Customer Terms & Conditions
1. ACCEPTANCE: THE TERMS AND CONDITIONS SET FORTH ON OUR QUOTES AND AUTHORIZATIONS TO PURCHASE, AND BELOW CONSTITUTE ALL OF THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BLUE CHIP ENGINEERED PRODUCTS, INC. (“SELLER”) AND BUYER. ALL REPRESENTATIONS, PROMISES, WARRANTIES OR STATEMENTS BY ANY AGENT OR EMPLOYEE OF SELLER THAT DIFFER IN ANY WAY FROM THE TERMS AND CONDITIONS HEREOF SHALL HAVE NO EFFECT. Buyer accepts the terms hereof by accepting our quote, confirming our Authorization to Purchase, commencing performance, accepting delivery of goods from Seller or by any other means manifesting assent to be bound. Any additional contradictory or different terms contained in any initial or subsequent order or communication from Buyer pertaining to the goods described on the front side hereof (the “Goods”) are hereby objected to and shall be of no effect. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any terms used in this Agreement. Acceptance or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity for objection. All orders are subject to the approval by Seller at aits offices in Erlanger, Kentucky. No waiver or alteration of terms herein shall be binding unless in writing, signed by an executive officer of Seller.
2. DELIVERY DATE: All estimates of delivery time are approximate, and failure to effect shipment of an accepted order by such estimated delivery date will not be considered sufficient cause for cancellation without prior agreement confirmed in writing by our authorized agent.
3. TRANSPORTATION AND DELIVERY: Unless otherwise specifically provided on the front side hereof, the price of any Goods sold is F.O.B. Seller’s plant. Title to any Goods sold and the risk of loss of such Goods passes to Buyer upon delivery by Seller to the carrier, and any claims or losses or damage in transit shall be filed by Buyer directly with the carrier. Seller reserves the right to ship goods via the most economical routing; if shipped otherwise upon the Buyer’s request, Buyer shall pay the difference in the rate of transportation.
4. CANCELLATION OR SUSPENSION OF ORDERS: Cancellation or suspension of orders will be accepted by Seller only upon terms that will indemnify Seller for liabilities and expenses incurred and for commitments made by Seller and which will provide compensation for Seller’s lost profit on work in process and for the contract value of Goods completed and ready for shipment. Postponement of deliveries at Buyer’s request, if for a period of more than thirty (30) days, will not be made without Seller’s approval first being obtained. This provision shall not preclude Seller from recovering all damages and costs of whatever nature permitted under the Uniform Commercial Code.
5. TAXES: Unless otherwise specifically provided for on the front side hereof the price for the Goods purchased is net of sales, use, excise or similar taxes, whether federal, state, or local. The amount of any such taxes applicable to the Goods shall be paid by Buyer unless Buyer provides Seller with a valid exemption certificate acceptable to Seller and the appropriate taxing authority. All orders are subject to an increase in price in the event any federal or state legislation, including tax legislation, comes into effect and increase the cost of production of any Goods purchased. Such price increase shall not be greater than the increased cost of production.
6. PAYMENT: Payment for Goods purchased hereunder shall be net thirty (30) days after the date of invoice. The unpaid balance after thirty (30) days shall be subject to a late charge of 1.5% per month or portion thereof or, if lower, the highest rate allowed by applicable law. In the event of installment deliveries, Seller shall be relieved from making any further shipments if Buyer fails to make payment for any installment when due. If Buyer defaults in any payment, Seller may ship subsequent deliveries with sight draft attached to the Bill of Lading. Seller specifically does not waive any lien rights, but if so requested, partial waivers will be delivered in return for partial payments and final waiver will be delivered in return for final payment. All payments shall be made in U.S. currency unless otherwise agreed to by Seller in writing.
7. COST OF COLLECTION: If Buyer defaults with respect to any payment described here and above, it shall pay Seller for all costs and expenses, including legal expenses and attorney’s fees, incurred by Seller in exercising any of its rights or remedies.
8. LIEN: Buyer grants Seller as security for all debts, liabilities and obligations owing by Buyer to Seller, whether under this Agreement or otherwise, a lien and security interest in Buyer’s rights, title and interest in the Goods and the proceeds thereof, including without limitation any accounts receivable from the sale of Goods. Buyer authorizes Seller to file all UCC financing statements and other documents Seller may deem necessary to perfect the security interest granted herein.
9. GENERAL CONDITIONS:
(a) Seller will not accept the return of any Goods without its prior written consent or unless a Returned Goods Authorization (RGA) Number is issued by Seller. Seller shall not be required to accept the return of any sterile, outdated or discontinued goods. All returned goods are subject to a minimum 30% restocking fee.
(b) In any case in which Seller is specifically obligated to pay freight on shipments, any increase in freight rates paid by Seller arising subsequent to the acceptance by Seller of the order of the products, may at Seller’s option, be added to the purchase price of the Goods and in that event shall be paid by the Buyer.
(c) No delay or omission by Seller in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy and shall not constitute a bar to or a waiver of any such rights or remedy on any future occasion.
(d) If any provision of the Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Agreement.
(e) Buyer shall not assign its rights or obligations under this Agreement without Seller’s prior written consent.
10. LIMITED WARRANTY/LIMITATION OF LIABILITY: Seller warrants only that Goods delivered will be free from defects in workmanship and material, and will conform to any approved sample or specifications. The foregoing warranties shall expire 90 days from the date of delivery of the Goods to Buyer.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER. SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY LOSS, CLAIM, DEMAND, LIABILITY, COST, DAMAGE OR EXPENSE OF ANY KIND CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY THE GOODS OR BY ANY INADEQUACIES THEREOF, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF BUSINESS, PROFITS, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER DAMAGE OF ANY NATURE, WHETHER ARISING IN TORT, CONTRACT, WARRANTY OR STRICT LIABILITY.
Seller has the option of either replacing defective Goods or crediting Buyer for the purchase price for such Goods. In no event shall Seller be responsible for incidental, consequential, special, or punitive damages from any defect in the Goods or breach of warranty including, but not limited to, Buyer’s, user’s or any other person’s loss of material or profits, increased expense of operation, downtime or reconstruction of work, or damages arising out of any products liability claim and, in no event shall Seller’s liability (whether under the theories of breach of contract or warranty, negligence, or strict liability) exceed the contract price paid for the Goods delivered by Seller. These remedies are the exclusive and sole remedies for any breach of warranty. Buyer shall give written notice to Seller of any claim for breach of warranty or of nonconforming Goods within thirty (30) days after receipt of the Goods if the breach or defect in the goods was or should have been discovered upon inspection of the Goods; and Buyer shall give written notice to Seller of any other claim for breach of warranty within ninety (90) days after it discovers or should have discovered such breach. All claims for clerical error or shortage must be made within ten (10) days of delivery of the goods to Buyer. Any remedy of the Buyer against Seller shall be barred unless notice is given in accordance with the foregoing provisions. All actions by the Buyer for breach of warranty against Seller shall be brought within one year after the cause of action thereon accrues. Seller shall be given a reasonable and prompt opportunity to investigate any Goods concerning which a claim is made.
11. INDEMNIFICATION: If the Goods are manufactured by Seller in accordance with Buyer’s instructions or specifications, Buyer shall indemnify, defend and hold Seller, its parents, subsidiaries and affiliates and its and their directors, officers, agents and representatives harmless from and against any claim, lien, loss, cost, damage, expense or judgment (including attorney’s fees) due to any alleged or actual infringement or violation of any patent (domestic or foreign), copyright or other intellectual property right of any person or entity arising out of the manufacture, sale, use, installation or resale of the Goods
12. MODIFICATION AND WAIVER: The terms set forth herein constitute the entire agreement between Buyer and Seller and there are no understandings or representations of any kind except as herein expressly set forth. Any alterations or modifications thereof shall be by mutual agreement of the parties and shall not be binding on Seller or Buyer unless made in writing and agreed to by a duly authorized official of Seller and Buyer. No claim or right arising out of breach of this contract can be discharged in whole or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is in writing.
13. FORCE MAJEURE: Seller shall not be liable for any loss, damage, delay, changes in shipment, schedules or failure to deliver, whether arising in tort, contract or warranty, caused by accident, fires, strikes, riots, civil commotion, terrorism, embargoes, failure of carriers, inability to obtain transportation facilities, foreign or local governmental requirements, acts of God, prior orders from customers or limitations on Seller’s or its suppliers’ production or any other causes of contingency beyond Seller’s control. In such event, Seller shall not be liable for any consequential, incidental or special damages to Buyer. Seller may, at its option and without liability, cancel all or any portion of this Agreement and/or extend any date upon which performance hereunder is due.
14. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the European Unions, and the jurisdictions in which Seller and Buyer are established or from which items may be supplied, will apply to its receipt and use of goods and services. In no event shall Buyer use, transfer, release, import, export or re-export goods or products in violation of such applicable laws, regulations, orders or requirements.
15. APPLICABLE LAW AND FORUM: All matters arising from or relating to the sale of the goods subject to this order shall be governed by the laws of the Commonwealth of Kentucky, without reference to the principles of conflict of laws. Any suit, action or proceeding arising out of the sale hereof shall be instituted by either party in the courts of the Commonwealth of Kentucky, Boone County, or United States District Court for the Eastern District of Kentucky and Seller and Buyer irrevocably and unconditionally submit and consent to the jurisdiction and venue of any such court for such purpose, and each waives any obligation it may have as to the venue of any dispute arising out of or in connection with this transaction.