All proposals and quotations for the sale of United Grinding North America, Inc.’s products (“Products”) and United Grinding North America, Inc.’s acceptance of purchase orders for Products are expressly conditioned upon Buyer’s agreement to the following Terms and Conditions:
1. ACCEPTANCE OF ORDERS
All purchase orders must be addressed to the home office of United Grinding North America, Inc. (“Seller”) home office, 2100 United Grinding Boulevard, Miamisburg, OH 45342, for written acceptance and formal acknowledgment. Buyer’s purchase order must be in writing and received by Seller prior to the expiration date of Seller’s proposal. Submission of Buyer’s purchase order to Seller shall constitute Buyer’s acceptance of these terms and conditions of sale. Any terms or conditions appearing in Buyer’s purchase order which are either in addition to or modify these terms and conditions shall not be a part of the contract between Buyer and Seller and shall be of no effect unless specifically accepted in writing by Seller. The terms and conditions contained herein constitute the only agreement between Buyer and Seller with respect to all purchase orders.
Prices are F.O.B. Miamisburg, Ohio in US dollars and are subject to change without notice.
3. TITLE, RISK OF LOSS AND SECURITY INTEREST
Title to Products shall remain, as a security interest only, with Seller until Seller has received the full purchase price of Products sold and all other costs owed to Seller by Buyer, including without limitation, (1) any amounts conditionally retained by Buyer under Buyer’s purchase order and (2) any amounts representing interest due because of extended payment terms. Until payment is made in full, Products shall remain personal property, regardless of the method or mode of attachment to realty, if any.
For all other purposes, title and risk of loss pass to Buyer when Products are delivered to the carrier at point of entry or at Seller’s home office.
In the event Seller has extended to Buyer financing for all or any portion of the purchase price of Products, Buyer hereby grants to Seller a security interest in the Products and replacements and all proceeds and Products thereof to secure the principal amount of such financing, interest thereon, if any, and any amount conditionally retained by Buyer until the full purchase price (including interest and additional charges) has been paid. Buyer’s failure to pay any amount when due shall give Seller the right to repossess and remove Products. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity. Seller, at Seller’s sole discretion, may file any financing statement or other forms, including without limitation, a UCC-1 Financing Statement or equivalent, necessary to perfect Seller’s security interest granted herein. Buyer further agrees that Seller may sign on behalf of Buyer and file any such financing statement or other forms and to cooperate with Seller, at Seller’s request, to execute and deliver any additional documentation which Seller may reasonably request to protect its interest in Products.
4. DELIVERY AND SHIPPING
Quoted delivery times are approximate estimates determined at the time of quotation and are subject to revision without any liability whatsoever to Seller. Under no circumstances shall Seller have any liability whatsoever for loss of use or for any indirect or consequential damages as a result of delayed delivery. Unless otherwise requested by Buyer, shipment will be made by carrier of Seller’s choice. Seller may deliver Products in installments. If any shipment of Products is delayed at Buyer’s request, Seller may invoice Buyer for such Products, and risk of loss to such Products shall pass to Buyer on the date Seller is prepared to make shipment.
5. INSPECTION AND REJECTION
Buyer will inspect Products promptly upon their arrival at Buyer’s location identified in the purchase order. Buyer may not reject or revoke its acceptance of any Products unless the nonconformity of such Products is substantial. No nonconformity or defect shall constitute grounds for claiming breach of the entire purchase order or sales agreement. Seller reserves the right to cure, by repair or replacement, any defects within a reasonable time after receiving written notice of such defects from the Buyer. Buyer shall have ten (10) days following delivery of Products hereunder to give Seller written notice of any claimed defect in such Products (other than latent defects not discovered by Buyer). Buyer agrees that such notice period is reasonable. Failure to give timely notice, as provided above, shall be deemed irrevocable acceptance of such Products. Notwithstanding the foregoing, if Buyer has accepted Products tendered under this sales contract in any manner provided in the Ohio Uniform Commercial Code, Buyer shall have no right to subsequently reject Products for any reason and to revoke acceptance of nonconforming Products, unless the acceptance of nonconforming Products was induced by assurances by Seller or based on a reasonable assumption that the nonconformity would be cured by Seller.
6. TERMS OF PAYMENT; UNLESS OTHERWISE AGREED
(a) For machines, including tooling and accessories:
- Deposit and/or progress payments, if required by Seller’s proposal due and payable according to Seller’s proposal.
- Balance due and payable net cash 30 days from the date of invoice.
- No cash discounts are allowed.
(b) For repair parts and service work: Net cash due on receipt of invoice.
(c) In the event satisfactory credit is not established with Seller, Seller reserves the right to delay any shipment and/or require payment in full in advance or on delivery.
(d) Each shipment will be considered a separate and independent transaction, and payment therefore will be made accordingly.
(e) Any account unpaid more than thirty (30) days after receipt of invoice is subject to a finance charge of 1.5% per month on the unpaid balance. Accounts placed for collection are subject to a 25% service charge and Buyer shall be responsible for any and all costs of collection, including reasonable attorney’s fees and costs, whether or not arbitration or legal proceedings are instituted. Unless there is a mutually agreed upon exception to these terms, non-payment will result in voiding of warranties, service and software support.
(f) The purchase price is exclusive of any sales, use or privilege tax, customs duty or import, excise tax based on gross revenue or any similar tax or charge which might be levied as a result of the production, sale or shipment of any Products or the use of any Products by Buyer. Buyer agrees to pay and otherwise be fully responsible for any such taxes (except for taxes based on the net income of Seller). Any personal property taxes assessable on Products after delivery shall be borne by Buyer. Seller shall have the right, but shall not be obligated, to pay any such taxes directly, in which event Buyer shall promptly reimburse Seller in the amount thereof upon presentation by Seller of evidence of payment.
(g) Notwithstanding the foregoing paragraph, Seller shall have no responsibility to collect, report, or pay any tax imposed on the purchase of Products by Buyer, and Seller shall not collect, report, or pay any such tax which may be imposed by any governmental or tax collecting authority outside of the United States of America.
7. SPECIFICATIONS AND PERFORMANCE
(a) Brochures, descriptions, specifications, drawings and other particulars however issued by or on Seller’s behalf are for informational purposes only and are not warranted and Seller will not be bound thereby, unless expressly confirmed by Seller in the proposal to which these terms and conditions are attached.
(b) Any production figures and performance data are estimates, based on Seller’s understanding of the limits of accuracy, machinability of the material, amount of material to be removed, accuracy and finish desired, available facilities, optimum grinding wheels and coolant, operator skill and Buyer’s operating conditions. These figures do not constitute a guarantee of production. Exact cycle times for Buyer’s specific application can only be determined by actual operation of Products by Buyer.
(c) Unless otherwise provided in writing, any and all software developed by Seller and delivered to Buyer is delivered pursuant to a non-exclusive, non-transferable license. Though Seller takes every reasonable precaution to ascertain that software supplied with or for any CNC controlled unit is correct, Seller cannot contemplate all applications. All software is supplied as is with no express or implied warranties. Buyer is responsible to verify each part program to avoid software associated damage to Products, spoilage or manufacturing delays. Copying or transferring software by Buyer to a third party is prohibited. The source version of all Seller-developed programs is the intellectual property of Seller and shall not be copied, or transferred or assigned to any third party without the express written permission of Seller. Third-party software delivered by Seller to Buyer shall be subject to the EULA of the developer of such software.
(a) By Buyer: Each purchase order is considered an irrevocable offer to purchase and is noncancelable after it has been accepted by Seller. Any cancellation by Buyer, if approved by Seller’s home office, is contingent upon payment to Seller of a charge computed to cover all of Seller’s costs incurred prior to receipt of the notice of cancellation and the lost profit on the entire order.
(b) By Seller: Seller shall have the right to cancel and refuse to complete this order if at any time: (1) the terms and conditions governing this order, including any requirement of advance payment or posting of security, are not complied with by Buyer and such default or breach is not remedied within seven (7) days after receipt of notice from Seller specifying the default or breach; or (2) Buyer becomes insolvent, enters into any extension agreement or general arrangement with creditors, or is admitted to any procedures for settlement of debts or bankruptcy.
9. PROPERTY AND PATENT RIGHTS
Seller retains for itself any and all property rights in and to all designs, engineering details and other data pertaining to any Products designed in connection herewith or patent rights arising out of the work done in connection herewith or with any and all Products developed as a result thereof, including the sole right to manufacture and produce any and all of the Products designed as a result hereof.
10. PROPRIETARY TECHNICAL MATERIALS
Documentation, maintenance manuals and drawings relating to Products (collectively, “Proprietary Technical Materials”) which Seller may furnish shall be in Buyer’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which Buyer may use such Proprietary Technical Materials solely for the purpose of operating, servicing and repairing Products and for no other purpose. Buyer agrees to maintain the confidentiality of all Proprietary Technical Materials and to instruct and obligate its employees and agents to do the same. Without limiting the generality of the foregoing, Buyer may not reproduce or copy any Proprietary Technical Materials or transfer, assign, sublicense, loan, disclose or otherwise make available all or any portion of such Proprietary Technical Materials to any other person or entity, without the prior express written consent of Seller. Title to and ownership of the Proprietary Technical Materials shall at all times remain in Seller. In addition to any other remedy Seller may have, Seller reserves the right to terminate this license if Buyer fails to comply with any term or condition hereof. This license shall also terminate at such time as Buyer shall permanently cease to use Products. Buyer agrees, upon notice from Seller of any termination of this license and in accordance with any more specific directions from Seller, to deliver immediately to Seller all Proprietary Technical Materials and all copies thereof.
11. PATENT AND TRADEMARK INDEMNITY
(a) Seller will defend, at its own expense, any suit or proceeding against Buyer in a court of the United States for the direct infringement of United States patents and trademarks by Products purchased from Seller hereunder. Seller shall pay all damages and costs finally awarded against Buyer because of direct infringement; provided, however, that Seller shall not be obligated to defend or be liable for costs or damages awarded in any suit or proceeding for infringement of patents by any other Products, or any completed equipment, system, assembly, combination, method or process, in which, or in the manufacture or testing of which, any Products purchased from Seller may be used; and provided further that Seller’s obligation to pay such damages and costs shall not apply to any alleged infringement occurring after Buyer has received notice of such alleged infringement unless Seller thereafter gives to Buyer written consent for such continuing alleged infringement.
(b) Seller’s duties under this Paragraph 11 are conditioned upon Buyer giving Seller prompt written notice of commencement of any suit or proceeding or any claim of infringement and furnishing to Seller a copy of each communication relating to the alleged infringement and giving to Seller all authority (including the right to exclusive control of the defense of any such suit or proceeding), information and assistance (at Seller’s expense) necessary to defend or settle such suit or proceeding. Seller shall not be bound by any settlement made without Seller’s prior written consent.
(c) If in any such suit or proceeding Buyer’s continued use of any item of Products is enjoined, or if by reason of any claim of infringement Seller deems it advisable to do so, Seller may at its option and expense: (1) procure for Buyer the right to continue using such Products; (2) modify or replace such Products with non-infringing Products, provided that such modification does not materially affect performance; or (c) remove such Products, grant Buyer a credit thereon as depreciated on a straight-line 2-year basis and accept its return. If infringement is alleged prior to completion of deliveries of the Goods, Seller may decline to make further shipments without being in breach of this Agreement.
(d) Seller shall not be obligated to defend any suit or proceeding, or be liable for any costs or damages, if the infringement arises out of compliance with Buyer’s specifications or any marking or branding applied at the request of Buyer. Buyer agrees, at its expense, to defend and to pay costs and damages finally awarded in any suit or proceeding against Seller based on any such infringement, provided that Buyer is promptly notified by Seller in writing of the commencement or threat of such suit or proceeding or claim of infringement and is given all authority (including the right to exclusive control of the defense of any such suit or proceeding), information and assistance (at Buyer’s expense) necessary to defend or settle such suit or proceeding.
12. RETURNS; RESTOCKING FEE
(a) No returns of product shall be accepted by Seller without prior approval of such return by Seller.
(b) Each product return shall be subject to a 25% restocking charge.
(a) Seller warrants to the original Buyer the Products of Seller’s own manufacture against defects in material and workmanship under normal operating conditions and service for the warranty period stated in Seller’s final proposal, or if no warranty period is stated in Seller’s final proposal for a period of twelve (12) months of operation but not to exceed one year from date of shipment. This warranty does not cover perishable tooling and parts subject to wear or consumption, such as filters and wear surface lubricants. Buyer’s exclusive remedy under this warranty is limited to repairing or, at Seller’s option, furnishing without charge F.O.B. point of manufacture a similar part to replace any part which is proven to have been defective at the time it was shipped, provided Buyer has given Seller written notice of any such claimed defect within fifteen (15) days of discovery thereof, and in any event within the term of this warranty. Seller shall have the option of requiring the return of the defective part, transportation paid, to establish the claim. Where required, the supervision of Seller’s serviceman will be furnished at no charge to correct such defects. No allowance will be made for repairs or alterations made without Seller’s prior written consent or approval. Any service performed by Seller’s personnel beyond the coverage of the warranty is chargeable at Seller’s regular rates. Seller’s obligations under the warranty provided herein shall not, under any circumstances, exceed the purchase price of the Products. Seller shall not be liable for any incidental or consequential damages as Buyer’s sole remedy is limited above to repair or replacement. Any action for breach of this warranty or other action under those terms must be commenced within one year after such cause of action arises.
(b) Seller shall provide after-sales services to Buyer for the Products sold to Buyer hereunder. The services provided hereunder shall include, as necessary, assistance to Buyer in installation, service, and repair of Products, as well as training of Buyer’s employees in the service of Products. Such services shall be provided at times and upon conditions agreed to between the parties from time to time. Seller’s personnel providing such services shall not be engaged in construction activities and shall receive no remuneration or compensation from Buyer in exchange for the services provided.
(c) This warranty is limited to the original Buyer and is not transferable.
(d) Seller makes no warranty with respect to Products manufactured by others and incorporated in or attached to Products supplied, or to any Product or part warranted herein, provided, however, that Seller shall pass on to Buyer such warranties as may be provided by the original product manufacturer.
(e) Seller’s obligation under this warranty is dependent upon Products being used and maintained in accordance with all operating and maintenance instructions set forth in the manuals and instruction sheets furnished by Seller. This warranty shall be void with respect to Products if (1) there is any alteration or repair by any person other than Seller’s authorized personnel, unless authorized by Seller in writing; (2) if any Products are operated at levels in excess of the stated throughput capacity; (3) if Buyer does not maintain and operate Products in strict accordance with Seller‘s written instructions and operating manuals provided by Seller to Buyer; or (4) if any Products have been subjected to abuse, vandalism, accident or similar deviations from normal operations.
(f) THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE. SELLER MAKES NO OTHER EXPRESS WARRANTY. SELLER DISCLAIMS, AND BUYER WAIVES ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL IN NO CIRCUMSTANCES BE LIABLE IN CONTRACT, IN TORT OR OTHERWISE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE. NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO MODIFY THIS WARRANTY, OR SELLER’S STANDARD WARRANTY FOR ANY PRODUCTS.
14. OSHA; PRODUCT LIABILITY AND INDEMNIFICATION
(a) Because of differences in installation, the large variety of sizes and shapes of grinding wheels, and Buyer’s control over the operation, use and maintenance of Products, only Buyer can assure compliance with OSHA and ANSI Standards, and Seller shall have no liability to Buyer or Buyer’s agents, servants and employees or others for any failure of compliance. Upon Buyer’s request, Seller may, as an accommodation to Buyer, and without incurring any liability, quote additions or modifications required by Buyer to meet OSHA or ANSI requirements and advise Buyer on developing maintenance and operating procedures to comply with such requirements.
(b) Buyer shall use and shall require its employees to use all safety devices and guards, and follow proper safe operating procedures as set forth in manuals, instruction sheets and signs furnished by Seller. Buyer shall not modify any Products.
(c) Buyer shall promptly notify Seller, and in any event within thirty (30) days, of any accident or malfunction involving Products which results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining the cause of such accident or malfunction. In the event that Buyer fails to give such notice to Seller and so cooperate, Buyer agrees to indemnify and save Seller harmless from any claims arising from such accident or malfunction.
(d) Buyer agrees to indemnify and save Seller harmless from any liability or claim for loss or damage to persons or property or related expenses resulting from or related to Buyer's failure to comply with its obligations pursuant to this paragraph.
15. LIMITATION OF LIABILITY
Seller, or any of its affiliates, shall in no event have obligations or liabilities to Buyer or any other person for loss of profits, loss of use or incidental, special or consequential damages, whether based on contract, tort (including negligence), strict liability or any other theory or form of action, even if Seller has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of Products, or any failure or delay in connection with any of the foregoing. Without limiting the generality of the preceding sentence, Seller shall not be liable for personal injury or property damage.
16. FORCE MAJEURE
(a) If the performance of any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.
(b) In the event such excusable delay shall continue for a period of more than three (3) consecutive months, then either party may at any time after the expiration of such three (3) months’ period terminate the purchase order under these terms upon written notice to the other party, while such cause or causes of delay continue. In the event of such a termination by (a) either party by reason of Buyer’s delay in performance, or (b) the Buyer by reason of Seller’s delay in performance, it is understood and agreed that Buyer shall pay Seller’s reasonable costs and expenses incurred or committed to prior to the date of such termination in respect of all work and services performed by Seller under these Terms of Sale. Buyer agrees to pay such costs and expenses promptly following receipt of Seller’s invoice therefore, which shall be submitted as soon as practicable after such termination.
Failure by Seller to enforce any rights hereunder irrespective of the length of time for which such failure continues shall not constitute a waiver of those or any other rights.
18. GOVERNING LAWS
The parties acknowledge that the purchase order(s) that is subject to these terms bears a reasonable relation to the State of Ohio, and agree that in the event of any dispute or disagreement between them relating to this agreement, the laws of the State of Ohio shall govern their rights and duties under this agreement. The parties specifically intend that the provisions of Article 2 of the Ohio Uniform Commercial Code will control as to all aspects of this agreement and its interpretation, and that all the definitions contained therein will be applicable to this agreement except where this agreement expressly provides otherwise.
19. ARBITRATION OF DISPUTES
All disputes that may arise between the parties regarding the interpretation or application of these terms and the legal effect of these terms shall, to the exclusion of any court of law, be arbitrated and determined by a board of arbitrators, unless the parties can resolve the dispute by mutual agreement. Either party shall have the right to submit any dispute to arbitration 90 days after the other party has been notified as to the nature of the dispute. If the dispute goes to arbitration, each party shall select one arbitrator and the two arbitrators so selected shall jointly select a third arbitrator. The arbitration shall be governed by the rules of the American Arbitration Association. The arbitration proceeding shall be governed by the statutes of the State of Ohio, and the proceeding shall be held in the city in that state where the principal office of Seller is located. Anything to the contrary contained in the above-mentioned rules and statutes notwithstanding, the parties consent that any papers, notices, or process necessary or proper for the institution or continuance of, or relating to any arbitration proceeding, or for the confirmation of an award and entry of judgment on any award made, including appeals in connection with any judgment or award, may be served on each of the parties by registered mail addressed to the party at the principal office of the party, or by personal service on the party in or without the above-mentioned state. The parties recognize and consent to the above-mentioned arbitration association’s jurisdiction over each and every one of them.
20. ATTORNEYS’ FEES
If any legal action is brought to collect the purchase price hereunder, the prevailing party shall be entitled to receive its attorneys’ fees and court costs in addition to any other relief it may receive.
21. SEVERABILITY; MODIFICATION
The invalidity in whole or in part of any of these terms and conditions shall not affect the validity or enforceability of any other term or condition. If any clause of this agreement is held to be unconscionable by any court of competent jurisdiction, the clause in question shall be modified to eliminate the unconscionable element and as so modified the clause shall be binding on the parties. The remaining provisions of this agreement shall not be affected by the modification of any unconscionable clause. “Unconscionable” shall be deemed to mean that the enforcement of the entire agreement or a specific clause of the agreement will work oppression or cause unfair surprise to one of the parties. Whether a clause is unconscionable shall be determined as of the time when the agreement is made, but shall not be deemed established either by the fact that the agreement subsequently proved disadvantageous to one of the parties or by the fact that one of the parties has bargaining power superior to that of the other.