Commercial Terms and Conditions of Sale
Estwing Manufacturing Co., Inc.
Last Updated: May 1, 2018
All products (“Products”) are sold strictly pursuant to these general conditions of sale (“Agreement”). References by Buyer to its conditions of purchase are null and void and are hereby expressly rejected. Any modification to the Agreement requires the express written approval of Estwing Manufacturing Company, Inc. (“Seller”). Acceptance by Buyer of Products or payment for same constitutes unequivocal acceptance of these terms and conditions. None of any past practice, industry standards, course of dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein. Buyer understands and expressly agrees that Seller cannot and will not sell Products for the fulfillment of U.S. government contracts. Buyer confirms that Products purchased from Seller are not purchased for fulfillment of a U.S. government contract.
2. Offer and Acceptance
Offers to sell Products by Seller are non-binding with respect to price, quantity, delivery time and possibility. Purchase orders from Buyer will only become binding for Seller through a written confirmation from Seller to Buyer and may take the form of an invoice or a delivery note. For orders of less than the specified minimum, Seller will add a handling charge. Seller does not and will not agree, commit or consent to purchasing goods or services of any kind from Buyer in consideration of Buyer purchasing Products from Seller.
3. Samples and Catalogues
Any figures, measurements, statements, descriptions, illustrations, photographs, drawings, or any other matters contained in Seller’s brochures, catalogs, price lists, or advertising literature, or any samples provided to Buyer by Seller are not guaranteed to be accurate and are intended merely to represent a general description or depiction of the Products and shall not form part of any contract or agreement between Seller and Buyer, unless expressly specified and incorporated into any contract or agreement between the Parties in writing.
Seller’s price valid at the time of the written confirmation is the invoiced price. Invoiced price of the Products does not include duty, tariffs, taxes, freight costs or similar charges, which shall be borne by Buyer, unless otherwise agreed in writing. Seller does not promise or agree that prices to any one buyer are as good or better than prices for Products to any other buyer.
Seller’s invoices are due and payable within thirty (30) days after the date of such invoices without any deductions or offset, and payments shall be made in U.S. dollars. Buyer will receive a two percent (2%) discount if invoice is paid in less than 30 days. All prices shown are exclusive of any applicable tax and any tax that Seller is required to collect in connection with a sale are in addition to the quoted price and solely for Buyer’s account. All agreements between the parties concerning cash discounts must be in a writing signed by Seller. Payment shall be considered complete when Seller receives from Buyer the full invoice amount in readily available funds. Seller reserves the right to use payments for the settlement of the oldest due invoice items plus any accrued default interest and costs and such payments shall be applied in the following order; costs, interest and outstanding balance. Non-payment of the purchase price on the invoice due date is a default under the Agreement. If in the sole judgment of Seller, Buyer’s financial ability to perform under the Agreement is diminished, then Seller shall have the right, among any other right or remedy, to change payment terms, require full or partial advance payment or to cancel any outstanding order, without liability. In the event of a payment default by Buyer, Seller is entitled to receive interest on the defaulted payment at a rate equal to eighteen percent (18%) per annum or the maximum interest rate permitted by law. Buyer may only offset claims which are undisputed or have been finally determined by a court of law or arbitral panel acting with proper Jurisdiction. Seller retains a purchase money security interest in the Product(s) sold hereunder until all payments have been received in full by Seller and, if requested in writing to do so, Buyer agrees to do all acts necessary to perfect and maintain such security interest in Seller. Under no circumstances will Seller agree or consent to any audit of its operations, processes or books by Buyer or any agent, representative or third party retained by Buyer.
Delivery shall be in accordance with the terms and conditions of the delivery clause of the applicable sales Invoice. Quoted price for all products is F.O.B. Seller’s principal place of business or the location of shipment, whichever is applicable, unless otherwise agreed in writing. Unless otherwise specified in writing, packing will be Seller’s standard packing. Seller shall endeavor to punctually deliver the Products, provided, however, all specified delivery dates refer to the completion of manufacture and availability for shipment and merely represent Seller’s best estimates. Seller reserves the right to modify the delivery dates with notice to Buyer and Buyer acknowledges that there are no fixed delivery deadlines. Buyer also acknowledges that Seller’s performance herein is subject to correct and punctual supply of Seller by its suppliers. Buyer warrants there will be no diversion of any shipment that is (a) contrary to any applicable law, or (b) for shipment or use outside of the United States, unless approved in writing by Seller, and if so approved, Buyer warrants it will comply with all applicable laws, restrictions and regulations of the U.S. and other governments, including without limitation, the Export Administration Regulations, as amended, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the Office of Foreign Asset Control Regulations. Seller warrants that the manufacture, sale and delivery of the Products complies with U.S. law.
Seller reserves the right to choose the shipping route and the mode of transport. Additional costs resulting from special shipping requests by Buyer are for Buyer’s account. In addition, Buyer shall be responsible for the payment of increases in freight rates, possible additional costs for diversion, storage costs etc. which occur after the sales invoice has been issued, insofar as freight-paid delivery has not previously been agreed upon by the parties. Title shall pass to Buyer upon delivery to carrier. Buyer shall notify Seller immediately upon receipt of any discrepancy as to quantities. Buyer shall assert claims arising from damages in transit directly against the carrier and shall have no recourse against Seller for such damages. Choice of carrier and insurances shall be at Buyer’s discretion. Unless otherwise agreed in writing, Buyer is responsible for the observation of legal and official regulations relating to the transportation, storage and use of the Products. If Products are not shipped within thirty (30) days after notification to the Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including Buyer’s failure to give shipping instructions, Seller may store the Products at Buyer’s sole risk in a warehouse or storage facility or upon Seller’s premises and Buyer shall pay all handling, transportation and storage costs upon submission of invoices therefor. Freight will be prepaid on orders greater than the prepaid minimum. Orders for less than the prepaid minimum will be shipped collect.
No Products may be returned to Seller without Seller’s prior permission in writing. All returned Products must be in original shelf box and in resalable condition. Credit for approved returned Products will be issued at original purchase price, less shipping costs and a fifteen percent (15%) restocking fee.
9. Force Majeure
Neither party shall be held responsible for any loss, damage, delay or lack of delivery arising from fire; strikes, lockouts, injunction or other labor troubles, governmental intervention including, but not limited to, prohibition or extraordinary taxation upon import or export; war; riots; acts of terrorism; explosion; weather; flood; acts of God or nature; inability to obtain on terms acceptable to Seller or shortage of fuel, power, raw materials, labor, containers or transportation; accident; breakage of machinery or other apparatus; disruption of normal supplier channels of distribution; or any other act or force beyond the affected party’s reasonable control. If, as a result of any of the disruptions listed above, the delivery or acceptance of the Product is delayed by more than thirty (30) days, then either party may upon notice cancel the applicable sales contract and terminate any further obligation to the other party. Seller reserves the right to allocate and fairly apportion Product(s) among its internal and external customers during force majeure events in any manner Seller, in its sole discretion, deems appropriate. Seller has no obligation to acquire by purchase or otherwise any Product(s) that Seller is unable to supply to Buyer due to force majeure events.
10. Limited Warranties
Seller warrants that the Products are free from defects in material and workmanship. Seller’s sole obligation under the aforesaid warranty is to replace the Products, which if properly used and maintained, prove defective in material or workmanship. Such replacement is Buyer’s sole remedy hereunder and at Seller’s option, Buyer shall return such defective Product. Upon Seller’s request, Buyer shall promptly provide samples and other evidence of, and shall allow Seller’s representatives access to the alleged defective Products. Claiming an alleged defect does not relieve Buyer of any of its payment obligation to Seller. Buyer shall not return any alleged defective Products without Seller’s prior written consent. Buyer agrees to reimburse Seller for all costs and expenses associated with any return of Products unauthorized by Seller. Receipt or inspection of returned Products by Seller shall not be deemed an admission of any alleged defect. Seller’s obligations under this Section do not apply to Products damaged due to negligent or faulty use, alteration, maintenance, storage or handling. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of Products shall not be construed as an express warranty unless confirmed to be such in writing by Seller. THE WARRANTY EXPRESSED HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE WHICH ARE EXPRESSLY DISCLAIMED, AND IS IN LIEU OF ANY AND ALL OTHER OBLIGATIONS OR LIABILITY ON SELLER’S PART.
11. Limitation of Liability
NOTWITHSTANDING ANY PROVISION IN THESE CONDITIONS OF SALE OR ELSEWHERE TO THE CONTRARY: (a) SELLER’S LIABILITY HEREUNDER AT ANYTIME FOR ANY CAUSE WHATSOEVER WILL NOT EXCEED THE PRICE PAID FOR THE PRODUCTS AT ISSUE, (b) SELLER IS NOT LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR NATURE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER, INCLUDING LOSS OF REVENUE OR PROFIT. These limitations of liability shall apply notwithstanding any finding that any remedy fails its essential purpose.
Seller agrees to indemnify, defend and hold harmless the Buyer from and against all third-party claims allegations, lawsuits, losses, damages, verdicts, settlements, costs, penalties, expenses and attorneys’ fees (“Claims”) asserted against Buyer, arising out of or related to (as applicable): (i) Infringement or violation of patents, copyrights, trademarks or other proprietary rights related to the Products; and (ii) product liability claims related to the Products. Buyer will promptly notify Seller of any Claims brought against it by a third party, which are subject to indemnification under this Agreement. Seller agrees to, at its own cost; defend the Claims using counsel acceptable to Seller and Buyer agrees that Seller will have sole control over the defense of such Claim or any settlement and that Seller may defend or settle any Claim in such a manner as Seller deems appropriate, in its sole discretion. Buyer may, at its option and expense and subject to the forgoing, participate in the defense of any Claim.
13. Limited License
Buyer is granted a revocable, limited, non-exclusive license to use the trademarks and copyrights of Seller for the sole purpose of advertising and selling Seller’s Products, provided such use complies with Seller’s guidelines for the use of its trademarks and copyrights in effect from time to time.
14. Suspension and Cancellation
If Buyer omits delivery instructions or fails to accept Delivery, as required by this Agreement, or fails to make any payment when it becomes due or commits any other breach of contract, or if Buyer enters into any composition or arrangement with its creditors or if any distress or execution is levied upon any goods or property of Buyer, or if Buyer commits any act of bankruptcy or, if a corporation, a receiver is appointed of the whole or any part of its undertaking or assets or if Buyer passes a resolution for winding up or if a Court makes an order to that effect or if Buyer has a receiving order made against it, then at Seller’s sole option Seller may defer or cancel any further deliveries and treat this Agreement or any other contract between Seller and Buyer as terminated, but such termination is without prejudice to Seller’s right to any unpaid price for products delivered under the Agreement and to damages for loss suffered in consequence of such termination.
15. Governing Law; Venue
These terms and conditions are governed by and will be construed in accordance with the laws of the State of Illinois, without giving effect to its conflict of laws principles. Venue with respect to any dispute arising out of or related to these terms and conditions resides solely and exclusively in the state or federal courts located in Rockford, Illinois. This choice of venue is intended by the parties to be mandatory and not permissive in nature.
16. Additional Terms
This Agreement may not be assigned by either party to any other party without the prior written consent of the other party hereto; provided, however, that Seller may assign its rights and obligations hereunder, by written notice to Buyer, to a third-party successor or transferee (whether by merger, consolidation, purchase or otherwise) of all or substantially all of the assets of Seller. This Agreement is binding upon and inures to the benefit of the parties and their respective legal representatives, successors and permitted assigns. The rights and obligations under Articles 10, 11, 13, 15, and16 herein survive the cancellation, termination or expiration of the Agreement. Should any part of the Agreement be deemed invalid by a court of law or arbitrator, it shall not constitute an invalidation of any other part of the Agreement, which otherwise remains in effect. Failure of Seller to effect, or any delay by Seller to effect, any available right or remedy will not operate as a waiver of same. Except as otherwise expressly provided, the Agreement supersedes all prior terms and conditions, agreements, understandings or otherwise, whether oral or written, including but not limited to those purporting to be “perpetual” or “irrevocable,” between Buyer and Seller concerning the subject matter of the Agreement, other than agreements previously made and signed by both Seller and Buyer and still in effect. Seller’s acceptance of (a) payment, or (b) specially endorsed checks shall not waive or limit any right or remedy of Seller. Nothing contained herein is intended nor shall be construed as creating a partnership, joint venture, agency, distributorship or any other relationship except buyer and seller.