Terms and Conditions of Sale
PACIFIC FORGE, INC
All products offered for sale by Pacific Forge, Inc. (“Pacific Forge”) to its customers (each a “Customer’) and all orders are subject to these Terms and Conditions of Sale (the “Terms”). Except as expressly agreed by an authorized representative of Pacific Forge in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Customer's request for quotation, acknowledgment, purchase order or other contract documentation shall apply. Customer’s acceptance of the products and services delivered by Pacific Forge shall constitute an affirmation by Customer that these Terms govern the purchase and sale of the Products and that Customer waives any and all objections to any such terms and conditions.
UNLESS EXPRESSLY AGREED BY BOTH PARTIES IN WRITING, ANY AND ALL TERMS AND CONDITIONS INCLUDED ON THE CUSTOMER’S PURCHASE ORDER, CUSTOMER TRANSMITTAL, AND/OR OTHER CUSTOMER DOCUMENTATION ARE EXPRESSLY REJECTED AND ARE NOT BINDING ON PACIFIC FORGE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF A WRITTEN CONTRACT SIGNED BY BOTH PARTIES IS IN EXISTENCE COVERING THE SALE OF THE PRODUCTS COVERED HEREBY, THE TERMS AND CONDITIONS OF SAID CONTRACT SHALL PREVAIL TO THE EXTENT THEY ARE INCONSISTENT WITH THESE TERMS.
1. QUANTITIES. Prices offered are for the product quantities indicated in the applicable quotation, based upon the price of material and labor in effect at the time of quotation, and are subject to change upon notification. Shipment of any order will be made in one lot, or as near thereto as practicable. When orders specify split deliveries of quantities smaller than the total order quantity, the price for the smallest quantity will prevail unless split deliveries are expressly accepted by Pacific Forge in writing. Unless otherwise agreed to in writing by the parties, a five percent (5%) overage of products delivered shall be accepted by Customer. Orders requiring exact quantities may be filled at a higher price. All claims for shortages must be made to the Pacific Forge within thirty (30) days from date of shipment.
2. CONDITION. Prices offered are for trimmed forgings exclusive of heat treatment, machining, or additional material for machining, unless otherwise specified.
3. WARRANTY. Pacific Forge warrants the quality of its products against defect in material and workmanship, but such warranty does not extend to damage caused by accident, improper storage, abuse, improperly controlled subsequent operations, or to surface indications revealed by non-destructive tests, pickling, heat treatment or plating operations that are not included in the purchase order to the Pacific Forge. Customer shall inspect all products within a period of thirty (30) days from the date of shipment (“Inspection Period”), and Customer will be deemed to have accepted the products unless it notifies Pacific Forge in writing of any defective products during the Inspection Period and furnishes such written evidence or other documentation as required by Pacific Forge. Customer’s sole and exclusive remedy for any breach of the foregoing warranty is limited to Pacific Forge repairing or replacing defective parts returned to Pacific Forge’s factory at Fontana, California, charges prepaid, within a period of thirty (30) days from the date of shipment, and only after a reasonable amount of time is allowed for determination of justification of claim.
THE WARRANTIES SET FORTH IN THESE TERMS SHALL EXTEND ONLY TO CUSTOMER, AND PACIFIC FORGE HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESSED, OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY OTHER IMPLIED WARRANTIES THAT MAY ARRISE FROM THE COURSE OF DEALING BETWEEN PARTIES OR USAGE OF TRADE. THE WARRANTIES SET FORTH HEREIN SHALL BE APPLICABLE ONLY IF (1) THE WARRANTED PRODUCT IS USED IN ACCORDANCE WITH THE SPECIFICATIONS AND INSTRUCTIONS; AND (2) FORGE RECEIVES PROMPT WRITTEN NOTICE OF SUCH DEFECT OR NON-CONFORMANCE MAILED TO ITS OFFICE WITHIN THE APPLICABLE WARRANTY PERIOD AND IS GIVEN ADEQUATE OPPORTUNITY TO VERIFY THE EXISTENCE OF A CLAIMED DEFECT OR NON-CONFORMANCE. THE WARRANTIES SHALL NOT APPLY TO, AND CUSTOMER SHALL HAVE NO CLAIM WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT, INCLUDING NEGLIGENCE, IN ANY INSTANCE WHERE THE PRODUCT HAS BEEN (I) USED OR MAINTAINED CONTRARY TO SPECIFICATIONS AND/OR INSTRUCTIONS AS SUPPLIED BY PACIFIC FORGE, (II) SUBJECT TO MISUSE, NEGLECT, ACCIDENT, ABUSE, OR UNUSUAL HAZARD, OR (III) REPAIRED, ALTERED, FILTERED, TRANSLATED, OR MODIFIED BY ANYONE OTHER THAN PACIFIC FORGE.
PACIFIC FORGE MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ISSUE FREE. PACIFIC FORGE NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITH THE SALE OF THE PRODUCTS HEREIN. PACIFIC FORGE HAS NOT AUTHORIZED ANY EMPLOYEE OR AGENT TO MAKE ANY REPRESENTATION AS TO PRODUCTS OR THEIR USE FOR A PARTICULAR PURPOSE, AND CUSTOMERACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE TO IT EXCEPT AS SET FORTH IN THE APPLICABLE QUOTATION.
Material adjudged defective by the Pacific Forge will be replaced or credited, at Pacific Forge’s option, and in case shall the measure of reimbursement exceed the invoiced price. If Pacific Forge exercises its option to replace defective products, Pacific Forge shall, after receiving Customer's shipment of defective products, ship to Customer, at Customer's expense and risk of loss, the replaced products to the delivery point. Customer acknowledges and agrees that the remedies set forth in this Section are Customer's exclusive remedies for the delivery of defective products. Except as provided under this Section, all sales of products to Customer are made on a one-way basis and Customer has no right to return products purchased to Pacific Forge.
4. DIES. The die charge quoted is for use of one set of dies (excluding holders) unless otherwise specified. If additional die sets are required to maintain a particular production run, prices for these will be quoted on request. Payment of the die charge gives Customer the right to exclusive benefit from the tools on which the die charge has been paid. Cost of preservation and maintenance of dies for production of forgings by Pacific Forge will be borne by Pacific Forge for no longer than 2 years from the date of the last order requiring their use. Unless otherwise agreed, dies will not be reworked or conditioned until order requiring their use have been resolved. The cost of changes in design and maintenance of dies supplied by Customer will be quoted on request. Responsibility for maintenance, breakage and replacement of dies not made by Pacific Forge rests with Customer unless otherwise agreed. If Customer wishes to remove dies in which Customer has an equity from Pacific Forge’s plant dies, then Pacific Forge reserves the right to make a surcharge equal to the difference between the cost of the dies plus profit and the amount of the die charge that has been paid by Customer except that this surcharge shall in no case be less than 25% of the die charge that has already been paid. On dies for which no orders have been received for 2 years, Pacific Forge reserves the right to require Customer to withdraw the dies or in the alternative to relinquish all rights to them.
5. INDEMNITY. It is understood and agreed that Customer assumes all risks and liabilities resulting from the use of products, and Pacific Forge neither assumes nor authorizes any person to assume for Customer any of the liability in connection with the sale or use of products. Customer agrees to indemnify, defend, and hold harmless Pacific Forge, its affiliates, and its and their respective employees, officers, agents, successor and assigns for, from and against any and all damages, losses, liabilities, costs and expenses (including reasonable attorneys' fees) suffered or incurred as a result of any claim related directly or indirectly to the use, operation, or maintenance of the products obtained by Customer, including, without limitation, claims of infringement or misappropriation of any patent, trademark, trade name, or copyright or violation of applicable law by reason of the use or sale of the products.
6. TOLERANCES. The Standard Drop Forging Association dimensional tolerances apply, unless otherwise specified. Quantity tolerances are 1- 1000 +10% -5%, 1000 and over +15% -10%, unless otherwise agreed to by Pacific Forge and customer.
7. DELIVERY. All parts quoted are offered delivered in Los Angeles and Orange Counties. All other areas are FOB Fontana, California. Any shipping and delivery details provided by Pacific Forge are subject to change. Pacific Forge shall not be liable for any delays, loss or damage of product in transit. Unless otherwise agreed in writing by the parties, Pacific Forge shall deliver the products using Pacific Forge's standard methods for packaging and shipping such products. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the products at the delivery point. Pacific Forge shall not be liable for delays in delivery or failure to manufacture due to force majeure or causes beyond its reasonable control such as Acts of God, acts or omissions of Buyer, acts or omission of civil or military authority, priorities, fire, strikes, floods, epidemics, pandemics, quarantines, restrictions, riot, war, delays in transportation, transportation vehicle/vessel shortages and inability to perform due to inability to obtain necessary labor, materials or manufacturing facilities. In the event of any delay such as above described, the date of delivery shall be extended for a period equal to the time lost by reason of such delay.
As collateral security for the payment of the purchase price of the products, Customer hereby grants to Pacific Forge a lien on and purchase money security interest in and to all of the right, title and interest of Customer in, to and under the products, 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 and a right for Pacific Forge to record such lien.
8. ACCEPTANCE. If for any reason Customer fails to accept delivery of any of the products on the date fixed pursuant to Pacific Forge's notice that the products have been delivered at the delivery point, or if Pacific Forge is unable to deliver the products at the delivery point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the products shall pass to Customer; (ii) the products shall be deemed to have been delivered; and (iii) Pacific Forge, at its option, may store the products until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
9. CASH TERMS. Terms for forgings are net thirty (30) days for dies, net on approval of sample cast. Prices will be subject to all changes in pricing for raw materials, surcharges, shipping, and other changes in effect at time of delivery. Any such changes in pricing shall be at Customer’s sole cost and expense. Except as expressly stated in the applicable quote, prices do not include any present or future sales, use, excise, personal property, or any other taxes, fees, or assessments, which may be applicable to the sale of the goods quoted herein, whether said taxes, fees, or assessments are imposed upon Customer or Pacific Forge. Customer shall pay the amount of said taxes, fees and assessments in the same manner and with the same effect as is originally added to quoted price. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Pacific Forge, whether relating to Pacific Forge's breach, bankruptcy or otherwise. All payments must be in US funds. Pacific Forge will not deliver goods if Customer is delinquent in any payment. Any payments not honored such as rejected checks or reversed electronic deposits will incur a 5% service fee plus bank charges. Any outstanding balance of more than 30 days will accrue interest at 1.5% per month (18% annually), or the maximum amount permitted by law if less, and Pacific Forge will be entitled to recover its costs and actual attorney's fees if legal action is required to collect any amount owed. Customer acknowledge and agrees that all accepted orders are not eligible for cancellation, modification, and/or refund.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL PACIFIC FORGE OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY (INCLUDING CUSTOMER’S DOWNSTREAM CUSTOMERS), WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE, IN STRICT LIABILITY OR OTHERWISE, FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES. INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS OR REVENUES, LOSS OF USE, LOSS OR DAMAGE TO OTHER PROPERTY OR EQUIPMENT, COST OF CAPITAL, OR OF PURCHASED OR REPLACEMENT GOODS, OR ANY EXPENSE, INCONVENEICNE, OR ANY CLAIM OF ANY KIND RESULTING FROM ANY PRODUCTS PURCHASED FROM PACIFIC FORGE (INCLUDING ANY SALE, USE OR INABILITY TO USE SUCH PRODUCTS,REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT PACIFIC FORGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE CUMULATIVE LIABILITY OF PACIFIC FORGE TO CUSTOMER FOR DAMAGES OR MONETARY PAYMENTS OF ANY NATURE, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO PACIFIC FORGE IN THE PRIOR TWELVE (12) MONTHS FOR THE PRODUCT WHICH IS THE SUBJECT OF SUCH CLAIM. PACIFIC FORGE SOLE LIABILITY FOR ANY DEFECTIVE PRODUCT SHALL BE ITS REPAIR OR REPLACEMENT AS PROVIDED BY THE WARRANTY INCLUDED IN THESE TERMS. CUSTOMER EXPRESSLY ACKNOWLEGES THAT THE PRICE QUOTED FOR EACH PRODUCT HEREUNDER IS BASED IN PART ON THIS LIMITATION RESPECTING PACIFIC FORGE LIABLITY.
11. WAIVER. No waiver by Pacific Forge of any of the provisions in these terms and conditions is effective unless explicitly set forth in writing and signed by Pacific Forge. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these terms and conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12. NO THIRD-PARTY BENEFICIARIES. These terms and conditions are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
13. MISCELLANEOUS. These Terms and each quote (i) shall be construed according to and governed by the laws of the state of Indiana; and (ii) is not assignable or transferrable by Customer. Any purported assignment or delegation in violation of this Section shall be null and void.
14. These Terms and each quote shall be construed in accordance with the laws of the State of Indiana.
Pacific Forge, Inc
10641 Etiwanda Ave
Fontana CA 92337