Hines Precision Inc. - Precision Metal Stamping

HINES PRECISION INC STANDARD SELLING POLICY 6A

OFFER: Seller hereby offers for sale the goods and/or services covered by this Quotation, and sale of any such goods and/or services shall be subject to the terms and conditions contained herein, which supersede and replace any and all prior terms, conditions, proposals or quotations exchanged by the parties. Any additional or different terms previously or hereafter proposed by Buyer are objected to by Seller without need of further notice of objection, and shall not be binding upon Seller unless specifically accepted in writing as set forth below. In the event Seller is not notified of Buyer's written acceptance within thirty (30) days from the date of the accompanying Quotation, this Quotation shall lapse and be considered null and void. However, notwithstanding the foregoing, the Buyer's acceptance of any shipment covered by this Quotation shall conclusively constitute Buyer's acceptance of the terms and conditions contained herein.

ACCEPTANCE: When accepted as set forth above, the terms and conditions set forth herein shall constitute the entire agreement and understanding between the Buyer and Seller relating to the goods, and merge all prior discussions, understandings, agreements, and documents between them. Any variation to Seller’s terms and conditions and any additional or different terms or conditions on any order form or other document submitted by Buyer are expressly rejected unless and until accepted in writing and signed by a duly authorized officer of Seller.

BUYER FINANCIAL CONDITION: If at any time prior to or during this Agreement, the Seller, in its sole discretion, does not approve of Buyer's credit or financial condition, Seller reserves and shall have the right to cancel the entire agreement or to cancel any shipment thereof without prejudice to any other terms of this Agreement. In the event of Buyer's bankruptcy or insolvency or in the event any proceeding is brought against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, reserving any and all other rights, Seller will be entitled to cancel any outstanding order during the period allowed for filing claims against the estate and Buyer agrees that Seller shall be paid for its cancellation charges.

PRICE: Any quoted price by Seller to Buyer in the cover quotation to the terms and conditions herein are current prices and valid for acceptance up to 30 days from the date of the quotation.

The price for the goods covered by this Agreement will be in effect at the time of shipment. All prices are Ex Works Seller’s plant, Owensboro, Kentucky, or other origin of shipment as Seller, in its sole discretion, may elect. C.O.D. charges may be added to the selling price of the goods in Seller’s sole discretion. All sales, use, excise and other applicable taxes shall be charged to the Buyer and remitted by Buyer to Seller.

Commodity materials used in the production of the products in this Agreement may be subject to material cost escalation. If present, material cost escalation Schedule A is a part of this Agreement.

Purchased services used in the production of the products in this Agreement may be subject to cost escalation. If present, cost escalation Schedule B is a part of this Agreement.

TITLE AND RISK: Title to and risk of loss of all goods sold hereunder shall pass to Buyer upon Seller’s delivery of goods to any commercial carrier at point of shipment and irrespective of whether or not Seller pays all or any part of the freight. Notwithstanding the foregoing, the Seller shall retain a security interest in and a lien on all such goods until full payment by Buyer of all amounts due Seller from Buyer with respect to such goods. Seller’s shipments to Buyer will be insured only at the prior written request of and at the expense of the Buyer. If the Buyer asserts any claim against Seller, it shall be done in writing five (5) days from receipt of shipment.

PAYMENT: Payment shall be due thirty (30) days from date of invoice except where Seller stipulates C.O.D. terms. Any discounts specified by Seller shall apply only where payment is so received. Payment shall not be withheld on account of any claim of Buyer against Seller. Seller reserves the right to charge interest at 18% per annum (but in no event greater than the rate permissible under applicable law) on any sum outstanding after the due date. Seller shall have the right to charge Buyer for all expenses of collection, including, without limitation, attorneys’ fees and court costs. Seller reserves the right to suspend deliveries or to cancel this Agreement where payment for any order related or otherwise has not been made on the due date and remains outstanding. If pursuant to this provision Seller shall defer any shipments or services or cancel in whole or in part this Agreement, Buyer shall be liable for and reimburse Seller for all damages, and costs arising therefrom, including any and all direct and consequential damage incurred by Seller by reason for such deferment or cancellation.

WARRANTY: Seller warrants the goods, to the original buyer only, against defects in material or workmanship appearing to and reported in writing by Buyer to Seller within thirty (30) days from the date of delivery. Seller, at its discretion, shall repair or replace free of charge or refund the purchase price of any goods which in its sole opinion are determined to be defective. The foregoing shall constitute the exclusive remedy of Buyer and the exclusive liability of Seller.

No goods shall be returned under the warranty set forth above without the prior written consent and authorization of the Seller. Seller reserves the right to require Buyer to send to Seller (at Buyer’s expense) samples of the goods which Buyer claims are defective and which Buyer has requested to return under such warranty. Unless otherwise agreed to in writing by Seller, goods returned under such warranty shall be delivered to Seller's premises at Buyer’s expense. Upon receipt  and after inspection, if Seller finds such goods are not defective (or if the defect is attributable to Buyer’s specifications or use), such goods shall be thereafter returned to Buyer at Buyer’s expense.

The warranty set forth above does not apply to goods that have been improperly stored or maintained or stored for an extended period or to goods damaged during shipment or by accident, abuse, misuse, or misapplication.

The warranty set forth above is exclusive and in lieu of all other warranties, whether oral or written, express or implied (except as to title). SELLER EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY PARTICULAR PURPOSE SHALL APPLY. No representative of Seller is authorized to make additional warranties or modifications to this exclusive warranty, except in a written amendment to this Agreement signed by a duly authorized officer of Seller.

LIMITATION OF LIABILITY: Seller’s liability on any claim, whether in warranty, contract, negligence or any other legal theory, for loss, damage, or injury arising directly or indirectly from or in relation to this Agreement, the goods provided hereunder or the use of these goods shall not exceed the purchase price of the goods which give rise to the claim.

In no event shall Seller be liable for special, incidental, or consequential damages including but not limited to loss of profits or revenues, loss of use of goods, or claims of customers of Buyer, and no claims may be brought against Seller more than 90 days after any cause of action accrues.

MANUFACTURE, PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES: Goods shipped hereunder shall be within the limits and the sizes manufactured by Seller. Except in the particulars specified by Buyer and expressly agreed to in writing by Seller, all goods shall be produced in accordance with Seller’s standard practices. All goods, including those produced to meet an exact specification, shall be subject to tolerances and variations consistent with good stamping practice in respect to weight, dimension, physical characteristics and composition; to normal variations in surface; to deviations from tolerances and variations consistent with practical inspection and testing methods; and to regular stamping practice on over and under shipments.

MANUFACTURING PROCESSES: Seller reserves the right to change manufacturing methods or processes and materials used without notice.

SUBCONTRACTING: Buyer acknowledges that the nature of the work of the Seller may require Seller to procure materials and services from third parties. Seller reserves the right to change subcontractors without notice.

CANCELLATION: No order may be modified or canceled without Seller’s prior written consent. If Seller agrees to accept a modification or cancellation of all or part of any order, such cancellation or modification shall be subject to conditions then agreed upon by Seller which shall include Buyer’s indemnification of the Seller against all loss and incurred expenses relating to such modification or cancellation.

In the event of cancellation by either Seller or Buyer, Buyer will compensate Seller for all unused raw material in Seller’s possession and ordered, Work-In-Process at Seller’s cost, and Finished Goods inventory at agreed upon prices at time of cancellation.       

FORCE MAJEURE: Seller shall have no liability in respect of failure to deliver or perform, or delay in delivering or performing, any obligations under this Agreement due to (a) any cause outside of the reasonable and direct control of the Seller, including but not limited to or (b) acts of God, acts of Buyer, acts of government, war, civil disturbances, labor disputes, work stoppages, fire, hazardous material release, acts of terrorism, nuclear disaster, unavailability of materials, equipment failure or failure of supplier, carrier or subcontractor to deliver on time, or natural disaster including epidemics, droughts, floods, or transportation interruptions.

BUYER’S ITEMS: Any defect in the items provided by Buyer or purchased by Seller at the request of Buyer for use in the manufacture of the goods shall not entitle Buyer to rescind this Agreement, reject the goods, make deductions from the contract price or claim damages in respect of such defect, and Buyer shall indemnify and keep indemnified Seller from and against all claims, actions, demands, proceedings, losses, and costs arising from the supply of defective items by Buyer. Seller’s liability with respect to any item provided by Buyer or purchased by Seller at the request of Buyer which is damaged by Seller shall be limited to the decrease in value, if any, to such item directly caused by Seller and in no event shall exceed the original purchase price of such item.

TERMINATION: If Buyer commits any breach of any of the terms and conditions of this Agreement, or if Buyer becomes insolvent or generally fails to pay, or admits in writing its inability to pay debts as they become due or if Buyer applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other benefit of creditors, or in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for Buyer or for a substantial part of its property, or if any bankruptcy, reorganization, debt or any dissolution or liquidation proceeding is commenced in respect of Buyer, and if such case or proceeding under any bankruptcy or insolvency law or any dissolution or liquidation proceeding is not commenced by Buyer, it is consented to or acquiesced to by Buyer, or if Buyer takes any corporate action to authorize, or in furtherance of, any of the foregoing, then Seller may, without prejudice to any other rights which may have accrued or which may accrue to it, terminate this Agreement by notice in writing or may defer shipment until the situation is remedied.

ASSIGNMENT: Buyer may not assign any right or duty arising under any order, in whole or in part, without Seller’s prior written consent.

EXPORT REGULATIONS: The products covered by this agreement, including related technical data and, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export and input regulations in other countries. Buyer agrees to comply strictly with all such regulations and acknowledges that it shall be the Buyer’s responsibility to obtain all licenses to export, re-export, or import goods and technology provided by Seller.

NO WAIVER OF RIGHTS: PARTIAL INVALIDITY: Any waiver by either party of any breach of any provision of this Agreement shall not be construed as a waiver of any other provision or of any continuing or succeeding breach of such provision. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable in any respect, the legality and enforceability of all other provisions of this Agreement shall not be in any way impaired or affected thereby.

COMPLIANCE WITH LAW: Buyer agrees that it is solely responsible for compliance with all applicable federal, state, and local laws, ordinances, regulations, rules and standards relating to the use of the goods.

LAW: Buyer expressly agrees that this contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This agreement and any agreed amendment of this Agreement shall be governed in all respects by the laws of the United States and laws of the Commonwealth of Kentucky and without regard to its conflict of laws rules. Buyer further agrees to submit to the exercise of personal jurisdiction of such courts in Daviess County, Kentucky for the purpose of litigating any claim or action against the Seller. In the event a court of competent jurisdiction determines that the internal or domestic laws of the Commonwealth of Kentucky cannot be applied, then the domestic or internal laws of another state located in the United States which bears a reasonable relationship to the transaction shall apply.

NOTICES: Notices and other communications required to be made under this Agreement must be in writing in English, addressed to the parties at such addresses as may be designated in writing by either party to the other party and shall be deemed received when (a) delivered by hand, (b) on the date indicated on the signed receipt if mailed by first-class registered or certified mail, postage prepaid, return receipt requested, (c) delivered by overnight courier, or (d) delivered through electronic media such as email with return receipt, or (e) by fax with documentation of receipt by the Seller.

ENTIRE AGREEMENT: This Agreement, entered into by the Buyer and Seller, including all terms and conditions on the Order Acknowledgement and Quotation, sets forth the entire agreement between the Buyer and Seller as to the subject mater herein and supersedes any prior or contemporaneous agreements, written or oral, between Buyer and Seller. The order of preference for resolution of conflicts is: (1) any separate, written agreement, (2) this Agreement. If not specifically noted which controls, any conflict existing in those documents shall be resolved by Seller’s written direction specifying which provision is applicable.