½ % 10 days; Net 30 from invoice date. If not paid by 30 days after invoice date all amounts owing Sioux City Foundry shall be immediately due and payable and a service charge shall be due on all such amounts at the rate of 1½ percent per month (or the maximum legal rate, if less) from the invoice date until paid. Acceptance of the merchandise and/or service covered hereby constitutes agreement to these terms. Patterns left here at owner's risk. The articles and/or the performance of these service covered by this invoice where produced in compliance with the Federal Fair Labor Standards Act of 1938 as amended. Our responsibility ceases when transportation company receipts for goods in good order. This bill becomes due immediately when the purchaser sells out, executes a mortgage, assigns or becomes insolvent.
1. PAYMENT — Payments shall be made at par in legal tender of the United States of America. Buyer shall make such arrangements for payment as seller shall from time to time require and Seller may suspend production, shipment or delivery until such arrangements are made.
2. TRANSPORTATION — Seller shall not be responsible for spotting, switching, handling, or other transportation charges incurred at destination. Such charges as may occur in tariff freight rates or transportation charges used in determining destination prices after dates of quotation or sale and on or prior to date of shipment shall be for account of Buyer.
3. TAXES — To the extent legally permissible, all present and future taxes imposed by any Federal, State, foreign, or local authority which Seller may be required to pay or collect, upon or with reference to the sale, purchase, transportation, delivery, storage, use or consumption of products or services, including taxes upon or measured by the receipts therefrom (except net income and equity franchise taxes), shall be for account of Buyer.
4. CHECKING MATERIAL CLAIMS — Buyer agrees to check material against shipping papers upon unloading at destination. Claims for defective, damages or improper material or for shortages will not be allowed unless written notice specifying in detail the nature and extent of the defect, damage or shortage is mailed to Seller's office within five (5) days from unloading accompanied, in the case of claim for shortage or damage, by original freight bill with a notation thereon by the local agent of the carrier as to the items and quantity short or damaged. When delivery is by truck, all such claims must be forwarded by Buyer to Seller on date of delivery.
Upon receipt of such notice and after inspection by Seller, if Seller elects to inspect, Seller agrees to replace improper and defective material and make good any shortages in quantities delivered by Seller and, in case of f.o.b. Destination shipments, to replace material lost of damaged in transit. No material shall be returned to Seller without its written consent. Seller will instruct Buyer as to disposition of rejected material.
5. PATENTS — Seller shall indemnify Buyer for all direct and actual damages recovered from Buyer by a third person in any legal proceedings for infringement of United States letters patent by the products furnished hereunder, provided that Buyer promptly notifies Seller of the claimed infringement, permits Seller to assume the defense thereof, and co-operate with Seller with respect to such defense. If Seller elects not to assume the defense, Seller shall also indemnify Buyer for all expenses incurred in the defense of such infringement action. In the event products furnished hereunder are produced under special specifications of Buyer not customarily followed by Seller, no liability under this paragraph shall arise against Seller. In like manner, Buyer agrees to save Seller harmless from patent infringement resulting from Seller's compliance with designs and/or specifications (unless originating with Seller) now or hereafter forming a part of this contract or with specific written instructions given by Buyer for the purpose of directing the manner in which Seller shall perform this contract.
6. CONSEQUENTIAL DAMAGE — Seller shall not be liable for loss, damage, or injury resulting from the use of improper, defective or damaged material, or material not in accordance with the applicable specification. Seller's liability shall be limited to replacement of improper or defective material, or, at Seller's option, to allowance of credit therefor not to exceed the purchase price of such materials.
7. DELAYS — Seller shall not be liable for delays in performance caused by acts of God or the public enemy; wars; fires, explosions or floods; strikes, work stoppages, slow-downs, or other differences with workman; shortages of cars, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with or other action taken to carry out the intent or purpose of any law or administrative regulation having the effect of law; compliance with any request by a government agency or official thereof; or contingencies, similar or dissimilar to those above mentioned, beyond the reasonable control of Seller. In the event of any such delay, Buyer may, subject to consent from Seller, cancel the portion of goods not fabricated or in the process of fabrication or of work not performed at the time such request to cancel reaches Seller's office. Seller at all times may apportion its available production among its customers in such a manner and make delivery at such times as it may determine, and shall in no event be liable for consequential damages for delay in delivery.
8. DESIGN — Seller shall not be responsible for the correctness or designs prepared by or approved by others.
9. DRAWINGS — Issuance of drawings or material schedules by seller or other efforts to expedite handling shall not constitute acceptance of Buyer's order.
10. INSPECTION CHARGES — Seller shall not be liable for charges by others for inspection and testing of materials covered herein.
11. NO WARRANTY WHATSOEVER is made with respect to goods identified hereon as "secondary" and such goods are accepted as is by Buyer, subject to all defects, inherent or otherwise, and Buyer assumes all liability with respect thereto.
12. In accordance with ICC and PUCO regulations, a maximum of 2 hours will be allowed for unloading trucks. Charges for excess times are for buyer's account.
13. MODIFICATION AND WAIVER — No terms or conditions, other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify these terms or conditions, whether contained in Buyer's purchase or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by its authorized representative. All proposals, negotiations, and representations, if any, made prior, and with reference, hereto are merged herein.
Any clause required to be included in a contract of this type by any applicable law or administrative regulation having the effect of law shall be deemed to be incorporated herein.
Waiver by Seller or buyer of any breach of these provisions shall not be construed as a waiver of any other breach.
14. FREIGHT, SHIPPING CONTAINERS, crating charges both to and from the company will be for the customer account.
All quotations are made and all castings are sold upon the following terms and conditions.
All castings are sold as unmachined castings, with heads, gates, fins, and similar extraneous material removed, f.o.b. Foundry point, to approximately contour of pattern.
Claims for error in weight or number must be made within ten (10) days after receipt of castings.
Foundry is responsible for the replacement of castings rejected due to foundry defects and such castings must be reported and returned to the foundry within (90) days after receipt. Foundry is not responsible for machine work, welding, labor charges or other losses or damages caused by defective castings unless otherwise agreed in writing.
Foundry is not responsible for loss of or damage to patterns by fire or other casualties beyond its control.
When quotations involve the making of piece prices, definite weights shall be established and agreed upon, and quotations shall be subject to revision on any variation from the established weights.
No order shall be changed unless notice of revision is made and accepted in writing before work is in process. If work is in process, customer is to be charged for any parts made as well as costs or equipments discarded because of such changes.
Cancellations of orders are to be made only by mutual consent of buyer and seller.
Unless otherwise stipulated, the customer shall accept an overrun of ten percent above quantities specified on order. However, the company is to make an effort at all times to furnish as near the exact quantity specified as operating conditions will permit.
If customer requires special production service to secure unusual deliveries, an extra charge shall be made.
Customer must supply pattern and core box equipment in condition to produce economically the quality and quantity of castings required.
Foundry is not responsible for variations existing between blueprints and pattern and core box equipment supplied by customer. If requested by customer, foundry will check patterns and core box equipment with blueprints at customer's expense, unless otherwise agreed to by the Foundry.
Repairs and changes to patterns by customer's orders will be made at expense of customer.
All freight drayage, boxing and crating charges on patterns, both to and from the foundry, shall be assumed by the customer.
Pattern storage facilities are provided by Foundry for active patterns only. Patterns not in use for a period of six (6) months will be returned to the owner or will be subject to storage charges.