Terms and Conditions
TERMS AND CONDITIONS OF SALE
As used below the term Permaco means The Permanent Magnet Co., Inc. of Indiana, or under some other name as set forth as the face of this document thereinafter referred to as Permaco.
The acceptance of Buyer's order is subject to all terms and conditions set forth on the face and reverse side hereof, including but not limited to arbitration and limitation of warranties, all of which are accepted by Buyer's order form and acknowledgment if any, and constitute the entire contract between Buyer and Permaco. The herein document shall become a contract either when at Permaco's option, (a) Buyer shall have placed an order with Permaco and/or given to Permaco specified quantities, product specifications, delivery dates, shipping instructions, or instructions to bill and hold as to all or any part of the goods herein described, or; (b) when Buyer has received delivery of the whole or any part of such goods, or, (c) when Buyer has otherwise assented to the terms and conditions hereof either in writing, orally, or by conduct. No communication, prior or subsequent hereto, shall act to modify, amend, or reject any term or condition stated herein unless expressly agreed in writing by a duly authorized officer of Permaco.
2. ALTERATION OF TERMS
Changes in the terms and conditions herein shall not be binding on Permaco unless made in writing and executed by a duly authorized officer of Permaco.
All prices, extras, and freight or transportation rates, are subject to change without notice, to reflect Permaco's prices, extras, and applicable freight or transportation rates, in effect as of the date of shipment. Unless otherwise agreed, freight will be charged from Permaco's Indianapolis, Indiana facility.
Payment is due from Buyer on the following terms: net 30 days, 1/2 of 1% discount on invoices paid within 10 days of invoice date. All payments not made by the due date shall bear interest at a rate of 1 1/2 percent per month. Further, Buyer shall reimburse and indemnify Permaco for any cost of collection incurred in collecting any past due sums, including court fees, out-of-pocket expenses, and attorney's fees.
5. SHIPMENT AND RISK OF LOSS
Buyer shall accept the goods F.O.B. Permaco's facility, Indianapolis, Indiana. Method and route of shipment are at Permaco's discretion, unless Buyer supplies explicit instructions otherwise. All expenses and risk of loss for any damages incurred in the transportation of the goods including any risk of loss of loading or unloading shall be borne solely by Buyer. All claims for loss, damage, or delay against the carrier must be made by Buyer. Buyer shall accept partial delivery of any order, and any defect therein or failure to make any subsequent partial delivery shall be severable and not constitute a breach of the entire agreement.
6. DELAYS AND DAMAGES
Permaco shall endeavor as far as practicable to make deliveries in accordance with this agreement; but, if for any cause Permaco shall fail to make such deliveries or shall fail to make them within the time stated herein, or shall cancel any order; Permaco shall not be liable for any loss or damage resulting from any failure or delay in delivery, or from any such cancellation, or for loss of use or loss of profits.
Buyer agrees to inspect all goods upon delivery and must reject any non-conforming goods pursuant to the terms and conditions set forth in Section Eight (8) herein. Buyer waives his rights under Section Eight (8) herein if he elects not to make such inspection.
8. REJECTION OF NONCONFORMING GOODS
Any rejection of goods for being non-conforming must be made immediately after delivery at the place of destination by Buyer notifying Permaco and confirming the rejection in writing within ten (10) days after delivery at the place of destination. Such notification shall identify each and every alleged non-conformity of the goods, and describe that portion of the shipment being rejected. Permaco shall then respond with instructions as to the disposition of the goods. If Buyer fails to give such notice or if Buyer uses the goods in any manner inconsistent with rights of Permaco the goods shall be deemed to conform with the terms of the agreement in all respects and Buyer shall be bound to accept and pay for the goods in accordance with the terms hereof. All returned merchandise from Buyer to Permaco must be in the original Permaco container as shipped to Buyer. Returned merchandise in any container, other than that originally shipped to Buyer, will not be accepted by Permaco.
Any order accepted by Permaco may be canceled by Buyer only upon written approval of Permaco by a duly authorized officer of Permaco. Buyer shall reimburse Permaco for any and all expenses incurred by Permaco in connection with such order, including finishing completed or in process, tooling, and engineering.
10. LIMITED WARRANTY AND LIMITATION OF REMEDY AND DAMAGES
Permaco warrants the goods DELIVERED UNDER THIS CONTRACT to be free from defects in material and workmanship under normal use and service for ninety (90) days from the date of shipment and will repair or replace, at its option, any goods that are shown to be defective in material or workmanship within such ninety (90) day period upon written notification from Buyer clearly identifying each and every defect and providing for inspection of such goods at Permaco's Indianapolis, Indiana facility. Permaco's obligation with respect to such goods will be limited, at its option, to replacement or repair of such goods. IT IS FURTHER MUTUALLY UNDERSTOOD AND AGREED THAT SINCE PERMACO HAS NO REASON TO KNOW THE PURPOSE FOR WHICH THE BUYER INTENDS TO USE SUCH GOODS. PERMACO MAKES NO WARRANTY THAT SAID GOODS ARE FIT FOR ANY PARTICULAR PURPOSE. PERMACO DOES NOT IN ANY WAY WARRANT THE MERCHANTABILITY OF THE GOODS. In no event shall Permaco be liable for, incidental, consequential, special, or punitive damages, or for transportation, installation, adjustment, or other expenses which may arise in connection with goods. Any abuse or misuse of the goods by Buyer voids this limited warranty.
THE FOREGOING LIMITED WARRANTIES ARE EXCLUSIVE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Buyer shall defend, indemnify and hold harmless Permaco and its agents and employees from any claims, damages or expenses, including reasonable attorneys' fees, arising or alleged to arise from (1) any asserted deficiencies or defect in the goods caused by alteration thereof with or without Permaco's consent made by Buyer or the improper handling or storage by Buyer, (2) the breach of any term stated herein, or (3) the act or omission of Buyer; irrespective of whether such claim, damage or expense is caused, or alleged to be caused, in part by the joint, several, comparative, (but not sole), negligence, breach of contract or warranty, or any other breach of duty by Permaco whether asserted under a negligence, a strict or any other product liability theory or any other legal theory.
Neither party hereto shall be liable to the other for failure to perform its obligation hereunder, in whole or in part, when performance is prevented by flood, drought, fire or any other casualty, war, riot, insurrection, acts of God, restriction or interference by any government, or government agency, strike, work stoppage or slowdown, or any cause beyond the control of the party failing to perform. Any suspension of performance by reason of this section shall be limited to the period during which such cause of failure exists.
Any claim or controversy arising out of or relating to this contract shall be settled finally and exclusively by arbitration in Indianapolis, Indiana under the Uniform Arbitration Act, Ind. Code 34-4-2-1, et seq. or the Federal Arbitration Act U.S.C. 1 et. seq. and the auspices of the American Arbitration Association, by which each party hereto agrees to be bound. Proceeding to arbitration and obtaining an award thereunder shall be a condition precedent to the bringing or maintaining of any action in any court with respect to any dispute arising under this Contract, except for the institution of a civil action to maintain the status quo during the pendency of any arbitration proceeding. Any and all actions which may be brought in court for any claim or controversy arising under this Agreement shall be filed and maintained only in a State or Federal court of appropriate jurisdiction sitting in the State of Indiana.
14. GOVERNING LAW
This agreement shall be governed by the Uniform Commercial Code as adopted and construed in the State of Indiana and any other applicable Common Law or Statutes of the State of Indiana; notwithstanding any state's choice of law rules to the contrary.
In the event that any provision hereof shall be found to be invalid or unenforceable, the remaining portions of this Contract shall remain in full force and effect as if the invalid or unenforceable portion were not a part of this Contract when it was executed. Should the severance of any portion hereof affect a material right or obligation of a party, the party so affected may rescind this Contract.
No delay or failure on the part of Permaco in exercising any right privilege or remedy shall operate as a waiver of such or of any other right, privilege or remedy, and no waiver whatever shall be valid against Permaco unless in writing by a duly authorized officer of Permaco and then only to the extent set forth therein. No waiver by Permaco of any breach of this contract by Buyer shall be deemed a waiver of any prior or subsequent breach of the same or any other provision of this Contract.
Section and other headings contained in this document are for reference purpose only and shall not affect, in any way , the meaning or interpretation of this document.
No assignment of this contract or the rights and obligations hereunder shall be valid without the expressed written consent of both parties.
19. MERGER CLAUSE
This document contains the entire understanding and agreement of the parties upon the subject matter hereof. There is no agreement, oral or otherwise, which is not set forth in this writing.