The following terms and conditions apply to Gaum, Inc.’s proposal. No other additional terms or conditions will be accepted unless the proposal submitted by Gaum, Inc. explicitly so states.
TERMS Payment shall be due in net cash at seller’s plant within 30 days after rendering of seller’s invoice to buyer. A service charge of 1 1/2% per month (18% per year) will be added to the unpaid balance of the purchase price after 30 days from the date of the invoice. Seller’s terms supersede those of buyer except where mutually agreed upon in writing.
PRICES Prices in seller’s quotation will be firm for 30 days. Prices quoted are F.O.B. shipping point, seller’s plant, Robbinsville, N.J., and exclude all applicable state, federal, or other governmental taxes, which shall be paid by the buyer in addition to the quoted purchase price.
SPECIFICATIONS All specifications, other than those outlined by the buyer at the time of quoting, will be according to the practice of Gaum, Inc. Components which are not manufactured by Gaum, Inc. and which are to be incorporated In any equipment supplied will be the make available in stock, although, when mutually agreed upon, will be the make specified by the buyer provided such components perform to the specifications applicable for use on products covered by this quotation. Use of any such components may require necessary price adjustments. Any change in design, manufacture, or assembly by buyer after time of order and acknowledgment will
be done at buyer’s expense, on a time and material basis.
This proposal describes the equipment proposed and takes precedence over specifications which may appear in published catalog material or any verbal representations concerning the product. Production capacities are estimates and may vary with purchaser’s material and personnel.
EXTRAS AND AMENDMENTS Verbal amendments made to purchase orders already placed should be confirmed in writing, but as is often required to prevent delivery delays, the amendment is assumed to be firm and the buyer is subject to any extra charges required, on a time-and-material basis.
DELIVERY DATE Delivery estimates date from receipt of both purchase order and complete manufacturing information. If buyer falls to supply needed information or piece parts within tolerance for tryout, all work ceases until such information is received and delivery dates will be revised accordingly. Delivery dates are based upon seller’s best judgment, and seller will procure Its best efforts to fill orders within the agreed time. HOWEVER, SELLER SHALL NOT BE RESPONSIBLE, IN ANY WAY, FOR LATE DELIVERIES FOR WHATEVER CAUSE.
INSTALLATION AND SERVICE All costs incident to the assembly, erection, installation, or setup of the machinery in buyer’s plant or outside seller’s plant shall be borne by the buyer, unless otherwise specified. The buyer shall pay for assembly, erection, installation, or setup service at the standard time and materials rate charged by Gaum, Inc. at the time the service is performed or materials provided.
When the quotation specifies field service personnel to supervise assembly, erection, installation, or setup of equipment and Instruction in its use in buyer’s plant, this service will be available for a period not to exceed 3 days, to assure proper functioning of the equipment as specified In the quotation. Buyer shall provide a qualified technician to learn adjustments and shall take immediate responsibility for operation of the machinery and quality of the work.
All field service furnished, including but not limited to all time on the job AND in transit, round-trip transportation from seller’s plant, and living expenses of service personnel, shall be paid for by the buyer at the seller’s service rate in effect on the date of performance.
If performance of such service is unreasonably delayed by buyer for any reason, including but not limited to necessity of waiting for
piece parts or for buyer’s technical personnel, buyer shall nevertheless pay for time, transportation, and expenses of service personnel at
normal service rates during the period of delay. When assembly, erection, installation, or setup service is not specified In the quotation or
proposal, then any tooled components or units requiring service, which it is the responsibility of seller to provide, shall be returned to
seller’s plant at buyer’s expense for such service.
ACCEPTANCE OF SPECIAL MACHINES Special machines are accepted by buyer on seller’s floor (1) after satisfactory performance is demonstrated according to the quotation given to buyer or (2) if demonstration is waived then upon tender of delivery by seller to carrier or buyer at seller’s plant, or (3) upon receipt of instructions given by buyer to seller to ship the equipment. Such a waiver or instruction shall constitute acceptance at seller’s plant without demonstration.
If further revision, improvements, and/or expediting is necessary, seller can agree to run production for a period of time in seller’s plant on a standard time-and-material basis with cooperation of buyer’s representatives.
PARTS AND CUTTING TOOLS FOR FIXTURE, AND MACHINE TRYOUT When applicable, buyer shall provide an adequate supply of piece parts as specified in the quotation or proposal, at least 3 sets of proper cutting tools, and 1 set of gages for testing. All parts are to be within tolerance given in the quotation. If sufficient piece parts, cutting tools, and gages have not been made available within 30 days after the time they have been required for setup and testing, the purchase price or the balance thereof of such fixture or machine will become immediately due and payable.
Parts, cutting tools, and gages will be provided free of charge to seller, F.O.B. Robbinsville, N.J., at seller’s plant. Seller shall not be charged for parts, cutting tools and gages spoiled or damaged during test and tryout. Upon buyer’s acceptance of equipment, all parts, cutting tools, and gages shall be returned to buyer, F.O.B. Robbinsville, N.J., at seller’s plant. Seller reserves the right to bill buyer on a time-and-material basis for all expenses incurred in obtaining or modifying such tools and gages as supplied by buyer where such tools are proven to be inadequate.
STANDARD COMPONENTS Price and delivery are based on use of standard components based on experience of Gaum, Inc.(seller). Requirements for other brands will be considered. Seller reserves the right to charge an additional or extra price for other brands. If standardization of air, electric, hydraulic, or other purchase parts is requested by buyer, then this must be communicated to seller before seller renders a quotation or proposal.
TITLE Title to equipment sold hereunder shall pass from seller to buyer upon delivery of equipment to carrier by seller or upon delivery of equipment to seller’s vehicle at seller’s plant.
RISK OF LOSS Risk of loss to goods shall pass to buyer upon tender of delivery of equipment by seller to carrier or to seller’s vehicle at seller’s plant. Such carrier or seller’s vehicle shall be deemed to be acting for buyer and as buyer’s agent. Seller reserves the right to ship equipment up to _______________ Ibs. on its vehicles. Larger items shall be shipped via commercial carriers. Buyer is responsible for risk of loss once the item is delivered to the transportation vehicle, even if said vehicle be a vehicle owned or operated by the seller or its employees. Buyer is obligated to cover, secure, and tie down machinery and other items being transported.
CANCELLATION Orders canceled by buyer at any time prior to estimated delivery date are subject to liquidated damages as follows: accrued selling charges for engineering, labor, material, and handling, less such allowances as seller may be in a position to make for any standard components. On standard components and products in stock such as spare parts and other items, the seller reserves the right to charge up to 25% of the purchase price. On tools, dies, fixtures, special machines, and engineering projects, the cancellation charge shall be based on incurred costs plus labor, overhead, and engineering charges plus 10%.
Seller reserves the right to cancel any order placed against this quotation if the equipment, when built, does not function in accordance with the buyer’s specifications. Cancellation by seller shall occasion no liability on the part of seller to buyer.
ACCEPTANCE OF TERMS AND CONDITIONS Acceptance of these terms and conditions is an essential prerequisite to any contract of sale made by the seller. Said terms and conditions are an integral part of seller’s quotations and formal acknowledgment of any orders made by buyer. In either case, and whether or not seller be deemed offeror or offeree, these terms and conditions are the seller’s express condition of making any offer or accepting any offer, and before seller will be bound thereby, buyer must agree to said terms and conditions. Issuance of a formal purchase order and/or acceptance of any equipment manufactured and delivered or tendered for delivery hereunder shall constitute the buyer in its offer or acceptance shall be binding upon the seller if in conflict with, inconsistent with, or in addition to these terms and conditions.
APPLICABLE LAW This contract shall be deemed to have been made in the state of New Jersey and shall be construed and interpreted and rights and liabilities of the parties determined in accordance with the laws of the state of New Jersey. Both parties agree that any controversy arising hereunder shall be resolved in the state of New Jersey and both parties hereby submit and consent to the jurisdiction of the courts of the state of New Jersey.
EFFECT OF INVALIDITY HEADINGS Invalidity in whole or in part of any provision herein shall not affect the validity of any other provision. Paragraph headings are provided for informational purposes only.
GUARANTEE, DISCLAIMER, INDEMNIFICATlON BY BUYER, AND LIMITATION OF REMEDY If seller believes any part of its equipment is defective in material or workmanship while under normal operation or service and while still in use and ownership of the original buyer, then it will be repaired or replaced free of charge during a period of 90 days from the original date of shipment of the equipment from seller’s plant. During the guarantee period, parts found to be defective by seller’s inspection will be replaced free of charge during a period of 90 days from the original date of shipment of the equipment from seller’s plant. During the guarantee period, parts found to be defective by seller’s inspection will be replaced free of charge F.O.B. seller’s plant.
Buyer’s remedy is limited under this contract. Seller’s liability is limited to the repair and replacement of nonconforming goods or parts for 90 days ONLY. THIS IS BUYER’S EXCLUSIVE REMEDY.
STORAGE AND DISPOSAL OF BUYER MATERIALS In the event the buyer has provided any materials to seller to be used in connection with any order, and in the event buyer cancels any order, as permitted herein, or excess materials remain after completion of any order, buyer shall arrange for the pickup of its unused material within 30 days, at its sole cost and expense. If buyer fails to do so, seller may sell or dispose of any such unused material, at seller’s option, and may recover from buyer all costs of storage, sale, or disposal, less any proceeds of sale received.
SELLER’S LIABILITY FOR THE GUARANTEE AS LIMITED HEREIN SPECIFICALLY EXCLUDES ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOST INCOME, AND LOST PROFITS. THIS GUARANTEE DOES NOT APPLY IF REPAIR OR REWORK IS PERFORMED BY ANY PERSON NOT AUTHORIZED BY SELLER OR WITHOUT SELLER’S PRIOR KNOWLEDGE AND CONSENT.
SELLER HAS NO KNOWLEDGE AS TO TRADEMARK OR PATENT RIGHTS WHICH THIRD PARTIES MAY CLAIM IN THE GOODS. CONSEQUENTLY, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE FREEDOM OF SAID GOODS FROM CLAIMS OF INFRINGEMENT BY THIRD PARTIES ARISING FROM TRADEMARK, PATENT, OR OTHER PROPERTY RIGHTS IN SAID GOODS. WHERE BUYER FURNISHES SPECIFICATIONS TO THE SELLER, THEN THE BUYER MUST HOLD THE SELLER HARMLESS AGAINST ANY SUCH CLAIM WHICH ARISES OUT OF COMPLIANCE WITH THE SPECIFICATIONS.
THE FOREGOING GUARANTEE IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WRITTEN OR ORAL WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, INCLUDING A WARRANTY OF MERCHANTABILITY AND A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THE USE OF ANY SAMPLE OR MODEL DURING THE NEGOTIATIONS LEADING TO THIS CONTRACT SERVES MERELY TO INDICATE THE TYPE OF GOODS WHICH WILL BE TENDERED TO THE BUYER. SUCH SAMPLES OR MODELS CREATE NO WARRANTY THAT THE GOODS SHALL CONFORM TO THE SAMPLES OR MODELS.
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SELLER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND BUYER AGREES THAT THE GOODS ARE SOLD AS IS