EXCLUSIVE TERMS AND CONDITIONS
The terms and conditions herein are the sole terms and conditions of the sale and purchase of HIGHMARK products and if Buyer delivers a purchase order for the products, the terms and conditions herein shall be controlling over all the terms and conditions of Buyer’s purchase order, if a conflict in provisions exists. This agreement contains the entire agreement between the parties hereto and no alteration, change, modification or addition of the terms or the insertion of provision by the customer inconsistent with, explanatory of or in addition to the provisions and terms herein contained shall have any force of effect and shall not become a part of this contract unless same shall be accepted in writing and signed by HIGHMARK.
QUOTATION AND PRICES
Written quotations are good only if accepted within 30 days unless otherwise stated in the proposal. Prices are subject to change without notice. Prices are FOB factory unless otherwise specified, and quote prices do not include sales, use, excise or any other applicable taxes.
CREDIT AND PAYMENT TERMS
Upon approval of buyer’s Credit, terms of payment shall be net 30 days after date of invoice unless otherwise stated on face of proposal. Normally advance payments of 50 to 100 percent will be required as down payment. All delinquent invoices shall accrue interest at the rate of 1 ½% per month, 18% per annum. Buyer specifically agrees to pay any and all costs associated with the collection of any invoices or accounts due and owing from Buyer to HIGHMARK, including, but not limited to, Court costs and reasonable attorney fees.
Special tooling and molds designed and developed by HIGHMARK for the Buyer shall remain in the possession of HIGHMARK for at least one year from the date of tooling completion. Once approved, parts made from such tooling and molds shall be considered to be in companies with Buyer specifications unless HIGHMARK is notified otherwise in writing within five days of receipt. If such tooling and molds remain out of production for more than two years, they may be scrapped without further notice of responsibility by HIGHMARK. Release of special tooling or molds shall be contingent on prepayment of all outstanding invoices
PACKING AND SHIPPING
Packing and shipping of products shall be at HIGHMARK’s sole discretion, unless otherwise specified in the proposal.
Title to and risk of loss for the product shall pass to Buyer upon delivery to carrier at HIGHMARK’s factory, except where F.O.B destination is specified in the proposal in which case title and risk of loss shall pass to the Buyer upon delivery to Buyer’s receiving dock. HIGHMARK’s responsibility cease when delivered.
Failure to make any claim against HIGHMARK within 10 days from receipt of the product constitutes acceptance of the merchandise and a waiver of any defects, errors or shortages. Upon acceptance of a product claim by HIGHMARK in writing, return or other disposition of the merchandise in question will be authorized. No repair, replacement or other adjustment by the Buyer is authorized by HIGHMARK unless so stated in writing by HIGHMARK.
RETURNS FOR RESTOCKING
All authorized returns of merchandise are subject to a 25% restocking charge. No unauthorized returns will be accepted. No returns of custom products will be accepted.
HIGHMARK shall not be liable for any damages of any kind or nature resulting either directly or indirectly from the failure or delay by HIGHMARK in the manufacturing or shipping of its products. If a failure of delay is due to the acts or omissions of the Buyer, an act of God, war, labor difficulties, accident, inability to obtain materials, or any other causes of any kind or nature whatsoever beyond the control of HIGHMARK, the delivery date shall automatically be extended by the length of time corresponding to the failure or delay as specified herein.
Buyer’s acceptance of a quotation is final and binding and not subject to cancellation, except upon the terms and conditions as specified by HIGHMARK’s sole discretion.
PATENTS, TRADEMARKS, DESIGNS & COPYRIGHTS
The Buyer agrees to indemnify and hold HIGHMARK harmless against any and all liability, expense and loss including reasonable attorney fees resulting from infringement or claimed infringement of patents, trademarks, designs or copyrights of every kind and nature.
Original designs associated with this quotation are the sole and exclusive property of HIGHMARK. Any use or reproduction in whole or in part without written permission, is strictly prohibited.
Products manufactured and distributed by HIGHMARK are produced to standard commercial specifications and tolerances. Any defect in materials is not covered by this limited warranty, and is covered only by the manufacturer’s warranty, if any. HIGHMARK warrants the products it manufactures to the original purchaser against defects in workmanship for a period of 90 days under normal use following the date of sale when proof of such defect is provided to HIGHMARK, subject to the following:
1. This warranty only extends to and is enforceable only by the original Buyer and is specifically conditioned upon the conditions precedent that the original purchase price has been paid in full to HIGHMARK.
2. This warranty becomes null and void if Buyer or his authorized agent has not assembled or installed the products in accordance with HIGHMARK’s instruction, or if Buyer fails to perform the reasonable and necessary maintenance upon the product or if the product has been abused, misused, repaired or altered outside the HIGHMARK factory.
3. In the event of a failure of a product manufactured by HIGHMARK to conform to this warranty, Buyer shall first return the product to HIGHMARK, freight prepaid. After inspection by HIGHMARK, if it is determined by HIGHMARK that the failure is due to a defect in workmanship, HIGHMARK shall, at its option, repair or replace the defective part at no cost to Buyer for the new or repaired part. Any and all costs associated with shipping, disassembly, handling or otherwise, shall be the responsibility of the Buyer.
4. HIGHMARK NEITHER ASSUMES, NOR AUTHORIZES ANY PERSON TO ASSUME FOR HIGHMARK, ANY OTHER OBLIGATION OR LIABILITY IN CONNECTION WITH THE SALE OF PRODUCTS OF HIGHMARK, THE WARRANTY OF HIGHMARK SHALL NOT APPLY TO ANY PRODUCT WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, ABUSE, MISUSE, IMPROPER INSTALLATION OF PRODUCTS WHICH HAVE BEEN REPAIRED OR ALTERED OUTSIDE THE HIGHMARK FACTORY. THE REMEDIES SET FORTH IN THIS WARRANTY SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO A BUYER AND HIGHMARK SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, AND ANY LIABILITY OF HIGHMARK SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCT CLAIMED TO BE DEFECTIVE.
5. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. AND THIS WARRANTY SPECIFICALLY EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES OF ANY KIND OR NATURE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
6. This warranty grants specific legal rights, and you may have other rights that may vary from state to state.
The failure upon our part to insist upon a strict performance of any of the terms and conditions herein shall not be deemed to be a waiver of such terms or conditions or of any rights or remedies which we may have in demanding strict performance at all the terms and conditions herein contained.
This agreement shall be construed and enforced in accordance with the laws of the State of Indiana.