HOFFER PLASTICS CORPORATION
TERMS AND CONDITIONS
1.These Terms and Conditions (“Terms”) apply to: (a) all proposals and quotations (collectively “quotation”) submitted by Hoffer Plastics Corporation (“Hoffer”), (b) all purchase orders and other documents of any type or kind received by Hoffer, and (c) all sales of goods and services (collectively “goods”) sold by Hoffer.
2. Acceptance of the quotation constitutes a contract, including acceptance of these Terms. Any proposal and/or terms and/or conditions submitted by Hoffer or buyer are expressly conditioned upon these Terms, which Terms cannot be altered without Hoffer’s specific and express written consent by Hoffer’s duly-authorized personnel. Any provision of a buyer’s order which purports to expand Hoffer’s liability beyond the limitations contained in these Terms or imposed by the Uniform Commercial Code under Illinois law, or is different from, in addition to or inconsistent with these Terms, is deemed to be a material alteration of the agreement proposed herein, and is expressly rejected by Hoffer, shall not be binding on Hoffer, shall be void and of no force or effect, and shall not apply to this transaction. The agreement between Hoffer and buyer is expressly and exclusively limited to these Terms.
3. Payment terms for each shipment of goods shall be as stated on Hoffer’s invoice in U.S. Dollars. In the event buyer fails to make timely payment of any amount invoiced hereunder, Hoffer shall have the right, in addition to any and all other rights and remedies available to Hoffer, at law or in equity, to delay or cancel future deliveries. All costs of collection, including attorney’s fees, shall be paid by buyer. Further, buyer agrees to pay a service charge equal to the lesser of one and one-half percent (1.5%) per month on the outstanding past due balance and the maximum amount permitted by law. Any obligation of Hoffer hereunder to deliver goods on credit terms shall terminate without notice if buyer files a voluntary petition under a bankruptcy statute, or makes an assignment for the benefit of creditors, or if an involuntary petition under a bankruptcy statute is filed against buyer, or if a receiver or trustee is appointed to take possession of the assets of buyer. Unpaid balances on invoices for molds, tools, and molded parts covered by these Terms shall constitute a lien on any molds or tools in Hoffer’s possession.
4. Claims for shortages or defects must be made within 10 days after receipt of goods. Buyer shall have no right to reject goods unless they are defective. Failure to give such notice shall be deemed an acceptance of the goods as of the date of shipment. Hoffer ships by insured carriers and Hoffer’s liability ceases when such insured carriers accept Hoffer’s shipment. All claims for breakage, damage, and losses should be made directly to the transportation company.
4.1 The receipt and acceptance of a consecutive shipment will automatically mean acceptance of the previous shipment.
4.2 Where plastic parts manufactured by Hoffer are assembled into completed mechanisms, Hoffer assumes no liability of any nature for the operation of such mechanisms or devices or for replacement costs in the event of failure.
5. Hoffer assumes no responsibility for any loss or damage occurring by reason of delay or inability to deliver caused by unavailability of supplies or materials, fire, flood, earthquake, strikes, lockouts or other labor problems, pandemics, shelter in place orders, governmental closings, accident, embargoes, car shortages, delays of carriers, explosions, insurrection, civil disturbances, acts of terrorism, riot, acts of civil or military authorities, acts of God or other acts or occurrences beyond the reasonable control of Hoffer. Furthermore, the delivery date is an estimate of when the goods will be shipped and Hoffer assumes no responsibility for any loss or damages of any kind whatsoever on account of failure of delivery at the estimated time specified, regardless of cause. Time for delivery is NOT of the essence.
6. Hoffer warrants its goods to be free from manufacturing defects within the limits of applicable written specifications. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER OTHERWISE ARISING BY LAW, CUSTOM, USAGE, TRADE PRACTICE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF HOFFER’S OBLIGATIONS HEREUNDER, INCLUDING LIABILITIES ARISING FROM CLAIMS OF CONTRACT OR TORT. HOFFER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE FOR EXEMPLARY, SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, INCREASED COSTS, DAMAGE TO EQUIPMENT, TOOLING, PREMISES, OR WORK-IN-PROCESS, COST OF CAPITAL, COST OF PURCHASED POWER, SUBSTITUTE OR ADDITIONAL EQUIPMENT, FACILITIES OR SERVICES, PRODUCTION INTERRUPTION OR START-UP, OR THE CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES. Subject to the warranty requirements set forth below, if an item proves to be defective within one year of shipment, replacement units will be shipped to the purchaser without charge. Hoffer will not assume liability or responsibility for labor expended, or damages accruing from the use of goods purchased from Hoffer. If goods shipped by Hoffer are determined to be defective, the limit of damage for which Hoffer will be liable is the price paid to Hoffer for the defective goods. This limitation of responsibility and liability to the value of the goods shipped applies to special as well as standard items and Hoffer makes no other warranty, either express or implied. Hoffer will not under any circumstance agree and does not here agree to any greater warranty or to any greater responsibility or liability for any damages beyond the limitations contained above in this paragraph unless the buyer offers, and Hoffer accepts, in writing, by Hoffer’s duly-authorized personnel, an increase in the per unit price contained in this quotation sufficient and acceptable to Hoffer to cover the additional financial risk and responsibilities set forth in any such written agreement. In no event does Hoffer intend there to be any third party beneficiary of Hoffer’s promises, duties or undertakings herein. Hoffer is only liable to the party or parties who provided direct consideration to Hoffer and are in privity with Hoffer in this agreement.
6.1 Hoffer’s warranty will apply only if the goods: (i) have been used as recommended and/or reasonably anticipated; (ii) have been installed, maintained, and used in conformity with the highest industry practices; (iii) have been subjected to normal use for the purpose for which the goods were designed; (iv) have not been subject to damage, misuse, abrasion, corrosion, extreme temperature, negligence, accident, tampering, faulty installation, improper storage, inadequate maintenance, or any other cause affecting the goods after shipment; (v) have not been altered; and (vi) have been fully paid for.
7. Buyer is responsible for and agrees to pay any and all applicable federal, state, and local taxes (domestic and foreign) to which the goods may be subject, including, without limitation, excise taxes, sales taxes, property taxes, value added taxes, and use taxes, duties, and license fees.
8. These Terms are made subject to government regulations and restrictions. Hoffer’s price does not include any sales tax or tariffs, and shall be subject to increase to cover any taxes, tariffs or other increased costs directly due to present or future legislation, either state or federal. Prices are for immediate acceptance and subject to change without notice.
9. ALL SALES ARE FINAL. This quotation, if accepted, and subsequent orders are not subject to cancellation, change, reduction in amount, rejection other than for defective goods, or suspension of deliveries, except with Hoffer’s consent and upon terms which indemnify Hoffer against loss. All verbal agreements except as confirmed in writing in this proposal or by separate letter are void.
10. Hoffer’s Engineering Department, when requested, will assist buyer in submitting suggestions concerning design and construction of molded parts and will recommend various grades of material, but Hoffer will not assume any liability for the practicability of these design suggestions or material recommendations if adopted by the buyer.
11. The quotation is based on information or sample provided Hoffer. Any changes in specifications will be subject to changes in price.
12. No tapping, assembling, inserts, or machine work is included in this quotation unless specifically stated herein.
13. Samples submitted shall be deemed approved if written notice of rejection is not received within two weeks after date of submittal.
14. Molded pieces will be shipped and billed and shall be paid for at the approximate rate of production indicated. Molded pieces will be shipped in standard cartons or containers in bulk unless otherwise specified on the face of this quotation.
15. Delivery of ten percent more or less than the quantity specified shall constitute fulfillment of the order.
16. Hoffer reserves a purchase money security interest in the goods sold and the proceeds thereof, in the amount of the price quoted therefore. In the event of a default in any of buyer’s obligations to Hoffer, including without limitation a failure to make payments when due, Hoffer may immediately repossess the goods sold hereunder, with no requirement of notice or opportunity to cure. On request of Hoffer, buyer agrees to execute financing statements and other instruments that Hoffer may request at any time and from time to time to perfect Hoffer’s security interest. Buyer agrees to provide any duly authorized representative of Hoffer with the opportunity, during buyer’s normal business hours upon reasonable advance notice, to inspect any inventory of goods for which payment in full has not been made.
17. Buyer shall defend, indemnify, and hold Hoffer, its officers, employees, and agents harmless from and against all liability, loss, and expenses of any kind, including attorney’s fees, arising out of (i) any claim of infringement of any patent, copyright, trademark, or any other intellectual property right of any third party in connection with the goods; (ii) any damages awarded, resulting from any theories of tort, negligence (ordinary or gross), warranty, contract, or product liability claim of any third party with respect to the goods; (iii) any issues with the specifications; and/or (iv) buyer’s negligence or willful misconduct.
18. Unless otherwise stated, the finish includes only such polish as is obtained directly from the molding process.
19. Inserts supplied by buyer shall exceed by ten percent the number required to fill the order for molded pieces, and shall be delivered f.o.b. Hoffer’s plant, all charges paid. Inserts are subject to approval of design by Hoffer and must be uniform, accurate, and free from burrs. Hoffer assumes no liability for damages to molds or tools caused by defective inserts, nor for molded parts in which inserts were furnished by buyer and found defective after molding.
20. Commercial limits, unless otherwise specified, are considered to be plus or minus .010”.
21. If special gauges, fixtures, or other tools are required, they will be furnished by buyer or paid for by buyer.
22. Buyer agrees to pay for changes in molds and tools made necessary by changes in specifications accepted by Hoffer, and also agrees to assume all risk or resultant damage. Changes of design, deliveries, or instructions of any kind must be submitted in writing.
23. Buyer shall be responsible for maintaining insurance on all molds and tools kept in Hoffer’s possession and acknowledges that Hoffer does not insure buyer’s molds and tools. Hoffer shall not be responsible for safekeeping of buyer’s molds/tools. In case of dissolution or bankruptcy of buyer, molds in Hoffer’s possession not having been fully paid for shall become Hoffer’s property in satisfaction of unpaid account and unliquidated damages. All non-buyer purchased dies, jigs, gauges, fixtures, or other equipment used by Hoffer in producing the goods shall remain the property of Hoffer, unless provided otherwise in writing.
24. Hoffer reserves the right to correct clerical errors.
25. The quotation is subject to approval of the credit department at Hoffer’s plant in South Elgin, Illinois. Hoffer shall have the right to modify, change, or withdraw credit terms at any time without notice and to request guarantees, securities, or payment in advance of the amount of the credit involved.
26. Hoffer reserves the right to review all specifications not available or known at the time of the quote when received by Hoffer, even if after buyer’s acceptance of this quotation, and this quotation will be subject to changes in price based upon such newly provided specifications.
27. This quotation does not include any testing or processes beyond the scope of Hoffer’s usual and customary business practices.
28. Buyer is responsible for defining any quality parameters affecting form, fit, and function which are not specified on available engineering drawings or documents.
29. Hoffer reserves the right to adjust piece part pricing in accordance with resin market fluctuations. Piece part price is based on most recent quote of record at date of shipment.
30. Hoffer may set off any amount due from buyer, whether or not under this quotation, against any amount that may become due to buyer hereunder.
31. The rights and remedies reserved to Hoffer shall be cumulative and in addition to all other remedies provided by law or equity. Hoffer shall be entitled to recover costs and attorney fees in the enforcement or defense of any rights hereunder.
32. The relationship of Hoffer and buyer created pursuant to these Terms is, and is intended to be, that of independent contractors. These Terms do not constitute, nor shall it be construed to constitute, one party as an employee, agent, representative, partner, or joint venture partner of the other party for any purpose.
33. No waiver by Hoffer of any breach of these Terms shall operate as a waiver of such breach, or of any subsequent breach thereof.
34. If any provision of these Terms are held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired, and the parties shall use their best efforts to substitute a valid, legal, and enforceable provision, which, insofar as practical, implements the purpose of these Terms.
35. Buyer may not assign its rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of Hoffer, and any attempted assignment not in accordance herewith shall be null and void and of no force or effect. Subject to the immediately preceding sentence, the Terms shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, heirs, representatives, and permitted assigns.
36. The Terms (including, without limitation, all information concerning the prices of goods sold or to be sold), all information contained herein, and all the negotiations and communications leading hereto, shall remain confidential and shall not be disclosed by buyer without the prior written consent of Hoffer; provided, that nothing herein will preclude buyer from disclosing such information, or any part thereof, if such disclosure is required by law or by subpoena or order issued by a court, administrative agency, or governmental entity (though buyer will promptly notify Hoffer of any such required disclosure).
37. These Terms shall be governed by and construed in accordance with the laws of the State of Illinois, regardless of choice of law principles, and buyer submits to the exclusive jurisdiction of the state and federal courts of Illinois with jurisdictions over the County of Kane for any disputes arising in relation to these Terms. Any action brought against Hoffer must be commenced within one year of the date of accrual of the cause of action or it shall be barred. Hoffer and buyer expressly exclude the application of the United Nations Convention on Contracts for the International Sales of Goods, as amended.
38. These Terms represent the entire agreement of the parties with respect to its subject matter. Any and all prior discussions or agreements with respect hereto are merged into and superseded by the Terms. These Terms may be modified or amended only in writing signed by the parties that expressly refers to these Terms and states an intention to modify or amend it.