Construction Terms And Conditions
Offer and Acceptance. Purchaser offers to purchase the Products from ONEX, INC. (“Onex”), subject to the terms and conditions set forth in this Standard Terms and Conditions of Sale Agreement and this proposal. This proposal shall be subject to change or withdrawal at any time and in any event, shall be void unless accepted, executed, and returned within thirty (30) days from the date hereof. Acceptance of this order will be subject to final review and approval by Onex and confirmed via signed order acknowledgment.
Terms and Conditions Applicable. When accepted by Onex, the terms and conditions set forth herein comprise all of the terms and conditions of Onex and Purchaser respecting the purchase of the Products. Any change or modification in the terms and conditions must be specifically agreed to in writing by Onex. No course of conduct and no usage of the trade shall be relevant to supplement this order. The use of a formal purchase order or other instruments by Purchaser in the course of dealing with Onex with respect to the purchase of the Products, whether submitted before or after this order, shall be considered to be for the sole convenience of the customer, and any printed provisions thereon shall not modify or supplement this order. Onex objects to the inclusion of any different or additional terms that may be contained in any such instrument and expressly does not agree to such terms. Purchaser’s acceptance of the Products without objection shall constitute a waiver of any such different or additional terms.
Price and Payment Terms. Purchaser shall pay the purchase price quoted for the items described in the proposal. Prices are firm and are not subject to audit, price revision, or price redetermination unless in a document signed by an authorized officer of Onex. In no event shall Purchaser set off any payment due in connection with this transaction with any claim of an amount owed by Onex to Purchaser in connection with this or any other transaction.
Each shipment shall be considered a separate and independent transaction and payment thereof shall be made accordingly. If Purchaser requests Onex to delay any shipment, the price for that shipment and any and all previous shipments shall be immediately due and payable. If the contract does not specify a separate price for the shipment, the amount due shall be determined by Onex based upon the aggregate price and percentage of completion. Any shipment held for purchaser at Onex’s plant shall be held at the risk and expense of Purchaser. The costs for all labor are based on a forty (40) hour workweek. Premium time, if required, will be billed to Purchaser as an extra.
Unless otherwise specifically provided herein, the amount of any present or future sales, revenue, excise, or other tax of any governmental body applicable to the sale of the Products shall be added to the purchase price and shall be paid by Purchaser, or in lieu thereof Purchaser shall provide Onex with a tax exemption certificate acceptable to the taxing authorities. Purchaser shall be responsible for the payment of such taxes even if all or any part thereof has not been added to the invoice price. Purchaser is responsible for obtaining all necessary approvals and permits which may be required.
Delivery; Title; Risk of Loss. Unless stated otherwise in Onex’s proposal or invoice, all merchandise sold by Onex is shipped to FCA our plant or shipping point at which time the Purchaser assumes all risk in relation to the merchandise. Onex’s title passes to Purchaser, and Onex’s liability as to delivery ceases upon making delivery of the Products purchased hereunder to the carrier at Onex’s plant or place of manufacture, in good condition and at all times, the carrier shall be deemed to be acting as Purchaser’s agent. All claims for damages incurred during shipment must be filed with the carrier and disclaims any liability whatsoever. All shipments will normally be made by Truck Freight, Parcel Post, Air Express, or another common carrier. Unless Purchaser issues specific instructions as to the carrier and/or routing to be used, Onex will exercise its own reasonable judgment. Onex shall have no liability for loss or damage to Products resulting from a delay in scheduled delivery whether caused by war, riot, strikes, labor disputes, fires, lack of transportation facilities, delays in receipt of parts or materials from suppliers or subcontractors, accidents, errors or rejection of suppliers’ or subcontractors’ parts, natural disasters, unusually severe weather, acts of God, or other circumstances beyond Onex’s control which shall prevent Onex from performing in the normal and usual course of its business
This order may be canceled or delayed by Purchaser only upon written consent of Onex. If Onex consents to any such cancellation or delay, Purchaser will be required to pay such amount as Onex, in its sole discretion, shall determine will fully indemnify it against any and all loss and provide Onex with a reasonable profit.
Installation and/or Start-Up. Onex accepts no responsibility for installation and/or start-up of equipment unless installation and/or start-up and/or supervision of same is specifically established as part of this order. Onex shall not be liable for any labor, material, supplies, utilities, or similar items expended by Purchaser during the course of installation or start-up unless specifically authorized by Onex in writing. Onex will make recommendations to Purchaser with regard to the installation of auxiliary equipment and similar items, but accepts no responsibility for the work and equipment provided by Purchaser or third parties or the results obtained.
UNLOADING AND STORAGE OF MATERIALS – Purchaser shall at its own expense unload all equipment and materials purchased from Onex and store the equipment and materials within 30 yards of the installation site, and shall protect the said materials and equipment from any loss or damage. Purchaser shall check and be responsible for all equipment and materials delivered to it, and shall immediately notify carrier and Onex of any shortage or breakage no later than five (5) days from the same to Purchaser.
CONSTRUCTION FACILITIES – Unless otherwise agreed and specifically established as part of the order, the Purchaser shall provide without cost to Onex all construction services and facilities required for installation. Purchaser shall also provide necessary openings in the walls of its buildings, and shall furnish unobstructed access to the erection site, a suitable crane with operator and power when needed; and necessary foundations, reinforcement of floors and such modifications of Purchaser’s buildings and premises as may be required to effect the installation, and such runways, timber, blocking and tackle as are required.
WORKING CONDITIONS – The working conditions, Onex’s representatives and/or labor the required to oversee or carry out the installation of the equipment furnished under this proposal shall be such as to permit the work to proceed without interruption. Purchaser shall furnish maintain heat when required in cold weather, and shall furnish and maintain drinking water, and any necessary safety and sanitary facilities. Purchaser shall reimburse Onex in full, and indemnify Onex, for any loss or expense to Onex or Onex’s representatives or personnel caused by work interruptions or delays or failure to maintain proper working conditions.
SURPLUS MATERIAL – In order to prevent delays in installation due to breakage in shipping and handling, Onex may ship with the materials for the furnace small excess quantities of refractory, special shapes, brick, insulation, and cement. It is understood that such material as remains unused and in good condition at the completion of the erection is to be purchased by Purchaser of this equipment as spare repair parts stock at net cost to Onex, not including freight and handling; or the excess material is to be returned to Onex by shipment to location and place specified by Onex.
Drawings and Instructions. Onex shall furnish Purchaser assembly drawings of the specific equipment, electrical, hydraulic, gas, and pneumatic schematic diagrams, and all other instructions and information reasonably required for the proper installation, start-up, operation, and maintenance of the equipment. All such drawings, instructions, and information are intended for use by persons having skill, at their own risk, and Onex assumes no responsibility and Purchaser hereby waives any claims based on injury or failure to follow instructions. Such drawings, instructions, or information provided by Onex are for information purposes only and will not be binding upon Onex except as noted on the face of the drawings. Onex reserves the right to make, at any time, such changes in the detail of design or construction as shall, in Onex’s sole judgment, constitute an improvement. Onex reserves the right to modify/modernize the design of its products. Any such change affecting form but not function can be made without customer approval. Detail drawings, shop drawings, PLC programs, SCADA programs, and other forms of electronic documents comprise proprietary Onex information and do not form a part of the normal drawings, instructions, and information to be supplied to the Purchaser. Electronic media, including CAD programs, shall not be provided except upon Onex’s written consent.
Advice and assistance. Onex may, at its own discretion, furnish as an accommodation to Purchaser, technical advice or assistance regarding the purchased equipment. Onex assumes no liability for the advice or assistance given, or results obtained, which shall be at Purchaser’s sole risk, whenever given or obtained.
Limited Warranty. (A) Onex warrants to the original Purchaser of the Products that such Products are free from defects in design, materials, and workmanship for a period of one (1) years from acceptance by customer. Onex will pass on to Purchaser the same terms and warranties as granted by the manufacturers of component parts contained in Onex’s equipment. Subject to the warranty exclusions set forth below, if the Products manufactured by Onex or any part thereof are found to be defective in design, materials, or workmanship, as determined by Onex, Onex will replace or repair (at its option) said defective item or items without charge FCA Onex’s point of manufacture. Onex’s sole and exclusive obligation under this warranty is limited to repair or, at Onex’s option, replacement of all parts which are shown to be defective when shipped and then only if Onex is notified of such defects within such warranty period. Onex shall not be responsible for any further loss or damage to Purchaser as the result of any warranty or breach thereof.
(B) Subject to the warranty exclusions set forth below, for any performance guarantee to be effective, Onex shall have access to the Products for the purpose of performing tests and to make such field adjustments, modifications, and changes as it may deem necessary. For such tests, Purchaser must furnish, at no cost to Onex, utilities as may be required, material of specified quality, and such labor and materials as may be required to perform the tests properly. In the event that Onex determines after such tests that the Product is not of suitable design and is incapable of operation in accordance with said performance guarantee, Onex will endeavor to make necessary modifications or replacement parts and equipment at its option.
(C) The foregoing warranty does not cover, and Onex makes no warranty with respect to:
Failures not reported to Onex within the warranty period specified above.
Failures or damage due to negligence (other than that of Onex), accident, abuse, improper storage prior to installation, improper installation (other than installations made by Onex), improper operation or abnormal conditions of temperature, moisture, dirt, or corrosive matter.
Equipment which has been in any way tampered with, repaired, or altered by anyone other than an authorized representative of Onex.
Equipment damaged in shipment or otherwise without the fault of Onex.
The operational or useful life of (a) heating elements and radiant tubes, (b) refractories, (c) heat resistant alloys and (d) furnace fixtures which are all considered to be consumable components and materials.
Failures caused by Purchaser’s improper operation or use of the Product inconsistent with Onex’s instructions.
Designs and/or related equipment where new developmental designs were used by seller. Workmanship and material defects are not excluded by this clause.
THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESSED OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS, OR OTHERWISE.
Onex shall not be liable for Purchaser’s process and/or the quality of the goods or materials produced thereby in or with the aid of the Products supplied by Onex. The maximum liability of Onex for any and all claims or actions of any kind arising, directly or indirectly, out of or in connection with or resulting from the breach of this warranty, shall not exceed 20 percent of the purchase price of the Products which gives rise to such claim or action. UNDER NO CIRCUMSTANCES SHALL ONEX BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR LOSS OF BUSINESS OR PROFIT OR ANY OTHER ECONOMIC LOSS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.
Indemnification by Purchaser. Purchaser acknowledges that Onex has no control over, and is not responsible for, the manner in which the Products will be used or otherwise dealt with by Purchaser. Purchaser, therefore, agrees to assume all responsibility for any and all sums which Onex and/or Purchaser become obligated to pay because of bodily injury or property damage caused by or resulting directly or indirectly from the use of the Products. Purchaser shall indemnify and hold Onex harmless from and against any and all actions, claims, and demands, arising out of or in any way connected with the use of the Products including any actions, claims, and demands based in whole or in part on the default or negligence of Onex.
Purchaser shall hold Onex safe and harmless and indemnify Onex against any expense or loss, including attorneys fees and court costs resulting from infringement of patents or trademarks arising from compliance with Purchaser’s designs or specifications or instructions. The sale of Products by Onex does not convey any license, by implication, estoppel, or otherwise, under patent claims covering combinations of the Products with other devices or elements.
Except as provided in the preceding paragraph, Onex shall defend any suit or proceeding brought against Purchaser based upon a claim that any Product, or any part thereof, furnished under this contract constitutes an infringement of any patent of the United States of America in the case of a sale to a purchaser located in the United States of America, if notified promptly in writing and given authority, information, and assistance (at Onex’s expense) for the defense of same, and Onex shall pay all damages and costs awarded therein against Purchaser. In case said Product, or any part, is enjoined, Onex shall, at its own expense, either procure for Purchaser the right to continue using said Product or part, or replace same with non-infringing product or part, or refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of Onex for patent infringement by the Products or any part thereof.
Any proposals, prints, drawings, instructions, or other information furnished to Purchaser by Onex are intended for the confidential use of Purchaser, shall remain the property of Onex, and shall not be used in any manner detrimental to Onex’s interests.
Security Interest and Payment Default. Until full payment of the purchase price for the Products ordered, Purchaser grants to Onex a security interest in the Products, and Onex may, at its option and without further agreement or signature by Purchaser, file evidence of such security interest pursuant to the Uniform Commercial Code. So long as Onex has such security interest, Purchaser shall keep the Products in good condition and free from any other liens or encumbrances and fully insured. Onex may avail itself of all of the remedies afforded by the Uniform Commercial Code and for the enforcement of the security interest herein granted to Onex.
Failure by the Purchaser to make any payments at the times due and provided by this contract shall give Onex the right to suspend work until payment is made. In the event that any such default continues for more than fifteen (15) days after the due date Onex may at any time thereafter cancel this contract by written notice mailed, faxed, emailed or delivered by other normal means of communication to Purchaser and thereupon be entitled to recover the cost of all work done, all material provided, and all damages sustained and to repossess the equipment. Any such failure to make payments at the time provided shall be a bar to any claim by the Purchaser against Onex for delay in completion of the work due to such suspension arising out of or failure to pay. All notices required in any contract resulting from this proposal shall be given in writing to Onex at its home office at 917 Bacon Street, Erie, Pennsylvania, and to the Purchaser at its home office unless Purchaser designates in writing another address for such notices.
Assurances of Performance. If in the judgment of Onex, the financial condition of Purchaser at any time does not justify continuation of production or shipment on the terms of payment originally specified, Onex may require full or partial payment in advance and, in the
event of the bankruptcy or insolvency of Purchaser or in the event any proceeding is brought by or against Purchaser under the bankruptcy or insolvency laws, Onex may be entitled to cancel any order then outstanding, without liability whatsoever, and shall receive reimbursement for its cancellation charges.
In the event of default by Purchaser in payment of any monies due to Onex, Purchaser shall pay interest at the maximum legal rate on all such sums from the date due until paid. Should Onex be required to commence an action to enforce the terms of this contract, Onex shall be entitled to receive its reasonable attorneys’ fees and all of Onex’s costs and expenses, including court costs in connection with such action.
Choice of Law, Personal Jurisdiction and Venue (Forum). This Sale agreement shall be deemed to have been made in the Commonwealth of Pennsylvania, and accordingly shall be governed by, construed, interpreted, and the rights of the parties determined in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its principles for resolving conflicts of law. The parties agree that any lawsuit arising out of or relating to this Sale Agreement must be brought in, and litigated before, a court located in the Erie County, Pennsylvania, or the Western District of Pennsylvania if filed in Federal Court. In accordance herewith, the parties consent to the jurisdiction of the Court of Common Pleas of Erie County, or the Western District of Pennsylvania, with respect to any lawsuit arising out of or relating to this Sale Agreement.
Entire agreement. This contract consist of the entire agreement between the parties and supersedes all other contemporaneous oral agreements and any prior oral and written quotations, communications, agreements, and understanding of the parties and may not be modified or resend it except by writing signed by Onex and Purchaser. In the event that any term a provision of this Agreement shall be held unenforceable, the remainder of this Agreement shall remain in full force and effect.
The failure of Onex at anytime to enforce any right or remedy available to it under this Agreement, with respect to any breach or failure by the Purchaser, shall not be construed to be a waiver of such right or remedy with respect any breach or failure by the Purchaser.
Force Majeure. Neither party shall be held responsible for failure or delay to perform all or any part of the contract due to flood, fire, earthquake, snowstorm, drought, hailstorm, hurricane, war, government prohibition, lack or delay in granting of government export license, or any other events that are unforeseeable at the time of the execution of the contract.