Terms and Conditions of Sale

 

1. Formation of Contract. The following provisions, together with the provisions on Beckett Air’s order acknowledgement and invoice, shall constitute the entire Agreement between Beckett Air, Incorporated (hereinafter the “Seller”) and the Buyer. All terms, conditions and instructions, printed or otherwise, on Buyer’s Order or any other form submitted by Buyer to Seller are hereby rejected. Buyer shall be deemed to have accepted the terms and conditions of this Agreement unless Buyer notifies Seller in writing of any objections as soon as practicable after receipt of this document by Buyer. In the absence of such notification, the sale and shipment by Seller of the goods covered by this Agreement shall be conclusively deemed to be subject to the terms and conditions contained in this Agreement. Any additional or inconsistent terms on any printed form which may have been submitted by Buyer prior to this document, or which may hereafter be submitted by Buyer, including without limitation any purchase order or confirmation order, shall not be binding unless expressly agreed to in writing signed by both Buyer and Seller.

2. Terms of Payment. Unless otherwise agreed to in writing signed by both the Buyer and Seller, Buyer agrees to pay the entire balance due within thirty (30) days from invoice date.

3. Late Payments. In the event of late payment, Seller reserves the right to restrict the acceptance of orders or hold the delivery of products until the Buyer’s account is resolved. Seller reserves the right to apply a late payment fee of one percent (1%) per month on past due invoices.

4. Shipment and Place of Delivery. The goods and materials covered by this Agreement are sold F.O.B. North Ridgeville, Ohio, and Seller’s placement of such goods in the possession of a trucking company, railroad, or other common carrier at the place of such delivery shall constitute delivery to the Buyer and all risk of loss in transit, as well as liability to third persons for loss or injury incurred during transit, shall be borne by Buyer. Notwithstanding the forgoing, title to all goods shall remain with the Seller until the purchase price and all other amounts due under this Agreement have been paid.

5. Force Majeure. Neither party shall be liable in any respect for failure or delay in the shipment or acceptance of the goods if hindered or prevented, directly or indirectly, by war, national emergency, inadequate transportation facilities, inability to secure materials, supplies, fuel or power, fire, flood, windstorm or other act of God, or any act of government, whether foreign, national, or local, whether valid or invalid, or any other cause of like or different kind beyond the reasonable control of the parties. Any quantity of goods so affected shall be deducted from the total quantity purchased by Buyer. Seller may allocate its available supply of goods among itself and its customers on whatever basis it deems desirable during any period of shortage due to any of the above causes.

6. Buyer’s Financial Responsibility. Each shipment or delivery shall constitute a separate sale. If, in the judgment of Seller, the financial condition or, credit of Buyer at any time shall not warrant shipment of goods ordered, Seller, may, at its option, require full cash payment or satisfactory security prior to shipment. In the alternative, Seller may refuse to make any shipment and terminate any order outstanding without any liability of Seller to Buyer. If Buyer fails to comply with or to fulfill any of the terms or conditions of this Agreement (including, without limitation, Buyer’s failure or inability to accept any delivery of goods on the delivery date specified), or the terms and conditions of any other agreement with the Seller, Seller may defer all shipments made under this Agreement or to be made under any or all other agreements with Buyer, until any such default is remedied without prejudice to any and all other remedies which Seller may have.

7. Limit of Liability. In the event of shortages, damaged, late or defective goods for which Seller may otherwise be responsible, Seller’s liability whether based in contract, tort, strict liability, negligence or other shall not exceed the purchase price of such goods or, at the election of Seller, the repair and replacement of any defective, damaged, or undelivered goods. In no event shall Seller be responsible for incidental, consequential, or special damages as a result of shortages, damages, lateness or defects. 

8. No Warranty. Seller makes no warranty of any kind, express or implied as to merchantability, fitness for a particular purpose, or any other warranty whatsoever with respect to the goods covered by this Agreement unless expressly so stated in other writing signed by Seller. Notwithstanding any technical help which seller has offered, or buyer has requested of seller, Buyer affirms that no such warranties have been made and buyer has not relied upon seller’s skill or judgment in furnishing or selecting goods suitable for any particular purpose, and Buyer is cautioned to satisfy himself or itself that the goods are fit for the use to which Buyer intends to put them. Buyer assumes the responsibility for undertaking all testing necessary to determine fitness for each contemplated use. Seller disclaims all liability for loss occasioned by injury or damage to persons or property arising out of the use, handling or possession of such goods.

9. Indemnity. The Buyer shall indemnity and hold harmless the Seller from and against all loss or damage, including any fine, penalty, suit, action, claim, liability, cost or expense, arising from injuries or death to persons, and damage to or destruction of property in any manner caused by incident to, or connected to the products furnished by Seller.

10. Security Interest. Buyer does hereby grant Seller, as security for due and punctual payment of the total purchase price payable for the goods sold and other charges due pursuant to this Agreement, a first priority purchase money security interest in such goods, together with all increases, parts, fittings, accessories, equipment and special tools now and hereafter affixed to any part thereof or used in connection therewith and products, additions, substitutions, and all cash and non-cash proceeds, including insurance proceeds, thereof and thereto (hereinafter collectively referred to as the “Collateral”). Buyer hereby agrees to execute or cause to be executed such financing statements, certificates of title or other security instruments as Seller may reasonably require in order to perfect and maintain the security interest. Buyer further appoints Seller as its attorney-in-fact with power to sign the name of Buyer on any financing statement or similar document necessary, in Seller’s opinion, to perfect or continue to perfect the security interest and lien. If Buyer defaults in any of its obligations or fails to observe any covenant of this Agreement, Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code.

11. Inspection. Buyer shall assume full responsibility for the inspection of all shipments when received. Buyer shall notify Seller in writing if any goods delivered pursuant to this Agreement are non-conforming, visibly defective, or if the quantities received by Buyer do not agree with the quantities indicated on the shipping documents. Notice by Buyer shall be provided as soon as possible after delivery but no later than fifteen (15) days after such delivery. If requested by Seller, Buyer shall return such non-conforming goods or visibly defective goods, at Buyers cost, to Seller within fifteen (15) days of Sellers request. If Seller does not receive timely notice of any non-conforming or visibly defective goods from Buyer, the shipment shall be deemed to have been accepted and approved by Buyer without qualification.  Upon verification by Seller of non-conformance to specifications or visible defect of any timely returned goods, Seller shall either replace, or at Seller’s sole option, refund the purchase price of such non-conforming or visibly defective goods. Buyer assumes all risk of incidental or consequential damages resulting from the use of the goods in manufacturing or otherwise.

12. Taxes. Seller’s prices do not include any manufacturer’s tax, sales or use tax, excise tax, processing or compensating tax, inspection or testing fee, or other tax, fee or charge of any nature whatsoever, imposed by any governmental authority on or with respect to the production, processing, sale or shipment of the goods herein specified, or any ingredient thereof.  Consequently, in addition to the price specified, the amount of any such present or future tax (other than taxes based on Seller’s income, generally), fee or charge shall be paid by Buyer. In the event Seller shall be required to pay any such tax, fee or charge, Buyer shall reimburse Seller for the full amount of any such tax, fee or charge paid by the Seller.

13. Cancellation. This Agreement shall not be canceled by the Buyer for delays in delivery or other causes until written notification of such intention has been actually received by Seller. In any event, however, Buyer shall be obligated to accept any goods and materials previously shipped to Buyer, or any which are in the process of manufacture for the Buyer. Buyer shall be liable for any cancellation charges arising out of Buyer’s cancellation of this Agreement for reasons other than Seller’s delays in delivery.

14. Governing Law. This Agreement shall be an Ohio Agreement and the rights of all parties and construction and effect of every provision hereof shall be governed by the laws of the State of Ohio. The parties hereby designate the Court of Common Pleas of Lorain County, Ohio, as the Court of proper jurisdiction and venue for any actions or proceedings related to this Agreement and any and all agreements executed pursuant hereto and herby waive any objections or defenses relating to jurisdiction or venue with respect to any action or proceeding initiated in the Court of Common Pleas of Lorain County, Ohio.

15. Fair Labor Standards. All goods covered by this invoice have been produced in conformity with all applicable provisions of the Fair Labor Standards Act of 1938, as amended and regulations and orders of the United States Department of Labor issued thereunder.

16. Waiver. No failure on the part of Seller to exercise, no delay by Seller in exercising and no course of dealing with respect to any right or remedy of Seller will operate as a waiver of its rights under this Agreement. Nor will any single or partial exercise of any right or remedy by Seller preclude any further exercise of any other right or remedy due to Seller under this Agreement.

17. Cost of Enforcement. If for any reason it becomes necessary for Seller to initiate any legal proceedings against Buyer for the total or any portion of the purchase price of the goods or services sold under this Agreement, for any other charges due hereunder, or for any other breach of this Agreement, Seller shall be entitled to recover all costs incurred by it in connection with such proceedings, including but not limited to reasonable attorney’s fees.