1. Acceptance of Orders. All sales made by H.A. Phillips & Co. ("Seller") of its products ("Products") are contingent upon the Buyer's acceptance of these Terms and Conditions of Sale ("Terms"). All orders placed by Buyer are subject to acceptance by an authorized representative of Seller at Seller's principal offices in Illinois. Any terms and conditions contained in Buyer's purchase order which are inconsistent with, or in addition to, these Terms, shall not be binding upon Seller unless, and until, Seller agrees to any such terms and conditions, in writing, signed by an authorized representative of Seller. These Terms cannot be modified or waived except by written agreement executed by an authorized representative of Seller at Seller's principal offices in Illinois.
2. Prices. Prices stated in Seller's price list are subject to change without notice. Prices listed in Seller's quotations or acknowledgements, or which are quoted verbally (other than welded products for which only a written quotation is valid) by Seller, shall remain firm for thirty (30) days unless Seller notifies Buyer to the contrary.
3. Payment Terms. Provided that Buyer has established a credit account with Seller, then payment terms for all Products for US Customers with a selling price less than $50,000.00 and Canadian Customers with a selling price less than $25,000.00, are net cash (U.S. Dollars) thirty (30) days from date of invoice (date of shipment). For all Products for US Customers with a selling price greater than $50,000.00, 10% of the selling price is due prior to the time that the order is shipped, with the remaining 90% due net cash (U.S. Dollars) thirty (30) days from date of invoice (date of shipment). For all Products for Canadian Customers with a selling price greater than $25,000.00, 25% of the selling price is due prior to the time that the order is shipped, with the remaining 75% due net cash (U.S. Dollars) thirty (30) days from the date of invoice (date of shipment). If Buyer has not established a credit account with Seller, then payment terms for all Products are net cash (U.S. Dollars) prior to shipment. Certain credit cards may be accepted for payment, but only prior to the time that an order is shipped. Credit cards will not be accepted after the time that an order is shipped. These payment terms are independent of, and are not contingent upon, the time and manner in which Buyer receives payment from any of its customers. All Sales Orders are quoted by Seller to Customers as cash (U.S. Dollars) sale. An additional 2% is added to all Welded Products orders when paid by credit card. A finance charge of 1.5% per month (annual percentage rate of 18%) will be charged on all past due amounts. In the event suit or other proceeding is brought by Seller for the recovery of the purchase price, or any unpaid portion thereof, or for any breach of any of these Terms, Buyer shall pay to Seller, in addition to any damages provided by law, all collection or enforcement costs incurred by Seller, including reasonable attorney fees, and Seller shall be entitled to have such costs and fees included as part of any judgment obtained by Seller.
4. Taxes. Prices set forth in Seller's price list, or quoted by Seller, do not include applicable federal, state or local taxes or other charges. Buyer shall pay all such taxes and other charges, together with any penalties and interest, and file any returns with respect thereto, upon receipt of any invoice from Seller. In lieu of payment of any such taxes, Buyer shall provide Seller with an acceptable tax exemption certificate. Buyer agrees to indemnify Seller, and hold Seller harmless, and upon request, defend Seller, against any and all assessments, demands, causes of action, suits, or claims of any nature, whatsoever, including costs and attorney fees, incurred by Seller in connection with the payment or nonpayment of any applicable taxes, for the filing or failure to file any returns, which are required of Buyer by law or pursuant to this paragraph 4.
5. Delivery and Shipment Dates. Any dates and schedules for delivery of Products stated in Seller's quotation or acknowledgement represent Seller's best estimate made at the time of such quotation or acknowledgement, and are not binding upon Seller. Seller reserves the right to make deliveries in installments and to separately invoice Buyer for each installment. Seller shall have no liability, whatsoever, to Buyer, Buyer's customers, or any third party for direct, liquidated, consequential, incidental or indirect damages, losses or expenses resulting from delays in shipment of any Products or installments of Products.
6. Freight. All shipments are F.O.B., Seller's factory in Illinois. If Buyer specified shipment by “Pre-paid Freight”, freight charges plus 10% (15% for same-day shipments), but not less than $5.00 in any case, will be added to Buyer’s invoice. If Buyer specified shipment by “Collect” or “Third Party”, a $5.00 handling charge per order will be added to Buyer’s invoice. Any orders placed after 2pm Central Time requiring same-day assembly will be charged a $25 fee per item. Any non-assembly orders placed after 3pm Central Time requiring same-day shipping will be charged a $25 fee per order.
7. Security. Seller shall have, and Buyer hereby grants to Seller, a security interest in all Products sold to Buyer until full and complete payment has been received by Seller from Buyer for the Products. Buyer agrees to do all acts necessary to permit Seller to perfect and maintain such security interest.
8. Returns. Seller will review Buyer’s request to return standard Products for credit or repair. Prior to returning any standard Product, Buyer must obtain Return Material Authorization from Seller. A copy of Seller’s Return Material and Repair Policy is available upon request.
9. Indemnification. Buyer shall indemnify and defend Seller, and hold Seller harmless, from and against any and all claims, demands, causes of action, loss, or damage, including reasonable attorney fees, arising from or relating to the improper use or installation of any Product or any acts or omissions of Buyer.
10. Limitation of Liability. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY, WHATSOEVER, TO BUYER, BUYER'S CUSTOMERS, OR ANY THIRD PARTY FOR SPECIAL, LIQUIDATED, CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND, ARISING OUT OF, OR ALLEGED TO ARISE OUT OF, ANY PRODUCTS OR SELLER'S SALE THEREOF. SELLER’S LIABILITY FOR WARRANTY CLAIMS IS SOLELY AS SET FORTH IN SELLER’S LIMITED PRODUCT WARRANTY AS PROVIDED IN PARAGRAPH 11 OF THESE TERMS.
11. Warranty. Seller warrants its Products in accordance with Seller’s Limited Product Warranty, a copy of which Buyer acknowledges receipt with these Terms, and which is incorporated herein by reference. SELLER DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PARTY UNDER THIS WARRANTY FOR DIRECT, SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND.
12. Cancellation. No order for Products may be cancelled by Buyer without the prior written consent of Seller. In the event Seller consents to cancellation of any order placed by Buyer, Buyer agrees to reimburse Seller for any expenses incurred in developing, engineering, or manufacturing any Products to Buyer's specifications and for any Products shipped to Buyer prior to Seller’s receipt of any notice of cancellation.
13. Choice of Law. All agreements between Seller and Buyer with respect to any Products, or the performance thereof, shall be construed in accordance with, and governed by, the laws of the State of Illinois.
14. Jurisdiction. Seller and Buyer hereby acknowledge and agree that this sale is entered into in DeKalb County, Illinois, and hereby further agree to submit themselves to the jurisdiction of the courts of DeKalb County, Illinois, with respect to any claim, controversy or dispute, whether in law or in equity, which arises from, or is alleged to arise from, or is in any way related to, this sale.
15. Waiver. Waiver by Seller of Buyer’s breach of any of these Terms shall not be construed as a waiver of any other breach.
16. Severability. In the event any provision of these Terms shall be declared invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of these Terms shall remain in full force and effect.