I. GENERAL PROVISIONS AND CONDITIONS
- A. Nature Of Contract And Names Of Parties. These Terms and Conditions apply to the sale of goods between Aetna Plastics Corp. (“Aetna”) of 9075 Bank Street, Valley View, Ohio and Purchaser and constitute a contract between the parties for such goods. Aetna recognizes that Purchaser may desire to use its own acknowledgement form or Purchase Order to reflect these terms and conditions; however, any provisions in Purchaser’s acknowledgement that modify, conflict with or contradict any of these terms and conditions shall not be binding between the parties. An acceptance of any of the goods covered by these terms and conditions shall constitute an acceptance of them and shall constitute the entire contract between Aetna and Purchaser.
- B. Integrated Agreement. The approval and acceptance of Purchaser’s order is based upon the written requirements provided by Purchaser. The parties agree and understand that no verbal alteration or agreement between Purchaser and any agent of Aetna shall be binding upon Aetna. The parties intend the terms of this agreement to be the final, complete and exclusive express of their agreement.
- C. Cancellation/restocking charges. Aetna reserves the right to begin production of orders immediately unless specifically requested otherwise. Cancellation may involve cancellation charges for engineering and production work performed, expenses incurred, commitments made, and anticipated profits, up to receipt of written cancellation provided by Purchaser to Aetna. Purchaser agrees to pay these charges as a condition of sale. A reasonable restocking charge will be levied on all non-defective goods returned with the written authorization of Aetna.
- D. Venue (Governing Law)/Resolution Of Disputes. The laws of the State of Ohio shall govern these terms and conditions and their construction and the interpretation of all rights and duties of Purchaser and Aetna. Purchaser and Aetna Plastics Corp. agree that they are amenable to suit in Ohio, and therefore, subject themselves to the jurisdiction of the state courts in Ohio by entering into this agreement.
II. SHIPMENT AND DELIVERY
Shipping dates represent Aetna’s best estimate and are approximate. Failure to meet these dates shall not constitute a breach of these terms and conditions by Aetna nor shall Aetna be liable for any failure to perform by reason of causes beyond its control. These causes include, but are not limited to, storms, floods, fires, accidents, wars, shortages of fuel, materials, transportation facilities, labor disputes and shortages, legislative action, judicial action and acts of God. In the event of any delay caused by such contingency, the date of delivery shall, at the request of Aetna, be deferred for a period equal to the time of loss by reason of the delay. In the event Aetna’s production is curtailed for any of the above reasons so that Aetna cannot deliver the full amount released hereunder, Aetna may allocate production deliveries upon various customers then under contract for similar goods. The allocation will be made in a commercially fair and reasonable manner. When allocation has been made, Purchaser will be notified of the estimated quote made available.
III. PRICE QUOTES, TOTAL PRICE, PAYMENT, TITLE, INTEREST, COLLECTION COSTS AND FEES
- A. Price Quotes. The goods that are the subject matter of this Contract and the quantity of goods to be delivered by Aetna and received by Purchaser under this contract are all described in detail on Aetna’s order form, or, at its discretion, Purchaser’s acknowledgement form or Purchase Order, which is incorporated into this Contract by reference. Price quotations on goods scheduled or forecasted for delivery beyond one month from the date of the quotation are not binding upon Aetna. All orders including those received on the basis of a quotation are subject to acceptance and acknowledgement by Aetna. Prices quoted and acknowledged do not include federal, state or local taxes as applicable, and these taxes will be added to the sales price when Aetna is legally obligated to collect the taxes unless Purchaser provides Aetna with a proper tax exemption certificate. All prices quoted and acknowledged are subject to correction for stenographic, typographic and clerical errors.
- B. Total Price And Payment. The price for the goods that are the subject matter of this Contract is set forth on Aetna’s order form or, at its discretion Purchaser’s acknowledgement form or Purchase Order which is incorporated into this Contract by reference. The terms of payment are net 30 days from the date of invoice unless otherwise indicated by Aetna at its sole discretion. Purchaser shall be assessed a 4% handling charge on the invoiced outstanding balance for payments made by credit card more than 30 days from the date of invoice. Aetna extends credit purely at its discretion and prorata payments from Purchaser are due as shipments are made. Aetna ships all goods FOB Aetna’s plant and risk of loss passes to Purchaser upon delivery by Aetna to a common carrier for shipment to Purchaser. Each shipment made shall be treated as a separate transaction. In the event of default by Purchaser, then Aetna’s decision to make further shipments shall not in any way affect its rights and remedies under law and shall not constitute a waiver of default by Aetna. If, in Aetna’s judgment, Purchaser’s financial condition does not justify the terms of payment specified, Aetna may, at its option, (1) cancel this Contract, or (2) refuse to perform further under this Contract unless Purchaser shall immediately pay for all goods which have been delivered. Goods returned for credit without Aetna’s written permission will not be accepted. Claims against Aetna for shortages must be made in writing within 10 days after receipt of shipment.
- C. Title, Interest, Collection Costs And Fees. Purchaser agrees to pay a delinquency charge of 1½% per month (18% per annum) on any outstanding balances owed by Purchaser and not paid after 60 days from invoice date until Purchaser renders payment in full. If Aetna must pursue legal action against Purchaser to collect any amounts owed by Purchaser to Aetna, Purchaser agrees to pay Aetna’s expenses, including reasonable attorneys’ fees, incurred as a result of the legal action. Until Purchaser pays Aetna the purchase price and all other sums due in full, Aetna retains title to all goods shipped by Aetna to Purchaser. Aetna may, at its discretion, seek additional security from Purchaser on any amount due to Aetna for goods shipped from Aetna to Purchaser and thus Aetna may retain a security interest in the goods and in all proceeds of the goods. Purchaser shall execute a financing statement(s) on request and irrevocably authorize Aetna to execute and file same.
LIMITED WARRANTY. THE FOLLOWING WARRANTY FROM AETNA IS EXPRESSED IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF AETNA. AETNA NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF THE GOODS OF AETNA.
AETNA WARRANTS THAT THE GOODS DESCRIBED IN THIS WARRANTY MANUFACTURED BY AETNA ARE FREE FROM DEFECTS IN WORKMANSHIP AND MATERIALS FOR A PERIOD OF 365 DAYS AFTER SHIPMENT. AETNA MAKES ABSOLUTELY NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS NOT MANUFACTURED BY IT. SUCH PRODUCTS MAY CARRY A MANUFACTURER’S WARRANTY, AND BUYER AGREES TO INDEMNIFY AND HOLD AETNA HARMLESS FOR ANY CLAIM ARISING OUT OF ANY BREACH OF WARRANTY OR CLAIMED DEFECT RELATED TO ANY SUCH PRODUCTS.
PURCHASER’S REMEDY IS SUBJECT TO AN INSPECTION AND DETERMINATION BY AETNA AT ITS PLANT, THAT ANY ALLEGED DEFECT, MALFUNCTION OR OTHER FAILURE OF AN AETNA GOOD IS NOT THE RESULT OF MISUSE, IMPROPER APPLICATION OR INSTALLATION, ABUSE OR DAMAGE OCCURRING AFTER THE GOOD HAS LEFT THE CUSTODY OF AETNA.
IF PURCHASER SEEKS REJECTION OF GOODS DELIVERED FOR NONCONFORMITY WITH THIS CONTRACT AND/OR WITH PACKING LIST DISCREPANCIES, PURCHASER MUST SEND WRITTEN NOTIFICATION TO AETNA PLASTICS CORP. OF THE REJECTION OF THE GOODS WITHIN TEN (10) DAYS AFTER DELIVERY OF THE GOODS TO THE PURCHASER. THIS NOTIFICATION SHALL STATE THE BASIS OF THE ALLEGED NONCONFORMITY AND A DESCRIPTION OF THE PORTION OF THE SHIPMENT REJECTED. FAILURE OF THE PURCHASER TO SEND WRITTEN NOTIFICATION TO AETNA WITHIN TEN DAYS AFTER DELIVERY SHALL BE DEEMED CONCLUSIVE EVIDENCE THAT NO NONCONFORMITIES OR PACKING LIST DISCREPANCIES EXISTED AT THE TIME OF THE DELIVERY TO PUCHASER.
V. EXERCISE OF WARRANTY RIGHTS/RETURN OF GOODS
In order to obtain performance of any obligation under this Warranty of goods manufactured by Aetna, the following conditions must be met:
The goods must be returned for inspection to Aetna within ten (10) days after failure. (Packaging of the returned goods shall conform to the same methods employed by Aetna in shipping to Purchaser). Aetna will not allow credit for returned goods damaged beyond the original defects, which damage was occasioned by carelessness of the customer or third parties or improper packaging for return.
A complete written report containing the following information must accompany any request for adjustment:
- description of item;
- description of defect;
- date of item receipt; and
- date of item return.
Aetna Plastics Corp. will determine in its discretion that the goods are defective in either material or workmanship. Upon Aetna’s inspection of the goods, Aetna will replace or repair defective goods returned within the warranty period without charge.
No goods returned, for any reason, will be accepted by Aetna without a written Returned Goods authorization issued by Aetna. Returned Goods authorizations shall only be valid for a period of 30 days from their date of original issue.
VI. LIABILITY LIMITATION
Pursuant to Ohio Revised Code Sections 1302.29 and 1302.93, Aetna’s liability for Purchaser’s damages is limited in the event of a breach or repudiation of this Contract or of any of the provisions by Aetna. PURCHASER SHALL NOT BE ENTITLED TO RECOVER INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING THOSE ARISING OUT OF OR UPON THE RIGHTS RAISED OUT OF A CLAIMED BREACH OF WARRANTY, BREACH OF IMPLIED WARRANTY OR MERCHANTABILITY, WARRANTY OF A PARTICULAR PURPOSE OR USE, OR ANY LOSSES, COSTS, EXPENSES, LIABILITIES AND DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OR PROFITS, DAMAGES TO PROPERTY, ALL LIABILITIES OF PURCHASER TO ITS CUSTOMERS OR THIRD PERSONS AND ALL OTHER SPECIAL OR CONSEQUENTIAL DAMAGES) WHETHER DIRECT OR INDIRECT, AND WHETHER RESULTING FROM OR CONTRIBUTED TO BY THE DEFAULT OR NEGLIGENCE OF AETNA PLASTICS CORP., ITS AGENTS, EMPLOYEES OR SUBCONTRACTORS WHICH MIGHT BE CLAIMED AS THE RESULT OF THE USE, MISUSE OR FAILURE OF THE GOODS DELIVERED. Additionally, Purchaser shall not be entitled to recovery any costs for materials expended or used, initiated at the request of Purchaser. Aetna’s liability on its warranty shall in no event exceed its cost of correct the defects in the equipment sold or replacing the same with non-defective parts.
Purchaser agrees to indemnify and hold harmless Aetna from and against all claims for bodily injury, illness, death or property damage liabilities, damages, losses and expenses, including attorney fees, arising: (1) from the use or misuse of the goods by a customer or any other party; or (2) out of the performance of this contract.
VIII. INTELLECTUAL PROPERTY RIGHTS
Aetna shall retain all intellectual property rights to the goods that are the subject matter of this agreement. Aetna’s intellectual property rights include, but are not limited to, patent, trademark, trade name and copyright protection rights. Specifically, Aetna retains the right to file for patent protection under 35 U.S.C. Section 1, et seq. for the goods which are the subject matter of this agreement. Aetna and Purchaser shall jointly possess all intellectual property rights for any goods manufactured by Purchaser that incorporate the goods purchased from.
Purchaser shall consider the goods that are the subject of this agreement and all specifications, drawings, prototype articles and information furnished by Aetna or prepared by Aetna for purchaser in connection with this agreement confidential. Purchaser shall not disclose this information to any other person or use the information itself for any purpose other than performing under this agreement, unless Purchaser obtains Aetna’s written permission to do so. Purchaser shall not disclose any information relating to this agreement without Aetna’s written permission.
X. STATUTE OF LIMITATIONS
Pursuant to Ohio Revised Code Section 1302.98, the parties agree that an action for breach of this agreement, or any other cause of action arising from this agreement, must be commenced if at all within one year from when the cause of action accrued.
XI. EFFECT OF CONTRACT
- A. Contract Binding. This Contract shall be binding on and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns when permitted by this Contract.
- B. Legal Construction. In case any one or more of the provisions contained in this Contract are held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability shall not affect any other provision, and this Contract shall be construed as if the invalid, illegal or unenforceable provision had never been contained in it.