(i) delivering a purchase order that incorporates the Quotation by reference and payment of the initial deposit or (ii) other written indication by Buyer of its acceptance of the Quotation along with payment of the initial deposit or (iii) other FORMATION OF CONTRACT; ACCEPTANCE OF ORDER
These standard terms and conditions of sale (“Terms and Conditions of Sale”) together with the sales covenants,
the general specifications, the technical specifications, and any addendum thereto, including any acknowledgment by Seller, comprise the “Proposal” or “Quotation” (collectively the “Quotation”), which upon acceptance by Buyer become the “Contract”. Buyer may accept the Quotation through (i) delivering a purchase order that incorporates the Quotation by reference and payment of the initial deposit or (ii) other written indication by Buyer of its acceptance of the Quotation along with payment of the initial deposit or (iii) other written indication by Buyer of its acceptance of the Quotation and agreement by both parties on a payment plan that does not require an initial deposit or (iv) receipt by Buyer of Seller’s acknowledgement without formal notice of rejection within five (5) days of receipt by Buyer. Seller’s obligations under a Quotation or the Contract shall not commence until the effective date. The scope of work for the Contract is limited to the equipment, machinery, goods, engineering services (if applicable) and/or related commissioning services (if applicable) specifically set forth in the Contract (“Equipment”). The scope of work does not include installation or any onsite services unless specifically identified as being included in the price in the Contract. Any terms and conditions contained in any purchase order, correspondence or accompanying payment for delivery of the Equipment specified herein, which are different from or in addition to the terms of the Contract shall not be binding on Seller, whether or not they would materially alter the Contract, and Seller hereby objects thereto. Any Quotation made by Seller either directly or by a sales representative of Seller shall expire in thirty (30) days, and after such time will no longer be valid unless renewed in writing by Seller. CONFIDENTIALITY
All information, including quotations, specifications, drawings, prints, schematics, and any other engineering, technical or pricing data or information submitted by Seller to Buyer in a Quotation or the Contract are the confidential and proprietary information of Seller; and Buyer and its employees, agents or other parties for whom Buyer is responsible may not disclose Seller’s confidential and proprietary information to any third party, or use Seller’s confidential and proprietary information for its own account or that of any third party, except in the performance of the Contract. No transfer of ownership of any information provided by Seller to Buyer shall take place pursuant to fulfillment of the Contract. DRAWINGS AND DESIGNS; PERMISSIVE VARIATIONS
Selection, application and design of machines, roller dies, tooling, accessories, options and auxiliary equipment shall be based upon information furnished by Buyer. Buyer shall make available to Seller in a timely manner all information reasonably necessary for Seller to complete the work specified in the Contract, including drawings, diagrams, specifications of all electrical, mechanical and structural interfaces, and shall promptly answer in writing all inquires for information that Seller deems necessary from time to time to perform Seller’s obligations under the Contract. Buyer understands that Seller is relying upon this information. All drawings submitted by Seller, if any, with the Contract are submitted only to indicate the general style and outline, suggested arrangement, and approximate overall dimensions of the Equipment quoted. Except as otherwise provided in the Contract for the approval of Buyer, no detailed shop or engineering drawings of any part of the Equipment will be furnished to Buyer. Notwithstanding the foregoing, Seller shall provide manuals, starter guides or other information for the safe operation and maintenance of the Equipment sold to Buyer under the Contract. If the Equipment is to be procured, designed and/or manufactured in accordance with Buyer’s specifications, Buyer represents that the drawings, prints and parts, if any, submitted in connection with its order reflect Buyer’s latest revisions of such specifications. Any subsequent modification to Buyer’s specifications may result in a change to the Contract and Seller reserves its rights set forth in Section 5 below. With respect to tolerance, capacity, accuracy, production rates and the like, the terms of this Quotation shall supersede Buyer’s specifications. Unless otherwise agreed to by Buyer and Seller in the Contract, the Equipment shall be manufactured in accordance with Seller’s standard practices as they exist from time to time. Equipment and machinery ordered herein are of the stated capacity and range, designed and built for operation with good commercial accuracy for the forming of sheet metal. Capacity of the Equipment is set forth in the Contract with gauge references per the Standard Gauge for Sheet and Plate Iron and Steel, 15 U.S.C. §206. All product that is produced by Buyer using the Equipment sold under the Contract, including that produced to meet any specification of Buyer, shall be subject to dimensions, tolerances and variations consistent with usages of the trade for “sheet metal” and regular industry practice. No governmental or other specification other than the Seller’s shall be incorporated by reference herein unless a copy of said specification is agreed by Seller and attached to the Contract. Any deviation in usage from the conditions as provided or as set forth in the Contract shall be at Buyer’s risk. PRICE; PAYMENT TERMS
All payment terms are subject to Seller’s credit approval at the time of acknowledgment and again, prior to shipment of the Equipment. Payments are due upon Buyer’s receipt of an invoice from Seller or in the event that the payment terms are set forth in the Contract, as of the specific date listed on the applicable payment schedule in the Contract. If Buyer requests that the Equipment availability date and/or scheduled date for shipment be extended or otherwise changed, such request shall be considered to be a Buyer-proposed Contract change and shall be addressed as set forth in Section 5. Once the Equipment is near completion and/or is ready for preparation for Demonstration and shipment and/or Demonstration is delayed by any act or omission of Buyer beyond the scheduled date, Buyer shall pay any amounts that are due under the Contract upon notification to Buyer that the Equipment is ready for, and/or prior to, shipment, or any similarly worded language, within fourteen (14) days after the originally scheduled delivery date regardless of whether delivery has occurred. If the scheduled Equipment ‘start-up and commissioning’ or any other on-site services, if included in the scope of work to be provided to Buyer by Seller, is delayed by any act or omission of Buyer beyond the scheduled date then final payment of all amounts due from Buyer as set forth in the Contract shall be due thirty (30) days after the originally scheduled shipment date. Time is of the essence with respect to all payments. Payments that are outstanding more than ten (10) days from their respective due date shall bear an interest rate of one and one-half percent (1 ½%) per month (eighteen percent (18%) annually) until fully paid, including any interest accruing thereon. If the rate of interest stated in the preceding sentence exceeds the maximum rate of interest that the applicable state law allows, then the rate of interest that will be accrued shall be at the applicable state maximum. In the event Buyer does not pay within the terms of the Contract, all collection costs incurred by Seller, including attorneys’ fees will be paid by Buyer. Payment for the sale of Equipment furnished under the Contract shall not be subject to offset, deduction or back charges by Buyer. Any sums that have been deducted by Buyer in violation of this paragraph shall be considered overdue and are subject to the above interest charge and collection costs. The price set forth in the Contract and all payments due to Seller from Buyer shall be in the lawful currency of the United States of America unless otherwise set forth in the Contract. Unless otherwise set forth in the Contract the terms of payment for international transactions shall be as follows: A deposit in an amount specified by Seller shall be paid via wire-transfer upon placement of order (“Initial Deposit”) and the balance of the total purchase price shall be paid upon Seller’s notification to Buyer that the Equipment is being readied for international shipment. If a letter of credit is to be used to cover any payments, Buyer shall open, in favor of Seller, an irrevocable, documentary Letter of Credit in the amount equal to those payments in the specific form and format described in Seller’s letter of credit instructions incorporated into the Contract by attachment or reference. The minimum requirements for any such letter of credit are that it must be payable “at sight” at the counters of Seller’s bank in the USA, it must allow for confirmation by Seller’s bank, it must allow partial shipments and partial draws from any point of origin, it must allow trans-shipment and it must specify that bank charges in addition to those charges by Seller’s bank shall be payable by the Buyer. If the letter of credit is advised or in any way processed by additional banks other than Buyer’s original issuing bank and Seller’s specified advising bank, Buyer shall be responsible for any fees charged by such additional banks. In the event that Buyer elects to use an issuing bank with which Seller’s bank does not have a corresponding relationship, Seller reserves the right to require payment by wire-transfer in lieu of
