All orders for machines, tools, dies, jigs, fixtures and/or parts (sometimes herein referred to as “Products”) sold by Dreis & Krump Manufacturing Company (herein referred to as the “Seller”) to the purchaser (herein referred to as “Purchaser”) thereof are sold upon the following terms and conditions of sale:
1. Specifications – Products to be furnished on specifications agreed upon.
2. Prices – Unless otherwise indicated, all prices are F .O.B. plant, Dre is & Krump Manufacturing Company, Chicago, Illinois.
3. Terms of Payment – Regular terms are thirty days net, subject to approval by Seller’s Credit Department at Home Office. Any account unpaid thirty days after shipment is subject to a service charge at the State’s legal statutory maximum on the unpaid balance. Seller will make no sale or shipment of any product to Purchaser on open account or in any manner which does not provide full security to Seller in its sole judgment if Purchaser at the time of such sale or shipment is delinquent in payment of any account to Seller.
4. Taxes – All prices are exclusive of Federal, State, local and other excise, sales, use, property, transportation, occupational and other taxes relating to the sale, now or hereafter imposed, and whether or not such taxes are stated in any quotation relating to the sale, together with penalties and expenses, all of which shall be paid by the Purchaser. Purchaser shall be responsible for collecting and/or paying any and all such taxes whether or not they are stated in any quotation or invoice for products shipped and shall indemnify Seller with respect thereto. Seller, at its option, may, at any time separately bill Purchaser for any taxes not included in Seller’s invoice.
5. Completeness of Agreement – The terms and conditions herein contained shall constitute the complete agreement between the Seller and Purchaser and shall supersede all prior oral, written or printed statements of any kind (including any terms and conditions submitted by Purchaser and any performance or pro¬duction data from any source whatsoever, including references to accuracy, capacity and capability of Products, all of which are estimates only) made by Seller or Purchaser, or their respective representatives. No prior or subsequent modification by Purchaser shall be binding upon Seller unless consented to in writing signed by its duly authorized officer and making specific reference to the order hereby. All communications shall be directed to Seller, and all documents and writings to be binding upon Seller, shall be executed on its behalf at its Home Office shown above or on reverse side hereof. All transactions covered hereby and all terms and conditions of sale shall be governed by the laws of the State of Illinois.
6. Shipment – The designated shipment date for Products represents Seller’s best estimate. Every effort will be made by Seller to ship within the time estimated but due to the nature of Seller’s undertaking, notice is given no liability shall attach or accrue for delayed performance or shipment. Seller has no liability for failure of performance of any order due to any event or condition beyond its reasonable control (including but not limited to fire, strike, lockout, labor dis¬putes, accidents, war conditions, government regulations and restrictions or labor or material shortages or prohibitions, riot, civil commotion, insurrection or events which render performance difficult or impossible), none of which acts, events or conditions shall create any liability on Seller.
7. Warranty – Seller warrants to the Purchaser or first ultimate Customer/User for a period of one year from the date of shipment that all parts manufactured by Seller {whether or not incorporated in a machine when shipped) are free from defects in material and workmanship. Seller’s said warranty shall exist only if Purchaser gives written notice of the defect to Seller within ten days after the Purchaser first could determine that the part is defective and within the aforesaid one year period from the date of shipment and includes in said notice consent to the Seller to inspect, at any reasonable time, said part and the machine in which it may be embodied and if and only if, Seller determines to its reasonable satisfaction upon said inspection that said part and the machine in which it may be embodied are, and have been, subjected only to ordinary use and service and are, and have been, used in accordance with all Seller’s instructions as to maintenance and operation set forth in the operator’s manual and instruction sheets relating to the machine. SELLER’S WARRANTY IS LIMITED TO SHIPPING TO PURCHASER REPLACEMENT OF ANY PART WHICH IS SO PROVEN TO BE DEFECTIVE AND SELLER IN NO EVENT SHALL HAVE ANY LIABILITY WHATSOEVER FOR PAYMENT OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RESULTING FROM PERSONAL OR BODILY INJURY OR DEATH, OR DAMAGE TO, OR LOSS OF USE OF, ANY PROPERTY (INCLUDING BUT NOT LIMITED TO ANY PRODUCT OR PRODUCTS). SELLER EXTENDS NO WARRANTY OF ANY KIND FOR TOOLS, DIES, JIGS OR FIXTURES. NOTWITHSTANDING ANY PROVISION OF THESE TERMS AND CONDITIONS, THIS WARRANTY EXTENDED BY SELLER IN CONNECTION WITH ANY SALES OF PRODUCTS BY IT AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
8. Purchaser’s Use – Purchaser (Customer/User) hereby agrees as part of the Seller’s consideration to sell the product to the Purchaser, that the Purchaser shall use and require all persons operating the Product or Products to use any and all proper, safe operating procedures set forth in operator’s manuals, American National Safety Standards, OSHA Regulations, and instruction sheets relating to the Product or Products, and any and all available, feasible and practical point of operation safety devices consistent with Purchaser’s use of the Product; and Purchaser shall not remove or modify any device, warning sign, operator’s manual or work handling tools installed thereon or attached thereto. Purchaser shall notify Seller promptly, in writing, and in all events within ten days after its occurrence, of any accident or malfunction involving any Product or Products which results in injury to or death of persons, including Purchaser’s agents and employees, or damage to property, including Purchaser’s property, or the loss of use thereof; and Purchaser shall cooperate fully with Seller in investigating and determining the cause of any such accident or malfunction. Purchaser agrees to indemnify, protect, defend and save harmless, at Purchaser’s cost and ex¬pense, the Seller, its directors, officers and employees and each of them from any loss, liability, cost and damages imposed upon or resulting to them, attribut¬able to the failure of the Purchaser to abide by the provisions of this Section.
9. Purchaser’s Property – Patterns, tools, dies, designs, drawings and/or other materials belonging to, or furnished by. Purchaser are stored at Purchaser’s risk.
Seller reserves the right to dispose of such property after thirty days notice to Purchaser.
10. Blueprints and Drawings – All working drawings or other materials provided by Seller are for informational purposes only and specifications therein are not binding upon Seller except as expressly so stated in writing contemporaneously herewith. Notwithstanding any provisions of these terms and conditions Seller reserves the right to make at any time such changes in detail or design or construction as shall in its sole judgment constitute an improvement. All proposals, prints, brochures, drawings, blueprints and other information furnished to Purchaser by Seller are intended for Purchaser’s confidential use shall remain Seller’s property and shall not be used to the detriment of Seller’s competitive position.
11. Installation Service – Purchaser shall install, at its own expense, all Products covered hereby; unless otherwise stated, no installation services are included in price indicated.
12. Cancellation of Orders – Purchaser shall not countermand or cancel any order or cause the work or shipment to be delayed, except with the written consent of, and upon terms agreed to by, Seller, and with full compensation to Seller for any loss sustained by reason of cancellation.
13. Nonvariation of Terms – Terms and conditions contained in any other writing, or stated orally, howsoever originating, which are in addition to or at variance with these Terms and Conditions shall be of no force and effect.
14. Binding Effect – All provisions hereof shall be binding upon the heirs, executors, administrators, successors and assigns of the Seller and Purchaser but Pur¬chaser’s rights shall not be assigned without the written consent of Seller.
Purchaser hereby grants Seller a purchase money security interest in all equipment sold under this agreement to secure payment and performance of Buyers obligation hereunder.
Warning – It is the Purchaser’s (Customer/User) responsibility to provide all proper dies, devices, tools and means that may be necessary to effectively protect all personnel from bodily injury which otherwise may result from the method of particular use, operation, set-up, or service of the machinery. The operator’s or machine manual, ANSI Safety Standards, OSHA Regulations and other sources should be consulted to implement the above.