ACCEPTANCE. Taubensee Steel & Wire Company ("Taubensee") expressly limits acceptance to the terms of this offer. Seller will be deemed to have accepted all of the terms of this order by (i) shipping any of the goods and so notifying Taubensee (ii) beginning to perform the work requested in this order and notifying Taubensee that such work has begun, or (iii) acknowledging receipt of this order, even if the acknowledgement contains terms different from or in addition to those contained herein. Taubensee hereby objects to any term contained in a responding document sent by the Seller if the term is different from or in addition to the terms of this order. Any difference or addition will be treated as a proposal for modification of the contract. Notwithstanding any condition contained in a responding document, such a proposal will not become part of the contract unless expressly agreed to by Taubensee in writing.
RISK OF LOSS. The risk of loss or delay shall not pass from Seller to Taubensee until Taubensee receives the goods.
FORCE MAJEURE /DELIVERY: Note delivery date requested. Time is of the essence. Seller agrees that delivery will be made on or before the date specified on this order. Seller further agrees to notify Taubensee in writing within five days from the beginning of any strike, fire, flood, act of God, act of the government or any other unforeseeable occurances which may cause delay in delivery. In the event of such occurance Taubensee may, if we do so desire, terminate this order, and upon termination Taubensee shall be liable only for the contract price of goods ordered and delivered by the specified delivery date and accepted by Taubensee as satisfactory. In the event Taubensee chooses not to terminate, despite a delay in delivery, seller agrees to make delivery as soon as commercially leasable at the prices and conditions stated on this order. Taubensee reserves the right, however, to postpone for a reasonable time, shipment by the seller, and in the event of such postponement the specified "delivery date requested" shall be correspondingly extended.
NON-CONFORMING SHIPMENT OR MERCHANDISE. Taubensee shall have the right, after inspection at the specified destination, to reject all or any part of any shipment or merchandise that does not conform to this order in quality, quantity, identity, date of delivery, or otherwise, but acceptance of any non-conforming shipment or merchandise shall not impair any rights or remedies available to Taubensee in law or equity for breach of contract. Rejection of a portion of the goods shall not preclude subsequent rejection of the remainder, in whole or in part. Seller shall reimburse Taubensee for all expenses incurred in unpacking, inspecting, repacking, storing, and reshipping any goods so rejected. In addition, any merchandise that Taubensee or its customers shall find through service, inspection, use, or otherwise, to be defective in material or workmanship or not in conformity with this order may at Taubensee's option be returned to Seller at Seller's expense and risk for full refund, credit, or replacement as Taubensee shall determine, or held at Seller's expense and risk for Seller's instructions.
PRICING: All prices stated on this order are firm and are not subject to escalation. Exceptions to the prices stated on this order are to be made immediately. Otherwise the stated price shall be the agreed upon price between Taubensee and Seller.
WARRANTIES: In addition to Seller's customary warranties, any express warranties, and any other warranties contained herein or implied by law, Seller warrants that the goods will conform to specifications, certifications of test results, drawings, samples, or other descriptions that Taubensee or Seller have furnished or specified, and will be merchantable, of high quality, and free from defects in design, material, and workmanship. If Seller knows or has reason to know the particular purpose for which Taubensee intends to use the goods, Seller warrants that such goods will be fit for such particular purpose. All warranties shall survive inspection, acceptance, use, and payment and shall be for the benefit of Taubensee and its successors, assigns, and customers. Taubensee's extension of express or implied warranties to its successors, assigns, or customers shall not limit Seller's warranties in any way.
QUALITY PROGRAM: We reserve the right to visit your facilities and audit or survey your quality program, or to inspect at any stage in the process of fabrication or manufacture, any goods no matter where located made to sellers or Taubensee's special specifications.
MATERIAL AND DRAWINGS: Any material that Taubensee has furnished or may furnish Seller without charge in connection with this order shall remain Taubensee's property subject to recall at any time. Seller agrees to keep such material fully insured for Taubensee's benefit against loss or damage of any kind and to reimburse Taubensee for any such material that is spoiled or lost while in Seller's possession. All blueprints, specifications, plans or designs furnished to seller by Taubensee are confidential and Seller shall not furnish them to anyone else without Taubensee's written consent.
INFRINGEMENT: Seller warrants that the goods will not infringe any patent, copyright, trademark, trade secret, proprietary right or license. Except where a claim for infringement is based solely upon designs or specifications that Taubensee has furnished to Seller, Seller agrees to indemnify and hold harmless Taubensee and Taubensee's customers from all costs, losses, and expenses (including reasonable attorney's fees) incurred in connection with any claim, demand, or suit based on alleged infringement by reason of Taubensee's purchase or use of any goods or merchandise furnished by Seller. Seller also agrees promptly to assume full responsibility for defense of any suit or proceeding that may be brought against Taubensee, its agents, or customers for any such claim of infringement. Taubensee may be represented by and actively participate through its counsel in any suit or proceeding if it desires and Seller shall pay the costs of such representation.
INDEMNIFICATION AND INSURANCE, (a) Seller agrees to indemnify, defend and hold harmless Taubensee, its employees, and agents, to the extent permitted by law, against all liabilities (including those pertaining to personal injury, property damage, or purely economical loss), losses, expenses (including reasonable attorney's fees), and costs arising out of any claims or actions, including, but not limited to, third party complaints, alleging (i) injury or damage to persons or property caused in whole or in part by the goods covered herein; (ii) Taubensee's failure to perform a contract for resale of the goods covered herein to the extent that failure was caused in whole or in part by Seller's failure to perform this agreement; or, (iii) anything else that would constitute a breach of this agreement by Seller. Seller will assume the full responsibility and expenses of investigation, litigation, and settlement of any such complaints, claims or legal actions. Taubensee may be represented by and actively participate through its own counsel in any suit or proceeding if it desires, and Seller shall pay the costs of such representation.
(b) Seller agrees to obtain and maintain, at its expense, one or more policies of products liability insurance, and with a broad form vendor's endorsement naming Taubensee as an additional insured, sufficient to cover any claims that may arise at any time concerning the goods specified in this order. All such policies shall provide that coverage thereunder shall not be terminated except upon ten days' prior written notice to Taubensee. Seller shall furnish to Taubensee a certificate of insurance expressly showing such coverage including executed copy of the endorsement.
INSURANCE REQUIREMENTS. Seller shall at all times maintain in force public liability insurance, naming Taubensee as an additional insured, in the amount of not less than $1,000,000 combined single limit with respect to property damage and bodily injury or death. Seller shall also maintain workmen's compensation insurance coverage on all Seller's employees engaged in work on Taubensee's premises in the amount required by the applicable law and motor vehicle liability insurance in the amount of at least $1,000,000 combined single limit for all Seller's personnel operating motor vehicles on or near Taubensee's premises. Seller shall furnish to Taubensee certificates of insurance expressly showing such coverage prior to shipment.
COMPLIANCE WITH LAWS. Seller represents that the merchandise covered by this order was manufactured and is being priced and sold in accordance with all federal, state, and local laws, Each invoice must contain a statement that the goods referred to therein were produced in accordance with the provisions of the Fair Labor Standards Act of 1938, as amended. Seller agrees to comply with every applicable obligation imposed by the equal opportunity clause set forth in 41 C.F.R. § 60-1.4(a) and the affirmative action clauses set forth in 41 C.F.R. §§ 60-250.4,-741.4.
TAXES. Unless otherwise provided on the face hereof, Seller shall hold Taubensee harmless from the assessment or imposition of any excise, use, or other tax upon the production, sale, delivery, or use of the goods to the extent the assessments or impositions are required or not forbidden by law to be borne by Seller.
SET-OFF. Upon notice to Seller, Taubensee may deduct damages for breach of warranty or of any other provision of this Agreement and any counterclaim from the amount shown as due Seller on any invoice, even if the deduction and the invoice are unrelated to the same sale or series of sales.
INSOLVENCY OF SELLER. If Seller becomes insolvent, or if proceedings in bankruptcy, arrangement, reorganization, or for the appointment of a receiver are filed by or against Seller, or if Seller makes an assignment for the benefit of creditors, or if an attachment or execution against Seller or any of its property is not released within a period of ten days from and after such levy, then this order shall be cancelled as to any part upon which performance has not been completed, unless Taubensee, within ten days after learning of the occurrence of one of the above events, notifies Seller in writing that Taubensee elects to have this order continue to its completion.
ASSIGNMENT AND DELEGATION. Seller shall not assign any right or interest in this order or delegate any obligation owed or the performance of any obligation without Taubensee's prior written consent. Any attempted assignment or delegation shall be wholly void and will result in the cancellation of this order unless made in conformity with this paragraph.
LIMITATION ON TAUBENSEE'S LIABILITY; STATUTE OF LIMITATIONS. In no event shall Taubensee be liable for anticipated profits or for incidental or consequential damages. Taubensee's liability on any claim of any kind for any loss or damage in connection with this order or from the performance or breach thereof shall in no case exceed the price allocable to the goods, services, or unit thereof that gives rise to the claim. Taubensee shall not be liable for any penalties. Seller must commence any action resulting from any breach by Taubensee as to the goods delivered hereunder within one year after the cause of action has accrued.
SEVERABILITY. If a court of competent jurisdiction declares or holds invalid or unenforceable any term, clause, or provision of this Agreement, that declaration or holding shall not affect the validity and enforceability of any other term, clause, or provision contained herein.
LAW OF ILLINOIS. The laws of Illinois shall govern this transaction in all respects.
EXCLUSIVE JURISDICTION. Taubensee and Seller hereby agree to the exclusive jurisdiction of any state or Federal court located within Cook County, Illinois and not to bring suit against the other party in any other jurisdiction, with respect to any claim or cause of action arising under or relating to this order, and Taubensee and Seller each waive personal service of any and all process upon it, and consents that all services of process be made by registered mail, directed to it at its address as set forth on this order, and service so made shall be deemed to be completed when received. Taubensee and Seller also each waive any objection based on forum non conveniens and waive any objection to venue of any action instituted hereunder. Nothing in this paragraph shall affect the right of Taubensee or Seller to serve legal process in any other manner permitted by law.
FULL AND FINAL AGREEMENT. The terms set forth herein constitute the sole terms and condition of this contract between Taubensee and the seller. No other terms, conditions or understandings, whether oral or written shall be binding upon Taubensee, unless hereafter made in writing and signed by our authorized representative. We specifically object to any different terms in any document or writing prepared or furnished by the seller.
TERMINATION AT OPTION OF BUYER.
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