1. General Information and Scope
1.1 These Terms and Conditions will apply to all sales of products currently ordered by the customer from , Inc. (“SFS”) and to all future sales of products by SFS to the customer. The acceptance by SFS of the customer’s purchase order is expressly limited to the terms and conditions contained herein and any provisions of the customer’s purchase order and any and all other terms and conditions proposed by the customer in any fashion are objected to and rejected by SFS, unless they had been accepted in writing by an authorized representative of SFS. Acceptance of the products ordered from SFS shall be deemed to be an acceptance of these Terms and Conditions.
2.1 All prices are subject to adjustment at time of delivery for cost changes incurred by Seller.
Dimensional and text data as well as illustrations appearing in SFS documents of any kind are not bind-ing. When customer specific products are being manufactured, a drawing produced by SFS is binding if available.
4. Legal Specifications and Government Regulations
4.1 Customers must inform SFS about legal specifications and government regulations affecting the delivery, equipment or use of the goods which are the subject of enquiries or orders. This obligation to provide information includes in particular provisions regarding the nature and use of the goods to be supplied, safety regulations, health regulations, ordinances and specifications regarding prohibited substances, import regulations, etc.
4.2 If this obligation to provide information is neglected, SFS denies any liability. In such cases, the cus-tomer undertakes to indemnify SFS in full for all claims arising there from.
5. Manufacture to Customer's Specification
5.1 SFS warrants that products manufactured to the customer’s specifications shall conform to the specifications and drawings supplied by the customer and accepted by SFS. SFS shall have no responsibility for, or liability arising out of, the accuracy or completeness of the drawings, specifications, designs, models, samples and data supplied by the customer.
5.2 The customer warrants that all drawings, specifications, designs, models, samples and data supplied to SFS do not and will not infringe any valid patent, copyright, trademark, trade secret or other intellectual property interest owned or controlled by any other person and the customer shall indemnify, defend and hold harmless SFS and its officers, employees, agents, representatives, successors and assigns from any and all losses, liabilities, damages, penalties, claims, demands, actions, suits, costs and expenses (including, without limitation, reasonable attorney and other professional fees and defense costs) arising out of any claim or suit at law or equity for actual or alleged infringement of any such intellectual property interest..
5.3 Unless otherwise agreed, customised products are subject to delivery of up to 10% more or less than the quantity ordered.
5.4 SFS reserves the right to terminate orders for customized products if production problems for such products which were not reasonably foreseeable cannot be remedied with commercially reasonable efforts during the manufacturing process and, in such event, neither party shall have any liability or responsibility to the other with respect to such terminated orders.
6. Material Provided
6.1 If the customer provides products for further treatment, 10% more of these than the quantity ordered must be supplied, unless otherwise agreed.
6.2 Incoming goods inspection at SFS confines itself to identifying the goods, reviewing the delivery and inspection documents, ascertaining shipping damage which is clearly apparent externally and checking the quantity on the basis of estimates. All costs arising from quality defects, deviations in quantity or delivery which is late or to the wrong address will be charged to the customer.
7. Delivery times / -dates and Supply Commitments
7.1 Delivery times / delivery dates are only binding on SFS if they are explicitly confirmed in writing. Claims for compensation on grounds of late delivery are precluded unless SFS deliberately or negligently agrees to unrealistic delivery periods and then deliberately or negligently fails to comply with them. In this case liability is limited to the immediate damage due to delay. No compensation will be paid for lost profits, losses due to business interruption and costs or expenses related to covering purchases.
7.2 SFS shall not be responsible or liable to the customer for any failure to perform its obligations to the customer as a result of any strikes, work stoppages or labor unrest, earthquakes, fires, floods, storms or other natural disasters, shortages of materials or supplies or availability of goods or inventory, acts of war, terrorism, crimes, unrest or violence, shipping or other transportation delays or restraints, acts, laws, rules or regulations of any governmental or legal authority, or any other cause or circumstance beyond the reasonable control of SFS.
7.3 Blanket purchase orders are only binding on SFS if they have been specifically agreed upon. Unless otherwise agreed, SFS is at liberty in such cases to manufacture the entire quantity of the blanket pur-chase order on the purchaser's responsibility. In this case the customer owes the total value of the order even if it does not release deliveries. Delivery must be taken of the entire order and payment made no later than twelve (12) months after the first delivery date agreed.
SFS will choose appropriate packaging for product deliveries and the customer will be charged for packaging at SFS’s cost, with the exception of EURO pallets, boxes and returnable containers, which may be exchanged.
9.1 Unless otherwise agree by SFS in writing, products will be shipped and delivered Ex Works (Incoterms 2000) [FOB SFS’s facility]. In the case of deliveries abroad, products shall be shipped duty and tax un-paid.
9.2 Products may be returned to SFS only with the prior written consent of SFS.
10. Terms and Conditions of Payment
10.1 Except as otherwise specified in SFS’s invoice to the customer, the terms of payment for each order of the customer shall be net cash, (U.S. Dollars) thirty (30) days from date of invoice. All payments not received within thirty (30) days of invoice date shall thereafter bear interest at the rate of 1% per month. In the absence of any agreement to the contrary, US Dollars are deemed to be the contract currency.
10.2 If the customer defaults on payment or circumstances indicating a deterioration in the customer's financial position become known, SFS is entitled to withdraw from the contract and to discontinue agreed deliveries. In this case all SFS accounts receivable are immediately due for payment.
10.3 A customary rate of default interest is charged in the event of delayed payment.
10.4 SFS reserves the right to request payment in advance, letters of credit or bank guarantees. If this requirement is not met, SFS can withdraw from the contract without any liability for damages. The custom-er is not entitled to retain payment or to offset it against counter-claims.
11. Retention of Title and Risk of Loss
11.1 Risk of loss or damage in transit shall be borne entirely by Buyer at all times after the products are delivered to the carrier for shipment. However, title to the products and the right to stop delivery in transit shall remain with Seller until payment in full has been received by Seller.
11.2 If entry in a special register is required under applicable law in order to substantiate the retention of title, SFS is authorised to make this registration. The customer undertakes to take all the necessary action for this purpose and submit all the necessary declarations promptly upon first request by SFS.
11.3 Goods for which full payment has not been received may be neither installed, processed, sold, pledged nor encumbered in any other way with third party's rights. This does not apply to installation, processing and sale in the context of the purchaser's ordinary course of business. In this case the cus-tomer thus assigns to SFS its claims in respect of purchase price or contract for work and services.
12. Tools / Development Services
12.1 Unless otherwise agree in writing by SFS, title to all tools, dies and production equipment shall be and remain exclusively in SFS, whether or not the customer has reimbursed SFS in whole or in part for the cost of such tools, dies and production equipment.
13. Notification of Defects
13.1 Products received by the customer which do not conform to the customer’s order may be returned to SFS within 30 days of shipment for replacement or reimbursement or credit in the amount of their pur-chase price. Products for which a warranty claim is validly made under Section 13.2 hereof shall be re-turned as specified in Section 13.2.
13.2 SFS warrants that the products sold to the customer will be free from defects in workmanship and materials from their date of shipment for a period of one (1) year thereafter. The sole liability and obliga-tion of SFS to the customer in the event of a breach of the foregoing warranty shall be to replace the defective product or products or, in the discretion of SFS, to provide a credit in the amount of the purchase price thereof. All claims for breach of the foregoing warranty shall be made by the customer in writing within twenty (20) days after receipt of shipment, in the case of defects discoverable by inspection, and within thirty (30) days after discovery of the defect in all other cases, but in no event later than one (1) year after the date of shipment. The claim shall be accompanied by the return of the defective product or products to SFS, when possible. The customer shall permit access to the products at its facilities for inspection by representatives of SFS. Any claims not made in compliance herewith shall be deemed to have been waived.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, SFS NEITHER MAKES, NOR SHALL HAVE ANY LIA-BILITY UNDER, ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR AN INTENDED USE OR PURPOSE. NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE BY ANY REPRESENTATIVE, AGENT OR EMPLOYEE OF SFS WHICH IS NOT SPECIFICALLY SET FORTH HEREIN SHALL BE BINDING UPON SFS.
13.3 IN NO EVENT SHALL SFS BE LIABLE TO BUYER WITH RESPECT TO ANY SALES OF PRODUCTS, WHETHER UNDER THEORIES OF CONTRACT, TORT, INDEMNITY, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, FOR ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF SFS HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13.4 The goods which are the subject of the complaint must in any case be properly stored until SFS gives its consent for their return. Any consequential costs arising from unconfirmed return deliveries will be charged in full to the purchaser.
13.5 In the event of justified complaints or incorrect deliveries the purchaser is only entitled to redelivery by SFS in conformity with the contract within a reasonable time. The purchaser has no claim to compen-sation or rescission of the contract.
13.6 If action by the purchaser to avert risks (e.g. product recalls) is necessary due to defective goods supplied by SFS, this action must be coordinated with SFS before it is implemented. Otherwise the pur-chaser has no entitlement to claim for damages against SFS.
14. Cancellation of Orders
14.1 Orders may not be cancelled without the written consent of SFS. In the event of permitted order cancellations, the customer shall be responsible for and shall reimburse SFS for all of its costs incurred with respect to work performed on the cancelled order, including, without limitation, the cost of raw materials, semi-finished and finished goods, tools and production equipment specific to the order and uncovered[?] development costs.
15. Reprints / Duplication
Reprints and any kind of duplication - even of extracts - of, but not restricted to, brochures, SFS stan-dards, etc., are allowed only with written permission from SFS.
All drawings, sketches, explanations and samples from SFS are confidential information which has to be kept secret and may not be made accessible to unauthorised third parties.
17. Place of Performance
Unless otherwise agreed, the place of performance for payments is Spring Street & Van Reed Road, Wy-omissing, PA 19610 USA.
18. Jurisdiction / Applicable Law
These terms and conditions and the agreement between SFS and the customer shall in all respects be governed by, and the parties’ respective rights and obligations enforced under, the laws of the Common-wealth of Pennsylvania, without reference to its choice of law provisions. All actions, suits or proceedings arising out of or based upon these Terms and Conditions and the purchase of products by the customer from SFS shall be brought and maintained exclusively in the Court of Common Pleas of Berks County, Pennsylvania and the federal district court in the Eastern District of Pennsylvania.