These Terms and Conditions of Sale form part of the Proposal [insert Proposal Number] submitted by the seller (“Schust”) for the sale of equipment and/or services (“Works”) to buyer (“Buyer”). ANY CONTRACT MADE BY AND BETWEEN THE PARTIES IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS AND TO SCHUST’S REVIEW AND APPROVAL OF BUYER’S CREDIT. Unless otherwise stated herein, Buyer has thirty (30) days from the date of the Proposal to notify Schust in writing of Buyer’s offer to enter into a contract on the basis of the Proposal. Upon written notification by Schust from its office in Auburn, Indiana that it has accepted such an offer by Buyer, this Proposal shall become a contract between Buyer and Schust.
Schust warrants that the Works described herein, but only insofar as it is of Schust’s manufacture, will be free from defects in material and workmanship for a period of twelve (12) months from date of delivery (the “warranty period’). Upon delivery, Works shall be deemed accepted by the Buyer. Notwithstanding, the warranty period is not renewed or extended through repair or replacement whatsoever. Warranty excludes normal wear and tear. All Works manufactured by Schust equipment vendors carries only the warranty given by the manufacturer thereof which warranty Schust will make available to the extent permissible to Buyer without recourse to Schust. If, within the warranty period Schust receives written notice promptly within 24 hours after the discovery of any defect in the material or workmanship in the Works warranted by Schust herein, Schust shall correct each such defect, at Schust’s option, either by (1) making available F.O.B. Schust’s plant repair or replacement part(s); or (2) repairing any defective part(s).
Except otherwise expressly set forth herein, SCHUST MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. Liability of Schust under this warranty is conditioned upon the Works being handled, erected, operated, and maintained in accordance with written instructions provided or approved in writing by Schust. Schust makes no warranties which extend to damage to the Works above rated capacities or in otherwise improper manner. Schust’s sole responsibility for defects in material and workmanship in Works, and Buyer’s exclusive remedy hereunder, shall be limited as above provided.
In addition to the price specified herein, Buyer shall pay any present or future tax imposed by any governmental body on the sale, delivery, use of other handling of Works sold hereunder or in connection with this Proposal or any transaction contemplated hereby.
4. Security Interest
Schust reserves a security interest in Works delivered hereunder until it receives full payment thereof. If Buyer fails to make any payment when due, then in addition to all other remedies available to Schust either at law or otherwise, Schust may, at its option, terminate the contract or suspend the delivery of Works pending the cure of any such default by Buyer and receipt of cash payment for each such delivery to be made of other security reasonably satisfactory to Schust.
5. Force Majeure
Schust shall not be responsible for losses or damages to Buyer (or any third person) occasioned by delays in the performance or nonperformance of any of Schust’s obligations or by loss of or damage to any of the Works specified in the Proposal when caused directly or indirectly by acts of God, substantial changes in general economic conditions, acts of government or military authority, shutdown of Schust’s production facility due to a pandemic/epidemic (incl. COVID-19), casualty, riot, acts of Buyer, strikes or other labor difficulties, shortages or labor, supplies, and transportation facilities or any other cause beyond Schust’s control or the control of its supplier or subcontractors.
Buyer may cancel any contract resulting from this Proposal only upon 10 days’ written notice to Schust and only upon such term as will identify and reimburse Schust for all loss or damage resulting therefrom, including without limitation, Schust’s overhead, reasonable contract profits, costs, and expenses to which Schust has become committed for fulfillment of the contract prior to cancellation.
7. Laws and Regulations
Except as expressly set forth herein, Schust does not assume responsibility for compliance with federal, state, or local Laws and regulations. All laws and regulations expressly referenced herein shall refer only to those editions or versions thereof in effect on the date of the Proposal. In the event of revisions or changes thereto subsequent to the date of this Proposal, Schust assumes no responsibility or liability for compliance therewith. Any modification to the Proposal may be treated as a Change Order under Article 10, if Buyer notifies Schust within ten (10) days of modification to the Proposal.
8. Occupational Safety and Health Act
Schust warrants that the Works furnished hereunder shall, to the extent such Works is used in accordance with Schust instructions, comply with safety Works requirements of the Occupational Safety and Health Act of 1970 regulations, as amended, (OSHA requirements) in effect on the date of Schust’s Proposal. Schust shall not be responsible for failure to comply with OSHA requirements which result from the location, operation, use or maintenance of the Works or from alteration of the Works by persons other than Schust or from an option or accessory attached to the Works that was available to the Buyer but omitted at the Buyer’s direction or from design or instructions furnished by the Buyer. Schust’s responsibility for breach of this warranty is limited to modification or replacement of the Works cited as violating OSHA requirement. All OSHA requirements with respect to noise are specifically excluded from this warranty. The remedies and warranty provided herein are the entire and exclusive responsibility of Schust with respect to OSHA requirements. This OSHA warranty is subject to the conditions in the warranty applicable to the Works.
9. Change Orders
Buyers may make changes, within the general scope of work included in this Proposal, to the plans, Works, or specifications, by giving written notice in a Change Order. Within thirty (30) days from receipt of such Change Order, Schust shall submit the Buyer the changes required to the contract price and delivery schedule resulting from such a Change Order. Schust shall have no obligation to proceed with such Change Order until Schust and Buyer agree in writing to such changes in the contract price and delivery schedule. Changes to Standard Products air filtration orders after completion of any such product engineering shall be subject to additional engineering fees and will result in delays of shipment. Schust is not liable for any penalties or compensation, which may arise due to such delay.
In addition to the price specified herein, Buyer shall pay the cost of any bonds which Buyer requires Schust to obtain. Buyer acknowledges that Schust has relied upon all specifications and other data supplied by Buyer (conditions) to Schust in the selection and design of the Works and the preparation of this Proposal. In the event the conditions differ from those represented by Buyer and relied upon by Schust, any warranties or performance guarantees contained herein affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing.
11. Buyer Supplied Data
Buyer acknowledges that Schust has relied upon all specifications and other data supplied by Buyer (conditions) to Schust in the selection and design of the Works and the preparation of this Proposal. In the event the conditions differ from those represented by Buyer and relied upon by Schust, any warranties or performance guarantees contained herein affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing.
Schust may subcontract any portion of the fabrication and erection work included in the Proposal.
If Buyer declines or is unable to take delivery at the time(s) specified in the Proposal, Schust will have the Works stored for Buyer at Buyer’s risk and account. Buyer will pay storage, handling and re-handling charges at Schust’s cost plus a 15% markup to Schust, and Buyer will continue to make payment according to the remaining payment terms contained herein.
14. Delivery/Freight Rates/Shipment
Delivery to carrier at point of shipment shall constitute delivery to Buyer who shall assume all risk for subsequent loss or damage. Any increases or decreases in freight charges between the effective date of Schust’s Proposal and the date of final shipment will be for Buyer’s account. Schust shall have the right to ship all of the Works at one time or in portions from time to time within the time of shipment. This contract shall be deemed separable as to the Works sold. Buyer may not refuse to accept any lot or portion of Works hereunder on the grounds that there has been a failure to ship any other lot or that any Works in any other lot were nonconforming. Any such default by Schust will not substantially impair the value of this contract as a whole and will not constitute a breach of contract as a whole.
15. Proprietary Material
All drawings, patterns, specifications and information included in the Proposal, and all information otherwise supplied by Schust relating to the design, erection, operation, and maintenance of the Works is the property and/or confidential material or information of Schust. Buyer shall not disclose such material or information to others or allow others to use such material or information except as required for Buyer to obtain service for Works.
Due to the volatility of commodity items (i.e., steel, components, fuel, etc.), prices are subject to change without notice and will not be binding on Schust. Pricing is based on current market prices at the time of quote and subject to escalation at the time the commodity is purchased. In no event will final price be less than the original contract. Prices quoted include standard packing according to Schust’s specifications. Buyer shall pay for special packaging requested by Buyer, including packaging for exports, and shall be paid by Buyer as an additional charge.
Credit accounts will be opened only with firms or individuals approved by Schust’s credit department. Unless otherwise provided, in any case where delivery is made on credit, Buyer shall have thirty (30) days from date of invoice in which to make payments for Works. Unless prohibited by law (in which case accounts past due shall bear interest at a rate of the lesser of 1.5% per month or the maximum permissible rate), accounts past due shall bear interest at the then prime rate charged by U.S. Bank N.A. Schust reserves the right at any time upon notice to Buyer, to alter or suspend credit, or to change the credit terms provided herein, when it is the sole opinion of Schust that the financial condition of Buyer so warrants. In addition, Schust may at any time, with or without notice to Buyer, and at its option, suspend work and shipments under this contract if, in Schust’s sole opinion, the financial condition of Buyer so warrants. In such cases, in addition to any other remedies herein or by law provided, Schust may require cash payment or satisfactory security from Buyer before credit is restored or Schust continues performance. If Buyer fails to make payment or fails to furnish security satisfactory to Schust, then Schust shall also have the right to enforce payment of the full contract price of the work completed and in process. Upon default by Buyer for payment due, Buyer shall pay immediately to Schust the entire unpaid amounts for all work in progress and any and all shipments, made to Buyer irrespective of the terms of said shipments and whether said shipments are made pursuant to this contract of sale between Schust and Buyer, and Schust may withhold all subsequent shipments until the full account is settled. Acceptance of less than full payment shall not be a waiver of any of its rights hereunder.
The risk of loss of the Works shall pass to the Buyer as soon as they are deposited with the carrier for shipment to Buyer. The title shall pass when the price is fully paid.
18. Inspection and Acceptance
Schust shall have right to inspect, after prior notification, Works supplied by it when in operation, and prior to operation when deemed necessary by Schust. Buyer shall have the right to inspect Works upon receipt and shall have the opportunity at that time to run sufficient tests to determine whether Works shipped conform to the specifications of this contract. Buyer shall reimburse Schust, at the contract price, for all goods used in testing. Buyer shall bear any expense incurred in the inspection of the goods used in testing whether or not the Works are nonconforming. Failure to inspect the Works or inform Schust in writing that the Works are nonconforming within ten (10) days of the receipt of the Works by the Buyer shall constitute a waiver of Buyer’s rights of inspection and notification of nonconformity and shall be equivalent to an irrevocable acceptance of Works by the Buyer.
19. Waiver of Subrogation
Buyer further agrees to waive all rights of subrogation that would otherwise be available to its insurers, regardless of the theory of recovery, relating in any way to the design, testing, manufacture, sale or installation of any Works, any components, or related services.
20. Restocking Charges
Return Works must be authorized in writing by Schust and returned to a designated point of manufacture within the specified time. Return Works may be subject to restocking and freight charges.
21. Supervisory Personnel
Supervisory Personnel will be supplied, upon request by the Buyer, on a per diem basis in accordance with Schust’s standard rates in effect at the time of the request.
22. Limitation on Liability
Schust’s responsibility for any claims, damages, losses or liabilities arising out of or related to its performance of this Proposal of the Works covered hereunder, including but not limited to any correction of Works defects under the Warranty or any applicable performance guarantees, shall not exceed the purchase price. IN NO EVENT SHALL SCHUST BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO, LOSS OF USE OF PRODUCTIVE FACILITIES OR Works, LOST PROFITS, PROPERTY DAMAGES, PERSONAL INJURIES OR LOST PRODUCTION WHETHER SUFFERED BY BUYER OR ANY THIRD PARTY, IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
23. Contract Interpretation
Any contract resulting from this Proposal shall be constructed and the legal relations of Schust and Buyer shall be determined in accordance with the laws of the State of Indiana. These terms and conditions herein and all communications, descriptions, drawings, specifications, and documents attached hereto and specifically incorporated herein, shall upon the formation of a binding contract in accordance with section (1) be deemed to constitute the sole and entire agreement and contract between the parties as to the subject matter hereof. No changes in or modifications of said agreement shall be binding upon the parties or either of them, unless they shall be in writing and signed by both parties.
Any legal proceeding brought by any party in conjunction with any of the terms or provisions of this transaction shall be brought exclusively in Allen County Circuit Court, State of Indiana. It is agreed that no court of any other jurisdiction shall hear or rule upon any aspect of this transaction.
25. Acceptance of Contract
It is agreed between the parties that all of the conditions in the Proposal which are not in direct conflict with terms or conditions of the Buyer remain in full force and effect, notwithstanding clauses in the terms and conditions of Buyer. It is further agreed that no phraseology imposes any liability upon Schust that is covered by workman’s compensation of Buyer. It is further agreed that Schust is not responsible for any negligence or improper acts that cause damage, which negligence or improper acts are those of Buyer’s employees, officers, or other contractors.
26. WAIVER OF JURY TRIAL
EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER. THE WAIVER OF JURY TRIAL CLAUSE PROVIDES THAT THE PARTIES WAIVE THEIR SEVENTH AMENDMENT RIGHT TO A TRIAL BY JURY IF THERE IS ANY DISPUTE ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTION. ALL DISPUTES ARE STILL HANDLED BY THE COURT SYSTEM, WITH ALL DISCOVERY AND APPELLATE RIGHTS, BUT ANY TRIAL WILL BE DECIDED BY JUDGE, AND NOT A JURY.
In the event that any one or more of these terms or conditions are held invalid, illegal or unenforceable, such provisions shall be severed and the remaining terms and conditions shall remain binding and effective.
Buyer shall indemnify Schust and hold Schust, its affiliates, and subcontractors harmless from all loss, cost and expense (including reasonable attorney’s fees) incurred by Schust in the defense of any lawsuit, proceedings or claims that may be asserted against Schust based upon alleged defects in or failures of the Works where such defects or failures are the result, in whole or in part, of the actions of persons other than Schust.