The following terms and conditions apply to all contracts between Custom Molds & Plastics ("CMP") and its customer ("Customer") as identified on any purchase or sales order, purchase order acknowledgment, or other written communications (the “Order Documents”):
1. OFFER AND ACCEPTANCE
The products and/or services described on the Order Documents are offered for sale by CMP subject to the Order Documents and all of the terms and conditions stated herein. CMP’s offer of sale, as contained in the Order Documents, is expressly limited to the terms and conditions stated herein. By accepting delivery of the products or performance of the services described in the Order Documents, Customer accepts all of the terms and conditions contained herein. No additional, changed, or conflicting terms and conditions appearing in Customer's purchase order or any other of the Order Documents shall be binding upon CMP unless expressly agreed to, in writing, by an authorized officer of CMP.
2. CREDIT; PAYMENT TERMS
Terms of payment are shown on the Order Documents and shall be effective from the date of CMP's invoice. If no payment terms are shown on the Order Documents, then payment shall be due net thirty (30) days from date of invoice. Shipments, deliveries, and performance of work by CMP shall be subject to the continuing approval of CMP's Credit Dept., which may require full or partial payment in advance of production and/or shipment if the financial condition of Customer (in the sole opinion of CMP's Credit Dept.) does not justify continuing to ship products or perform services by CMP on the terms of payment agreed upon. Invoices not paid by the due date are subject to finance charges of 1 ½ % per month for each month (or partial month) that such invoice remains unpaid. Should Customer default in the payment of any amount owing to CMP for products or services, requiring CMP to expend costs or incur expenses in collecting such amount, CMP shall be entitled to reimbursement for all such costs of collection (including reasonable attorney fees).
3. PRODUCTION; TOOLING
All price quotations are based upon continuous and uninterrupted production of ordered products by CMP in the quantities specified in the Order Documents. A set up charge will be made for all production runs made on orders for less than the quantity specified in the Order Documents. Unless otherwise provided in the Order Documents: (i) assembly, inserts, and/or secondary services are not included in the quoted pricing for the ordered products, and (ii) any special gauges, fixtures, or equipment required for production shall be furnished by Customer.
3.2 Molds and Tooling
All molds and tooling constructed by CMP will be maintained in good operating condition for the life of the production program as long as the ordered products are molded at CMP. All molds will be paid for by Customer and will be the property of Customer upon receipt of payment; provided, however, that Customer molds shall not be returned to Customer unless all open accounts receivable with Customer have been paid to CMP. Customer will be responsible for the cost of repairs and upkeep for all molds transferred to CMP. Customer is solely responsible for insuring any Customer-owned tooling in the possession of CMP, and CMP does not maintain insurance covering such Customer-owned tooling.
Inserts/components supplied by Customer shall be delivered FOB CMP’s plant. CMP requires inserts/components in quantities at least ten percent (10%) in excess of the requested production order. All inserts/components shall be uniform, accurate and free from burrs. Customer agrees that CMP shall not be liable for damages to molds or tooling caused by defective inserts or for any costs or damages arising from Customer-furnished inserts found to be defective after molding or production.
3.4 Production Runs
Customer agrees to accept over runs and under runs not to exceed ten percent (10%) of the quantity ordered. Customer shall pay for such excess or be allowed a pro-rated reduction for such deficiency on the basis of the price specified on the Order Documents.
3.5 Product Finish
The finish and polish of the molded parts shall include only such polish as derived from the mold unless otherwise specified in the Order Documents.
3.6 Permissible Variations, Standards and Tolerances
All products or services furnished to Customer by CMP shall be subject to tolerances and variations consistent with usages of the trade concerning dimensions, composition and mechanical properties, and normal variations in performance characteristics and quality. Unless otherwise provided in the Order Documents, standard commercial tolerances as published by the Society of Plastics Industry will be used as a guideline
4. SHIPMENT AND DELIVERY
4.1 Shipment and Packaging
Unless otherwise specified on the face side hereof, all shipments will be made FOB CMP's plant. Unless otherwise provided in the Order Documents, all transportation expenses shall be paid by Customer. Customer shall provide shipping and transportation instructions, as well as any preferred carrier to be used. In the absence of such instruction, CMP will use its own discretion in selecting shipment method and carrier. Unless otherwise provided in the Order Documents molded items will be packaged in bulk. An additional charge will be made for special boxing, packaging or handling of ordered products.
4.2 Title and Risk of Loss
Title to any products shipped by CMP shall pass to Customer upon delivery by CMP to the carrier. Risk of loss or damage to products in transit is assumed by Customer, and Customer shall bear responsibility for filing and pursuing any claims for loss or damage with the carrier.
Shipping dates are approximate only based upon prompt receipt from Customer of all information required by CMP to meet Customer expectations. CMP shall not be liable for delays in delivery or failure to perform hereunder where such delay or failure results from: (i) causes beyond the reasonable control of CMP, (ii) acts of God, acts of Customer, or acts of civil or military authorities, (iii) inability of CMP to obtain necessary labor, materials, components, or facilities, or (iv) any other commercial impracticability. In the event of any such delay, the date of delivery or completion shall be deferred for a period of time equal to the time lost by reason of the delay.
5. LIMITED PRODUCT WARRANTY
5.1 Limited Warranty
CMP warrants that its products will conform to applicable CMP product specifications in effect at the time of product shipment. For any materials or workmanship determined by CMP to be defective within a period of one year from the date of product delivery, as evidenced by CMP shipping records (the "Warranty Period"), CMP shall, at its option, either: (i) repair any such defective product, or (ii) make available to Customer, FOB CMP's plant, any repaired or replacement parts, materials, or products, or (iii) refund to Customer the amount paid by Customer for the defective product provided by CMP hereunder.
The above warranty shall not apply to any product that has been: (i) subjected to misuse, negligence, or accident; (ii) misapplied by Customer for an improper use; (iii) installed in an improper manner; or (iv) modified or repaired contrary to CMP recommendations or generally accepted practices or procedures in the industry.
5.3 Warranty Procedures
If any CMP product is believed to be defective, written notice of such warranty claim should be made to: Warranty Claim Department, Custom Molds & Plastics, 210 Martin St, Red Lion, PA 17356. CMP, at its option, may request return of any product believed to be defective for purposes of testing and verification.
5.4 Disclaimer of Further Warranties
THE LIMITED WARRANTY SET FORTH ABOVE IS THE EXCLUSIVE WARRANTY APPLICABLE TO THIS CONTRACT, AND CMP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OR REMEDIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER THE SAME ARE WRITTEN, VERBAL, IMPLIED, OR STATUTORY. THE SELECTION OF SIZES, TYPES, CAPACITIES, AND SPECIFICATIONS OF PRODUCTS AND THE SUITABILITY THEREOF FOR CUSTOMER’S SPECIFIC APPLICATION SHALL BE THE SOLE RESPONSIBILITY OF CUSTOMER.
5.5 Limitation of Liability
Under no circumstances shall CMP be liable for any incidental, consequential, or special damages, losses, or expenses incurred by Customer or any third party arising from this offer of sale or the performance of CMP hereunder. Under no circumstances shall the amount of any claim for damages or liability exceed the amount paid by Customer for products and services provided by CMP hereunder.
5.6 Time Limitation on Warranty Claims
No legal action or claim, whether based in tort, contract, strict liability, breach of warranty or otherwise, arising out of this offer of sale or the performance by CMP hereunder may be commenced more than one (1) year following shipment of products or equipment by CMP (the "Warranty Claim Period"). Customer hereby waives any such claim or cause of action commenced after the Warranty Claim Period.
Any taxes which CMP may be required to pay or collect, under any existing or future law, with respect to the sale, delivery, storage, or use of any product covered hereunder shall be the responsibility of Customer. If not collected by CMP as part of its billing hereunder, Customer agrees to reimburse to CMP, upon demand, the amount of any such tax determined by any applicable governmental taxing authority to be payable by CMP.
In lieu of court action, all claims, disputes, and controversies arising out of the performance of CMP shall be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any judgment upon the award rendered by the arbitrator(s) may be entered in any Court having jurisdiction thereof. The site of the arbitration shall be Red Lion, Pennsylvania, unless otherwise mutually agreed between the parties. The parties agree that any party to the arbitration shall be entitled to discovery of any other party as provided by the Federal Rules of Civil Procedure; provided, however, that any such discovery shall be completed within four (4) months from the date the Demand for Arbitration is filed with the American Arbitration Association. In any such proceedings, the prevailing party shall be entitled to recover all its costs and expenses (including reasonable attorney's fees).
8. ORDER CANCELLATION OR MODIFICATION
8.1 Cancellation by Customer
An order for products may be cancelled either by Customer or by CMP upon written notice. The effective date of order cancellation shall be five (5) working days following receipt of written cancellation notice. Orders cancelled by Customer shall be subject to cancellation and restocking charges assessed by CMP, including CMP’s calculated costs for engineering, testing, labor, materials, and supplies, overhead, and pro-rated profit. Cancellation charges for orders for custom products specifically manufactured according to Customer’s specifications may equal the order price for such products.
8.2 Order Modifications
Customer-requested order changes must be made in writing and are subject to CMP’s written approval. Where a proposed change may result in substantial delays or increased production or engineering costs, CMP may condition its approval upon adjustments in order pricing, scheduling or other affected terms and conditions. CMP reserves the right to reject any change that it deems unsafe, technically inadvisable, inconsistent with established industry or engineering practices, or incompatible with CMP’s design and/or manufacturing capabilities.
9.1 Entire Agreement
When accepted by Customer, this writing constitutes the entire agreement between the parties, and all prior negotiations and representations of the parties are merged herein.
9.2 Pennsylvania Law to Apply
Any contract resulting from Customer's acceptance of this offer of sale shall be deemed to have been executed and delivered in York County, Pennsylvania, and shall be construed under, and in accordance with, the laws of the Commonwealth of Pennsylvania.
One or more waivers of any breach of any term or condition herein shall not be construed as a waiver of any subsequent breach of the same term or condition. The consent or approval by one party of any act done or omitted to be done by another party shall not be deemed to waive or render unnecessary the consent or approval of any subsequent similar acts or omissions.
9.4 Patent Indemnification
Customer shall defend, indemnify, and hold CMP harmless against all damages, claims or liabilities and expenses (including attorneys' fees) arising out of or resulting in any way from any claim that any ordered products or services (or Customer’s use thereof) infringe or otherwise violate any patent, trademark, copyright, or other intellectual property right of any person.
9.5 Force Majeure
CMP shall be excused from performing under the Order Documents in the event and/or so long as, CMP’s performance is prevented or delayed, retarded or hindered by: (i) act of God, such as fire, earthquake, flood, explosion, or action of the elements; (ii) war, invasion, terrorist action, insurrection, riot, mob violence, or sabotage; (iii) inability of CMP to procure (or a general shortage of) skilled labor, machinery or equipment, facilities, raw materials, or supplies in the open market at commercially reasonable prices; or (iv) failure of transportation, strike, lockout, action of labor unions, condemnation, requisition, law, order of government or civil or military or naval authorities, or any other cause whether similar or dissimilar to the foregoing, not within CMP’s reasonable.