Columbus Machine Works, Inc. - Terms and Conditions of Sale

TERMS AND CONDITIONS OF SALE

This Agreement is entered into by and between Columbus Machine Works, Inc., an Ohio corporation (hereinafter “Columbus Machine”) and the party named on the Estimate/Invoice (hereinafter “Buyer”) as of the date shown on the Estimate/Invoice.
WHEREAS, Columbus Machine is a parts manufacturer and Buyer wishes to have Columbus Machine manufacture parts and/or products for Buyer’s benefit; and
NOW THEREFORE, in consideration of the mutual covenants contained herein and subject to the terms and conditions of this Agreement, and the parties hereto agree as follows:

Section 1. Buyer agrees to purchase from Columbus Machine the parts and/or products for a certain price both of which are specified on the Quote attached to this Agreement. The terms of the Quote are in addition to the terms of this Agreement. Together, the Quote and this Agreement represent the entire agreement between Columbus Machine and Buyer.

Section 2. Columbus Machine will either manufacture a part or product based on (i) Buyer’s specifications, (ii) a sample provided by Buyer, (iii) drawings drafted by Columbus Machine, or (iv) any combination thereof. Columbus Machine states and Buyer acknowledges that Columbus Machine does not provide any engineering or metallurgical services. Buyer agrees that it is solely responsible for obtaining all engineering and metallurgical studies and/or reports. Buyer further agrees to indemnify and hold harmless Columbus Machine, its agents, representatives, employees, officers, related companies, affiliates, successors, and assigns from any and all claims, demands, actions, damages, and liability, including attorney’s fees and consequential and incidental damages, arising our of any injury or death to any person or damage to any property in any way connected with the parts and/or products manufactured by Columbus Machine. Buyer hereby agrees that it shall be solely responsible for and shall indemnify Columbus Machine from any voluntary or involuntary recalls of any products which contain parts or products manufactured by Columbus Machine or are parts or products manufactured by Columbus Machine regardless of the reason of the recall.

Section 3. EXCEPT AS SPECIFICALLY STATED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PARTS OR PRODUCTS MANUFACTURED BY COLUMBUS MACHINE. COLUMBUS MACHINE EXPRESSLY EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE, AND BUYER AGREES THAT THE GOODS ARE SOLD "AS IS." UNDER NO CIRCUMSTANCES WILL COLUMBUS MACHINE BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE SOUGHT IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND SELLER’S LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTS OR PRODUCTS ON WHICH SUCH LIABILITY IS BASED. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PART OR PRODUCT SOLD HEREUNDER.
Columbus Machine has no knowledge as to trademark or patent rights which third parties may claim in the goods that covered by this Agreement. Consequently, Columbus Machine makes no warranty whatsoever with respect to the freedom of the goods covered by this Agreement from claims of infringement by third parties arising from trademark, patent, or other property rights in the goods. Buyer understands and agrees that Columbus Machine does not warrant the goods free of the rightful claim of any third person by way of infringement or the like. Buyer further agrees to indemnify and defend Columbus Machine, at Buyer’s sole expense, against any claim of trademark or patent infringement arising out of any part or product sold under this Agreement and to hold Columbus Machine harmless from any damages, costs, attorney’s fees and expenses attributable to any such claim.
The use of any sample, model, or drawing during the negotiations leading to this Agreement serves merely to indicate the type of goods that will be tendered to the Buyer. The samples or models create no warranty that the parts or products will conform to the samples, models, or drawings.

Section 4. Buyer's exclusive remedy and Columbus Machine's limit of liability for any and all losses or damages resulting from defective goods or from any other cause shall be for the purchase price actually paid for the particular delivery with respect to which losses or damages are claimed. Columbus Machine shall not be liable for prospective profits or special, indirect or consequential damages, nor shall any recovery of any kind against Columbus Machine be greater in amount than the purchase price of the specific material sold and causing the alleged loss, damage or injury.

Section 5. Buyer agrees to pay all invoices within thirty (30) days of receipt and to pay a monthly finance charge of 1.5% (with a minimum charge of $3.00) on invoices not paid within thirty (30) days. In the event that legal action is required to collect money due for goods and services, Purchaser shall pay all reasonable collection agency costs, attorney’s fees and court costs incurred by the Seller.

Section 6. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Ohio. In connection with any dispute between the parties under this Agreement, the parties hereby irrevocably submit to jurisdiction of the Common Pleas Court and the Municipal Court of Franklin County, Ohio. Each party hereby waives and agrees not to assert, by way of motion, as a defense or otherwise in any such action any claim (a) that it is not subject to the jurisdiction of such court, (b) that the action is brought in an inconvenient forum, (c) that it is immune from any legal process with respect to itself or its property, (d) that the venue of the suit, action or other proceeding is improper, or (e) that this Agreement or the subject matter hereof may not be enforced in or by such courts. The obligations of the parties are performable and venue for any legal action arising out of this Agreement will lie in Franklin County, Ohio.

Section 7. It is expressly understood and agreed by and between the parties hereto that this Agreement sets forth all the promises, representations, agreements, conditions and understandings relative to the transactions set forth herein, and that there are no promises, representations, agreements, conditions, or understandings, either oral or written, between them which have not been expressed herein. It is further understood and agreed that no subsequent alteration, amendment, change or addition to this Agreement shall be binding unless reduced in writing and signed by all parties.