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1. ACCEPTANCE. Lily Bearings (Seller) hereby accepts Buyer’s order for products described on the face hereof, but such acceptance is expressly conditional upon acceptance by Buyer of the terms set forth herein. Seller shall not be bound by any terms of Buyer’s purchase order which provide conditions additional to or different from the terms hereof.
The terms hereof shall survive (i) delivery of the products ordered hereunder, and (ii) the signing of an additional security agreement by Buyer and Seller relating to such products. If said terms conflict with such security agreement, the terms of the latter shall control.
2. SHIPMENT. Unless otherwise specifically agreed, all prices are for products packed for domestic shipment and for delivery F.O.B. factory or point of shipment. Shipping dates are approximate and based on prompt receipt of all necessary information. All risk of loss shall be upon the Buyer from point of shipment. Buyer shall pay all transportation and delivery charges to final destination.
3. PRICES. Prices stated herein or in Buyer’s order are based on present costs. Such prices are subject to increase by Seller at anytime before delivery in respect to all or any portion of the products on order to the extent necessary to cover Seller’s increased costs applicable thereto. Such prices do not include reasonable and normal local preparation and delivery charges which Buyer will pay upon receipt of Seller’s invoice therefor.
4. PAYMENT. Partial shipments may be made and payment therefor shall become due in accordance with the terms hereof. Finance charges are subject to rates in effect at time of delivery of products herein described. The terms of sale herein are subject to credit approval and Seller may at any time prior to delivery modify the terms of payment originally specified to assure prompt payment for the products ordered.
5. TAXES. The amount of taxes stated on the face hereof, if any, is approximate only. Buyer is liable for the full amount of all taxes applicable to or as a result of this transaction, exclusive of franchise taxes and taxes measured by the net income of Seller. Buyer shall pay the amount of all such taxes as at anytime requested by Seller as if originally added to the price. If seller pays such taxes, Buyer shall reimburse Seller therefor.
6. SECURITY INTEREST AND DEFAULT. Seller shall retain a security interest in the products delivered hereunder until the total selling price, including taxes, delivery and other charges, is paid in full by Buyer. Buyer agrees to sign and deliver to Seller any additional security agreement required by Seller.
If Buyer shall fail or refuse to accept delivery of the products ordered hereunder or shall default in the performance of any of the terms, covenants and conditions of this Agreement, Seller may retain the cash deposited or paid to it and the products accepted by it on account of the sale price, if any, and apply the same toward payment of its damages. If products ordered have been delivered to Buyer by Seller at the time of default. Seller may declare the full amount due and payable without notice or demand and may repossess the products. Repossession and disposition of products, and suit for any deficiency, shall be pursuant to applicable laws. The remedies provided herein in favor of Seller shall not be deemed exclusive, but shall be cumulative and shall be in addition to all other remedies in Seller’s favor existing at law or in equity.
7. WARRANTY. Seller warrants each new product to be free from defects in material and workmanship under normal use and maintenance as herein provided. Seller’s sole obligation under this warranty shall be limited to repairing, replacing or allowing credit for, at Seller’s option, any part which under normal and proper use and maintenance proves defective in material or workmanship within ninety (90) days after delivery to Buyer; provided, however, that written notice of any such defect and satisfactory proof thereof is promptly given by Buyer to Seller, and thereafter such part is returned to Seller, with transportation charges prepaid, and Seller’s examination proves such part to have been defective.
This warranty does not apply in respect of damage to any product or accessory or attachment thereof caused by overloading or other misuse, neglect or accident, nor does this warranty apply to any product or accessory or attachment thereof which has been repaired or altered in anyway which, in the sole judgement of Seller, affects the performance, stability or general purpose for which it was manufactured.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES (EXCEPT OF TITLE), EXPRESSED OR IMPLIED, AND THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR SPECIAL DAMAGES.
8. DELAYS. Seller shall not be liable for loss or damage due to delay in delivery or manufacture, resulting from any cause beyond Seller’s reasonable control, including, but not limited to compliance with any regulations, orders, or instructions of any federal, state or municipal government or any department or agency thereof, acts of God, acts or omissions of the Buyer, acts of civil or military authority, fires, strikes, factory shutdowns or alterations, embargoes, war, riot, delays in transportation, or inability due to causes beyond the Seller’s reasonable control to obtain necessary labor, manufacturing facilities or materials from the Seller’s usual sources; and any delays resulting from any such cause shall constitute cause for extending delivery dates and receipt of the goods shall constitute a waiver of all claims for damages. In no event shall Buyer or Seller be liable for special or consequential damages.
9. CANCELLATION. Buyer may cancel its order, reduce quantities, revise specifications or extend schedules only by mutual agreement as to reasonable and proper cancellation charges which shall take into account expenses already incurred and commitments made by Seller, and Buyer shall indemnify Seller against any loss resulting therefrom.
10. ENTIRE AGREEMENT AND APPLICABLE LAW. The rights and obligations of Seller and Buyer shall be governed by the laws of the State of Ohio. The provisions hereof are intended by Buyer and Seller as a final expression of their agreement and are intended also as a complete and exclusive statement of all the terms applicable to Buyer’s order. No waiver, modification or addition to any of the terms hereof shall be binding on Seller unless made in writing by the General Sales Manager at Seller’s branch office as stated herein. In the event of conflict between Buyer’s purchase order and the terms hereof, the latter shall control. All changes or modifications to the terms hereof appearing on the front side of this document shall take precedence over the printed provisions of this document.
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