Unless otherwise agreed in writing specifically referring to the following terms and conditions, or modified on our Quotation, this Quotation is made subject to the terms and conditions which are usual in the Drop Forging Industry:
1. NOT AN OFFER. This is only a quotation and not an offer for sale. Any purchase order pursuant to this quotation shall not result in a contract for the parts described herein until it is accepted and acknowledged in writing by Lakeview Forge at its manufacturing headquarters in Erie, Pennsylvania, and then only subject to and contingent upon credit approval. All quotations are based upon specifications and blueprints available at time of quotation. Any changes necessitated by additional specifications or part drawing revisions not originally submitted with the request for quotation must be in writing and will be considered as amendments to the original quotation and will then be subject to revision as deemed necessary by Lakeview Forge.
2. SHIPMENT AND DELIVERY. Dates of shipment mentioned herein are estimated and not guaranteed. Delivery of products shall be F.O.B. Lakeview Forge's plant in Erie, PA. Title and risk of loss or damage to goods shall pass from Lakeview Forge to the Purchaser upon delivery by Lakeview Forge to the possession of the carrier. Any claims for loss or damage after risk or loss has passed as herein provided shall be filed with the carrier. Lakeview Forge shall not be liable for loss or damage from delay in delivery or failure to manufacture due to causes beyond its reasonable control. In the event of such delay in delivery or failure to manufacture, Lakeview Forge shall not be required to allocate production and deliveries among customers.
3. CHANGES. All changes must be made in writing and acknowledged by Lakeview Forge Company or Erie Tool Works Division to be effective.
4. RETURNS. No Material may be returned without prior written approval.
5. SHIPPING TOLERANCES. Lakeview Forge Company and Erie Tool Works reserve the right to ship plus or minus 5% on all non-stock items.
6. DELAY BY PURCHASER. If shipments of parts are delayed by the Purchaser, date of completion of the parts shall be considered as the date of shipment insofar as payments are concerned. Products held for the Purchaser because of such delay in delivery or manufacture shall be at the risk and expense of the Purchaser.
7. EXCUSABLE DELAYS. Orders are accepted subject to delays occasioned by acts of God, accidents, strikes or other labor disturbances, flood, fires, war, riot, delays in transportation, acts of civil or military authority, governmental priorities or other causes beyond the control of Lakeview Forge.
8. TAXES. In addition to the prices herein stated, Purchaser agrees to pay or to reimburse Lakeview Forge, at Purchaser’s option, for any and all sales, use, excise, value added or other taxes or charges which may be imposed by any public authority as a result of the sale, manufacture, transportation or delivery of the parts covered by this Quotation.
9. PAYMENTS. Purchaser shall pay the purchase price, all applicable taxes, freight charges, and all other applicable charges in full, in U.S. Dollars, without any deduction for claims, set-offs or recoupment on account or any other matter between the parties within the time periods set forth below in Section 15 below. If, in the exclusive judgment of Lakeview Forge the financial condition of the Purchaser at any time does not justify the commencement or continuance of production or shipment on the terms specified herein, Lakeview Forge may, in addition to all other remedies it may have at law or in equity, make a written demand for full or partial payment in advance, suspend its performance until such payment is made and cancel the Purchaser's order if such payment is not received by Lakeview Forge within thirty (30) days after delivery in person or mailing of said demand by Lakeview Forge. Purchaser hereby grants to Lakeview Forge a security interest in the goods until all monies due Lakeview Forge are paid in full. Lakeview Forge shall have the right to file financing statements and any other documents that may be necessary to evidence and perfect such a security interest in the goods in any jurisdiction.
10. BASIS OF PRICES. Prices are only for the quantities indicated for production and shipment in one lot or as near thereto as Lakeview Forge’s production makes possible. Additions of material for machine finishes will be made only where specified by the Purchaser. Unit selling price is subject to material and/or energy surcharge at time of shipment.
11. PREPARATION CHARGES. Preparation charges for tooling only cover a portion of the cost for the initial production of the forgings and therefore, the payment of such charges does not convey any title or right of possession to Purchaser. Payment does convey to the Purchaser, the rights to the exclusive use of such tools and to their preservation by Lakeview Forge for two (2) years after the date of the last order requiring their use. In the event that preparation charges are amortized over a period of time on a per part basis, if Purchaser does not purchase a sufficient number of parts to fully pay the preparation charges, Purchaser is required to pay the balance due of the preparation charges upon demand by Lakeview Forge. If tooling is inactive for two (2) years, it will then be to the discretion of Lakeview Forge to disposition the tooling. Storage charges may accrue on inactive tooling. Preparation charges are based on the initial quantity, rate of delivery, and particular design specified in this Quotation. The charges for any change either in the rate of delivery or in design will be quoted by Lakeview Forge upon request. Since preparation charges only cover a portion of the cost for the initial production of the forgings, Lakeview Forge reserves the right to charge Purchaser an Engineering charge in order to release the tooling to Purchaser.
12. SURFACES AND TOLERANCES. Unless otherwise specified in this Quotation, forgings will be furnished with a natural drop-forging surface without machine work and within the tolerances for quantity, size and shape as specified in “Guideline Tolerances for Hot Forged Impression Die Forgings Hammer, Press & Upsetter” as adopted by the Forging Industry Association, Reissued June 1999. A copy of these tolerances will be furnished to the Purchaser without charge upon application to Lakeview Forge.
13. PATENT INFRINGEMENT. Purchaser assumes all liability for and agrees to indemnify Lakeview Forge and hold Lakeview Forge harmless against any claim for infringement of any patent right asserted because of the nature, structure or use of any product ordered by Purchaser and Purchaser shall reimburse Lakeview Forge for any and all damages, costs and expenses, including reasonable attorney’s fees, resulting from any such claim.
(a) Lakeview Forge warrants that all parts manufactured by it shall be free from defects in material or workmanship under proper care and normal use. Lakeview Forge at its option, shall rework or replace, free of charge, any part covered by this warranty which shall be returned to Lakeview Forge plant location issuing this quotation, transportation charges prepaid, within thirty (30) days from date of receipt of product by Purchaser which examination proves not to be free from defects in materials or workmanship. Lakeview Forge shall not be liable for any repairs or replacements of parts covered by this warranty, except those made with Lakeview Forge written consent. Lakeview Forge reserves the right to inspect forgings at Purchaser's plant before their return. Defective forgings will be salvaged if possible, or replaced. No parts shall be returned without prior written authorization of Lakeview Forge. No allowance will be made for labor performed by the Purchaser on defective forgings. Lakeview Forge shall be liable for breach of this warranty only if it receives written notice of such breach within thirty (30) days from the date of shipment of the product to which the breach relates. The foregoing shall constitute the sole remedy of the Purchaser for any breach by Lakeview Forge of its warranty.
(b) LAKEVIEW FORGE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING PARTS MANUFACTURED BY IT, CUSTOM DESIGN SPECIFICATIONS SUPPLIED BY IT, OR CUSTOM INSTALLATION COMPLETED BY IT OR ITS AGENTS, (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES AS TO MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AGAINST INFRINGEMENT OF ANY PATENT), EITHER EXPRESSED OR IMPLIED, EXCEPT AS PROVIDED HEREIN.
15. TERMS. ½% discount 10 days; net 30 (parts); net 30 (dies). 1% per month interest added to invoices over 30 days. Credit cards accepted. Purchaser hereby grants to Lakeview Forge a security interest in the goods until all monies due are paid in full. Lakeview Forge shall have the right to file financing statements and any other documents that may be necessary to evidence and perfect such a security interest in the goods in any jurisdiction. In the event that Purchaser does not pay the invoices for the tooling or the goods when due, Lakeview Forge reserves the right to: (1) sell the goods and to apply the sale proceeds to the outstanding amounts due; and/or (2) utilize the tooling to manufacture and sell additional goods to Purchaser's customer(s) or others for Lakeview Forge's own benefit. If Purchaser fails to pay any amount due under this Agreement, Purchaser grants Lakeview Forge an irrevocable non-exclusive unlimited world-wide license under Purchaser's copyrights, patent rights, trademark rights to make, use, sell, and/or distribute the mold, the designs of the part, the design of the mold, and any parts made from the mold and to use any trademarks that may be molded onto any parts made from the mold. Nothing in this license shall limit Purchaser from otherwise exploiting its patent rights, copyrights, and trademark rights with third parties.
16. LIMITATIONS OF LIABILITY AND INDEMNITIES. In no event, whether as a result of breach of contract, warranty or tort (including negligence and strict liability), shall Lakeview Forge be liable for any consequential or incidental damages including, but not limited to, loss of profit or revenues, loss of use of the forgings or any associated material, Purchaser’s products, damage to associated equipment, cost of capital, cost of substitute products, facilities, service or replacement power, down time costs or claims of Purchaser’s customers for such damages. Purchaser hereby agrees to indemnify Lakeview Forge and to hold Lakeview Forge harmless from any and all liability, claims, demands, actions, suits or expenses or costs, including reasonable attorney’s fees, whatsoever for such consequential or incidental damages or by reason or growing out of personal injuries to Purchaser or its employees or property damage suffered by Purchaser or its employees, whether the same results from breach of contract, warranty or tort (including negligence and strict liability) of Lakeview Forge or Lakeview Forge’s employees or otherwise, it being the intention of this provision to absolve and protect Lakeview Forge from any and all such loss.
17. ARBITRATION. Any dispute, controversy or claim arising out of or relating to this Quotation, or the breach thereof, shall be settled by arbitration. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. For domestic shipments, the arbitration proceedings shall take place in Erie, PA. For international shipments, controversies or claims arising out of this Contract shall take place in Pittsburgh, PA. The decision of the arbitration panel shall be binding upon the parties and judgment on the award may be entered in any court of competent jurisdiction.
18. LIMITATIONS OF ACTIONS BY BUYER. Any actions against Lakeview Forge with respect to any matter arising out of or relating to this Contract must be brought by Purchaser, or anyone claiming through or under Purchaser, within one (1) year from the date that the claim in question accrued.
19. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to any applicable principles of conflicts of law which would direct the application of the laws of another jurisdiction. The United Nations Convention on the International Sale of Goods, the 1974 Convention on the Limitation Period in the International Sale of Goods and the Protocol amending the 1974 Convention shall not apply to this Contract.
20. WAIVER. The waiver of any right or default in any one instance shall not be deemed a waiver of any future right to enforce this Contract.
21. ASSIGNMENT. This Quotation may not be assigned by Purchaser without the written consent of Lakeview Forge.
22. RECOVERY OF EXPENSES. Lakeview
Forge shall be entitled to recover from Purchaser all costs and expenses
(including, but not limited to, reasonable attorney's fees) which are incurred
by Lakeview Forge in enforcing its rights including, but not limited to, the
recovery of any amounts owed by Purchaser to Lakeview Forge.
23. CLERICAL ERRORS. Clerical and stenographic errors are subject to correction.
24. SEPARABILITY. If any terms and conditions set forth in this quotation are declared null and void by any court of competent jurisdiction, the remaining terms and conditions shall nevertheless remain applicable.