THE ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH BELOW CONSTITUTE THE EXPRESSION OF ALL OF THE TERMS OF THIS AGREEMENT AND A COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN BUYER AND Econ Welding & Fabrication, LLC, (“Seller”).

 

  1. All prices are F.O.B. Seller’s place of business, unless otherwise agreed to in writing.

 

  1. Payment for Goods purchased hereunder shall be paid in full, order and payment shall be made in U.S. funds unless otherwise agreed to in writing by Seller. No discount will be allowed unless specifically set forth in the item description or on Buyer’s order form. Until the Purchase Price and all other sums due pursuant hereto are paid in full, Seller retains a security interest for the materials described on Buyer’s order form (herein sometimes referred to as “Goods”) and in all proceeds of the sold Goods.

 

  1. LIMITED WARRANTY. Seller warrants that the Goods manufactured by it will be free from defects upon delivery to the Buyer and for a period of two years thereafter. If any of the Goods are found by Seller to be defective, Seller at its option will replace such Goods or credit Buyer for the Purchase Price for such Goods. The Parties hereto expressly agree that Buyer’s sole and exclusive remedy against the Seller shall be for the replacement of defective Goods or a credit adjustment as provided herein. The sole purpose of the stipulated exclusive remedy shall be to provide the Buyer with free replacement of defective Goods or a credit adjustment in the manner provided herein. The exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to replace the defective Goods or provide a credit adjustment in the prescribed manner. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE NOT EXPRESSLY SET FORTH HEREIN. NO AFFIRMATION OF SELLER, BY WORDS OR ACTIONS, OTHER THAN AS SET FORTH IN THIS SECTION SHALL CONSTITUTE A WARRANTY.

 

  1. LIMITATION OF LIABILITY. SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY) SHALL BE LIMITED TO REPLACING THE GOODS FOUND TO BE DEFECTIVE OR, AT SELLER’S OPTION, TO CREDITING OR PAYING BUYER AN AMOUNT EQUAL TO THE PURCHASE PRICE OF SUCH GOODS. IN NO EVENT SHALL THE SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOST PROFITS.

 

  1. ACCEPTANCE AND TRANSPORTATION. Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the Goods. Unless the Buyer provides Seller with written notice of any claim for shortages or defects in the Goods within four (4) days after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer. In absence of shipping and packing instruction, Seller shall use its own discretion in choice of carrier and method of packing.

 

  1. TITLE AND RISK OF LOSS. Title to any Goods sold and risk of such Goods passes to Buyer upon delivery by Seller to a common carrier and any claim for losses or damages shall be made by Buyer directly with carrier.

 

  1. Unless otherwise specifically provided on the face hereof, the price for the Goods purchased is not and does not include sales and use, excise or similar taxes whether federal, state or local. The amount of any such taxes applicable to the Goods shall be paid by the Buyer in the same manner and with the same effect as if originally included in the Purchase Price.

 

  1. All shipping dates are approximate and are based upon current availability of materials, present production schedules and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment or other non-performance of this Agreement caused by or imposed by: (1) strikes, fires, disasters, riots, acts of God; (2) acts of buyer; (3) shortages of labor, fuel, power, materials, supplies, transportation or manufacturing facilities; (4) governmental action; (5) subcontract delay; or (6) any other cause or condition beyond Seller’s reasonable control. In the event of such delay or non-performance, Seller may at its option, without liability, cancel all or any portion of this Agreement and/or extend any time upon which performance hereunder is due.

 

  1. TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, cancelled or modified or shipment rejected after acceptance of Buyer’s order by Seller except with Seller’s written consent and subject to conditions then agreed upon which shall indemnify Seller against liability and expense incurred and commitments made by Seller and which shall provide for profit on work in progress and contract value of Goods or parts completed and ready for shipment.

 

  1. RETURNS AND EXCHANGES. Some of Seller’s Goods are manufactured using certain materials and manufacturing methods, including but not limited to, polished stainless steel that may contain distortions in the reflection and minor haziness and other imperfections due to the nature of the manufacturing method and material. These imperfections are not defects and Buyer agrees to accept the Goods with such imperfections. Upon Buyer’s request, Seller will make available to Buyer product samples for Buyer to inspect and approve. Due to the manufacturing methods utilized, dimensional tolerances are defined as plus or minus 0.125” on the overall dimensions and placements for standard products. Products that are excessively large, or relatively complicated may exceed these tolerances. Unless otherwise agreed upon in writing, products that vary in size within this tolerance are not eligible for return due to defect. Due to the custom nature of the Goods, Seller will accept returns and exchanges in Seller’s sole discretion.  If the Seller accepts a return, Buyer shall pay to Seller a minimum restocking fee of 20% of the Purchase Price, and shall be responsible for return shipping where applicable.

 

  1. APPLICABLE LAW. This Agreement shall be governed by and construed under the laws of the State of Illinois and any disputes under this Agreement shall, to the exclusion of all other jurisdictions, be litigated in Federal or State Courts located in Cook County, Illinois. The Seller shall be entitled to recover from Buyer its reasonable costs and attorneys’ fees related to any lawsuit or claim by and/or between Buyer and Seller in which Seller is the prevailing party.

 

  1. ENTIRE AGREEMENT. This Agreement contains the entire agreement between Seller and Buyer and no statement, correspondence, sample or other term shall modify or affect the terms hereof.

 

  1. Seller does not guarantee that the size and/or style of the Goods purchased herein will be acceptable for Buyer’s specific use. Buyer acknowledges that Buyer has provided specifications for the Goods to be manufactured hereunder.  Seller makes no warranty or guarantee as to the suitability of the Goods for Buyer’s use.
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