Lakeview Forge and
Term and Conditions of
Quotation
Unless otherwise agreed in writing specifically
referring to the following terms and conditions, or modified on our Quotation,
this Quotation is made subject to the terms and conditions which are usual in
the Drop Forging Industry:
1.
NOT AN OFFER. This is only a quotation and not
an offer for sale. Any purchase order
pursuant to this quotation shall not result in a contract for the parts
described herein until it is accepted and acknowledged in writing by Lakeview
Forge at its manufacturing headquarters in Erie, Pennsylvania, and then only
subject to and contingent upon credit approval.
All quotations are based upon specifications and blueprints available at
time of quotation. Any changes
necessitated by additional specifications or part drawing revisions not
originally submitted with the request for quotation must be in writing and will
be considered as amendments to the original quotation and will then be subject
to revision as deemed necessary by Lakeview Forge.
2.
SHIPMENT AND DELIVERY. Dates of shipment mentioned
herein are estimated and not guaranteed.
Delivery of products shall be F.O.B. Lakeview Forge's plant in Erie,
PA. Title and risk of loss or damage to
goods shall pass from Lakeview Forge to the Purchaser upon delivery by Lakeview
Forge to the possession of the carrier.
Any claims for loss or damage after risk or loss has passed as herein
provided shall be filed with the carrier.
Lakeview Forge shall not be liable for loss or damage from delay in
delivery or failure to manufacture due to causes beyond its reasonable
control. In the event of such delay in
delivery or failure to manufacture, Lakeview Forge shall not be required to
allocate production and deliveries among customers.
3.
CHANGES. All changes must be made in
writing and acknowledged by Lakeview Forge Company or Erie Tool Works Division
to be effective.
4.
RETURNS. No Material may be returned
without prior written approval.
5.
SHIPPING TOLERANCES. Lakeview Forge Company and Erie
Tool Works reserves the right to ship plus or minus 5% on all non-stock items.
6.
DELAY BY PURCHASER. If shipments of parts are
delayed by the Purchaser, date of completion of the parts shall be considered
as the date of shipment insofar as payments are concerned. Products held for the Purchaser because of
such delay in delivery or manufacture shall be at the risk and expense of the
Purchaser.
7.
EXCUSABLE DELAYS. Orders are accepted subject to
delays occasioned by acts of God, accidents, strikes or other labor
disturbances, flood, fires, war, riot, delays in transportation, acts of civil
or military authority, governmental priorities or other causes beyond the
control of Lakeview Forge.
8.
TAXES. In addition to the prices
herein stated, Purchaser agrees to pay or to reimburse Lakeview Forge, at
Purchaser’s option, for any and all sales, use, excise, value added or other
taxes or charges which may be imposed by any public authority as a result of
the sale, manufacture, transportation or delivery of the parts covered by this
Quotation.
9.
PAYMENTS. Purchaser shall pay the purchase
price, all applicable taxes, freight charges, and all other applicable charges
in full, in U.S. Dollars, without any deduction for claims, set-offs or
recoupment on account or any other matter between the parties within the time
periods set forth below in Section 15 below.
If, in the exclusive judgment of Lakeview Forge the financial condition
of the Purchaser at any time does not justify the commencement or continuance
of production or shipment on the terms specified herein, Lakeview Forge may, in
addition to all other remedies it may have at law or in equity, make a written
demand for full or partial payment in advance, suspend its performance until
such payment is made and cancel the Purchaser's order if such payment is not
received by Lakeview Forge within thirty (30) days after delivery in person or
mailing of said demand by Lakeview Forge.
Purchaser hereby grants to Lakeview Forge a security interest in the
goods until all monies due Lakeview Forge are paid in full. Lakeview Forge shall have the right to file
financing statements and any other documents that may be necessary to evidence
and perfect such a security interest in the goods in any jurisdiction.
10. BASIS OF PRICES. Prices are only for the
quantities indicated for production and shipment in one lot or as near thereto
as Lakeview Forge’s production makes possible.
Additions of material for machine finishes will be made only where
specified by the Purchaser. Unit selling
price is subject to material and/or energy surcharge at time of shipment.
11. PREPARATION CHARGES. Preparation charges for tooling
only cover a portion of the cost for the initial
production of the forgings and therefore, the payment of such charges does not
convey any title or right of possession to Purchaser. Payment does convey to the Purchaser, the
rights to the exclusive use of such tools and to their preservation by Lakeview
Forge for two (2) years after the date of the last order requiring their use. If tooling is inactive for two (2) years, it
will then be to the discretion of Lakeview Forge to disposition the
tooling. Storage charges may accrue on
inactive tooling. Preparation charges
are based on the initial quantity, rate of delivery, and particular design
specified in this Quotation. The charges
for any change either in the rate of delivery or in design will be quoted by Lakeview
Forge upon request.
12. SURFACES AND TOLERANCES. Unless
otherwise specified in this Quotation, forgings will be furnished with a
natural drop-forging surface without machine work and within the tolerances for
quantity, size and shape as specified in “Guideline Tolerances for Hot Forged
Impression Die Forgings Hammer, Press & Upsetter” as adopted by the Forging
Industry Association, Reissued June
1999. A copy of these tolerances will be
furnished to the Purchaser without charge upon application to Lakeview Forge.
13. PATENT INFRINGEMENT. Purchaser assumes all
liability for and agrees to indemnify Lakeview Forge and hold Lakeview Forge
harmless against any claim for infringement of any patent right asserted
because of the nature, structure or use of any product ordered by Purchaser and
Purchaser shall reimburse Lakeview Forge for any and all damages, costs and
expenses, including reasonable attorney’s fees, resulting from any such claim.
14. WARRANTY.
(a) Lakeview Forge warrants that all
parts manufactured by it shall be free from defects in material or workmanship
under proper care and normal use. Lakeview
Forge at its option, shall rework or replace, free of charge, any part covered
by this warranty which shall be returned to Lakeview Forge plant location
issuing this quotation, transportation charges prepaid, within thirty (30) days
from date of receipt of product by Purchaser which examination proves not to be
free from defects in materials or workmanship.
Lakeview Forge shall not be liable for any repairs or replacements of
parts covered by this warranty, except those made with Lakeview Forge written
consent. Lakeview Forge reserves the
right to inspect forgings at Purchaser's plant before their return. Defective forgings will be salvaged if possible,
or replaced. No parts shall be returned
without prior written authorization of Lakeview Forge. No allowance will be made for labor performed
by the Purchaser on defective forgings.
Lakeview Forge shall be liable for breach of this warranty only if it
receives written notice of such breach within thirty (30) days from the date of
shipment of the product to which the breach relates. The foregoing shall constitute the sole
remedy of the Purchaser for any breach by Lakeview Forge of its warranty.
(b) LAKEVIEW FORGE MAKES NO WARRANTIES,
EITHER EXPRESS OR IMPLIED, REGARDING PARTS MANUFACTURED BY IT, CUSTOM DESIGN
SPECIFICATIONS SUPPLIED BY IT, OR CUSTOM INSTALLATION COMPLETED BY IT OR ITS
AGENTS, (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES AS TO
MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AGAINST
INFRINGEMENT OF ANY PATENT), EITHER EXPRESSED OR IMPLIED, EXCEPT AS PROVIDED
HEREIN.
15. TERMS. ˝% discount 10 days; net 30
(parts); net 30 (dies). 1% per month interest
added to invoices over 30 days. Credit cards accepted. Purchaser hereby grants to Lakeview Forge a
security interest in the goods until all monies due are paid in full. Lakeview Forge shall have the right to file
financing statements and any other documents that may be necessary to evidence
and perfect such a security interest in the goods in any jurisdiction.
16. LIMITATIONS OF LIABILITY AND INDEMNITIES. In no event, whether as a result of breach of contract, warranty or tort
(including negligence and strict liability), shall Lakeview Forge be liable for
any consequential or incidental damages including, but not limited to, loss of
profit or revenues, loss of use of the forgings or any associated material, Purchaser’s products, damage to associated
equipment, cost of capital, cost of substitute products, facilities, service or
replacement power, down time costs or claims of Purchaser’s customers for such
damages. Purchaser hereby agrees to
indemnify Lakeview Forge and to hold Lakeview Forge harmless from any and all
liability, claims, demands, actions, suits or expenses or costs, including
reasonable attorney’s fees, whatsoever for such consequential or incidental
damages or by reason or growing out of personal injuries to Purchaser or its
employees or property damage suffered by Purchaser or its employees, whether
the same results from breach of contract, warranty or tort (including
negligence and strict liability) of Lakeview Forge or Lakeview Forge’s
employees or otherwise, it being the intention of this provision to absolve and
protect Lakeview Forge from any and all such loss.
17. ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Quotation, or the breach thereof, shall be settled by
arbitration. The arbitration shall be
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. For domestic
shipments, the arbitration proceedings shall take place in Erie, PA. For international shipments, controversies or
claims arising out of this Contract shall take place in Pittsburgh, PA. The decision of the arbitration panel shall
be binding upon the parties and judgment on the award may be entered in any
court of competent jurisdiction.
18.
LIMITATIONS OF ACTIONS BY BUYER. Any actions
against Lakeview Forge with respect to any matter arising out of or relating to
this Contract must be brought by Purchaser, or anyone claiming through or under
Purchaser, within one (1) year from the date that the claim in question
accrued.
19.
GOVERNING LAW. This Contract shall be construed in accordance with
the laws of the Commonwealth of Pennsylvania, without reference to any
applicable principles of conflicts of law which would direct the application of
the laws of another jurisdiction. The
United Nations Convention on the International Sale of Goods, the 1974
Convention on the Limitation Period in the International Sale of Goods and the
Protocol amending the 1974 Convention shall not apply to this Contract.
20.
WAIVER. The waiver of any right or default in any one instance
shall not be deemed a waiver of any future right to enforce this Contract.
21. ASSIGNMENT. This
Quotation may not be assigned by Purchaser without the written consent of Lakeview
Forge.
22. RECOVERY OF EXPENSES. Lakeview
Forge shall be entitled to recover from Purchaser all costs and expenses
(including, but not limited to, reasonable attorney's fees) which are incurred
by Lakeview Forge in enforcing its rights including, but not limited to, the
recovery of any amounts owed by Purchaser to Lakeview Forge.
23. CLERICAL ERRORS. Clerical and stenographic errors
are subject to correction.
24. SEPARABILITY. If any terms and conditions set
forth in this quotation is declared null and void by any court of competent
jurisdiction, the remaining terms and conditions shall nevertheless remain
applicable.
1247634.2