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The items described in this document and other documents or descriptions provided by B.W. ROGERS COMPANY, which includes new affiliates INDUSTRIAL LOGIC and KD FLUID POWER, are hereby offered for sale at prices to be established by B.W. ROGERS COMPANY ("Seller"). This offer and its acceptance by any customer ("Buyer") shall be governed by all of the following Terms and Conditions. Buyer's order for any such item when communicated to the Seller verbally or in writing, shall constitute acceptance of this Offer and all of the following provisions:
1. Terms and Conditions of Sale: All descriptions, quotations, proposals, offers, acknowledgements, acceptances and sales of Seller's products are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer's acceptance of any offer to sell is limited to these terms and conditions. Any terms or conditions in addition to, or inconsistent with those stated herein, proposed by Buyer in any acceptance of an offer by Seller, are hereby objected to. No such additional, different or inconsistent terms and conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing by Seller. Seller's acceptance of any offer to purchase by Buyer is expressly conditional upon Buyers assent to all the terms and conditions stated herein, including any terms in addition to, or inconsistent with those contained in Buyer's offer. Acceptance of Seller's product shall in all events constitute such assent,
2. Prices: In the event the Seller's quotation or Offer of Sale and/or Buyer's order provides for deliveries later than 80 days from the date of this Offer of Sale, the prices quoted are subject to escalation to Manufacturers' prices in effect at the time shipment is made, except in cases where the Seller has agreed in writing to waive such escalation. Unless otherwise stated herein, prices quoted are F.O.B. shipping point. Any portion of the price which is not paid in accordance with the terms of payment herein stated shall accrue carrying charges at the rate of 1/20 of 1% per day until paid.
3. Delivery: Unless otherwise provided on the face hereof; delivery shall be made F.O.B. shipping point. Regardless of the method of delivery, however, risk of loss shall pass to Buyer upon Seller's delivery to a carrier. Any delivery dates shown are approximate only and Seller shall have no liability for any delays in delivery.
4. Warranty: The Seller MAKES NO WARRANTY WHATSOEVER concerning products manufactured by others, but will extend to the Buyer only such warranties respecting such products as are permissible under the forms thereof. Seller will repair or replace products manufactured by it which prove defective within one (1) year from date of shipment upon return of the same at Buyer's expense when such defects are due to defective material supplied by the Seller or defective workmanship of its employees, provided the products shall have been properly assembled and utilized in accordance with Seller's design thereof and instructions relating thereto, it being understood that the foregoing warranty shall be of no effect whatsoever in the event any changes are made in the products prior to or in connection with their assembly or use.
5. Seller makes NO WARRANTY WHATSOEVER, except as to title, with respect to products manufactured and/or designed to Buyer's own specifications and the Buyer shall, at its own expense, defend and save Seller harmless from and against any claim, suit, expense or otherwise which shall be asserted or brought against the Seller by reason of its manufacture or sale of such products.
6. EXCLUSION OF OTHER WARRANTIES: EXCEPT FOR THE EXPRESS WARRANTY AS DESCRIBED ABOVE, THERE ARE NO WARRANTIES INCLUDING ANY IMPLIED WARRANTIES AS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSES, WHICH EXTEND BEYOND THE DESCRIPTION OF THE PRODUCTS ON THE FACE HEREOF. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF THE SELLER SHALL BE EFFECTIVE TO VARY OR EXTEND THE ABOVE REFERENCED EXPRESS WARRANTIES OR ANY OTHER TERMS HEREOF.
7. Liability Limitation: In no event shall Seller be liable for consequential, incidental or special damages resulting from or in any manner related to the products, their design, use, or any inability to use the same, including, without limitation, damages arising out of or in any manner relating to the delivery of the products or any delay with respect to their delivery, it being understood that the sole and exclusive remedy with respect to defective products manufactured by it shall be the repair, correction or replacement thereof pursuant to the "WARRANTY" provisions herein above contained. Should the products prove so defective, however, as to preclude the remedying of warranted defects by repair or replacement, the Buyer's sole and exclusive remedy shall be the refund of the purchase price of the defective products involved upon the return of the products to Seller.
8. Changes, Reschedules and Cancellations: Buyer may request to modify the designs or specifications for the items sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of this order, however, no such requested modification or cancellation shall become part of the contract between Buyer and Seller unless accepted by Seller in a written amendment to this Agreement. Acceptance of any such requested modification or cancellation shall be at Seller's discretion, and shall be upon such terms and conditions as Seller may require.
9. Returned Goods: Buyer may return goods to Seller under specific conditions. Goods are not returnable without a pre-authorized RGA number given by Seller, which is valid for 30 days. Goods are to be returned to Seller freight prepaid, in re-sellable condition, in original packaging, and RGA number must be visible on outside of package(s). Products requiring re-packaging will be subject to a packaging charge. Unauthorized return shipments and/or products will be returned back to Buyer. Upon confirmation of returned product defect under warranty or Seller error: warranty repair/replacement terms will be applied; Buyer will be reimbursed for prepaid returned goods shipping costs. If returned goods are not the result of defect or Seller error: returned items are subject to restocking charges; special or custom items are deemed not returnable; additional outgoing or special freight charges may apply.
10. Buyer's Property: Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Buyer, or any other items which become Buyer's property, may be considered obsolete and may be destroyed by Seller after (2) consecutive years have elapsed without Buyer placing an order for the items which are manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller's possession or control.
11. Taxes: Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the items sold hereunder. If any such taxes must be paid by Seller, or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the item sold. Buyer agrees to pay all such taxes or to reimburse Seller 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 Seller 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. Indemnity For Infringement of Intellectual Property Rights: Seller shall have no liability for infringement of any patent, trademarks, copyrights, trade dress, trade secrets or similar rights except as provided in this Paragraph 12. Seller shall have no liability for claims of infringement based on information provided by Buyer, or directed to items delivered hereunder for which the designs are specified in whole or in part by Buyer, or infringements resulting from the modification, combination or use in a system of any item sold hereunder. If a claim is based on information provided by Buyer or if the design for an item delivered hereunder is specified in whole or in part by Buyer, Buyer shall defend and indemnify Seller for all costs, expenses or judgments resulting from any claim that such item infringes any patent, trademark, copyright, trade dress, trade secret or any similar right.
13. Force Majeure: Seller shall not be responsible or liable for any delays or failures in manufacture or delivery due to any cause or condition beyond the control of Seller, including, without limiting the generality of the forgoing, strikes or other labor difficulties, fire, floods, inability to secure transportation facilities, actions of the elements, shortage of materials or equipment, riots or other civil commotion, and war.
14. Law, Ordinances and Regulations: Seller shall utilize reasonable efforts to cause products manufactured or designed by it to comply with its interpretation of federal safety regulations and insurance codes of a national scope. However, Seller shall not be responsible for compliance with local interpretation of federal safety regulations or insurance codes, nor with any local laws, ordinances, codes and/or regulations which may at any time be in effect with respect to the products, unless such responsibility shall be expressly assumed by Seller in writing. Further, Seller shall have no responsibility whatever for compliance with such laws, etc. by products manufactured or designed by others.
15. Entire Agreement/Governing Law: The terms and conditions set forth herein, together with any amendments, modifications and any different terms or conditions expressly accepted by Seller in writing, shall constitute the entire Agreement concerning the items sold, and there are no oral or other representations or agreements which pertain thereto. This Agreement shall be governed in all respects by the law of the State of Ohio. No actions arising out of the sale of the items sold hereunder or this agreement may be brought by either party more than two (2) years after the cause of action accrues and the parties agree to submit to the jurisdiction of the appropriate court in the State of Ohio for purposes of resolving any dispute or claim arising in connection with said transaction.
B.W. ROGERS COMPANY, which includes new affiliates INDUSTRIAL LOGIC and KD FLUID POWER, herein referred to as “Buyer” hereby offers to purchase from the party named on the face hereof, herein referred to as “Seller,” the materials, work and/or services herein specified, subject to the following terms and conditions:
1. No variation in any of the terms, conditions, deliveries, prices, quality, quantity and specifications of this order irrespective of the wording of Seller’s acceptance, will be effective without Buyer’s written consent. There is no agreement or understanding other than stated or referred to herein.
2. This order must not be filled at prices higher than those shown without Buyers written approval.
3. Unless stated in writing to the contrary total deliveries against this order must not exceed the quantities ordered. No overruns will be accepted without prior written approval.
4. Seller expressly warrants that all goods and services covered hereby will conform to the drawings, samples and other descriptions furnished or approved by Buyer and will be merchantable, suitable for purposes intended and free from defects in material, workmanship, design and title. In addition to any other remedies Buyer may have, none of which other remedies shall at any time be denied Buyer, buyer may reject goods or services not conforming to the foregoing warranties, whether or not such goods or services shall have been previously accepted by Buyer or any prior payment has been made thereon. If such goods or services are rejected, Buyer shall in writing so notify Seller and Buyer, at its option and at the expense and risk of Seller, may either return such rejected goods to Seller or hold them for any other person whatever, notwithstanding any assignment by Seller of this Purchase Order or of sums hereunder. Any payments made on such rejected goods or services shall be immediately refunded to Buyer.
5. Unless Seller’s failure to make timely delivery of the goods or services covered within is excused in accordance with the provisions of paragraph 6 hereof, Seller’s failure to make timely delivery, or Seller’s breach of any of the other terms and conditions of this Purchase Order, shall constitute sufficient cause for Buyer, at its option to terminate this Purchase Order either in whole or in part and to charge Seller for any damages or losses Buyer may sustain as a result of Seller’s default. Any failure by Buyer to exercise this option with respect to any installment shall not constitute a waiver with respect to subsequent installments. In the event Seller becomes insolvent or makes a transfer for the benefit of creditors or if bankruptcy or any other insolvency proceedings are instituted by or against Seller, Buyer shall have the right to immediately terminate this Purchase Order.
6. Seller, upon giving prompt written notice thereof to Buyer, shall not be liable for delay or failure to supply goods hereunder, nor shall Buyer be liable for failure to accept goods hereunder, if such delay or failure is due to causes beyond the reasonable control of Seller or Buyer, as the case may be, including, but not limited to, acts of God, force of majeure, fire, malicious mischief, accident, transportation tie-up, riot, strike, slowdown or labor stoppage of any kind or act of any Government, foreign or domestic. Any such delay or failure shall give Buyer the right, at its option, to cancel all or such portion of this Purchase Order as it may elect.
7. Buyer expressly reserves the right, in the event this order is place pursuant to a prime contract with the Government or to a subcontract there under, to terminate the work under this order in whole or in part at any time by written or telegraphic notice to the Seller stating the extent and effective date of such termination, in which event the rights and obligations of the parties hereto shall be determine in accordance with the termination provisions applicable to such Government Contract.
8. By acceptance and in consideration hereof, the Seller warrants that the articles ordered herein, or the use thereof, do not infringe on any United States Patent, that Seller will defend any suit that may arise in respect thereto, and that Seller will save the Buyer harmless from any loss which may be incurred by the assertion of any patent rights thereof.
9. Seller hereby agrees that if this order covers development work and any discoveries, inventions or patents result there from, the entire right, title and interest in and to such discoveries, inventions and patents shall belong to Buyer.
10. Seller agrees that it will keep confidential, and will not copy, the features of any equipment, tools, patterns, designs, drawings, engineering data or other technical or proprietary information furnished by Buyer. All such items shall remain Buyer’s property under this order or under other orders from Buyer and not otherwise, unless Buyer’s written consent is first obtained. Upon completion or termination of this order Seller shall return promptly all such items or make such other disposition thereof as Buyer may direct.
11. Seller represents that the items called for herein will be produced, manufactured, and delivered in accordance with all applicable Federal and State statutes. Seller certifies that the items covered by each invoice will be produced, manufactured, and delivered in accordance with the Fair Labor Standards Act of 1936, as amended, the Equal Opportunity Clause, Sec. 202, Executive Order 11246, and all regulations and orders issued there under. Seller also certifies that all items delivered hereunder comply with the Federal Occupational Safety and Health Act of 1970, and all regulations and orders issued there under.
12. The terms and conditions applicable to the transaction provided for herein shall be determined and construed in accordance with, and shall be governed by, the laws of the State of Ohio and Buyer and Seller agree to submit to the jurisdiction of the appropriate State or Federal Court within Ohio for purposes of resolving any dispute or claim arising in connection with said transaction.