In the absence of an executed agreement between parties, the following Terms and Conditions for Order Acceptance will apply.
Manufacturer/Distributor ("Company") is a business that produces and distributes custom drivetrain solutions in accordance with specifications provided by customers. Buyer desires to engage Company to manufacture certain of products in accordance with directions provided by Buyer.
Buyer hereby engages Company, and Company hereby accepts Buyer’s engagement, to furnish drivetrain components in accordance with Section 3.
(a) Company's terms and conditions of acceptance are solely within the Company's discretion. Buyer’s Orders shall set forth for each ordered Product: the quantity, the applicable Purchase Price and total price, delivery and shipping instructions, the requested delivery schedule, which may be adjusted through regular status reports issued by the Company in accordance with Section 4. All Orders shall be governed by these Terms and Conditions, which shall not be changed or supplemented without written acceptance by the Company. Pre-printed terms and conditions on Buyer’s Order form, if any, shall not apply to the Order. No Order is accepted unless Company issues an acknowledgement. (b) Order Modification, Cancellation, or Delivery Schedule Changes requested by Buyer will be binding on the Company upon Company's written acceptance of the request and upon terms, satisfactory to Company that compensate Company for all costs incurred by reason of such modification, cancellation or deferment. “Costs” as used herein includes engineering, production and overhead costs attributable to the order as well as NCNR Inventory and Excess Inventory and profits not realized by the Company due to modification, cancellation or schedule changes. In the event of Order cancellation (i) Company will ship and Buyer will accept all Products completed prior to the cancellation date and (ii) the Product warranty will not apply to the Product which is the subject of the cancelled order. (c) Tooling and Fixtures required to manufacture Buyers products, will be a one-time charge based on a quote for each design. Buyer will retain ownership of the Tooling and Fixtures upon paid invoice.
Company will ship Products in accordance with each accepted Order, subject to these Standard Terms and Conditions. Delivery of Products shall be made ex works from the facility manufacturing the component. Title to, and risk of loss for, Products shall pass to Buyer at the time of delivery of possession of the Products to a common carrier.
The Product shall be deemed accepted by Buyer when the Product has passed Company's inspection, conforms to Specifications and is delivered to Buyer, namely, placed it in the hands of a common carrier. Buyer shall have 7 days to notify Company of Buyer’s revocation of acceptance of Product based on non-conformance to specifications. Buyer’s revocation must be in writing.
Buyer shall pay Company the Purchase Price as set forth in the Sales Order Acceptance or in any invoice pertaining to a modification or cancellation. The Purchase Price is exclusive of packaging, shipping and insurance costs and federal, state and local taxes, which shall be borne by Buyer. Company shall invoice Buyer concurrently with each Product shipment. An invoice will include the invoice date, the Order number, and the total price and name (if applicable) and address where payment is to be sent. Buyer shall pay all invoices on receipt of the invoice date. Payment shall be made in U.S. dollars.
Payment not received when due shall bear interest at the rate of 1½% monthly from its due date until paid and storage fees of $100 per month.
If Buyer requests that Company incorporate an engineering change into a Product, such request shall include a description of the proposed change sufficient to permit Company to evaluate it. Company's evaluation shall be in writing and shall state the impact of the requested change on the existing delivery schedule and cost. Company shall not be obligated to proceed with a requested change until the parties have agreed on the changes to the Product, Specifications, estimated delivery schedule and pricing, including the price for additional NRE, rework, tooling and obsolete materials and testing, if any.
Neither party shall be liable for its failure to perform due to any occurrence beyond its reasonable control, including acts of God, fire, floods, war, terror, sabotage, accidents, labor disputes or shortages, governmental laws, ordinances and regulations, allocations and price restrictions, inability to obtain material, equipment or transportation, or any other similar occurrence; provided, however, Buyer’s payment for Products produced and shipped shall not be suspended by any event of force majeure. The party whose performance is prevented by any such occurrence shall promptly give written notice to the other party of the cessation of performance. The party affected by such occurrence shall use commercially reasonable efforts to minimize the effects of the force majeure event.
(a) Ownership of Intellectual Property. Title to and ownership of all of the technology, trade secrets, knowhow and information regarding Products supplied by Buyer to Company shall remain in Buyer. Buyer hereby grants Manufacturer a limited, non-transferable, non-exclusive revocable license to use Buyer’s software, technology, trade secrets, knowhow and proprietary information (Buyer’s Proprietary Information), free of any claim or allegation by Buyer of misappropriation or infringement by Company of Buyer’s Proprietary Information; provided, however, that Company's license to use Buyer’s Proprietary Information shall endure only for the term of the accepted Order. After the termination or expiration of an accepted Order, Company shall have no further rights to use Buyer’s Proprietary Information as to that Order and Company shall return to Buyer all documents and materials relating to Buyer’s Proprietary Information. Title to and ownership of any software, technology, trade secrets, know how, and information of Company (Company's Proprietary Information) used by Company hereunder shall remain the property of Company. (b) Confidentiality. The parties acknowledge that each party’s Propriety Information set forth in Section 9 (a) contains valuable trade secrets. Each party agrees that it will maintain and protect the confidentiality of the other party’s Proprietary Information using the same standard of care that such party uses to protect its own Proprietary Information, which in no event shall be less than reasonable care. The obligation to keep each party’s Proprietary Information confidential survives the termination or expiration of the accepted Order.
Buyer acknowledges and agrees that the Products are not designed for public road use.
Company warrants that Products supplied to Buyer hereunder will conform to Buyer’s Specifications and will be free from defects in workmanship for a period of ninety (90) days from the date of delivery of the Products to Buyer. Buyer shall notify Company within 24 hours of Buyer’s receipt of Products, in writing, of any Product defect, which notification shall describe the defect in sufficient detail to permit Company to isolate the defect. Upon notification from Buyer, Company will provide Buyer with instructions on returning the Product under a warranty claim. Upon receipt of any Products returned by Buyer pursuant to this Section 11, Company shall inspect Products. If Company determines that the defect is not due to nonconformity with Specifications or is unable to isolate any defect or malfunction in the Product, then Buyer is solely responsible for isolation of the defect or malfunction and Company will seek instructions on whether Company should return the Product to Buyer or dispose of it.
If any returned Product contains malfunctions due to nonconformity with the Specifications, then Buyer’s exclusive remedy and Company's sole liability under this warranty will be, at its sole option and expense, to correct or replace the nonconforming or defective Product or refund the Purchase Price to Buyer. This warranty does not apply to: any first articles, prototypes, pre-production units, test units of a Product, any Products which have been repaired by Buyer or a third party, any Products which have been altered or modified in any way by Buyer or third party; or any Products which have been subject to misuse, abnormal use or neglect or to components received from Buyer. HCF Parts LLC will not be held liable in the case of damage to a product that occurs during customer contracted rework.
THE PRODUCT WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AS TO QUALITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE, WHETHER IMPLIED BY CUSTOM OR LAW. WITHOUT LIMITING THE FOREGOING DISCLAIMER, BUYER ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT WARRANT ANY PARTS, COMPONENTS OR OTHER MATERIALS PROVIDED TO COMPANY BY BUYER AND USED IN THE MANUFACTURE OF THE PRODUCTS.
IN NO EVENT SHALL THE COMPANY BY LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING LOSS OF PROFITS DAMAGES, ARISING OUT OF THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS OR THE FURNISHING OF ANY SERVICE, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, STRICT LIABILTIY OR OTHERWISE, EVEN IF BUYER HAS BEEN WARNED OF THE POSSIBLITY OF ANY SUCH DAMAGES.
Buyer shall defend, indemnify and hold Company and its subsidiaries, officers, directors, employees, agents and representatives harmless from any and all claims, demands, liabilities, actions, suits, proceedings, losses, injuries, death, judgments, and/or costs (including without limitation reasonable attorneys’ fees and related costs) based on or arising out of any claims or demands based on or relating to: Company's use of Buyer’s Proprietary Information in the design of the products; Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products; Buyer’s violation or alleged violation of any federal, state, or local laws or regulations, including the laws and regulations governing product safety, labeling, packaging and labor practices; or a breach by Buyer of any of these terms and conditions. Company shall give written notice of any claim or potential claim to Buyer within a reasonable time following the time at which Company first became aware of the claim for indemnification hereunder. Buyer may, at its option, have control of any litigation and appointment of counsel in defense of any third party claim for which Company seeks indemnification. No suit or proceeding shall be settled or compromised without the prior written consent of Company. The obligation to indemnify under this shall survive the termination or expiration of the accepted Order.
(a) Merger. These Terms and Conditions and the agreements referenced herein constitute the entire agreement of the parties with respect to Company's services for Buyer and can be modified only by written agreement. (b). Governing Law. The validity, interpretation and performance of these Terms and Conditions shall be governed by the laws of the State of Texas, without regard to conflicts of laws principles. Venue for any suit, action or proceeding pertaining to these Terms and Conditions, including any Order, Invoice, Warranty or indemnification claim, shall be in the state or federal courts Travis County, Texas. In any arbitration, suit or action to enforce these Terms and Conditions or for the breach of same, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses therein, including expert fees, deposition costs and reasonable and necessary attorneys fees.
Custom manufactured components to customers specifications are not eligible for return. Items ordered in error attract a 15% restocking fee. Payments made 30 days post invoice date attract a 1.5% per month late payment fee. Storage fees accrue at $100/month for items not collected within 30 days.