Terms and Conditions
ELKAY PLASTICS CO., INC.
DOMESTIC STANDARD CONDITIONS OF SALE
Unless otherwise specifically agreed in writing, these Domestic Standard Conditions of Sale shall apply to any order accepted for sale of any Products by Elkay Plastics Co., Inc. (hereinafter called "Seller"). The contract of sale shall be formed when Buyer's order is accepted in writing by Seller in Commerce, California.
1. Standard Conditions of Sale
Sales of any of the Products described or referred to in Buyer's order is expressly conditioned upon the terms and conditions set forth herein. Any order for, any statement of intent to purchase or any direction to proceed with manufacture or shipment, of any Products shall constitute acceptance of these terms and conditions and a representation that the Buyer is solvent. Any additional or different terms or conditions set forth in Buyer's order or in any other communication from the Buyer are hereby objected to by the Seller and shall not be effective or binding unless specifically agreed to in writing by an authorized representative of the Seller.
2. Prices and Taxes
- Prices are EX WORKS, Commerce, California (Incoterms 2000) in U.S. Dollars including Seller's standard domestic packing for shipment. Special packaging (if available) may be provided at an extra charge.
- Prices include transportation charges on orders of a size defined in our applicable catalog based on a single shipment to the same destination address. At Seller’s option, orders of less than the defined size shall be shipped with transportation charges either collect or prepaid and billed to the Buyer. Any prepaid transportation charges will be billed to the Buyer by the Seller with payment due in accordance with the payment terms established.
- Sales tax will be billed to the Buyer by the Seller with payment due in accordance with the payment terms established unless the Buyer has furnished the Seller with a current sales tax exemption certificate.
3. Delivery, Title and Risk of Loss, and Acceptance
- Except as stated in Paragraph 3.C. below, Seller shall deliver the Products to Buyer EX WORKS, Commerce, California (Incoterms 2000). Partial deliveries shall be permitted. Upon delivery to the carrier, title to the Products and all risk of loss or damage shall pass to Buyer. Delivery times are approximate and are dependent upon prompt receipt by Seller of all material and information necessary to proceed with the work without interruption. Buyer acknowledges that many factors can affect the manufacture and/or delivery of Products, and shall not seek to hold Seller liable or seek to cancel orders for delays in delivery that are not unreasonable.
- Buyer agrees that Seller has the right to deliver a quantity of Products that may vary up to ten percent (10%) over or under the quantity specified in Buyer’s order and Buyer agrees to accept and pay for such revised quantity of Products in satisfaction of Buyer’s order.
- If any Products cannot be shipped when ready due to any cause referred to in Article 4 (entitled "Excusable Delays"), Seller may place such Products or parts in storage (which may be at the place of manufacture). In such event, (i) Seller shall notify Buyer of the placement of the Products in storage; (ii) Seller's delivery obligations shall be deemed fulfilled and title and all risk of loss or damage shall thereupon pass to Buyer, (iii) any amounts otherwise payable to Seller upon delivery shall be payable upon presentation of Seller's invoices therefor and its certification as to such cause, (iv) promptly upon submission of Seller's invoices, Buyer shall reimburse Seller for all expenses incurred by Seller, such as preparation for and placement into storage, handling, storage, inspection, preservation and insurance, and (v) when conditions permit and upon payment of all amounts due hereunder, Seller shall assist and cooperate with Buyer in any reasonable manner with respect to the removal of any Products which have been placed in storage.
D. Buyer shall inspect Products as promptly as practical after receipt. However, unless earlier rejected or accepted, the Products shall be deemed by the parties to be accepted 5 days after delivery to Buyer. Upon acceptance of each unit of Products, Buyer waives any right to revoke such acceptance for any reason, whether known or unknown to Buyer at the time of acceptance. Buyer's sole and exclusive remedy regarding any defect or non-conformance shall be as set out in Article 6 hereof (entitled “Warranties”).
4. Excusable Delays
- Seller shall not be liable for delays in delivery or failure to perform due directly or indirectly to: (i) causes beyond Seller's reasonable control, (ii) acts of God, acts of Buyer, acts (including failure to act) of any governmental authority (de jure or de facto), wars (declared or undeclared), governmental priorities, change of government, government instability, port congestion, riots, revolutions, strikes or other labor disputes, fires, floods, acts of terrorism, sabotage, nuclear incidents, earthquakes, storms, epidemics, or (iii) inability due to causes beyond Seller's reasonable control timely to obtain necessary and proper labor, materials, components, facilities, energy, fuel, transportation, governmental authorizations or instructions, material or information required from the Buyer. The foregoing shall apply even though any of such causes exists at the time of the order or occurs after Seller's performance of its obligations is delayed for other causes.
- Seller shall notify Buyer of any delay or failure excused by this Article and shall specify the revised delivery date as soon as is practicable. In the event of a delay, subject to Paragraph 4.C. below, there shall be no termination and the time of delivery or of performance shall be extended for a period equal to the time lost by Seller by reason of the delay.
- If delay excused by this Article extends for more than 60 days and the parties have not agreed upon a revised basis for continuing the work at the end of the delay, including adjustment of the price, then either party (except where delay is caused by Buyer, in which event only Seller), upon 30 days written notice, may terminate the order with respect to the unexecuted portion of work, whereupon Buyer shall promptly pay Seller its termination charges determined in accordance with Seller's standard accounting practices upon submission of Seller's invoices therefor.
- The Buyer shall pay in full for the Products without deduction, offset or counterclaim, in accordance with the payment terms set forth in Seller’s invoice. (Payment terms are 1% discount if paid within 10 days, net 30 days, from the date of Seller’s invoice.) Past due amounts shall accrue interest at the lesser rate of 18% per year or the maximum rate permitted by applicable law until paid in full.
- Should any indebtedness owing by the Buyer to the Seller be past due, the Seller may, at its option and without prejudice to its other remedies, withhold further deliveries to Buyer until all indebtedness to Seller has been fully paid.
- All Products sold by Seller are warranted for ninety (90) days from the date of delivery to be free from defects in title material, and workmanship and to conform to Seller’s published specifications applicable to such Products. If a Product fails to meet the foregoing warranties, Seller shall correct the failure, at its option, (i) by repairing the Product, or (ii) by making available at Seller’s factory, EX WORKS (Incoterms 2000), a replacement Product.
- Seller's obligations under this Article shall not apply to any Product which (i) has been modified or otherwise altered other than pursuant to Seller's written instructions or written approval, or (ii) is not properly stored or used, or (iii) has been subjected to abuse or any other kind of misuse, neglect or detrimental exposure or has been involved in an accident.
- Subject to Article 8, this Article sets forth the exclusive remedies for claims (except as to title) based upon defects in or nonconformity of the Products, whether the claim is in contract, warranty, tort (including negligence), strict liability, equity, quasi-contract, or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. Except as set forth in Article 7 ("Patents"), the foregoing warranties are in lieu of all other warranties whether oral, written, expressed, implied or statutory. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
- Seller warrants that any Product, manufactured by Seller and furnished hereunder ("Product") shall be free of any rightful claim of any third party for infringement of any United States patent. If Buyer notifies Seller promptly of the receipt of any claim that such Product infringes a United States patent and gives Seller information, assistance and exclusive authority to settle and defend such claim, Seller shall, at its own expense and option, either: (i) settle or defend such claim or any suit or proceeding arising therefrom and pay all damages and costs awarded therein against Buyer, or (ii) procure for Buyer the right to continue using such Product, or (iii) modify the Product so that it becomes non-infringing, or (iv) replace the Product with a non-infringing Product, or (v) remove the Product and refund the purchase price (less reasonable depreciation and any transportation costs which have been separately paid by Buyer). THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER FOR PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OF ANY PRODUCT AND IS SUBJECT TO THE LIMITATIONS OF LIABILITY SET FORTH HEREIN.
- The preceding Paragraph shall not apply: (i) to any Product which is manufactured to Buyer's design, (ii) to the use of any Product furnished hereunder in conjunction with any other apparatus or material. As to any Product or use described in the preceding sentence, Seller assumes no liability whatsoever for patent infringement.
- THE PATENT WARRANTY AND INDEMNITY OBLIGATIONS SET FORTH ABOVE ARE IN LIEU OF ALL OTHER PATENT WARRANTIES AND INDEMNITIES WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY.
8. Limitations of Liability
- THE TOTAL LIABILITY OF SELLER ON ANY AND ALL CLAIMS OF ANY KIND, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR PATENT INFRINGEMENT), STRICT LIABILITY, EQUITY, QUASI-CONTRACT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY AGREEMENT SUBJECT TO THESE CONDITIONS OF SALE OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR USE OF ANY PRODUCT OR THE FURNISHING OF ANY SERVICE, SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE PRODUCT OR SERVICE WHICH GIVES RISE TO THE CLAIM. EXCEPT AS TO TITLE, ANY SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD.
- IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR PATENT INFRINGEMENT) EQUITY, QUASI-CONTRACT OR OTHERWISE, SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER'S CUSTOMERS FOR SUCH DAMAGES, ALL OF WHICH ARE WAIVED IN FULL BY BUYER. IF BUYER TRANSFERS TITLE TO, OR LEASES THE PRODUCTS SOLD HEREUNDER TO, OR OTHERWISE PERMITS OR SUFFERS USE BY, ANY THIRD PARTY, BUYER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING SELLER THE PROTECTION OF THE PRECEDING SENTENCE.
- If Seller furnishes Buyer with advice or other assistance which concerns any Product supplied hereunder and which is not required by the terms of this instrument or pursuant to any other written agreement between Seller and Buyer, the furnishing of such advice or assistance shall not subject Seller to any liability, whether in contract, warranty, tort (including negligence or patent infringement), strict liability, equity, quasi-contract or otherwise.
9. Cancellation Charges
Buyer may cancel an accepted order only upon written request to Seller in the following manner:
A. Stock Product
(1) prior to scheduled delivery by notice to Buyer's local Customer Care office; (2) after delivery of any Products on Buyer's order, the order may be cancelled only with Seller's written consent. Buyer's request for cancellation should be addressed as instructed above. Any deposit monies held by Seller will be credited against the cancellation or restocking charges.
B. Custom Product
Buyer may cancel an accepted order only prior to the commencement of manufacturing. .
A. Stock Product
Incorrect deliveries will be exchanged or refunded after inspection by Elkay personnel if Elkay is notified within 5 days of receipt of Products.
B. Custom Product
No returns are permitted for Custom products.
- The provisions of these conditions of sale are for the sole and exclusive benefit of the parties hereto and not for any other person. The delegation or assignment or encumbrance by Buyer of any or all of its duties or rights hereunder without Seller's prior written consent shall be void.
- The invalidity, in whole or in part, of any Article or Paragraph or portion thereof shall not affect the validity of the remainder of such Article or Paragraph or portion.
- The validity, performance and all matters relating to the interpretation and effect of this instrument shall be governed by the laws of the State of California, U.S.A., excluding its conflict of laws rules. The parties consent to the personal jurisdiction of and venue in the state and federal courts located in the County of Los Angeles, State of California, U.S.A., which courts shall constitute the exclusive forum for all actions and proceedings concerning this instrument, whenever, wherever and however arising, whether at law, in equity or otherwise and whether the dispute involves any alleged breach of contract, violation of law or tort of any kind. Each party waives to the fullest extent permitted by applicable law any right it may have to a trial by jury in respect of any such action or proceeding. In any such action or proceeding, the prevailing party shall be entitled to an award of its reasonable costs, including reasonable attorneys’ fees.