1. ACCEPTANCE AND ENTIRE CONTRACT. This Sales Order (“Order”) and its terms and conditions shall constitute the entire contract between Fluid Power, Inc. (“Seller”) and the purchaser named on the face hereof (”Buyer”) with respect to the materials, components, products, systems or services (“Goods”) specified on the face hereof. Acceptance by Buyer is expressly limited to these Terms and Conditions. Seller hereby objects to any additional or different terms or provisions of any purchase order or other form or correspondence supplied by Buyer, and no such additional or different term or provision shall become part of the agreement between the parties. No course of prior dealings between the parties or usage of the trade shall be relevant to give particular meaning to or to supplement or qualify any of terms and conditions hereof.
2. DELIVERY AND RISK OF LOSS. All shipments shall be F.O.B. Seller’s dock or point of manufacture or shipment, unless otherwise stated on the face hereof. If under any other delivery terms stated on the face hereof Seller is obligated to pay freight, Buyer shall pay to Seller any increase in freight subsequent to the date hereof; and Seller shall have the right initially to designate the means of transportation and routing and if Buyer requests or requires a more expensive means of routing, Buyer shall pay any extra cost incurred. Seller reserves the right to make delivery in installments or to make partial shipments unless otherwise expressly stipulated herein. All such installments or partial shipments shall be separately invoiced and paid for when due, without regard to subsequent deliveries.
3. DELAYS.Any shipment date provided for herein is approximate and not a guarantee of a particular day of delivery. Under no circumstances shall Seller be liable for failure to deliver or delay in delivery occasioned in whole or in part by reason of force majeure; fire, flood; explosion; casualty; riot; strike; civil commotion; shortage of labor or other labor difficulty; transportation delay; breakdown; accident; inability to secure materials, fuel, supplies, power or shipping space; act of God or of the public enemy; or any other causes or circumstances beyond Seller’s reasonable control or which Seller could not by reasonable diligence have avoided. In such circumstances Seller shall have the right to extend the date or delivery for a reasonable period of time after the period of delay (but in no case for less than the period of delay) and shall have the right to apportion its materials and products among its customers in such manner as it may deem equitable. Buyer is not relieved from accepting delivery at the agreed price when the causes interfering with delivery are removed. If delivery is in installments, delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
4. WARRANTIES. Except as otherwise stated on the face hereof, Seller makes no warranty of any kind, express or implied, in respect to any Goods sold hereunder (whether such Goods are sold as separate items or as components of assemblies or systems) or in respect to the design or performance of any system sold hereunder and, in particular, makes NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE. If any sample or model was shown to or provided by Buyer, such sample or model was used merely to illustrate the general type and quality of the Goods and such use is not to be construed as a warranty that the Goods will conform to the sample or model. Any descriptions or illustrations contained in Seller’s catalogues, price lists or other advertising matter are intended merely to present a general description of the Goods and shall not form a part of the Order. Seller makes no warranty that Buyer holds or will hold the Goods free of the claim of any third person that may arise from alleged patent or trademark infringement. Since conditions of use over which Seller has no control many have a significant effect on the Goods, Seller disclaims any warranty that the Goods will conform to the standards and requirements set forth in the “occupational Safety and Health Act” of 1970 or the rules and regulations thereunder. No agent, employee or representative of Seller has any autho rity to bind Seller to any affirmation, representation or warranty concerning the Goods, except an officer of Seller who agrees to the same in writing. In no event is any affirmation, representation or warranty relating to the Goods applicable to anyone other than Buyer, and no purchaser from Buyer is entitled to rely thereon. Nothing contained herein shall be construed to limit Buyer from availing itself under appropriate circumstances of any warranties given by manufacturers.
5. INSPECTION. If, upon receipt of the Goods by Buyer, the same shall not conform to this Order, Buyer shall notify Seller and/or the manufacturer in writing within ten (10) days from receipt of the Goods (within five (5) days if a shortage is claimed) and before any part of the Goods has been changed from its original condition. Such notification shall provide detailed information as to the nonconformity or shortage and Buyer shall hold the Goods for disposition and afford Seller and/or the manufacturer a reasonable opportunity to inspect the goods. In no event shall the Goods be returned without Seller’s consent. Failure to comply with the terms of this paragraph shall constitute a waiver by Buyer of all claims in respect of any nonconformity or shortage of Goods and shall be conclusive evidence that Seller has satisfactorily performed.
6. CANCELLATIONS. No part of this Order may be cancelled or reduced without the written approval of an officer of Seller and, in any event, there shall be a minimum charge of fifteen (15%) percent of the sale price for all Goods so cancelled. In addition, a partial cancellation may subject the entire Order to a price revision where quantity discounts were given based upon the entire Order. Orders for non-stocked or special Goods may be canceled only as provided herein and upon the agreement of Buyer to make payment for work already performed and materials used plus an amount to compensate Seller for loss of profit.
7. PRICE AND PAYMENT. Except as otherwise stated on the face hereof, prices for the Goods are subject to change without notice (including changes resulting from increases in prices of manufacturers) and this Order will be shipped and invoiced at prices in effect at the time of shipment. In the event of the suspension of work on the Goods as a result of instructions of buyer, or lack of instruction, the sales price may be increases to cover any extra expense thereby incurred by Seller. A minimum billing of twenty ($20.00) dollars will apply to all Goods stocked in Seller’s warehouse. Non-stocked Goods will be subject to applicable minimum billing from each manufacturer or supplier. All invoices are due and payable within thirty (30) days from the date of issuance. A one and one-half (1-1/2%) percent service charge per month will be added to all past due balances, which is an annual rate of eighteen (18%) percent.
8. TAXES AND OTHER CHARGES. All existing or subsequent taxes, excises and other charges (including but not limited to royalties) relating to the sale, purchase, delivery, storage, manufacture, use, consumption or otherwise of the Goods, for which Seller is or may be liable or responsible to pay, shall be paid to Seller by Buyer in addition to the sales price.
9. BUYER’S CREDIT. If the financial responsibility of Buyer becomes impaired or is deemed unsatisfactory by Seller for any reason, or if Buyer is in default under this Order or any other contract with Seller, upon demand by Seller, Buyer shall provide satisfactory security or advance cash payment or payment on delivery and shipments may be withheld by Seller until such security or payment is received. In the event of Buyer’s bankruptcy, insolvency or assignment for the benefit of creditors; Buyer’s default in the payment of any indebtedness to Seller; or Buyer’s breach of any contract with Seller; then, and in any such event, all of Buyer’s outstanding indebtedness to Seller shall become immediately due and payable.
10. PROPERTY FURNISHED BY BUYER. In the event Buyer shall furnish Seller with dies, equipment or other items in connection with this Order, Seller shall not be responsible for any alterations made thereon as a result of compliance with the Order. All such items will be held at Buyer’s risk and Buyer shall be responsible to provide and pay for any insurance thereon. Any shipping and crating charges on such items shall be borne by Buyer.
11. BUYER’S REMEDIES. Any claims of Buyer, including claims for damages, loss, shortage or delay are not cause for cancellation of the Order. In the event that Buyer has any claim against Seller arising out of or relating to the Goods delivered by Seller hereunder, or the non-delivery of the Goods, or otherwise, Seller’s exclusive and sole liability shall be limited, at Seller’s option, to either the replacement of the Goods at the original point of delivery or the return of the sales price of the goods with respect to which the claim is made. Seller, at its option, may require that Buyer return the Goods to Seller at Buyer’s risk and expense before Buyer shall be entitled to replacement or return of the sales price. Seller shall in no event be liable for the cost of any work done by Buyer on the goods or for any special, direct, indirect, incidental or consequential damages of any nature whatsoever suffered by Buyer or anyone else arising out of any breach by Seller under this Order. Any action or remedy by Buyer arising out of this Order or any breach thereof must be commenced by Buyer within one (1) year after such cause of action has accrued.
12. SELLER’S REMEDIES. The rights, powers, privileges and remedies of Seller herein reserved shall be cumulative and in addition to any other or further rights, powers, privileges and remedies provided in law or equity. Seller shall have the maximum period provided by law within which to pursue any remedy. A waiver by Seller or any right or remedy under this Order shall not affect any rights or remedies subsequently arising under the same or similar provisions hereof, nor shall it operate as a waiver of the provision or condition under which such rights or remedies arise. Buyer agrees to indemnify and save harmless Seller from any and all liability, loss, damage or expense which may be incurred or suffered by Seller by virtue of any suit or claim of any nature whatsoever arising out of or relating the Goods (including but not limited to claims or suits for breach of warranty, negligence or infringement of patent or trademark for Goods produced and/or sold by Seller in accordance with designs, materials, specifications or processes supplied, determined or requested by Buyer); to pay any and all judgments rendered against Seller as a result thereof; and to pay all costs and expenses incurred by Seller in defending any action brought against Seller as a result thereof, including attorney’s fees and expenses, expert witness fees and expenses and court costs. If requested by Seller, Buyer will, at its own cost and expense, defend any and all such actions.
13. GOVERNING LAW. This Order shall be construed and enforced in accordance with the laws of Commonwealth of Pennsylvania. Any actions, claims or suits (whether in law or equity) arising out of or relating to this Order, or the alleged breach thereof, shall be brought only in courts located in the Common- wealth of Pennsylvania and buyer hereby waives its rights, if any, to bring such actions, claims or suits in any other courts. The parties and each of them hereby submit themselves to the jurisdiction of the courts located in the Commonwealth of Pennsylvania for the enforcement of this provision and for the enforcement of any judgment rendered by such courts. If any action, claim or suit is brought by Seller against Buyer hereunder and Buyer is not otherwise subject to service of process in Commonwealth of Pennsylvania, Buyer agrees to and does hereby irrevocably appoint the Secretary of the Commonwealth of Pennsylvania as Buyer’s agent for the acceptance of service of process therein, and a copy of such process shall be mailed by Seller at Buyer’s last to Buyer known address.
14. NONASSIGNABILITY. Neither this Order nor any interest or obligation hereunder shall be assignable by Buyer without the prior written consent of Seller.
15. SEVERABILITY. If any provision or paragraph of this Order is determined to be illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph of this Order