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Terms and Conditions of Sale

 TERMS AND CONDITIONS OF SALE
MIDWEST ELASTOMERS, INC.

  1. Acceptance.  All proposals or quotations and Buyer’s Orders resulting therefrom are subject to acceptance by Midwest Elastomers, Inc. (“Seller”) at Wapakoneta, Ohio and are not binding on Seller unless and until so accepted.  If these terms and conditions differ in any way from the terms and conditions of Buyer’s order, these terms and conditions shall be construed as a counter-offer and shall not be effective as an acceptance of such order.  These terms and conditions shall constitute the entire and exclusive agreement between the parties, and Buyer’s assent thereto shall be automatic unless Buyer objects in writing within ten (10) days from the date of Buyer’s receipt of these terms and conditions.  No additions to or modifications of the terms and conditions herein shall be effective unless made in writing and signed by both parties.  Typographical or stenographic errors shall be subject to correction.

  2. Quotation.  Unless otherwise specified quotations are for information only, and are not intended as an offer.  Seller reserves the right to revise all quotations including prices, delivery dates, terms, and quantities or specifications, without notice to Buyer, prior to Seller’s acceptance of Buyer’s order.

  3. Completion Date and Delivery.  The completion date, or forecasted shipment date, where stated, is approximate only and is not guaranteed.  Seller shall not be liable for any failure to perform or for any delay in the delivery or shipment or products, or for any damages or costs of any kind or nature suffered by Buyer by reason thereof, when such failure or delay is directly or indirectly caused by, or in any manner arises from acts of God, acts of buyer, war, riots, fires, explosions, floods, strikes, lockouts, injunctions, accidents, government interference, failure in production or production equipment, inability to obtain adequate fuel, power, raw material, labor, transportation facilities, or any other cause or causes beyond the reasonable control of Seller.

  4. Freight-Transportation.  Unless otherwise agreed in writing by Seller, delivery of the products shall be made F.O.B. point of shipment, with transportation expenses paid by Buyer, and risk of delay, loss or damage incurred in transit shall fall upon Buyer, who shall be responsible to file claims with the carrier.

  5. Quantity and Quality Tolerances.  Buyer agrees to accept overages or shortages not in excess of ten (10) percent to be charged for pro-rata.  Buyer agrees to accept products made to Seller’s established sizes and tolerances except when otherwise agreed to by both parties in writing.  If materials are to be furnished by Buyer, ample allowance shall be made to reasonable spoilage and all material shall meet Seller’s specifications and be of suitable quality to facilitate efficient production by seller.

  6. WARRANTY AND LIMITATION OF DAMAGES AND REMEDIES.  SELLER WARRANTS ONLY THAT THE PRODUCTS BEING SOLD HEREUNDER SHALL CONFORM TO THE SPECIFICATONS ESTABLISHED BY SELLER.  FREE FROM DEFECTS IN MATERIALS, PROVIDED THE MATERIALS WERE SUPPLIED BY SELLER, AND IN WORKMANSHIP.  THIS WARRANTY IS EXPRESSED IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED AND WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT SELLER IS AWARE OF BUYER’S INTENDED USAGE OF THE PRODUCTS.  SELLER’S LIABILITY AND BUYER’S EXCLUSIVE AND SOLE REMEDY FOR BREACH OF WARRANTY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT, OR, AT SELLER’S OPTION, REFUND OF THE BILLING PRICE OF ANY PRODUCTS WHICH IS NOT IN ACCORDANCE WITH THE AGREED-UPON SPECIFICATIONS.  SELLER SHALL HAVE NO LIABILITY BEYOND ITS BILLING PRICE NOR SHALL SELLER BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES INCURRED IN CONNECTION WITH THE PRODUCTS.  SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME ANY OTHER LIABILITY IN CONNECTION WITH THE PRODUCTS.  ANY AND ALL CLAIMS OF DAMAGE, DEFECT OR SHORTAGE WILL NOT BE CONSIDERED BY SELLER UNLESS MADE IN WRITING WITHIN THIRTY (30) DAYS AFTER RECEIPT OF SHIPMENT BY BUYER AND ACCOMPANIED BY SELLER’S INVOICE AND/OR PRODUCTION NUMBER.

  7. Return of Products or Cancellation.  No products shall be subject to return or cancellation after order has been accepted by Seller, without Seller’s prior written consent. 

  8. Price.  All prices quoted are in United States dollars, F.O.B. Wapakoneta, Ohio unless otherwise specified in writing by Seller.  Unless otherwise agreed to by both parties in writing, all base prices quoted cover manufacturing and shipping entire order at one time, to a single destination, at no time covers warehousing buyer’s stock for future shipments.  Specifications and/or design changes, subsequent to order placement and acceptance by Seller, may be subject to price revision.

  9. Taxes.  Any taxes on the purchase or products hereunder which may be due in any political subdivision shall be paid by Buyer.  It shall be the responsibility of Buyer to promptly make payment of such taxes to Seller or to advise Seller of any exemptions from taxes. 

  10. Payment.  The terms of payment are United States dollars net cash thirty (30) days from the date of invoice unless otherwise agreed to in writing by the parties.  If full payment is not received by Seller within thirty (30) days after the invoice date, interest shall be charged to Buyer’s account at the higher of (a) the prime rate as set forth in the Wall Street Journal in effect from time to time plus two (2) percent per annum, or (b) eighteen percent per annum.  In the event Buyer shall default on its obligations hereunder, Buyer shall be liable for Seller’s costs of collection, including reasonable attorneys’ fees.  Seller may, at its option, cancel and/or sell any unshipped products should Buyer fail to fulfill the complete terms of payment.

  11. Patent, Trademark or Copyright Infringement.  Buyer agrees to hold Seller harmless for infringements of any patents, trademarks, copyrights or other intellectual property rights held by others with respect to the products and to reimburse Seller for any and all legal costs it may incur resulting with respect thereto.

  12. Disputes.  Any controversy arising in connection with the agreement between Seller and Buyer shall be governed by the laws of the State of Ohio and state or federal court within Ohio shall have jurisdiction over any litigation resulting therefrom.

  13. Credit Approval.  Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or upon terms and conditions or security satisfactory to Seller.