Terms and Conditions
Standard Terms and Conditions of Sale Minimum Invoice $50.00 Net
The products described in this document are hereby offered for sale at prices
to be established by Swift Filters, Inc. ("Seller"). This offer
and its acceptance by any customer ("Buyer") shall be governed
by all of the following Terms and Conditions. Buyer's order for any product
described in its document, when communicated to Seller, orally or in writing,
shall constitute acceptance of this offer.
1. Terms and Conditions of Sale:
All descriptions, quotations, proposals, offers, acknowledgements and sales
of Seller's products are subject to and shall be governed exclusively by the
terms and conditions stated herein. Buyer's acceptance of any offer to sell
is limited to these terms and conditions. Any terms and conditions in addition
to, or inconsistent with those stated herein, proposed by Buyer in any acceptance
of an offer by Seller, are hereby objected to. No such additional, different
or inconsistent terms and conditions shall become part of the contract between
Buyer and Seller unless expressly accepted in writing by Seller. Seller's
acceptance of any offer to purchase by Buyer is expressly conditional upon
Buyer's assent to all the terms and conditions stated herein, including any
terms in addition to, or inconsistent with those contained in Buyer's offer.
Acceptance of Seller's products shall in all events constitute such assent.
Unless otherwise agreed by Seller, delivery shall be made F.O.B. Oakwood Village,
Ohio. Any delivery dates shown are approximate only and Seller shall have
no liability for any delays in delivery. Title and risk of loss to the Product
shall pass to Buyer at Seller's point of shipment. Buyer assumes all risks
and liabilities arising out of unloading, discharge, storage, handling and
use of the Product, or arising out of compliance or non-compliance with federal,
state, municipal or local laws and regulations governing or controlling such
Seller warrants that the products sold hereunder shall be free from defects
in material and workmanship for a period of 365 days from the date of shipment
to Buyer, or 2,000 hours of use, whichever expires first. THIS WARRANTY COMPRISES
THE SOLE AND ENTIRE WARRANTY PERTAINING TO PRODUCTS PROVIDED HEREUNDER. SELLER
MAKES NO OTHER WARRANTY, GUARANTEE, OR REPRESENTATION OF ANY KIND WHATSOEVER.
ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. NOT WITHSTANDING THE FOREGOING,
SELLER MAKES NO WARRANTIES WHATSOEVER ON PRODUCTS MANUFACTURED, WHOLLY OR
PARTIALLY, TO BUYER'S DESIGNS OR SPECIFICATIONS.
4. Limitation of Remedy:
SELLER'S LIABILITY ARISING FROM OR IN ANY WAY CONNECTED WITH THE PRODUCTS
SOLD OR THIS AGREEMENT SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT
OF THE PRODUCTS SOLD OR REFUND OF THE PURCHASE PRICE PAID BY BUYER, AT SELLER'S
SOLE OPTION. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED
TO LOST PROFITS ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR
PRODUCTS SOLD HEREUNDER, WHETHER ALLEGED TO ARISE FROM BREACH OF CONTACT,
EXPRESS OR IMPLIED WARRANTY, OR IN TORT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE,
FAILURE TO WARN OR STRICT LIABILITY.
5. Changes, Reschedules and Cancellations:
Buyer may request to modify the designs or specifications for the products
sold hereunder as well as the quantities and delivery dates thereof, or may
request to cancel all or part of this order, however, no such requested modification
or cancellation shall become part of the contract between Buyer and Seller
unless accepted by Seller in a written amendment to this Agreement. Acceptance
of any such requested modifications or cancellation shall be at Seller's discretion,
and shall be upon such terms and conditions as Seller may require. Custom
(non-catalog) articles are not cancelable or returnable.
6. Special Tooling:
A tooling charge may be imposed for any special tooling, including without limitation, dies, fixtures, molds and patterns
acquired to manufacture products sold pursuant to this contract. Such special tooling shall be and remain Seller property
notwithstanding payment of any charges by Buyer. In no event will Buyer acquire any interest in apparatus belonging to Seller
which is utilized in the manufacture of the products sold hereunder, even if such apparatus has been specially converted or
adapted for such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, Seller shall have the
right to alter, discard or otherwise dispose of any special tooling or other property in its sole discretion at any time.
7. Buyer's Property:
Any designs, tools, patterns, materials, drawings, confidential information
or equipment furnished by Buyer or any other products which become Buyer's
property, may be considered obsolete and may be destroyed by Seller after two
(2) consecutive years have elapsed without Buyer placing an order for the
products which are manufactured using such property. Seller shall not be responsible
for any loss or damage to such property while it is in Seller's possession
Unless otherwise indicated on the face hereof, all prices and charges are exclusive of excise, sales, use, property
occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the
products sold hereunder. If any such taxes must be paid by Seller or if Seller is liable for the collection of such tax,
the amount thereof shall be in addition to the amounts of the products sold. Buyer agrees to pay all such taxes or to
eimburse Seller therefore upon receipt of its invoice. If Buyer claims exemption from any sales, use or other tax imposed
by any taxing authority, Buyer shall indemnify and hold Seller harmless from and against any such tax, together with any
interest or penalties thereon which may be assessed if the products are held to be taxable.
9. Force Majeure:
Seller does not assume the risk of and shall not be liable for delay and failure
to perform any of Seller's obligations by reason of circumstances beyond the
reasonable control of Seller (hereinafter "Events of Force Majeure").
Events of Force Majeure shall include without limitation (1) acts of God,
fire, explosion, flood, hurricanes; (2) strikes, lockouts or other industrial
disturbances or riots; (3) war, declared or undeclared; (4) compliance with
any Federal, state, provincial, municipal or military law, regulation, order,
or rule, foreign or domestic, including priority, rationing, allocation or
preemption orders or regulations, or cancellation of Seller's license to operate
its plant; (5) shortage or other failure of facilities used for manufacture
or transportation, shortage of labor, power, fuel or raw materials; (6) any
other cause or causes of any kind or character reasonably outside the control
of the Seller whether similar or dissimilar from the enumerated causes. During
periods when demand for Product exceeds Seller's available supply, whether
due to a force majeure or otherwise, Seller may distribute Product or materials
among itself for its own uses, its customers, and Buyer in such manner as Seller
in its sole discretion deems practicable. Buyer will accept, as full and complete
performance by Seller, deliveries in accordance with such determinations as
Seller may make.
10. Entire Agreement/Governing Law:
The terms and conditions set forth herein, together with any amendments, modifications and any different terms or
conditions expressly accepted by Seller in writing, shall constitute the entire Agreement concerning the products sold,
and there are no oral or other representations or agreements which pertain thereto. This Agreement shall be governed in
all represents by the laws of the State of Ohio including the provisions of the Ohio Uniform Commercial Code, without
regard to principles of conflict of laws. Buyer agrees to submit to the jurisdiction of any court wherein an action is
commenced against Seller based on a claim for which Buyer has agreed to indemnify Seller. No actions arising out of the
sale of the products sold hereunder of this Agreement may be brought by either party more than two (2) years after the cause
of action accrues.
11. Packaging and Shipping:
Products are sold with standard commercial packaging, labeling, painting and inspection. Prices and discounts are based
on standard commercial packaging only. Seller reserves the right to make partial shipments at its discretion, unless otherwise
specified by the Buyer.
12. Returned Goods:
Contact Seller for Returns Goods Authorization (RGA) number. Returns will not be accepted without a complete RGA number
attached to the product or shipping documents. Returned goods must be in saleable condition, in original packaging and sealed.
Orders for products built to order cannot be canceled. Most products may be returned to Seller for a full credit, excluding
shipping charges within 30 days of the shipping date. Returned products are subject to a 15% restocking fee. Returns must be
received by Seller within 30 days after an authorization (RGA) number is issued. Returns must be shipped freight prepaid.
All claims for nonconforming, shortages or defective products must be made
in writing within 10 days after delivery to Purchaser, and any claims not
made within that period shall be deemed waived and released. Seller's sole
responsibility with respect to such claims shall be, at its option, to credit
or replace any product or component, which Seller determines to be defective.
IN NO EVENT SHALL SELLER BE LIABLE FOR SOLELY ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES DUE TO ANY CAUSE WHATSOEVER EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER
FOR MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS OCCURRED. THE
FOREGOING CONSTITUTES SELLER'S SOLE LIABILITY AND PURCHASER'S SOLE REMEDY
WITH RESPECT TO PRODUCTS SOLD BY SELLER EXCEPT AS THUS PROVIDED, SELLER DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
Shall be made by Buyer net 30 days from the date of delivery of the products
purchased hereunder. A 1-1/2% per month (18% annual percentage rate) finance
charge will be added to any amount that is more than 30 days past due. Accounts
past 45 days will be placed on credit hold. Seller reserves the right to hold
shipment until account is current.
Any claims by Buyer for omissions or shortages in a shipment shall be waived
unless Seller receives written notice thereof within 30 days after Buyer's
receipt of the shipment.
15. Seller shall have no liability
for infringement of any patents, trademarks, copyrights, trade dress, trade secrets
or similar rights except as provided in this Part. 10. Seller will defend and
indemnify Buyer against allegations of infringement of U.S. patents, U.S. trademarks,
copyrights, trade dress and trade secrets (hereinafter 'Intellectual Property
Rights'). Seller will defend at its expense and will pay the cost of any settlement
or damages awarded in an action brought against Buyer based on an allegation
that an product sold pursuant to this contract infringes the Intellectual Property
Rights of a third party. Seller's obligation to defend and indemnify Buyer is
contingent on Buyer notifying Seller within ten (10) days after Buyer becomes
aware of such allegations of infringement, and Seller having sole control over
the defense of any allegations or actions including all negotiations for settlement
or compromise. If any product sold hereunder is subject to a claim that it infringes
the Intellectual Property Rights of a third party. Seller may at its sole expense
and option, procure for Buyer the right to continue using said product, replace
or modify said product so as to make it non-infringing, or offer to accept return
of said product and return the purchase price less a reasonable allowance for
depreciation. Notwithstanding the foregoing. Seller shall have no liability
for claims of infringement based on information provided by Buyer, or products
delivered hereunder for which the designs are specified in whole or part by
Buyer, or infringements resulting from the modification, combination or use
in a system of any product sold hereunder. The foregoing provisions of this Part
10 shall constitute Seller sole and exclusive liability and Buyers sole and
exclusive remedy for infringement of Intellectual Property Rights. If a claim
is based on information provided by Buyer or if the design for an product delivered
hereunder is specified in whole or in part by Buyer, Buyer shall defend and
indemnify Seller for all costs, expenses or judgements resulting from
any claim that such product infringes any patent, trademark, copyright, trade
dress, trade secret or any similar right.
16. Safety & Health Indemnity:
Buyer acknowledges that Seller has furnished to Buyer Material Safety Data
sheets, which include warnings together with safety and health information
concerning the Product and/or the containers for such Product. Buyer will disseminate
such information so as to give warning of possible hazards to persons whom
Buyer can reasonably foresee may receive exposure to such hazards, including,
but not limited to, Buyer's employees, agents, contractors and customers. If
Buyer fails to disseminate such warnings and information, Buyer will indemnify,
defend and save Seller harmless against any and all liability arising out
of or in any way connected with such failure, including without limitation,
liability for injury, sickness, death and property damage.
Buyer may assign/transfer rights and/or delegate duties/obligations hereunder only with the prior written consent of
Seller, not unreasonably withheld.
The failure of seller to insist, in any one or more instances upon the performance of any of the terms, covenants or
conditions of this contract or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of
the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation
of buyer with respect to such future performance shall continue in full force and effect.
The provisions of this contract are severable. If any provision of this contract is held to be unenforceable, then such provision will be stricken from this contract and the remainder of this contract will remain in full force and effect.