BRIGHTON TRUEEDGE HEADS & FABRICATED PRODUCTS, INC. – GENERAL CONDITIONS APPLYING TO PROPOSALS – CONDITIONS OF SALE
1. OFFER AND ACCEPTANCE. Brighton has transmitted its written proposal (the “Proposal”) to Purchaser for immediate acceptance. It shall constitute a contract of sale only after Brighton shall have received Purchaser’s acceptance and issued Brighton’s Order Acknowledgement which will incorporate the terms of the Proposal. Purchaser shall be deemed to have accepted the Proposal if it directs Brighton to proceed with furnishing the Goods in writing, whether by e-mail transmission, purchase order or other written communication; provided that if fails to communicate such written direction to proceed prior to Brighton’s issuance of its Order Acknowledgment, Purchaser shall be deemed to have accepted the Proposal upon acceptance of delivery of the Goods or payment therefor, whichever occurs first. Upon issuance of an Order Acknowledgement, the terms and conditions herein contained shall be the terms and conditions of sale (these “Terms and Conditions”). These Terms and Conditions shall govern all sales of Brighton’s goods and services (collectively, the “Goods”) and supersede any prior written or oral agreement, understanding, representation or promise, any pre-printed or standard terms and conditions contained in Purchaser’s request for quote, purchase order, invoice, or similar document or in any subsequent purchase order or written direction to proceed from Purchaser. Brighton’s acknowledgment of Purchaser’s request for quote or purchase order or Brighton’s provision of any Goods described thereunder shall not constitute acceptance of any terms and conditions contained therein, notwithstanding any terms and conditions stated therein to the contrary and regardless of how such terms and conditions may be prefaced or described.
2. PAYMENT. All prices are net cash thirty (30) days from the date of Brighton’s invoice, unless otherwise stated in the Proposal. All amounts that Purchaser owes Brighton with respect to the Goods shall be due and payable according to the terms of the Proposal and these Terms and Conditions. Purchaser is prohibited from, and shall not set-off against, such amounts or any portion thereof, whether or not liquidated, against sums which Purchaser asserts are due it, its affiliates or subsidiaries or any other divisions or units under this or any other transactions with Purchaser its affiliates or subsidiaries or any other divisions or units. Prices are based on the cost of materials as of the date of the Proposal; all items may be subject to escalation and will apply surcharges. Additionally, the price in the Proposal is subject to change based on market volatility resultant from Section 232 and other antidumping or countervailing duties and material availability.
3. DUTY AND TAXES. Brighton’s price in the Proposal does not include, and Brighton is not responsible for, payment of any tax levied for sales, use, excise, value-added, goods and services, business (franchise or privilege) or for any duties, charges or other such taxes imposed on the sale, use, receipt, manufacture, delivery, import, export or transportation of the Goods. Brighton is only responsible for any tax imposed on Brighton, by taxing authorities in Brighton’s jurisdiction, which are based on Brighton’s revenue, income, net income, net assets, net worth, or capital or any taxes imposed in lieu thereof. If Brighton is required to pay any taxes, duties or other charges which are not the responsibility of Brighton hereunder, then Purchaser shall promptly reimburse Brighton for or, the price quoted in the Proposal shall be increased by the amount of any such tax, duty or other charge of any kind levied or proposed under present or future laws by any federal, state, municipal or other government authority upon the Goods or upon the sale, use, receipt, manufacture, delivery, import or transportation thereof or any component thereof.
(a) Brighton warrants that the Goods will be furnished in accordance with the specifications contained in the Proposal. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, ARE EXCLUDED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS, AND FITNESS FOR A PARTICULAR PURPOSE. If it appears within twelve (12) months from delivery of the Goods to Purchaser that the Goods or any part thereof do not conform to this warranty and Purchaser so notifies Brighton of same within a reasonable time after discovery of such nonconformity and, in any event, within said twelve (12) month period, Brighton shall thereupon promptly correct such nonconformity by rework or, if necessary, replacement. Brighton and Purchaser shall mutually determine the nature, extent and location of any rework or replacement necessary to correct such nonconformity; provided, however, that Brighton shall have no responsibility for costs incurred by Purchaser in making preparations for such rework or replacement, including, without limitation, shipment to Brighton of the Goods for such rework or replacement. Further, Brighton shall not be responsible for any on-site costs, including, without limitation, removal and reinstallation of any Goods. Purchaser shall provide Brighton with reasonable and clear access to the Goods which may include, without limitation, removal of materials or structures not supplied by Brighton as well as supplying any equipment, materials or structures which are necessary to provide reasonable access to the Goods being reworked or replaced. Any rework or replaced Goods will be re-warranted only for the remainder of the original warranty period.
(b) The above warranty excludes and Brighton shall have no liability or responsibility for any work done, material furnished, repairs or designs made, specified or furnished by Purchaser or others unless Brighton so expressly agrees in writing. Further, any rework, repair or modification of the Goods done without Brighton’s express written consent or supervision shall immediately and without further notice void the foregoing warranty. Further, Brighton does not warrant the Goods or any rework or replacement thereof against the effects of normal wear and tear due to operation or the environment or any casualty damage. The warranty and remedies above are conditioned upon proper installation, use and maintenance of the Goods in all material respects and in accordance with any written recommendations provided by Brighton.
(c) Brighton’s liability for warranties provided hereunder shall be further limited as set forth in the “Liability” section and “Delivery and Inspection” sections below. In all cases in which Purchaser claims damages allegedly arising out of defective or nonconforming Goods, Purchaser’s exclusive remedies and Brighton’s sole liability with respect to same shall be those specifically provided for under this section “Warranty”.
5. DELIVERY AND INSPECTION. Except as otherwise expressly provided in the Proposal, delivery of the Goods shall be made FOB the place of fabrication as designated in the Proposal or Order Acknowledgment with freight allowed at the location designated in the Proposal or Order Acknowledgment. Shipping dates are approximate and are based on prompt receipt of all necessary information. In case of delay in furnishing complete information, dates of shipment may be extended for a reasonable time. All Goods are inspected in Brighton’s plant prior to delivery. However, Purchaser agrees that upon receipt of any Goods from Brighton, Purchaser will promptly perform an adequate inspection of same BEFORE any Goods are attached to any vessel or other component. Any such attachment without first performing such inspection and promptly advising Brighton of any defect or nonconformity that Purchaser believes may exist shall constitute a complete release of Brighton from any and all liability claimed by Purchaser thereafter, including, without limitation, any liability Brighton may have with respect to the above warranty.
6. LIABILITY. Brighton shall not be responsible for any losses, damages or delays due to transportation difficulties, or for any losses, damages, detentions or delays caused by fire, labor shortage, strike or other difference with employees, civil or military authority, insurrection, riot, war, accident, shortage of care, fuel, labor or material, flood, storm, or any other cause or circumstances, whether like or unlike the foregoing, or for any delays due to failure of Purchaser to furnish and/or approve technical data, drawings, etc. Acceptance of Goods by Purchaser on delivery shall constitute a waiver of any claims or damages due to delay whether or not excused by the foregoing. FUTHER, UNDER NO CIRCUMSTANCES SHALL BRIGHTON BE LIABLE AND PURCHASER EXPRESSLY WAIVES ANY CLAIMS AGAINST BRIGHTON FOR ANY LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY PENALTIES OR FOR LOSS OF USE, PROFIT OR OPERATION OR ANY INTERRUPTION OF BUSINESS OR PRODUCTION. IN ADDITION, UNDER NO CIRCUMSTANCES SHALL Brighton BE LIABLE FOR ANY DAMAGES ARISING FROM LEAKS, VOIDS, RUPTURES OR OTHER IMPERFECTIONS IN GOODS FABRICATED, MANUFACTURED OR BUILT IN CONFORMITY WITH PURCHASER SUPPLIED SPECIFICATIONS OR INDUSTRY ACCEPTED DESIGN CODES. Purchaser shall indemnify and hold Brighton harmless from and against any and all losses, liabilities, costs and expenses, including without limitation, attorney’s fees and costs, arising out of or connected with (a) Purchaser’s use of the Goods and other products, equipment and work furnished to Purchaser by Brighton; and (b) any claim or allegation that the Goods or any other products, equipment or work furnished to Purchaser by Brighton infringes any patent, trademark, copyright or other proprietary right of any third party.
7. CHANGES, DELAYS OR PURCHASER DEFAULTS.
(a) If Purchaser delays or interrupts the progress of work, or causes changes to be made, or if there is a lack of facilities or apparatus to be shipped to Brighton by Purchaser, then Purchaser shall reimburse Brighton for any additional expense, whether direct or indirect, resulting from such causes.
(b) Purchaser agrees to pay Brighton for any extras in the form of labor and/or material in an amount to cover any extra work which may be required over and above the work necessary to normally execute the Proposal.
(c) In the event Purchaser fails to make any payment to Brighton in the amount and at the time such payment is due, Brighton shall have the right to suspend performance hereunder until such time as payment is made in full. Such right shall be in addition to any other equitable or legal remedies which Brighton may have.
(d) If Purchaser’ becomes insolvent or suspends all or substantially all of its operations or any petition is filed or proceeding commenced by or against Purchaser under any state or federal law relating to bankruptcy, arrangement, reorganization, creditor’s rights or receivership or assignment for the benefit of creditors or any circumstances exist giving Brighton a reasonable basis to believe that any of the foregoing is likely or imminent, Brighton shall have the right to: (i) require payment from Purchaser in advance of delivery; (ii) require a letter of credit or other acceptable security in advance of delivery; or (iii) cancel shipment at any time prior to delivery of the Goods without further obligation or liability on Brighton’s part.
8. TITLE AND RISK OF LOSS. Until the Goods Brighton proposes to furnish in the Proposal have been fully paid for, and accepted by Purchaser, all property incorporated in the Goods shall remain personal property, no matter how affixed or attached to real estate, and the title thereto shall remain in Brighton’s name, and in the event of any default by Purchaser, Brighton may at once, and without process of law, take possession of the Goods furnished and remove the same from the premises of Purchaser or repossess the Goods wherever they may be, as and for the property of Brighton. Purchaser agrees to execute and deliver to Brighton, if Brighton so requests, a financing statement conforming to applicable commercial law. Notwithstanding anything herein to the contrary, risk of all loss and responsibility for the Goods shall transfer to Purchaser upon delivery of the Goods to Purchaser.
9. MODIFICATION. No term, condition, representation or agreement altering, detracting from or adding to the terms of the Proposal or these Terms and Conditions shall be valid unless such condition, representation or agreement is in writing and approved in writing by Purchaser and by an officer of Brighton.
10. NON-DISCLOSURE AND NON-USE OF BRIGHTON’S INFORMATION. Purchaser agrees that it will not use Brighton’s data for the manufacture or procurement of any of the Goods which are the subject of the Contract or any similar goods or cause any Goods or said similar goods to be manufactured by, or procured from, any other source or reproduce said data and information or otherwise appropriate them without the written authorization of Brighton in each instance. Purchaser agrees that it will not disclose or make available to any third party any of Brighton’s data or other information pertaining to the Contract which is proprietary to Brighton without obtaining Brighton’s prior written consent in each instance.
11. SPECIAL TOOLING AND DATA: Unless otherwise agreed in writing, all material, software, data processes, equipment, facilities and special tooling, which term includes but is not limited to jigs, dies, fixtures, molds, patterns, special taps, special gages, special test equipment, other special equipment and manufacturing aids and replacements thereof, used in the manufacture of the Goods shall be and remain the property of Brighton. Brighton retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any, furnished and/or specified to be supplied with the Goods.
12. EXPORT / IMPORT: Purchaser agrees that it will comply with all applicable import and export control laws and/or regulations, including without limitation those of the United States and/or other jurisdictions from which the Goods may be supplied or to which the Goods may be shipped. In no event shall Purchaser use, transfer, release, import, export or re-export the Goods in violation of such applicable laws and/or regulations.
(a) In the event of a conflict between the terms and conditions of the Proposal and the terms and conditions stated in the plans and specifications submitted either with the Proposal or hereafter prepared by the parties, the Proposal shall govern. In the event of a conflict between the terms and conditions of the Proposal and these Terms and Conditions, these Terms and Conditions shall govern.
(b) IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND THE TERMS AND CONDITIONS OF ANY DOCUMENTS ISSUED BY PURCHASER CONCERNING THE PROPOSAL OR THE GOODS, THESE TERMS AND CONDITIONS SHALL GOVERN. PURCHASER’S PURCHASE ORDER OR ANY OTHER EXPRESSION OF ACCEPTANCE SHALL BE DEEMED TO BE A WRITTEN CONFIRMATION OF THE PROPOSAL AND THESE TERMS AND CONDITIONS. Further, acceptance of the Proposal is expressly limited to its terms and these Terms and Conditions. Conduct or performance by Brighton recognizing the existence of a contract shall not constitute an acceptance of or assent to any additional or different terms proposed by Purchaser.
(c) The validity, construction and effect of the Proposal and these Terms and Conditions shall be governed by the laws of the State of Ohio, exclusive of choice of law provisions. Brighton and Purchaser expressly agree to exclude from the Contract the United Nations Convention on Contracts for the International Sale of Goods, 1980, any successor thereto and the Contracts (Rights of Third Parties) Act of 1999.
(d) Except as otherwise specifically agreed in writing by Brighton and Purchaser, any dispute relating to the Contract which is not resolved by the parties shall be adjudicated by a court of competent jurisdiction in the state of Ohio.
(e) As used herein, the term “Brighton” means “Brighton TruEdge Heads & Fabricated Products, Inc.”, and the term “Purchaser” means the person or entity for whom the Goods in the Proposal will be furnished by Brighton.
(f) If any material furnished by Purchaser in connection with the Goods to be completed under the Proposal is defective or will not conform to Brighton’s requirements because of chemical composition, dimensions or physical properties, Brighton may cancel this Proposal or the contract of sale into which it may mature without liability, and in such event, Purchaser shall pay Brighton’s costs incurred through time of cancellation.
(g) English shall be the legal language of the Contract, and all parties waive any right to use and/or rely upon any other language, translation or interpretation. The parties specifically agree that in the case of any inconsistencies or interpretation disputes, the English language version shall control.
(h) Failure by Brighton to assert all or any of its rights upon any breach of the Contract shall not be deemed a waiver of such rights either with respect to such breach or any subsequent breach, nor shall any waiver be implied from the acceptance of any payment for the Goods. No waiver of any right shall extend to or affect any other right Brighton may possess, nor shall such waiver extend to any subsequent similar or dissimilar breach. If any portion of these Terms and Conditions are determined to be illegal, invalid, or unenforceable, for any reason, then such provision shall be deemed stricken for purposes of the dispute in question and all other provisions shall remain in full force and effect.
(i) Brighton shall have the right to assign the Proposal, these Terms and Conditions and any Order Acknowledgment applicable thereto in connection with the transfer or sale of all or substantially all of its assets, business or stock, or its merger or consolidation with another company.
The Proposal and these Terms and Conditions are delivered to Purchaser in anticipation of purchase. Upon Brighton’s issuance of an Order Acknowledgement, these Terms and Conditions, together with information contained in the Proposal and Order Acknowledgement shall be considered to specify the terms and conditions of sale of the Goods to Purchaser from Brighton.