ElectroLab II, Inc. – Standard Terms & Conditions of Sale
1. Introduction. It is generally recognized that even after employing all the science known to us and capable men with years of training, there still remain variables in the electroplating and metal finishing industries. Therefore, in order to avoid misunderstandings, ElectroLab II, Inc. (“ELI”) is restating the following Terms and Conditions.
2. Parties. You (“Customer”), by placing this order, hereby acknowledge and accept the following terms and conditions and acknowledge that these terms and conditions apply to all sales with ELI.
3. Description of Services. ELI shall provide electroplating and metal finishing services for Customer.
4. Quotations. Price quotations are open for acceptance no longer than thirty (30) days from the date of issuance. After thirty (30) days), prices and terms are subject to change without notice unless otherwise specified. Engineering changes will require a new quote.
5. Acceptance. Customer accepts this Agreement by: (a) executing a separate agreement with ELI, incorporating these terms and conditions, or (b) delivering to ELI a purchase order for Products and/or Services with quantities and delivery dates acceptable to ELI; or (c) accepting delivery of the Products and/or Services; or (d) paying the price for the Products and/or Services, whether prior to delivery or not, as agreed to by ELI and Customer and/or set forth in the Agreement.
6. Price Terms.
(a) Part Price. Customer agrees to pay the Part Price for each individual part as detailed in the quotation and Agreement (“Part Price”). A minimum lot charge applies until the order is exceeded by the Part Price.
(b) Modified Part Price. Except as indicated in Paragraph (4) above, the Part Price for any part is subject to change at any time in the sole discretion of ELI. ELI shall be under no obligation to continue to process parts at the agreed Part Price. In the event that ELI elects to modify the Part Price, ELI shall provide Customer written notice (by U.S. Mail, E-mail, Common Carrier, or Facsimile) (“Written Notice”) ten (10) calendar days prior to the imposition of a Modified Part Price. The Written Notice shall indicate the part number(s) for which the Part Price is subject to modification, state the new Modified Part Price for each part (“Modified Part Price”), and state the date that the Modified Part Price will be imposed (the “Modified Price Date”). If proper notice is given to Customer, any parts processed after the Modified Price Date shall be subject to the Modified Part Price. Customer, by delivering any additional parts for processing by ELI or by accepting delivery of any goods from ELI that were processed after the Modified Price Date, shall be deemed to accept the Modified Part Price. If Customer wishes to contest the Modified Part Price, they must provide Written Notice to ELI prior to the Modified Purchase Date.
(c) Part Price for New Orders and Parts. Customer and ELI acknowledge that, due to the nature of the metal finishing industry, new parts are frequently shipped to ELI prior to any discussion concerning the price term for such new parts. In such a case, ELI and Customer shall execute a new agreement stating the part number(s) and the part price(s) for each new part. In the event that ELI and Customer cannot agree on a Part Price for new or additional parts, ELI shall have the right to cease processing any new parts for which the parties have failed to agree on a price term. In no event shall the part price for a previously quoted part be construed to apply to a distinct and different part for which the parties have been unable to agree on a price term.
(d) Fixed Price. Where Customer and ELI cannot agree on a price term for a new part, and where ELI has already processed the parts in question, and where Customer has accepted delivery of those parts, a price shall be fixed by ELI in good faith at ELI’s sole discretion (the “Fixed Price”). In the event that Customer is notified of the Fixed Price (through invoice from ELI or by Written Notice) and Customer continues to ship those parts to ELI for processing, the Customer shall waive its right to contest the Fixed Price for any goods processed after the date of such notice/ invoice informing Customer of the Fixed Price set by ELI. These Fixed Price procedures shall not apply to any parts for which Customer and ELI have a written terms agreement which details the part price.
(e) Termination. Except as indicated in Paragraph (4) above, ELI shall be under no obligation to continue to process parts at the agreed Part Price, Modified Part Price, or Fixed Price. In the event that ELI elects to terminate the Agreement, ELI shall provide Customer Written Notice of such election ten (10) days prior to the date of termination of service. ELI shall not be required to furnish Written Notice if the termination is due to Customer’s failure to make any payment as detailed in section (7) below.
7. Payment Terms. For Customers with established credit, terms are net thirty (30) days from the date of shipment. Credit is extended solely at ELI’s discretion and is subject to revocation at any time. For Customers without established credit, or for any other reason at the sole discretion of ELI, the terms shall be COD. All payments must be in U.S. dollars. ELI shall have the right of set-off and deduction for any sums owed. If Customer fails to make timely payment, ELI, at its sole option, reserves the right to defer any shipment until such payment is made, or may cancel any or all of the remaining unshipped order. A service charge in the amount of 3 % per month or to the full extent of the law will be added to all invoices that are sixty (60) days past due as of the tenth day of the month following the due date of the invoice. Customer shall be liable for all costs and expenses incurred by ELI if Customer fails to perform its obligations pursuant to this Agreement, including, but not limited to, collection costs, attorneys’ fees and expenses, and all other expenses incurred by ELI to collect on any unpaid amount. ELI shall have a lien on Customer’s property in ELI’s possession until the outstanding balance on the property is satisfied which may extend to property that is subject to an installment contract. ELI’s right shall be considered a security interest under the Uniform Commercial Code and foreclosure thereon shall be in the manner prescribed for security interests in Article 9 of the Uniform Commercial Code.
8. Modification. None of the terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered except by written agreement of the parties. Terms from Customer are not accepted and do not constitute part of this Agreement unless expressly agreed to in writing by the ELI and Customer. Any change in circumstance in materials, application or product will constitute a modification that shall be approved by Customer and reflected in the final price.
9. Special Orders. Special orders or accounts may require ELI to stock ample volumes of product to meet production requirements. Upon termination of a Special Order contract, or inactivity, Customer agrees to purchase the product so ordered, at cost, from ELI. Special tools, racks and fixtures required for the performance of the work herein described which have been designed and/or built by us shall be and remain our property whether or not the Customer is charged with time and/or material in connection therewith.
10. Cancellation. In the event of cancellation of any or all of the order for products and/or services under this Agreement by Customer, Customer shall reimburse ELI for all work completed, work in process and for tooling and engineering expenses incurred in connection with such order, including any lost profit.
11. Force Majeure. ELI shall not be liable for any delay in or impairment of performance resulting in whole or in part from catastrophic events, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather, acts of war, acts of terrorism, accidents, thefts, fires, acts of God, or any other circumstance or cause beyond the control of ELI. In the event that such occurrences prevent or interfere with ELI’s ability to complete the Agreement, Customer shall accept as full and complete fulfillment of the order such portion of the goods as ELI is able, under the circumstances to procure and deliver in accordance with the same. The provisions stated in this paragraph are for the sole benefit of ELI and Customer, and confer no rights, benefits or claims upon any person or entity not a party hereto.
12. Risk of Loss. Notwithstanding any agreement to pay freight or other transportation charges, the risk of loss shall remain with Customer until receipt of the product by ELI, and is then the responsibility of Customer once work is completed. Title and risk of loss pass to Customer on delivery of the product to the common carrier, or any other person or entity that receives the product for delivery to Customer. During storage and transportation of Customer’s material and/or merchandise, Customer’s containers, used for delivery to ELI, shall be used for storage and/or reshipment, and any damage resulting therefrom shall be the sole responsibility of Customer. We shall not, under any circumstances, be considered as an insurer of Customer’s material or merchandise and shall not be liable, regardless of cause, for loss by fire, explosion, theft, pilferage, vandalism, casualty or acts of God while such material or merchandise is in ELI’s possession. Should Customer desire other packaging or containers, ELI will charge for material and handling, only upon receipt of a written order. Additional charges may be incurred by Customer for repackaging goods to other specifications. If product is damaged in transit, Customer must file any claim with the carrier and ELI shall have no liability as a result of any damage occurring in transit.
13. Shipping Charges. Unless agreed otherwise by the parties, Customer hereby agrees to be responsible for any and all costs or charges for freight transfer and delivery of the product.
14. Limited Warranty and Exclusion. ELI warrants that the product conforms to Customer’s specifications supplied by Customer, in writing, and that such processing and finishing shall be free from defects in material or workmanship at the time of delivery. Warranty coverage applies on a case-by-case basis and subject to the following:
(a) If Customer specifies methods and procedures to be followed, ELI assumes no responsibility for the correctness of such method and procedure or the results due to compliance with said instructions. In the absence of full disclosure by Customer of the use of material or parts to be processed and finished, ELI assumes no liability for subsequent failures or defects.
(b) It is due to the nature of the submergent plating process that a small percentage of parts will be lost in the plating tanks. No claim for shortage in weight, defect or count will be allowed unless made, in writing, within three (3) working days after receipt of product by Customer or the Customer’s consignee to whom it was delivered, provided however, a shrinkage or defective quantity in bulk processing of five percent (5%), shall be allowed without charge or liability. ELI shall not be responsible for weight, counts or their inspection functions or for merchandise received from third parties on behalf of Customer.
(c) Metal finishing over anything other than raw, new metal may cause problems with the final finish. Specifically, previous organic coatings, hot rolled steel, preplating, corrosion, pickling, stripping, polishing compounds, or other, can cause problems with subsequent coatings. Pre-production samples are recommended but even successful samples do not insure perfect results in production. ELI will not bear responsibility for these problems.
(d) In the event that results of metal finishing operations are unsatisfactory due to metal imperfections, changes in grade or composition of materials, manufacturing and/or fabrication imperfections, usages for which the plating or other finishing operation was not reasonably designed, and similar variables over which ELI has no control, Customer will be required to pay the contracted amount for the finishing operation performed.
(e) Upon receipt of notice of defect within ten (10) business days of receipt from Customer or Customer’s consignee, and, unless otherwise specified in writing, any defect that has been reported by Customer as defective in material or workmanship shall be examined by ELI, at ELI’s facilities, with no charge to Customer for service time expended. It shall be the sole responsibility of Customer to return the Product to ELI for inspection. Should Customer fail to return the Product to ELI for inspection, no claim shall be allowed. If examined product is found not to be defective or is not, for some other reason, within the warranty coverage, ELI’s service time expended shall be charged to Customer. If product is found to be defective due to ELI’s work, ELI’s obligation shall be limited to providing remedial service to repair the defect or, upon ELI’s sole option, to refund the amount of the purchase price paid for the product to the extent that the product is damaged or defective.
(f) Product returned to ELI under claim of defect must not be altered structurally or chemically after it was processed by ELI. Processing or assembly of any such product by Customer or its consignee, or any other party, shall constitute a waiver of this warranty and any liability by ELI.
(g) ELI hereby disclaims any warranty under this Agreement if the product is subject to abuse, misuse, negligence accident or any other damage, not caused by ELI, or if Customer fails to perform any of its duties under this Agreement.
(h) ELI reserves the right, at our option, either to reject work or to make an extra charge for finishing any base metal below our agreed standard.
(i) ELI assumes no responsibility for defective plating or other finish on materials or merchandise previously plated or finished by others.
(j) Localities may have varying regulations governing sales, construction, installation, and/or use of products for certain purposes. ELI does not guarantee compliance with such regulations and is not responsible for how the product is used. Before placing and order with ELI, it is the sole responsibility of Customer to review the product application, and any applicable statute, ordinance or other regulation which may govern the use of the product. It shall be the sole responsibility of Customer to inform ELI, in writing, of any such need for compliance. ELI shall not be liable for any claim based upon the failure of Customer to comply with this Paragraph.
(k) No specification with respect to any part of this Agreement shall constitute a warranty, express or implied, against any claims for infringement of patents, copyrights or trademarks. ELI shall not be responsible to Customer, or any other person or entity, for or on account of any such claim or liability. Should any party make a claim against ELI under this paragraph, Customer hereby agrees to indemnify ELI for any damages, including attorneys’ fees and expenses, incurred by ELI for defending such claim.
(l) ELI makes no warranties or representations, express or implied, as to workmanship, performance, quality, durability, fitness for purpose or merchantability for any of the articles we process except as otherwise stated herein. This disclaimer is for all liability including, but not limited to, consequential, incidental and special damages. The only warranties applying to such articles are those which are written and are specifically provided by us. The warranty contained herein is the only warranty applicable to this Agreement.
(m) ELI assumes no liability in the case of counterfeit parts supplied by Customer. All liability and responsibility of ensuring the legitimate sourcing of Customer material lies with the Customer.
15. Waiver. Except as may be expressly provided in a writing signed by the parties to this Agreement, the failure or delay of either party to this Agreement to insist in any instance on strict performance of any provision of this Agreement shall not be construed as a waiver of that provision or the relinquishment of any rights under that provision in the future, but the provision shall continue and remain in full force and effect.
16. Liquidated Damages. It is understood and agreed that ELI’s liability, whether in contract, tort, or any other legal theory, under any warranty, in negligence or otherwise, shall not exceed the return of the amount of the purchase price paid by Customer and under no circumstances shall ELI be liable for special, indirect or consequential damages.
17. Indemnification. Customer agrees that ELI shall not be held liable for, and hereby agrees to indemnify ELI and hold ELI harmless for (1) loss of use resulting from pre-existing damage to Customer’s property while in ELI’s possession, custody or control, (2) demands, claims suits losses, damages, costs and expenses, including attorneys’ fees, arising out of bodily injury to any person or damage to any property caused by or resulting from the sole negligence of Customer or (3) loss resulting from damage to Product due to ELI’s application process. Customer states and warrants that it has sufficiently investigated and approved ELI’s application processes and applications and assumes full responsibility for any alteration or damage to Customer’s product during ELI’s application process. ELI shall reimburse Customer only for damage to Customer’s product due to ELI’s negligence.
18. Severability. If any provision of this Agreement shall be deemed unenforceable or invalid by operation of law, the remaining parts of this Agreement shall remain in full force and effect.
19. Attorneys’ Fees. If any action at law or in equity is commenced by either party to enforce or interpret the terms of this Agreement, the party finally prevailing in such proceeding or action (after appeal, if any) shall be entitled to recover from the unsuccessful party reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which the prevailing party may be entitled.
20. Governing Law; Forum Selection. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES). EACH PARTY HERETO IRREVOCABLY AGREES THAT ANY AND ALL ACTIONS OR PROCEEDINGS BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY IN ANY WAY, MANNER OR RESPECT ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT SHALL BE ADJUDICATED IN THE COURTS LOCATED IN PINELLAS COUNTY IN THE STATE OF FLORIDA.
21. Uniform Commercial Code Applies. This agreement shall be governed by, and construed in accordance with the Uniform Commercial Code of the State of Florida (Florida Title XXXIX et. seq.).
22. Integration. Customer has thoroughly examined and become familiar with the terms of this Agreement. Customer’s acceptance of this Agreement or Customer’s delivery of any parts to ELI or the acceptance of any finished parts by Customer shall constitute agreement by Customer to all of this Agreement’s specifications, terms and conditions. Acceptance of the terms contained herein is expressly conditional to the formation of a contract between ELI and Customer. Any other paperwork on Customer’s own form(s) containing statements, clauses or conditions modifying, adding to, repugnant to, or inconsistent with the terms in this Agreement are not accepted and do not constitute part of the Agreement between the parties unless expressly agreed to in writing by ELI and Customer. ELI’s failure to object to provisions contained in any communication from Customer shall not be deemed an acceptance of those provisions or as a waiver of the provisions of this Agreement. None of ELI’s representatives have authority orally to modify, rescind, or revise any of these terms, and these terms constitute the entire agreement of the parties with respect to the subject matter of this Agreement. Any waiver or revision of the terms of this Agreement to be effective must be in writing and signed by ELI and Customer.