General Terms And Conditions For The Sale Of Goods
- Entire Agreement. These general terms and conditions for the sale of goods and the emailed order confirmation confirming the quote letter provided by HFI to the buyer specified in the quote letter (“Buyer”) and the quantity, price and delivery location for the Goods set forth on the purchase order sent to HFI by Buyer (“Order Confirmation”) issued by HFI Manufacturing, Inc. (“HFI”) (collectively, these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by to the buyer named on the Order Confirmation (“Buyer”) and comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. The Order Confirmation is confirmation that HFI accepts the purchase order submitted by Buyer to HFI on the terms set forth in the Quote Letter sent to Buyer by HFI referenced in the Order Confirmation as modified by the price, quantity and delivery location set forth in the Order Confirmation. These Terms supersede any of Buyer’s general terms and conditions of purchase, purchase order terms or other documents presented by Buyer to HFI regardless of whether or when Buyer has submitted its purchase order or such terms. HFI expressly rejects Buyer’s general terms and conditions of purchase, purchase order terms and any proposed, additional or different terms proposed by Buyer or any attempt by Buyer to alter, vary or modify these Terms is hereby rejected by HFI, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within 5 business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms.
- Delivery. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order and HFI’s issuance of the Order Confirmation, subject to availability of the Goods. Delivery dates given by HFI are estimates only and are subject to shipping variations and requirements. HFI will not be liable for any delays, loss, or damage in transit. Unless otherwise agreed in writing by the parties in the Order Confirmation, HFI shall deliver the Goods FOB (HFI’s Dock) (the “Delivery Point”) using HFI’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within 10 business days of HFI’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Buyer is responsible for fees associated with not taking timely delivery of the Goods, such as storage fees. HFI may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- Quantity. If HFI delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the Order Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Order Confirmation adjusted pro rata. Buyer shall be obligated to purchase from HFI quantities of Goods specified in an Order Confirmation.
- Cancellation. If Buyer cancels an order for Goods, Buyer is responsible for HFI’s fees and expenses.
- Title and Risk of Loss. Title and risk of loss pass to Buyer upon tender of the Goods by HFI to Buyer or the transportation carrier at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to HFI a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Illinois Uniform Commercial Code.
- Price. Buyer shall purchase the Goods from HFI at the prices (the “Prices”) set forth in HFI’s Order Confirmation,. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, HFI’s income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer. Typographical and stenographic errors in Prices are subject to correction by HFI without any liability to HFI and corrected Prices will be paid by.
- Payment Terms. Buyer shall pay HFI all invoiced amounts due within 30 days from the date of HFI’s invoice. All payments hereunder shall be in US dollars. HFI reserves the right to require pre-payment in its sole discretion. Buyer shall pay interest on all late payments at the lesser of the rate of 3% per month or the highest rate permissible under applicable law. Buyer shall reimburse HFI for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which HFI does not waive by the exercise of any rights hereunder), HFI shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with HFI, whether relating to HFI’s breach, bankruptcy, or otherwise.
- Limited Warranty. HFI warrants Goods for 90 days from the date of delivery to the Delivery Point (“Warranty Period”) against defects in materials and/or workmanship limited to cost of replacement part(s) only, offering no warranty on any delivered Good processed in any way beyond its original as shipped condition. In the event of a breach of the foregoing warranty, HFI will, at Buyer’s option, repair or replace the affected Goods. Any third-party company products, materials or services or other commercial off-the shelf products and materials manufactured by third-party companies or provided by third-party companies that are provided by HFI or incorporated in to the Goods by HFI are provided and/or incorporated into the Goods exclusively on the license and warranty terms offered by third-party company sellers of the off-the shelf products the manufactured materials. Buyer’s rights against HFI are limited to HFI’s rights against the third-party company sellers. No additional terms or warranties are offered by HFI to Buyer for such products and materials. Failure to formally notify HFI of any as received suspect condition or claim within 30 days of receipt of Goods will constitute a waiver of any warranty on behalf of HFI or its suppliers. No additional terms or warranties are offered by HFI. HFI does not offer any refunds or reductions in pricing for any Goods, except with HFI’s written approval. HFI does not offer any refunds or reductions in pricing for any Goods. HFI does not provide any warranty or refund for damaged or defective Goods that are the result of transportation by the transportation carrier.
THIS SECTION 8 SETS FORTH BUYER’S SOLE AND EXCLUSIVE REMEDY AND HFI’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8.
- WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8, HFI MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY HFI, OR ANY OTHER INDIVIDUAL OR ENTITY ON HFI’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 8 OF THESE TERMS. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY HFI, OR ANY OTHER PERSON ON HFI’S BEHALF.
- Buyer’s Representations and Warranties. Buyer represents and warrants to HFI that (a) it is duly organized, validly existing, and in good standing under the laws of the state of its formation and in every jurisdiction in which such qualification is required for purposes of these Terms, (b) it has the full right, power and authority to enter into and be bound by these Terms and to perform its obligations hereunder, (c) the compliance with these Terms and the purchase of the Goods from HFI have been duly authorized by all necessary corporate action on the part of Buyer; and will not violate, conflict with, require consent under or result in any breach or default by Buyer under any applicable law or the provisions of any agreement to which Buyer is a party and (d) it owns all intellectual property and other rights to the and the specifications provided by Buyer to HFI (“Specifications,” collectively with the intellectual property provided to HFI, the (“Buyer IP”) do not violate, infringe or constitute an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitute the unauthorized use or misappropriation of any trade secret of any third party.
- Limitation of Liability.
IN NO EVENT SHALL HFI OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THESE TERMS AND THE PURCHASE OF GOODS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER HFI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED NOTWITHSTANTING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE. HFI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE PURCHASE OF GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO HFI FOR THE PURCHASE OF GOODS IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR SUCH GOODS OR ORDER AND SHALL ONLY BE PAYABLE IN THE EVENT OF HFI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- Compliance with Law. Buyer shall at all times comply with all laws applicable to the operation of its business, these Terms, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods, (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law, and (c) comply with all export and import laws of all countries involved in the sale of Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
- Buyer Indemnification. Buyer shall defend (by counsel acceptable to HFI), indemnify and hold HFI, its affiliates, customers and their respective officers, directors, shareholders, members, managers, legal representatives, successors and assigns harmless of, from and against any and all claims, allegations, losses, damages, deficiencies, actions, suits, liabilities, fines, penalties, settlements, judgments, interest, awards, penalties, fines, costs, and expenses of whatever kind, including, without limitation, expenses, attorneys’ fees and litigation costs and the costs of enforcing any right to indemnification under these Terms and the cost of pursuing any insurance providers (“Claims”), whether direct or indirect, consequential, or otherwise, arising out of or relating to: (a) Buyer’s breach, non-fulfillment or failure to comply with any of HFI’s representations, warranties, covenants, duties or obligations set forth in these Terms, (b) an allegation that any of the Goods or the Specifications or any Buyer IP or the use of thereof constitutes an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party, (c) and allegation of product liability, loss, damage, injury or death attributable to any actual or alleged defect in the Specifications by Buyer or design of Goods that constitutes Buyer IP. If the Goods, or any part of the Goods, becomes, or in HFI’s opinion is likely to become subject to a third-party claim that qualifies for intellectual property or product liability indemnification coverage under this Section, HFI shall, at its sole option and expense, notify Buyer in writing to cease using all or a part of the Goods, in which case Buyer shall immediately cease all such use of and sale of such Goods on receipt of HFI’s notice. Buyer shall not enter into any settlement agreement that affects HFI without HFI’s prior written consent.
- Intellectual Property Rights. Buyer hereby grants HFI a royalty-free, irrevocable, perpetual sub-licensable license to use the intellectual property rights of Buyer that are provided by Buyer to HFI in connection with the manufacture of Goods, including all Specifications provided by Buyer to HFI pursuant to these Terms for the sole purpose of HFI fulfilling its obligations under these Terms. Buyer acknowledges that nothing in these Terms shall be construed as conferring any license or granting any rights in favor of Buyer in relation to HFI’s or its contractors’ or licensor’s intellectual property and/or proprietary rights (“HFI IP”). Buyer shall not use (other than pursuant to a written agreement between Buyer and HFI or such third-party) or seek to register any trademark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trademark or trade name which HFI, its affiliates or their respective customers or licensors owns or claims rights in anywhere in the world. Buyer acknowledges and agrees that (a) HFI (or its licensors) will retain all intellectual property rights used to create, embodied in, used in, and otherwise relating to the Goods and any of their component parts except for the Buyer IP, (b) any and all HFI’s IP are the sole and exclusive property of HFI or its licensors and (c) Buyer shall not acquire any ownership interest in any of HFI’s IP under these Terms.
- Termination. In addition to any remedies that may be provided under these Terms, HFI may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and such failure continues for 10 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Waiver. No waiver by HFI of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by HFI. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms by HFI operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by HFI precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by HFI.
- Confidential Information. All non-public, confidential, or proprietary information of HFI, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by HFI to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by HFI in writing. Upon HFI’s request, Buyer shall promptly return all documents and other materials received from HFI. HFI shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
- Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, government declared epidemics or pandemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of these Terms; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
- Insurance. For a period of two (2) years after purchase of Goods from HFI, Buyer will, at its own expense, obtain and maintain Broad Form Commercial General Liability (CGL) insurance in an amount of not less than US$500,000 per occurrence. Such policy will be issued by reputable insurance carriers with a Best rating A or better, or equal standard, be designated primary and non-contributory; provide coverage worldwide; where permitted by applicable law, provide a waiver of subrogation in favor of HFI; include HFI and its directors, officers, employees and contractors as additional insureds; and include cross liability coverage. Buyer will provide HFI certificates of insurance and copies of endorsements from its insurer evidencing the above requirements upon request of HFI and upon renewal of the policies. The failure of HFI to request such certificate or endorsements will not be construed as a waiver of any requirement to maintain insurance. Buyer will, or will cause its insurance carrier to, provide HFI with at least 30 days’ prior written notice of any cancellation or changes to any policy in accordance with the policy terms. These requirements will not limit the scope or limits of coverage, which will apply to the full extent provided by the policies, or limit Buyer’s liability under these Terms or otherwise.
- Assignment. Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of HFI. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. These Terms benefits solely HFI and the Buyer. Nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law; Jurisdiction. These Terms are governed by, and construed in accordance with the laws of the State of Illinois without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts of the State of Illinois. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
- Notices. All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation, Quote Letter or other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
- Severability. If any term or provision of these Terms is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
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