1. APPLICABILITY. These Terms and Conditions of Sale (these “Terms”) are the only
terms and conditions which govern the sale of the goods (“Goods”) by PAN AMERICAN
SCREW LLC OR IT’S DIVISIONS (“Seller”) to buyer (“Buyer”) and supersede all other
terms and conditions, oral or written, and all other communications between the parties
suggesting additional or different terms.
2. ENTIRETY. These Terms represent the final and complete understanding of the parties
and may be amended or cancelled only by written agreement signed by both parties.
Acceptance is expressly limited to these Terms. Any proposal for additional or different
terms or any attempt by Buyer to vary in any way any of the provisions of these Terms is
hereby deemed material and is objected to and rejected. No terms of any document or
form submitted by Buyer shall be effective to alter or add to these Terms. Unless
otherwise stated herein, Buyer’s receipt of any portion of the goods (“Goods”) shall
constitute acceptance of these Terms. Notwithstanding anything herein to the contrary, if a
written contract signed by both parties is in existence covering the sale of the Goods
covered hereby, the terms and conditions of said contract shall prevail to the extent they
are inconsistent with these Terms.
3. PRICES. Prices quoted are based on the price at the time of quotation and are subject to
change without notice. Clerical errors are subject to correction.
4. TAXES. Prices do not include any sales, use, excise, privilege, or other taxes or
assessments now or hereafter imposed or levied by or under the authority of any federal,
state, or local law, rule, or regulation concerning the Goods sold hereunder or the
manufacture or sale thereof. If Seller pays any such taxes or assessments, Buyer shall,
upon demand, immediately reimburse Seller for such amounts.
5. TERMS OF PAYMENT. All payments are due net 30 days from date of invoice. All
orders are subject to acceptance in writing by Seller. No discounts shall be taken unless
specifically allowed in writing by Seller. All amounts due Seller from Buyer shall be paid
without abatement, deduction, or setoff. The date of payment of an invoice shall be the
date the payment is received by Seller at the location designated on the invoice. Invoices
not paid when due are subject to a late payment service charge of the lesser of 1.5% per
month or the highest rate permitted under the law, calculated daily and compounded
monthly. If Buyer fails to make any payment when due, Buyer shall be liable for all costs
and expenses related to collection of past due amounts, including, without limitation,
attorneys’ fees and costs. If, in Seller’s judgment, the financial condition of Buyer does
not justify continuance on the terms of payment above, Seller may require full or partial
payment in advance or otherwise adjust the terms including ceasing to supply Buyer.
6. FREIGHT. Unless agreed by Seller in writing, all shipments shall be F.O.B. origin. Risk
of loss or damage to Goods shall pass to Buyer upon delivery to Buyer, to its designated
agent, or to a carrier for delivery to Buyer, whichever occurs first.
7. DELIVERY. Shipping and delivery dates are estimates and are based upon prompt
receipt of all necessary information from Buyer. Delays in securing Buyer’s approval of
any matter shall, at Seller’s discretion, extend the date of delivery. Seller shall not be
liable for any claim, Loss, expense, or damage of any kind whatsoever for delays, loss or
damage in transit.
8. INSPECTION. Buyer shall inspect the Goods upon arrival, and Buyer shall immediately
notify Seller in writing of any claims that the Goods do not conform to Seller’s warranty
for such Goods. Failure to give such written notice during such period will constitute
satisfactory shipment by Seller and irrevocable acceptance by Buyer of all Goods.
9. BLANKET ORDERS. All Goods ordered under a blanket order must be delivered within
the agreed-upon time frame, which shall not exceed one year from the date of the blanket
order, and shall be delivered in the agreed-upon release quantities.
10. CHANGES. Changes in specifications or designs relating to any products, changes in
delivery schedules or reschedules or cancellations of orders are not permitted unless Seller
has accepted same in writing, has determined the additional charge to be made, if any, and
the same has been paid by the Buyer.
11. RETURNS. Goods may not be returned without prior written authorization by Seller and
compliance with Seller’s return policies and procedures. Requests to return Goods must be
made within 10 days after receipt of Goods by Buyer. Goods must be in like-new
condition, in their original packaging and able to be returned to stock. Goods that are
made to order, discontinued or custom products are not returnable for credit. Returns are
subject to a 20% restocking fee and must be shipped prepaid.
12. STORAGE. In the absence of agreed shipping dates, Seller shall have the right to invoice
Buyer and ship the Goods once they are ready for shipment. If, because of Buyer’s
inability to take delivery, the Goods are not shipped, stopped in transit or returned, Seller
may have them stored for Buyer at Buyer’s expense, risk, and account. In such case, risk
of loss shall pass to Buyer when the Goods are placed in storage, and the date the Goods
are placed in storage shall constitute the date of shipment for purposes of beginning the
warranty and payment term periods.
13. LIMITED WARRANTIES. Seller warrants the Goods in accordance with its written
limited warranty in effect from time to time and if there is none, then Seller warrants that
the Goods will be free from defects in material and workmanship for a period of 12
months after shipment. THESE ARE SELLER’S ONLY WARRANTIES. SELLER
MAKES NO OTHER EXPRESS WARRANTIES AND HEREBY DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. If Buyer notifies Seller in writing within the warranty
period that the Goods are not in conformity with the applicable warranty, and if Seller
determines, after appropriate tests and inspection, that such Goods or part thereof are nonconforming, Seller will repair or replace, at its sole option, F.O.B. point of manufacture,
the defective Goods or part thereof, provided Buyer returns such Goods or part thereof to
Seller’s plant, freight prepaid. This shall be Buyer’s exclusive remedy for Seller’s liability.
Any claims not made within the warranty period are deemed waived by Buyer. In lieu of
repairing or replacing the defective Goods or part thereof, Seller may, at its sole option,
refund the purchase price therefor. Seller’s warranty does not attach to Goods or parts
thereof not manufactured by Seller. Seller will pass on to Buyer whatever warranty, if any,
it receives from the manufacturer of such Goods or part, but only to the extent allowed by
such manufacturer. Seller’s aggregate liability to Buyer or anyone claiming through or on
behalf of Buyer, with respect to any claim or Loss arising out of or relating to any Goods or
alleged to have resulted from an act or omission of Seller, whether negligent or otherwise,
and whether in tort, contract, or otherwise, shall be limited to an amount not to exceed the
purchase price of the Goods or part thereof with respect to which such liability is claimed
or, where appropriate and at the option of Seller, to repair or replacement of the Goods or
part thereof. Any contract created between the Seller and Buyer is subject to the specific
condition that Seller is not obligated to provide insurance and that there are no flow-downs
from the federal government that become part of the contract UNDER NO
CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER
PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,
PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES OR EXPENSES,
INCLUDING WITHOUT LIMITATION, FOR INJURIES TO PERSONS OR
DAMAGE TO PROPERTY, LOSS OF PROFIT OR REVENUES OR USE,
DIMINUTION IN VALUE, COST OF SUBSTITUTE PRODUCTS, LOSS OF USE,
DOWNTIME COSTS, OR CLAIMS OF BUYER’S CUSTOMERS EVEN IF
SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
REGARDLESS OF THE THEORY (CONTRACT, TORT OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE. Seller shall have no obligation to provide insurance. Upon the occurrence of
any event described in Section 14(i)-(vi) without the prior written consent of Seller, this
warranty shall be void.
14. INDEMNIFICATION. Buyer shall defend, indemnify and hold Seller, its
representatives, agents and employees harmless from and against all claims, suits,
demands, losses, liabilities, damages and expenses (including, without limitation,
reasonable attorneys’ fees) (collectively, “Losses”), including death or injury,
arising out of or relating to (a) Buyer’s or its agents provided specifications,
structure, operation, material, method of making Goods or other directions
including, without limitation, any resulting violation of intellectual or proprietary
rights; (b) Buyer’s use, misuse or disposal of Goods or materials; (c) noncompliance with any federal, state, or local law or regulation; and (d) breach of these
Terms by Buyer. Buyer shall indemnify, defend, and hold harmless Seller against all
Losses, which Seller may incur or become liable to pay which relate to or in any way arise
out of Goods subjected to: (i) improper installation or storage; (ii) accident, damage, abuse
or misuse; (iii) abnormal operating conditions or applications; (iv) operating conditions or
applications above the rated capacity of the Goods; (v) repairs or modifications made to all
or part of the Goods without the prior written consent of Seller; or (vi) a use or application
other than or varying in any degree from the specifications and Seller’s instructions.
15. PATENTS. Except as provided in Section 14, with respect to Goods manufactured in
accordance with specifications or directions provided by Buyer, and provided Buyer has
made all payments due Seller, Seller shall defend, at its expense, any suit or proceeding
brought against Buyer based upon any claim that the Goods or any part thereof infringe
any United States patent issued as of the date of Seller’s quotation and shall pay any
damages and costs awarded therein against Buyer, provided that Seller is notified
promptly in writing of such claim and is given full authority, information and assistance
by Buyer to defend or settle the suit. If the Goods or any part thereof are deemed to
infringe any such patent, Seller shall, at its expense and sole option either: procure for
Buyer the right to continue using said Goods or part; replace them with non-infringing
Goods or parts; modify them so they become non-infringing; or remove them and refund
the depreciated purchase price for them.
16. TOOLING. Any tools, jigs, dies, patterns, etc. (collectively, “Tooling”), which Seller
owns, makes or acquires for the production of Goods for Buyer shall be and remain
Seller’s property, notwithstanding any charge Seller may have made therefor. In no event
shall Buyer have any interest in any Tooling which is utilized in the production of Goods,
or which has been converted or adapted by Seller for such use, notwithstanding any charge
for any such utilization, conversion or adaption.
17. CONFIDENTIALITY. All non-public, confidential or proprietary information of Seller
is confidential, solely for the use of performing hereunder and may not be disclosed, used
or copied unless authorized in advance by Seller in writing.
18. FORCE MAJEURE. Seller shall not be liable for any delay in or failure to perform due
to any cause, matter or contingency beyond its reasonable control.
19. TERMINATION. Seller shall have the right to cease work or terminate these Terms or
any purchase order, in whole or in part, at any time, without liability, if (i) Buyer is in
breach or default of these Terms or any other agreement it has with Seller; (ii) a petition
under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by
or against Buyer; (iii) Buyer executes an assignment for benefit or creditors; (iv) a receiver
is appointed for Buyer or any substantial part of its assets; or (v) Seller shall have any
reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is
unable to provide Seller with adequate assurance within ten days after written request
therefore by Seller. Seller’s right to cease work or terminate under this section is not an
exclusive remedy. Seller shall be entitled to all other rights and remedies it may have at
law or in equity. No termination shall affect any accrued rights or obligations of either
party as of the effective date of such termination.
20. WAIVER. All waivers by Seller shall be in writing. Failure of Seller at any time to
require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to
require performance of that obligation. No delay or omission in the exercise of any right,
power, or remedy hereunder shall impair such right, power, or remedy or be considered to
be a waiver of any default or acquiescence therein.
21. MISCELLANEOUS. Buyer shall not assign any of its rights or obligations hereunder
without Seller’s prior written consent. Buyer shall comply with all applicable laws.
There are no third-party beneficiaries. These Terms shall be construed in accordance
with the laws of the State of North Carolina without regard to any rules on conflicts of
laws. Provisions which by their nature should survive will remain in force after any
termination or expiration. The section headings contained herein are not part of these
Terms and are included solely for the convenience of the parties.