Terms of Sale

  1. PAYMENT TERMS.  Subject to credit approval, all amounts due to Seller will be paid within thirty (30) days of the date of the invoice.  Seller may require a deposit upon confirmation of Buyer’s order.  Seller will invoice for goods and services sold pursuant to these terms and conditions upon shipment of such goods and performance of such services.  At Seller’s request, Buyer shall pay the purchase price of and/or storage fees for any goods remaining in Seller’s inventory more than six (6) months after the date of the respective order.  Upon any termination of this order, Buyer shall pay to Seller the price for all goods completed prior to termination and Seller’s costs for work in process and raw materials, including any non-cancelable orders for raw materials, with respect to all orders and commitments submitted to Seller prior to termination.  Unless otherwise indicated, prices of goods are exclusive of freight costs and any applicable sales, use or other taxes or duties, all of which shall be paid by Buyer.  Seller reserves a security interest in the goods until Seller has received payment in full of all amounts owed to Seller.  Buyer shall execute any document and take any action necessary or desirable to perfect, protect and enforce Seller’s security interest in the goods.  Buyer authorizes Seller to file on Buyer’s behalf and at Buyer’s expense any financing statement or similar document relating to the goods without Buyer’s signature.  Late or non-payments will result in:  (a) interest on past due amounts at the lesser of 1.5% per month or the highest legal rate available; (b) payment of attorneys’ fees and cost of collection; and (c) all other remedies available to Seller.

  2. BUYER'S CREDIT. Seller reserves the right, among other remedies, either to terminate this order or to suspend further deliveries under it in the event Buyer fails to pay for any one shipment when same becomes due. Should Buyer's financial responsibility become unsatisfac­tory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for previously delivered goods.

  3. DELIVERY TERMS.

    1. Title and risk of loss for all goods shall transfer to Buyer upon delivery to Buyer or Buyer’s carrier or agent at Seller’s facility. 

    2. Seller will package all goods in a manner conducive to protecting the goods during shipping, in accordance with industry standards.  In the event Buyer requests additional or alternate packaging, palletizing, or special crating for any goods at any time, Seller will use commercially reasonable efforts to accommodate such request, and Buyer will pay additional packaging fees in accordance with Seller’s then current policies. 

    3. Seller will use commercially reasonable efforts to deliver goods on the specified due date.  However, time is not of the essence of these terms and conditions.  Any specified delivery date is a best estimate.  No liability is accepted for any loss arising from delay or error in the delivery of the goods.

    4. Buyer shall thoroughly inspect all goods immediately upon delivery.  Buyer must provide Seller with written notice of any damage, loss, shortage or nonconformity of the goods within one (1) business day of delivery.  If Buyer fails to give such notice, Buyer shall be deemed to have accepted the goods and Buyer shall pay for the goods in accordance with the terms of the order.  Buyer expressly waives any rights Buyer may have to revoke acceptance after such one (1) business day period.  Seller assumes no responsibility for goods damaged or lost in transit or the repair or replacement thereof.  Buyer’s sole and exclusive remedy for any nonconformity of goods shall be, at Seller’s option and cost, the repair or replacement of the nonconforming goods, or the refund of a pro-rata portion of the purchase price attributable thereto.

  4. LIMITED WARRANTY. Subject to Section 5, Seller warrants that all goods manufactured by Seller shall be new, free from material defects in workmanship and materials, and shall conform in all material respects to the technical specifications, data sheets, referenced standards, samples, drawings, designs and other requirements provided by Seller to Buyer.  Buyer’s sole and exclusive remedy for any breach of this warranty shall be the repair or replacement, at Seller’s option and cost, of defective goods for which Seller receives written notice of defect within one (1) year after delivery.  This warranty excludes remedy for damage or defect caused by abuse, modifications not executed by Seller, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage.  Seller shall use commercially reasonable efforts to assign or transfer to Buyer any warranty provided to Seller by a third party manufacturer of any goods.  Except as provided in this Section 4, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE.  SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, COURSE OF DEALING AND TRADE USAGE.

  5. LIMITATION OF LIABILITY. SELLER'S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS WITH RESPECT TO WHICH SUCH CAUSE ARISES OR, AT SELLER'S OPTION, THE REPAIR OR REPLACEMENT OF SUCH GOODS.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE.  

  6. INDEMNIFICATION. Seller hereby agrees to indemnify, defend and hold harmless Buyer and its directors, officers, employees, affiliates, agents, successors and assigns from and against any and all damages, losses, liabilities, claims, suits and expenses of any kind or nature whatsoever (including reasonable attorneys' fees and court costs) to the extent they arise out of:  (a) the gross negligence or willful misconduct of Seller; (b) any material breach of these terms and conditions or the representations and warranties contained herein by Seller; or (c) any infringement by the goods of any third party trademark, copyright, patent or other intellectual property right, except to the extent such infringement arises out of any intellectual property provided by Buyer or its affiliates.  Buyer hereby agrees to indemnify, defend and hold harmless Seller and its directors, officers, employees, affiliates, agents, successors and assigns from and against any and all damages, losses, liabilities, claims, suits and expenses of any kind or nature whatsoever (including reasonable attorneys' fees and court costs) to the extent they arise out of:  (a) the gross negligence or willful misconduct of Buyer; (b) any material breach of these terms and conditions or the representations and warranties contained herein by Buyer; (c) any flaw or error in any designs, specifications or instructions provided by Buyer or its affiliates; (d) any infringement by the goods of any third party trademark, copyright, patent or other intellectual property right, to the extent such infringement arises out of any intellectual property provided by Buyer or its affiliates; or (e) the continued use of any goods which are known by Buyer to be defective or which are rendered defective by misuse or abuse.  If Buyer’s authorized use of any goods is enjoined or threatened, other than as a result of infringement arising out of intellectual property provided by Buyer or its affiliates, Buyer’s exclusive remedy shall be for Seller, at Seller’s option and at no additional cost to Buyer:  (a) to procure for Buyer the right to continue using such goods; (b) to modify such goods so as to render them non-infringing but still functionally equivalent to the original goods; or (c) to provide substitute non-infringing goods that are functionally equivalent to the original goods.

  7. EXCUSE OF PERFORMANCE.  Neither party shall be liable to the other party for any failure or delay in the performance of any of its obligations under these terms and conditions for the time and to the extent such failure or delay is due to causes that are not reasonably foreseeable and that are beyond such party’s reasonable control.

  8. CONFIDENTIALITY.  Each of the parties agrees to keep the terms of this order and all confidential information and trade secrets of the other party confidential and to not disclose such information or use it in competition with or to the detriment of the other party without the prior written consent of the other party.

  9. ASSIGNMENT; SUBCONTRACTING. Buyer shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of Seller, and any attempted assignment or delegation without such consent shall be void.  Seller may engage subcontractors to perform work in connection with this order; provided that Seller shall remain liable to Buyer for the activities of any such subcontractor.

  10. MISCELLANEOUS. These terms and conditions and all claims between Buyer and Seller shall be governed by the laws of the State of Missouri, without regard to its conflicts of law principles.  Any such claims shall be brought and tried exclusively in the state or federal courts located in St. Louis, Missouri, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding and waives any objection it may now or hereafter have to venue or to convenience of forum.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will apply to these terms and conditions.  If any provision of these terms and conditions is held to be invalid, illegal or unenforceable, such provision shall be ineffective only to the extent of such invalidity, without invalidating the remainder of such provision or any remaining provisions of these terms and conditions.  These terms and conditions constitute the complete and exclusive statement of the agreement and understanding of the parties with respect to the sale of goods and all related matters. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement these terms and conditions shall be binding unless hereafter made in writing, with explicit reference to these terms and conditions, and signed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of purchase orders, shipping forms  or other documents containing terms or conditions at variance with or in addition to those set forth herein, all of which are hereby objected to and rejected by Seller. Section headings contained herein are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof.  No waiver by either Seller or Buyer with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver is expressed in a writing signed by the party to be bound.

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