Universal Tool & Engineering Terms and Conditions
The Buyer and Universal Tool & Engineering, Inc. (“UTE”) agree that any contract in which Buyer purchases items or services from UTE are governed exclusively by these Terms & Conditions, which are incorporated in the agreement between the parties by reference. The Buyer and UTE reject any other terms and conditions that alter, modify, or delete these terms and conditions.
1. PAYMENT: Unless otherwise stated in the contract or agreed to by the parties in writing, payments shall be made by Buyer of 50% of the contract price within 10 days of customers purchase order, 40% of the contract price prior to shipment to customer and 10% net 30 days from date of shipment. Amounts not timely paid shall bear interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is greater, for each month or portion thereof that the Buyer is late in making payment.
2. DISCREPANCIES IN DELIVERY: Buyer waives any claim for discrepancies in delivery in any shipment unless Buyer gives UTE notice in writing within 30 days after Buyer’s receipt of the shipment.
3. DELIVERY AND DELIVERY DATES: Unless otherwise provided in the contract, delivery by UTE to Buyer shall be made F.O.B. UTE’s plant in Johnson City, Tennessee. Regardless of the method of delivery, risk of loss shall pass to Buyer upon UTE’s delivery to a carrier. Any delivery dates provided are approximations only. Buyer understands and agrees that UTE cannot guarantee delivery dates. UTE shall have no liability to Buyer for any delays in delivery.
4. LIMITED ONE YEAR EXPRESS WARRANTY; DISCLAIMER OF OTHER WARRANTIES: UTE warrants that its products shall conform to any specifications expressly set forth in the contract and will be free of defects in material and workmanship for a period of one (1) year after delivery or service or 2,000 hours of machine running time after delivery or service, whichever occurs first. UTE DISCLAIMS ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS, IMPLIED, OR ARISING BY OPERATION OF LAW, TRADE USAGE, OR COURSE OF DEALING. Any promotional materials, technical brochures, designs, descriptions of products and their use, or other documents or information provided by UTE, and any statements by UTE’s employees, salespersons, and representatives are for general information only and shall not be considered warranties or part of the contract. BUYER ACKNOWLEDGES THAT IT IS SOPHISTICATED IN THE MANUFACTURING BUSINESS USING BENDING MACHINES AND THAT IT HAS NOT RELIED UPON INFORMATION FROM UTE OR ITS EMPLOYEES, SALESPERSONS, OR REPRESENTATIVES BUT HAS SATISFIED ITSELF INDEPENDENTLY AS TO THE PRODUCT’S MERCHANTABILITY AND FITNESS FOR BUYER’S PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, THERE ARE NO WARRANTIES WHATSOEVER ON ITEMS BUILT OR ACQUIRED WHOLLY OR PARTIALLY TO BUYER’S DESIGNS OR SPECIFICATIONS.
5. EXCLUSIVE REMEDY: If any product sold or serviced by UTE fails to conform to its limited warranty within one (1) year after delivery or service or 2,000 hours of machine running time after delivery or service, whichever occurs first, and upon prompt notice by Buyer to UTE and UTE’s determination that the product has been stored, installed, used, and maintained in accordance with UTE’s recommendations and standard industry practice, UTE shall remedy such nonconformity at UTE’s option and expense either by repairing and returning the repaired item, delivering a replacement item, or accepting return of the item and providing a depreciated refund of the purchase price by credit or payment. THIS REMEDY HAS BEEN TAKEN INTO ACCOUNT IN ESTABLISHING THE PRICE UNDER THE CONTRACT AND IS A MUTUALLY ACCEPTABLE ALLOCATION OF RISK BETWEEN BUYER AND UTE. THIS SECTION PROVIDES BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST UTE FOR BREACH OF WARRANTY, BREACH OF CONTRACT, OR FOR OTHER CLAIMS REGARDING THE PRODUCTS AND SERVICES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE.
6. LIMITATIONS OF LIABILITY: BUYER AGREES THAT UTE, ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, NOMINEES, OR ASSIGNS SHALL NOT BE LIABLE FOR PUNITIVE DAMAGES, OR FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, OR BUYER’S REMOVAL, RETURN/DISPOSAL, AND REINSTALLATION COSTS). THIS LIMITATION HAS BEEN TAKEN INTO ACCOUNT IN ESTABLISHING THE PRICE UNDER THIS CONTRACT, AND IS A MUTUALLY ACCEPTABLE ALLOCATION OF RISK BETWEEN BUYER AND UTE.
7. CHANGES, RESCHEDULES, AND CANCELLATIONS: Buyer may request to modify the designs or specifications for the items from UTE as well as the quantities and delivery dates thereof or may request to cancel all or part of this order. But, no such requested modification or cancellation shall become part of the Contract between Buyer and UTE unless accepted by UTE in a written amendment to the Contract. Acceptance of any such requested modification or cancellation shall be at UTE’s discretion and shall be upon such terms and conditions as UTE may require, including paying UTE for expenses incurred prior to modification or cancellation.
8. SPECIAL TOOLING: A tooling charge may be imposed for any special tooling, including without limitation, dies, fixtures, molds, and patterns, acquired to manufacture items sold by UTE to Buyer. Such special tooling shall be and remain UTE’s property notwithstanding payment of any charges by Buyer to UTE for such tooling. In no event will Buyer acquire any interest in any tooling belonging to UTE that is utilized in the manufacture of products even if such tooling has been specially converted or adapted for such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, UTE shall have the right to use, alter, discard or otherwise dispose of any special tooling or other property in its sole discretion at any time.
9. BUYER’S PROPERTY: Any designs, tools, patterns, materials, drawings, confidential information, equipment, or any other property delivered to UTE by Buyer shall be considered obsolete and abandoned by Buyer and may be destroyed by UTE after one (1) year from delivery. UTE shall not be responsible for any loss or damage to such property while it is in UTE’s possession or control.
10. TRAINING: Any training to be provided by UTE under this Contract shall be provided within sixty (60) days of delivery of the product to be trained on. If Buyer has not scheduled and the training has not been performed within sixty (60) days of delivery, then that portion of the Contract requiring UTE to provide training shall be deemed null and void. For all training, Buyer shall provide tooling, in good working order, and sufficient material. Buyer’s failure to provide the necessary tooling, material or employee time to properly train its employees on the product shall void UTE’s Limited Warranty and Buyer agrees to compensate UTE for any costs incurred due to Buyer’s failure to perform under this Section.
11. TAXES: Unless otherwise indicated, all prices and charges are exclusive of excise, sales, use, property, or like taxes that may be impose by any taxing authority upon the manufacture, sale, or delivery of the items sold to Buyer. If any such taxes must be paid by UTE or if UTE is liable for the collection of such taxes, the amount thereof shall be in addition to the agreed upon contract price. Buyer agrees to pay all such taxes or to reimburse UTE therefore upon receipt of its invoice. If Buyer claims exemption from any sales, use, or other tax imposed by any taxing authority, Buyer shall save UTE harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable.
12. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS: UTE shall have no liability for claims of infringement of intellectual property rights based on information, design, or add-ons provided by Buyer. Buyer agrees to indemnify UTE from and against all liability or loss that UTE may sustain as a result of claims, demands, costs (including attorney’s fees), or judgments arising under this Section and shall reimburse UTE all costs and expenses, including attorney’s fees, incurred under this Section.
13. FORCE MAJEURE: UTE does not assume the risk of and shall not be liable for delay or failure to perform any of UTE’s obligations by reason of circumstances beyond the reasonable control of UTE; which include without limitation, accidents; acts of God; strikes or labor disputes; acts, laws, rules, or regulations of any government or government agency; fires, floods, delays or failure in delivery by carriers or suppliers; shortages of materials; and any other cause beyond UTE’s control.
14. CONTRACT: UTE’s quotation, Buyer’s purchase order, if any, and UTE’s acknowledgement of acceptance of purchase order along with these Terms and Conditions, and any other terms or conditions expressly accepted by the parties, in writing, shall constitute the Contract between the parties concerning the dealings between UTE and Buyer. THESE TERMS AND CONDITIONS AND DELIVERY DATES CANNOT BE MODIFIED OR AMENDED EXCEPT IN A WRITING SIGNED BY THE PARTIES. THERE ARE NO OTHER REPRESENTATIONS OR AGREEMENTS BETWEEN THE PARTIES.
15. GOVERNING LAW: Any contract between Buyer and UTE shall be governed in all respects by the law of the State of Tennessee, with venue lying exclusively in Washington County, Tennessee.
16. LIMITATION OF ACTIONS: Any action arising out of the sale of products or services pursuant to this contract must be brought by either party within two years of the accrual of a cause of action.
17. NON-WAIVER: Failure on the part of the UTE to enforce any of the rights derived from this contract shall never be construed as a waiver of any of its rights. Any waiver or modification of any contract between Buyer and UTE, except as provided in Paragraph 14 above, shall only be effective if it is in writing and signed by the party to be charged. If any part of these Terms and Conditions is found invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of these Terms and Conditions shall be interpreted so as to reasonably affect the intention of the parties.
18. INCORPORATION: UTE and Buyer agree and acknowledge that these Terms and Conditions are and shall remain an integral part of the contract between the parties and shall control the manner in which they do business. Buyer agrees that partial performance by UTE binds Buyer to these Terms and Conditions.
19. FORMATION OF CONTRACT: THERE SHALL NOT BE A BINDING CONTRACT BETWEEN THE PARTIES UNTIL UTE ISSUES AN ACKNOWLEDGEMENT OF PURCHASE ORDER.