses and attorneys’ fees incurred by Seller in enforcing its rights and remedies against Customer resulting from Customer’s breach of this Agreement.

 

12.       Risk of Loss:  Title and risk of loss or damage shall pass from Seller to Customer based upon shipping terms negotiated on the sales order.  Seller shall not be liable for any delays, loss or damage in transit.

 

13.       Delivery; Non-Conforming Goods:  All delivery dates stated by Seller are approximate dates only and estimated in good faith to the best of Seller’s ability.  Time shall not be deemed to be of the essence in making delivery under an order unless specifically agreed to in writing by Seller. 

 

Customer  is responsible for promptly inspecting the Goods upon receipt.  Accordingly, any claim by Customer that the Goods are of the wrong type or quantity (“Nonconforming Goods”) must be delivered to Seller in writing within 3 days of Customer’s receipt of such Goods.  If such notice of Nonconforming Goods is not timely delivered, any claims based on the type or quantity of Goods will be deemed to be waived.  In the event of any discrepancy as to quantities of Goods delivered, Seller’s records shall control absent clear and incontrovertible evidence to the contrary.  If Seller delivers to Customer a quantity of Goods of up to 10% more or less than the quantity set forth in the Agreement, Customer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Agreement, adjusted pro rata based on weight.

 

If Customer timely notifies Seller of any Nonconforming Goods, Customer shall request either (i) that a negotiated adjusted sales price be agreed to between Seller and Customer in order for Customer to keep the Goods, or (ii) that the Seller replace such Nonconforming Goods with conforming Goods.  If Seller exercises its option to replace Nonconforming Goods,  Customer shall ship the Nonconforming Goods to Seller at Seller’s cost, and Seller shall, after receiving Customer's return shipment of Nonconforming Goods, ship to Customer, at Seller's expense, the replaced Goods. Customer acknowledges and agrees that the remedies set forth in Section 13 are Customer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 13, Customer has no right to return Goods purchased under this Agreement to Seller.

 

14.       Shipment:  Each shipment will be a separate transaction, and payment will be made accordingly.  Partial shipment may be made and invoiced separately.  All added expenses caused by partial shipments will be borne by Customer.

 

15.       Cancellation:  Once accepted by Seller, an order is not subject to cancellation in whole except where Customer gives a reasonable written notice to Seller to stop work and Customer, along with said notice, agrees to pay Seller for (a) all work in progress and any raw materials or supplies used (or for which commitments have been made by Seller in connection with the order), plus (b) all other costs and expenses otherwise incurred by Seller as computed in accordance with Seller’s general accounting practices, plus (c) a cancellation charge of 15% of the price stated on the face hereof.

 

16.       Typographical Errors:  Customer agrees that Seller may correct typographical or clerical errors which may be present in the prices, quantities, or specifications contained in any of the documents.

 

17.       Credit for Returned Goods:  No credit will be allowed for conforming Goods returned to Seller unless prior written permission has been granted by Seller, which permission may be withheld by Seller in its sole discretion.  There will be a 15% restocking fee on all returned goods.

 

18.       Assignment:  No right or interest arising out of any contract between Seller and Customer may be assigned by Customer without the prior written consent of Seller.

 

19.       Waiver and Modification:  No waiver or modification of any of the terms contained herein shall bind Seller unless in writing and signed by Seller.

 

20.       Applicable Law; Venue:  Customer expressly acknowledges that the Agreement shall be governed in all respects by the laws of the State of Ohio, without regard to the conflict of laws provisions thereof.  Customer, and anyone in privity with Customer, consents to the exclusive jurisdiction and venue of any State or Federal Court of general jurisdiction in or for Cuyahoga County, Ohio with respect to any proceedings arising out of this agreement. In the event that any action is commenced in any jurisdiction other than the ones set forth herein, Customer or anyone claiming through Customer, agrees to the transfer of such action to the court of proper jurisdiction (as set forth in this section) and to reimburse  Seller’s for all costs  (including reasonable attorney fees) and expenses in connection with the transfer.  CUSTOMER, OR ANYONE CLAIMING THROUGH CUSTOMER, EXPRESSLY WAIVES THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY PROCEEDINGS ARISING OUT OF THE SALE OF THE GOODS AND SERVICES PROVIDED BY SELLER. 

 

21.       Confidential Information:  All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, documents, data, business operations know how, customer lists, pricing, discounts or rebates, disclosed by Seller to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is confidential, solely for the use of performing the agreement between Seller and Customer and may not be directly or indirectly disclosed or used by Customer for any other purpose. Upon Seller's request, Customer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of first disclosure as evidenced by written documentation; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.  Seller shall be entitled to equitable relief, including injunction (without bond) and specific performance, in the event of any breach or threatened breach of this Paragraph by Customer.  Such remedies shall not be deemed to be the exclusive remedies of Seller, but shall be in addition to all other remedies available at law or in equity

 

22.       Force Majeure:  Seller shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of the agreement between Seller and Customer when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, pandemic, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.  In the event of shortages or delays in obtaining inventory, supplies or other materials, Seller reserves the right to allocate production or Goods among its customers in any manner deemed commercially reasonable by Seller.

 

23.       No Third-Party Beneficiaries:   The agreement between Seller and Customer is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.

 

24.       Severability:  If any term or provision of the agreement between Seller and Customer is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of such agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and such invalid, illegal or unenforceable provision will be construed by limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible under, applicable law.

 

25.       For Consignment Customers Only:  If Customer maintains a consignment relationship with Seller, Customer and Seller will enter into a separate Consignment Agreement and such Consignment Agreement shall be deemed to be part of the contract documents described in Paragraph 1 above.  In the event of any conflict between a Consignment Agreement and these standard terms, the Consignment Agreement provisions shall prevail. 

 

26.       Relationship of Parties:  Seller and Customer are independent contracting parties, and nothing will make either party the employee, agent or legal representative of the other for any purpose.  Nothing herein shall grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. All employees and agents of Customer or its respective contractors are employees or agents solely of Customer or such contractors, and not of Seller, and are not entitled to employee benefits or other rights accorded to Seller’s employees.  Seller is not responsible for any obligation with respect to employees or agents of Customer or its contractors.