Copyright & Trademark Notice
Copyright © 2019 Climax Metal Products Company. All rights reserved.
The contents of all material available on this Web site are copyrighted by Climax Metal Products Company unless otherwise indicated. Users may download pages or other content for their own personal use on a single computer, but no part of such content may be otherwise or subsequently reproduced, downloaded, disseminated, or transferred, in any form or by any means, except with the prior written agreement of, and with express attribution to, Climax Metal Products Company.
Terms and Conditions
1. Application
These General Terms and Conditions of Sale (General Terms) apply to: (a) all proposals and quotations submitted by Climax Metal Products Company (Seller); (b) all purchase orders received by Seller; and (c) all sales of goods and services sold by Seller, except as otherwise specifically provided in a document issued by Seller. Any services to be provided by Seller, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units or included as part of an installation), will be considered ancillary to a sale of goods, and the UCC will apply to all goods and services to be provided by Seller (Goods).
2. Formation
A written or verbal quotation issued by Seller is an offer to sell. Buyer will be deemed to have accepted the provisions of these General Terms and an agreement will be formed by any of the following: (a) signing and returning to Seller a copy of any quotation; (b) sending to Seller a written acknowledgment of the quotation; (c) placing a purchase order or giving instructions to Seller respecting manufacture, assortment, or delivery of the Goods (including instructions to bill and hold) following receipt of any quotation; (d) failing to cancel a pending purchase order with Seller’s written consent; (e) accepting delivery of all or any part of the Goods; (f) paying for all or any part of the Goods; or (g) indicating in some other manner Buyer’s acceptance of these General Terms. All sales by Seller consist only of these General Terms and those in other documents which are referred to in these General Terms or are attached hereto or in a document provided or signed or issued by Seller and referencing the transaction (all of which constitute the Agreement). Seller objects to all terms proposed by Buyer.
3. Integration and Modification
A. Revocation. The Agreement supersedes all previous quotations and agreements pertaining to the Goods. Delivery to Seller of Buyer’s acceptance of Seller’s quotation (according to its terms), Seller’s actions in reliance on Buyer’s oral acceptance of a written or oral quotation, or Buyer’s receipt of the Goods, will constitute a binding contract under the terms of the Agreement.
B. Complete Integration. The Agreement is a final, complete and exclusive statement of the Agreement of Buyer and Seller. An order or an amendment submitted by Buyer orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, or inconsistent with these General Terms), may be accepted, approved or filled by Seller, but any resulting contract and the liabilities or obligations of Seller will be determined solely by the Agreement, and (unless Seller otherwise advises Buyer in writing) notice is given that Seller objects to any such terms or conditions in Buyer’s purchase order or other document or communication. Seller will not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filling such order or by failing to further object to Buyer’s terms or conditions.
C. Modification. SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE GENERAL TERMS, BUT SELLER RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS TO COVER SELLER’S ESTIMATED COST OF SUCH CHANGES. No modifications, limitations, waivers or discharge of the Agreement or any of its terms will bind Seller unless in a writing signed by an officer of Seller. Notwithstanding anything to the contrary in this Agreement, no modifications, limitation, waiver or discharge of any provision of the Agreement will affect Buyer’s liabilities to Seller accrued prior thereto. Seller may correct unilaterally mathematical and typographical errors in the Agreement. Typed provisions of the Agreement take precedence over printed provisions. A course of performance, course of dealing, or custom in the trade will not modify or waive any right of Seller.
D. Parties. The Agreement is only for the benefit of Buyer and Seller, except all disclaimers and limitations applicable to Seller will be also for the benefit of Seller’s affiliates, agents, employees, contractors, and suppliers. If any other provisions of the Agreement are determined to apply to third parties, all other provisions including limitations, waivers, and disclaimers also apply.
E. Acknowledgments. Buyer and Seller acknowledge that: (i) they are merchants in respect to the Goods produced by Seller; (ii) they have had an opportunity to review the Agreement; and (iii) the provisions of the Agreement are reasonable when considered as a whole.
F. Directed Source Supplies. Buyer may direct Seller to obtain components or services from third parties (Directed Source Suppliers) for use in the provision of the Goods. Seller will not be responsible to Buyer for any warranty or other claims arising from Directed Source Supplies or from the failure of the third party to timely provide Directed Source Supplies. If a third party that provides Directed Source Supplies fails or refuses to provide services or goods, Seller will be able to assert Force Majeure under Section 27.
4. Authority of Seller’s Agents
No agent, employee or representative of Seller has authority to bind Seller to any affirmation, waiver, representation or warranty concerning the Goods, not contained in the Agreement. An affirmation, waiver, representation or warranty will not be deemed to be part of the basis of the Agreement and will not be enforceable, unless it is expressly included within the Agreement.
5. Prices, Payment and Risk of Loss
Prices contained in individual written quotations or proposals are firm only for a period stated therein and otherwise for thirty (30) days from the date of the quotation.
6. Manufacturing
Buyer acknowledges and agrees that Seller may elect to manufacture Goods for supply under this Agreement or to procure such goods from third-party subcontractors or suppliers, and that sources for such goods may include countries outside the United States.
7. Delivery
Shipping dates are estimates based on Seller’s present engineering and manufacturing capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer’s order or by necessity in filling the order.
8. Delay of Shipment or Performance Excused for Various Reasons
If shipment of any Goods or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the Goods at the place of manufacture or elsewhere at the risk and expense of Buyer from the time it is ready for shipment.
9. Inspection, Testing and Rejection
If the Agreement expressly provides for Buyer’s inspection and/or acceptance of the Goods, Seller’s standard test procedures conducted by Seller’s representative will be the criteria for inspection and/or acceptance, unless other specific procedures have been specified in the Agreement.
10. Installation
All Goods must be assembled and installed by and at the expense of Buyer.
11. General Express Warranties
Seller warrants to Buyer only, subject to the disclaimers and limitations of the Agreement, that Goods to the extent manufactured by Seller will be free from defects in materials and workmanship, excluding design, at the time of delivery, and will repair or replace Goods that fail due solely to manufacturing defects in materials and workmanship, which are discovered and reported to Seller as described in Section 9B.
12. Patent Warranties
Seller disclaims any implied warranty of non-infringement.
13. Disclaimer and Limitation of Express Warranties
There are no express warranties other than those contained in the Agreement, and they are not assignable.
14. Remedies and Limitation of Seller’s Liability
Defective or non-conforming Goods or parts thereof discovered during the express warranty period will be repaired, or replaced by Seller without any additional charge and shipped to Buyer, FOB Seller’s dock, for reinstallation by Buyer at its cost, subject to the terms hereof.
15. Disclaimer of Implied Warranties
Seller disclaims all implied warranties and similar obligations (other than good title) including but not limited to those of fitness for a particular purpose, and merchantability, whether otherwise arising by law, custom, usage, trade practice, course of dealing, or course of performance.
16. Design, Parts, Service and Training Provided by Seller
All design, application engineering, parts, labor, service, if any, provided by Seller or its agents and contractors (including those provided under purchase orders subsequent to the Agreement) related to the Goods (whether or not covered by warranty) are subject to all limitations and disclaimers of warranties and remedies provided in the Agreement.
17. Responsibility for Safety
Goods designed and manufactured by Seller are capable of being used in a safe manner, but Seller cannot guarantee their safety under all circumstances.
18. Indemnification
Buyer will indemnify Seller from any and all third-party claims, damages and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the production, use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts manufactured with the Goods, if the action or inaction of Buyer or its employees, customers or agents, or Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller.
19. Proprietary Information
Buyer acknowledges that any information disclosed to Seller has not and will not be considered by Seller to be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Seller at or prior to the time of the disclosure.
20. Intellectual Property
Any Intellectual Property owned or licensed by Seller and used by Seller in connection with the performance of its obligations will remain the exclusive property of Seller and its licensors, as the case may be.
21. Solvency of Buyer
Buyer represents that it is solvent, able to pay the price for the Goods, and that all financial and business information given to Seller is correct.
22. United States Government Regulations
Buyer may not engage in any transaction with respect to the Goods, by way of resale, lease, shipment or otherwise, which violates any statute or regulation of the United States of America.
23. Fair Labor Standards Act
Seller certifies that any Goods produced in the United States will be produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the U.S. Fair Labor Standards Act, as amended, and of the regulations and orders of the U.S. Department of Labor issued under Section 14 thereof.
24. Breach
If Buyer defaults in the performance of its obligations, if Buyer advises Seller that it will default in the performance of its obligations, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, Seller may cease performance of its obligations, recover the Goods in transit or delivered, disable delivered Goods, and otherwise enforce its remedies for Buyer’s default.
25. Consequential, Incidental, and Other Damages
Buyer and third parties are not entitled to any consequential, punitive, exemplary or incidental damages, as defined in the ucc or otherwise.
26. Claims
Communications concerning disputed debts or other claims, including an instrument tendered as full satisfaction of a debt or must be delivered to an officer of seller.
27. Force Majeure
Seller will not be responsible for any delay or failure in any performance due, without limitation, to acts of God, war, warlike conditions, blockade, embargoes, riots, governmental restriction, labor disturbances, unavailability of anticipated usual means of supplies, transportation or loading facilities, wrecks, epidemics, quarantine, fire, flood, earthquake, explosion, any unforeseen change in circumstances, or any other causes beyond its reasonable control.
28. Commercial Activity; Absence of Immunity
Buyer represents that it is subject to civil and commercial law with respect to its obligations, and the making and performance by it of the Agreement constitute private and commercial acts rather than public or governmental acts.
29. Limitations of Actions
A proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in connection with the Agreement cannot be filed nor maintained by Buyer.
30. Choice of Law
The agreement is governed, construed and enforced under the laws of the state of ohio including the uniform commercial code in force on the initial date of the agreement (ucc), except as provided in these general terms.
31. Jurisdiction
The courts of ohio have exclusive jurisdiction over buyer and seller and the claims arising under or related to the agreement, unless waived in a writing signed by seller and subject to any right of arbitration which may be provided by the agreement.
32. Arbitration
At Seller’s election, all controversies and claims arising out of or relating to the Agreement, or the breach thereof, will be settled solely by arbitration held in Lake County, Ohio, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, provided Seller may also elect to institute, prior to formation of the arbitration panel, an action for a claim and delivery or replevin action to enforce its security or other interests in the Goods.
33. Severability
Any provision found to be unenforceable by a final unappealed order entered by the court or tribunal will be severed from this Agreement.
34. Assignment
No right or interest in the Agreement may be assigned by Buyer without the prior written consent of the Seller.
Quote Incorporation of Terms & Conditions
This quotation, and any resulting sale or contract, is governed by Climax Metal Products Company’s General Terms and Conditions of Sale (the Terms) posted at www.climaxmetal.com, which are incorporated into this Quotation and any resulting sale or contract.
E-Commerce & Legal Disclaimer
E-Commerce & Legal Disclaimer
By accessing this Web site, you understand and expressly agree to be legally bound by our Copyright and Trademark Notice, our Terms and Conditions (collectively “Legal Documents”) and to follow all applicable laws and regulations governing this Web site.
Accounts
You may be given a unique password for access to certain portions of this Web site. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under the password.
Typographical Errors
In the event a good or service to be provided by Climax Metal Products Company (Goods) is listed on this Web site at an incorrect price or with incorrect information due to typographical error or errors in pricing or product information received from our suppliers, Climax Metal Products Company shall have the right to refuse or cancel any orders placed for products listed at the incorrect price.
Order Acceptance Policy
Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell.
Compliance with Laws
You agree to comply with all applicable laws, statutes, ordinances and regulations regarding your use of this Web site and your purchases of products or services through this Web site.
Legal Disclaimer
While Climax Metal Products Company makes every effort to present accurate and reliable information on this Web site, Climax Metal Products Company does not endorse, approve or certify such information, nor does it guarantee the accuracy, completeness, efficacy, or timeliness of such information.
