Terms and Conditions

Warner Bodies

TERMS AND CONDITIONS OF SALE

1. These Terms and Conditions of Sale (these “Terms”) are the only terms which govern the purchase of all merchandise, equipment, machinery, materials, parts, spare parts, software, supplies and other items (“Goods”) offered by Warner Bodies (“Seller”), including repair or services identified in Seller’s Quote (as defined herein). As used herein, “Buyer” is the purchaser of Goods from Seller. Seller reserves the right to change, modify, alter, supplement or amend these Terms at any time with or without notice to Buyer.
2. Orders placed by Buyer for Goods shall not be binding on either party, and no contract shall be concluded, until the order is accepted, in writing, by an authorized representative of Seller.  Only the terms and conditions contained in Seller’s Quote and in these Terms, plus such additional terms as may be confirmed in writing by Seller, shall apply.  No  additional or different terms proposed by Buyer shall be applicable (and Seller hereby gives notice of its objection to any such terms and conditions in advance) unless specifically accepted in writing by Seller. These Terms shall be deemed incorporated by reference in, and a part of, all transactions and documents relating to purchases by Buyer from Seller, including, without limitation, quotations, purchase orders, order confirmations and invoices, whether or not any specific reference to these Terms is made in any such transactions or documents.
3. Upon receipt of an order by Buyer, Seller shall prepare a quote (a “Quote”) outlining the high level design and estimated costs of such order. A Quote shall be valid for ten business days after Seller’s delivery of such Quote to Buyer.
4. Prior to the provision of final designs by Seller, Buyer may, by written instructions and/or drawings issued to Seller (each a “Change Order”), request changes to the Goods. Seller shall submit to Buyer a revised Quote taking into account any requested changes in the Change Order. If Buyer accepts such revised Quote, Seller shall proceed with the changed Goods subject to the revised Quote and these Terms.  Seller further reserves the right to pass through to Buyer for reimbursement any costs associated with such requested changes (including costs for time and materials). For the avoidance of doubt, Seller shall be permitted to deny any Change Order.
5. Once Buyer approves a Quote (or revised Quote, as applicable), Seller shall submit final designs to Buyer (the “Final Design”). Buyer shall only be permitted to request changes to the Final Design if such changes are the result of Seller’s misinterpretation of the design specifications provided by Buyer and the requested changes are substantially aligned with the original specifications provided in the approved Quote.  Any other requested changes will be subject to re-quoting and/or additional engineering fees. Seller reserves the right to deny any requested changes. Seller further reserves the right to pass through to Buyer for reimbursement any costs associated with such requested changes (including costs for time and materials). For the avoidance of doubt, Seller shall be permitted to deny any Change Order.
6. Buyer shall purchase the Goods from Buyer at the prices indicated on the final-approved Quote. Unless otherwise stated in the Quote, all prices are exclusive of delivery charges and any Federal, state, city or local sales, use occupational taxes or impositions (collectively, “Taxes”), and Buyer shall be responsible for all such delivery charges and Taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer shall be solely responsible for assessing whether it is responsible to pay any such Taxes.
7. Seller shall notify Buyer at least five business days prior to the Start of Work under Buyer’s order.  Thereafter, if Buyer cancels an order within such five business day period, Buyer shall be subject to a cancellation fee equal to 15% of the purchase price.  If Buyer cancels an order after the commencement of any work on such order, Buyer shall be subject to a cancellation fee equal to the greater of 15% of the purchase price or costs incurred by Seller in connection with such cancellation. In addition and in either case, if Buyer’s cancelled order includes any custom or special order items that cannot reasonably be resold by Seller to other customers, then Buyer shall, at its election, either (i) pay the reasonable out-of-pocket costs incurred by Seller to cancel or terminate such custom or special order, or (ii) pay the specified price for such items and take delivery thereof as scheduled.  As used herein “Start of Work” shall mean (a) the purchase of any material or supplies related to the applicable order, (b) the issuance of any purchase order related to the applicable order, or (c) the incurrence of any direct labor costs related to the applicable order.
8. Unless otherwise agreed to in writing, all prices are F.O.B. Seller’s Shipping Point. Buyer shall pay (by reimbursing Seller or paying carrier directly under Sections 11 and 12 hereof respectively) all insurance, rigging and transportation charges and Buyer shall reimburse Seller for the cost of any transit insurance provided by Seller.  Incoterms in force at the time of execution of the Order shall apply to the interpretation of trade terms used in the Order if Buyer is located outside the United States.
9. Buyer shall pay all invoices by the due date indicated on the applicable invoice. Amounts past due are subject to a late charge equal to the lesser of 1.5% per month or the highest rate permitted by applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), if Buyer fails to comply with the terms of payment, Seller reserves the right to (i) delay shipment of any Goods (and Buyer shall reimburse Seller for any fees incurred for delayed shipments), (ii) delay or cease production of existing orders, (iii) modify payment terms on any outstanding or future invoice, (iv) send such delinquent invoice to collections, or (v) report such delinquent payment to credit reporting agencies.
10. Buyer acknowledges and agrees that all delivery dates provided by Seller are an estimate only. Seller shall in no way be liable for any delay in delivery. Seller is permitted to make partial shipments of  an order.  If Buyer delays shipment of the Goods beyond the delivery date, Seller reserves the right to (i) transfer title of the Goods to Buyer prior to delivery; , or (ii) charge Buyer a fee for delayed delivery.  
11. Subject to Section 12, Seller shall arrange for the delivery of the Goods with a carrier of Seller’s choice. Seller shall provide Buyer with an estimate of the costs of shipping.  If the actual costs of shipping the Goods exceeds the estimated costs by less than 20%, then Seller shall invoice Buyer for such shipping costs.  If the actual costs of shipping exceed the estimated costs by 20% or more, Seller shall notify Buyer and Buyer shall have two business days thereafter to approve or reject such shipping methods.  If Buyer rejects such shipping methods and Seller provides its prior written approval, then Buyer shall arrange for shipment of the Goods using its own carrier.
12. Notwithstanding Section 11, with Seller’s prior written approval, Buyer may arrange for delivery of the Goods with a carrier of its choice. If Buyer will arrange for delivery of the Goods, Buyer shall promptly (but in any event within two business days after such notice) provide Seller with shipping details. If Buyer fails to provide such shipping details to Seller within two business days, Seller shall arrange shipping with a carrier of Seller’s choice and invoice Buyer for all charges incurred.  
13. Subject to Section 10, risk of loss passes to Buyer upon shipment of the Goods from the shipping point.
14. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Seller shall be entitled to recover from Buyer all of Seller’s costs and expenses, including reasonable attorneys’ fees, incurred by Seller in connection with the enforcement of this Section.
15. LIMITED WARRANTY: Seller provides the limited warranty for the Goods as specified on the applicable warranty document. In the event of a breach of the applicable warranty, Seller’s sole responsibility shall be, at Seller’s sole option, repair or replace the non-conforming Goods, provided Buyer has properly notified Seller of such non-conformance during the applicable warranty period. Upon receipt of a proper warranty claim, Seller reserves the right to request the return of all or any component of the Goods for inspection, repair or replacement. Goods may not be returned to Seller without first obtaining specific written permission and instructions. All transportation costs for Goods or components returned under the terms of the applicable warranty shall be paid by Buyer. EXCEPT FOR THE APPLICABLE WARRANTY, SELLER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR TOHERWISE. Products manufactured by a third party (“Third Party Product”) may constitute, contain or be contained in, incorporated into, attached to or packaged together with, the Goods.  Third Party Products are not covered by the applicable warranty in this Section.  For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
16. NOTWITHSTANDING ANY OTHER PROVISIONS OF ANY AGREEMENT TO WHICH THESE TERMS APPLY, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES WHICH MAY BE SUFFERED BY BUYER IN CONNECTION WITH SUCH AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR INTERRUPTION OF PRODUCTION, LOSS OF OPPORTUNITY OR BUSINESS INTERRUPTION. BUYER’S SOLE REMEDY AGAINST SELLER IN CONNECTION WITH THE PURCHASE AND SALE OF GOODS UNDER ANY SUCH AGREEMENT IS BUYER’S REMEDY UNDER THE APPLICABLE WARRANTY OFFERED BY SELLER PURSUANT TO SECTION 15 ABOVE. IN NO EVENT SHALL SELLER BE LIABLE FOR MORE THAN THE COST OF REPAIR OR REPLACEMENT OF DEFECTIVE GOODS OR COMPONENTS UNDER ANY APPLICABLE WARRANTY.
17. In addition to any remedies that may be provided under these Terms, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
18. Buyer shall indemnify and hold harmless Seller against all damages, penalties, costs and expenses to which Seller may become liable in connection with any claim that the Goods infringe the intellectual property rights of a third party if such Goods were provided to Buyer in accordance with Buyer’s specifications.
19. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing obligations hereunder, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
20. These Terms combined with Seller’s Quote comprise the entire agreement relating to the sale of the Goods. The invalidity of any part of these Terms shall not affect the remaining provisions. No modification of any term herein shall be binding unless confirmed in writing by Seller. Failure of Seller to enforce any term or condition at one time shall not constitute a waiver of the right to enforce such term or condition in the future.
21. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.
22. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, pandemic, epidemic or restrictive quarantine, revolution, insurrection, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
23. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
24. This agreement shall be governed by the laws of the State of Indiana.