Effort Foundry Terms & Conditions
Unless otherwise expressly and previously agreed to in a separate written agreement, these Effort Foundry, Inc. (“EFI”) Terms and Conditions, along with the corresponding EFI Invoice and Order Confirmation, shall govern this transaction. Any terms contained in EFI’s Quotation are for technical content only.
Request for Quotations
- All requests for quotations submitted by Customer to EFI shall be accompanied by drawings and complete information regarding specifications, and must include, if available, accurate models, pattern and blueprint information, along with casting weights.
- Upon receipt by EFI of a Request for Quotation from Customer, EFI shall deliver a Quotation to Customer, which contains pricing based on then current metal prices and availability, which shall not be binding except as otherwise set forth in the Quotation.
- EFI reserves the right to withdraw quotations at any time prior to Customer Confirmation.
- Prices quoted are based on weights indicated on the Quotation shown and are subject to change if the actual weight exceeds ten percent (10%) of that shown on the Quotation.
- The Quotation is subject to these Terms and Conditions.
- If Customer is agreeable to the price and terms contained in the EFI Quotation, Customer shall remit acknowledgement, by email, telephone or facsimile, to EFI to indicate acceptance of the pricing terms contained in the quotation. The foregoing Customer Confirmation shall not constitute a binding contract with EFI until EFI provides the Order Confirmation as set forth below.
- Upon receipt of Customer Confirmation, EFI shall issue its Order Confirmation. The Order Confirmation shall be in writing, and shall contain or reference these Terms and Conditions. The Order Confirmation constitutes the binding contract between Customer and EFI.
- The Order Confirmation, along with these Terms and Conditions, shall constitute the complete and entire Agreement between the parties. The parties shall not be bound by any other statements or understandings not set forth in the Order
Confirmation and these Terms and Conditions, as incorporated into the Order Confirmation.
By accepting products or goods, Customer agrees that these Terms and Conditions do not materially alter any offer submitted or deemed to have been submitted by Customer to EFI.
- Neither EFI nor Customer shall be permitted to make modifications to the Order Confirmation without prior written consent of the other party. Any modifications to the Order Confirmation must be in writing, signed by both parties.
- Unless otherwise noted in the Order Confirmation, the following terms apply:
- Terms are net 30 days, F.O.B. Bath, PA.
- Quoted prices apply to unmachined castings and are quoted to meet the requirements of the specifications provided by Customer to EFI in the Request for Quotation. Customer shall be invoiced at the actual shipping weight of the castings, and the final price of castings shall be determined after definite casting weights have been determined.
- Price quotations are subject to change based on sales, use or other applicable taxes.
- In the event metal prices are established by law, regulation, or other applicable ruling which are inconsistent with those contained in the Quotation, EFI may notify Customer and terminate the Order Confirmation.
- EFI shall not, under any circumstances, be responsible for any errors on the shipping company’s part, or for any damage to any products or goods which shall occur during shipment or installation of products, and no such damage shall relieve Customer of any obligations to EFI hereunder.
- EFI is entitled to adjust the quoted prices as follows.
- Orders placed with delivery dates that exceed six (6) months from the order acknowledgment date are subject to a price increase at the discretion of EFI.
- In the event that EFI does not receive the customer-supplied pattern equipment within thirty (30) days of the order acknowledgment date, the order is subject to a price increase at the discretion of EFI.
- In the event that EFI does not receive the customer-supplied model for a printed mold within thirty (30) days of the order acknowledgment date, the order is subject to a price increase at the discretion of EFI.
- In the event that EFI elects to adjust the quoted price in accordance with this section, EFI will provide a change order for a customer’s written approval prior to production. Failure of customer to execute and deliver the written approval of the change order to EFI within ten (10) days of receipt of the change order shall result in the cancellation of the order.
- No independent sales representative has the authority to bind EFI contractually, and all agreements and representations of EFI must be made by either EFI’s then-current president or CEO.
- EFI shall not, when dealing with Customer in relation to any Order Confirmation or these Terms and Conditions, be obligated to determine Customer’s authority to act pursuant to these Terms and Conditions or any Order Confirmation. Communications received from Customer, or any division, subsidiary, or affiliate or branch of Customer, shall be presumed to be valid and binding communications on Customer’s behalf.
Tooling & Equipment
- Customer is responsible to insure patterns and shall provide proof of insurance to EFI upon request. Notwithstanding any other provision herein to the contrary, Customer shall bear the sole and exclusive risk of any loss (regardless of the cause) for any patterns regardless of whether they are in the possession, custody or control of EFI or any affiliate thereof.
- Transportation, packaging, and crating costs relating to delivery to and from EFI for goods, products and patterns shall be at Customer’s expense. Risk of loss for all goods and products shall pass to Customer as each shipment is delivered to the carrier.
- EFI is not responsible for dimensional inaccuracies due to out-of-tolerance tooling supplied by Customer. For a fee, EFI will assume the responsibility of dimensionally checking the tooling to provide assurance that the castings produced from the equipment will meet the dimensional specifications. Sample castings for Customer’s approval will be supplied on request at Customer’s expense.
- EFI acknowledges patterns, core boxes, loose pieces, etc. are the property of the Customer, provided, however that those items shall all be subject to these Terms and Conditions. Customer acknowledges that notwithstanding the foregoing, EFI may remove and dispose of existing pattern rigging upon receipt from Customer in any manner which EFI may choose, and that EFI shall not be obligated to restore any original pattern rigging at any time.
- Proprietary information (gates, risers, vents, parting line) applied to models to produce printed mold/cores remains the property of Effort Foundry, Inc. and is strictly prohibited from being transferred to other foundries.
Patent, Trademark, and Copyright Infringement
- Customer represents to EFI that it has full right to use all designs and specifications submitted by Customer for use in the work covered by the Quotation.
- Customer agrees to defend, indemnify and hold harmless EFI for any claims, damages, penalties, fines, audits, investigations, expenses (including, without limitation, reasonable attorneys fees and court costs) or loss resulting from or relating to: (a) Customer’s infringement of patents, trademarks, or copyrights or other intellectual property; (b) EFI’s performance under any agreement with Customer; (c) Customer misrepresenting its rights; (d) Customer’s wrongful use or appropriation of the intellectual property of a third party, or (e) from the use and/or misappropriation of intellectual property by Customer.
- Customer agrees that EFI shall be the sole and exclusive owner of all intellectual property arising out of or in any way related to its foundry processes including (without limitation) pattern engineering and rigging, and Customer shall not have any rights in or to any intellectual property of EFI unless otherwise expressly agreed by EFI in a separate writing.
- Until full payment of all obligations of Customer, EFI reserves, and Customer grants to EFI (a) a security interest, pledge and possessory lien in all castings furnished hereunder and the same shall be considered as personal property subject to a fixture filing interest of EFI; and (b) a pledge and possessory lien in all patterns, core boxes, loose pieces, tooling, plans, blueprints, sketches and other property owned by Purchaser in the possession, custody or control of EFI.
- Customer shall and hereby covenants to execute and deliver such documents and perform such acts as EFI may require to evidence, establish and protect the security interest granted herein to EFI including, without limitation, any financing statements required by applicable law. Customer nonetheless agrees and acknowledges that to the extent Customer fails or in any way refuses to execute and deliver any such documents to EFI, Customer grants to EFI an irrevocable power of attorney to execute and deliver any and all such documents on Customer’s behalf for the purpose of evidencing, establishing and protecting any security interest granted herein.
Cancellation and/or Alterations of Orders
- All changes or alterations to any order must be in a written agreement signed by EFI and Customer.
- EFI reserves the right to reject any modifications requested by Customer with respect to pre-existing orders and/or agreements.
- Customer’s order may not be cancelled without specific prior written authorization from EFI. EFI may permit cancellation of all or a portion of the order at its sole discretion. Any permitted cancellation will be subject to the fulfillment by Customer of the cancellation terms, including the payment of any non-refundable charges and all costs incurred or paid by EFI through the date EFI receives Customer’s cancellation request, determined by EFI at the time of the Customer’s written request for cancellation.
Defective Castings (Returns/Back Charges)
- Customer agrees to notify EFI in writing within one (1) year from date of shipment of any defects in castings or goods including Customer’s intent to reject such goods. If no defect is reported within one (1) year from date of shipment, Customer shall have no recourse against EFI except pursuant to the limited warranty expressly provided below in these Terms and Conditions.
- If within one (1) year from shipment, Customer desires to reject castings supplied by EFI, EFI shall determine whether the castings can be repaired. If the castings cannot be repaired, Customer shall return the castings to EFI for a credit, provided, however, that EFI shall not be responsible for any machining charges in this case. If the castings can be repaired, and EFI approves the Customer making those repairs, the back charge to EFI for such repair shall not exceed twenty percent (20%) of the castings’ unmachined value unless otherwise approved specifically by EFI in writing. EFI shall decide the manner of repair in its sole discretion. All castings which are rejected by the Customer are to be returned to EFI unless EFI waives this requirement in writing. If requested by EFI, customer is required to return the defective castings at EFI’s expense using the means directed by EFI.
- EFI accepts no responsibility for damages and/or back charges of any kind unless
- it is notified within the time frame set forth above, (ii) such discovery is within a one (1) year period of the castings having been shipped to the Customer, and (iii) EFI approves the Customer’s suggested corrective action.
- EFI will determine in its sole and absolute discretion the time and manner in which Customer patterns will be stored. Customer agrees that EFI may store Customer patterns on-site at EFI’s foundry or in storage facilities that may be owned or leased by EFI. If EFI determines that a Customer pattern is inactive, EFI will notify Customer at its last known address as shown in EFI’s records that its pattern is inactive and that Customer must decide whether to continue having EFI store the pattern in return for a monthly pattern storage charge, return the pattern for a pattern return charge or permit EFI to scrap the pattern for a pattern scrapping fee. If Customer does not respond within thirty (30) days following the date of EFI’s notice, EFI may elect in its sole discretion whether to continue storing the pattern, return the pattern to Customer or scrap the pattern, provided, however, that Customer shall be responsible for all costs incurred or paid by EFI in connection therewith.
- If Customer elects to continue storing any inactive patterns with EFI, the storage space for inactive patterns will be provided at Customer’s expense in facilities provided by EFI. Prices for storage of inactive patterns will be in accordance with EFI’s then-current Fee Schedule, which shall include shelving, a dedicated forklift, transportation and packing costs.
- In the event Customer desires that any patterns (whether active or inactive) be returned to Customer, Customer shall pay for all costs in connection therewith including, without limitation, transportation, packing and crating in accordance with EFI’s then-current Fee Schedule. Customer agrees and acknowledges that all pattern engineering and rigging may be removed by EFI (in its sole discretion) prior to shipment.
- If Customer fails to pay costs associated with inactive pattern storage, EFI has the right to retrieve and ship such inactive patterns to Customer’s last known physical address as shown in EFI’s records at Customer’s cost, or scrap the pattern at Customer’s cost.
- The risk of loss or damage to patterns (whether active or inactive) shall rest exclusively with Customer, and Customer should therefore maintain adequate insurance coverage for fire and other casualties and pay all premiums thereon. EFI IS NOT RESPONSIBLE FOR INSURING PATTERNS.
- If Customer fails to pay any sum due to EFI in connection with the storage, retrieval, return or scrapping of any patterns, EFI shall be permitted to withhold all of Customer’s active patterns, as well as suspend performance on the shipment of any goods covered by any current Order Confirmation until such time as all such delinquent sums have been paid to EFI in full.
- Customer, on behalf of itself, its insurers, reinsurers, successors and assigns, does release, remise, quitclaim and forever discharge EFI from any and all claims, damages, lawsuits, losses and liability (including, without limitation, any rights of subrogation) arising out of or in any way related to loss, damage or injury caused by fire or other casualty for which insurance is carried by Customer. The foregoing release and waiver shall be effective regardless for all patterns for which Customer is obligated to maintain insurance hereunder regardless of whether Customer actually maintains said insurance.
Quality Standards and Warranty
- DISCLAIMER OF WARRANTIES, EXCEPT AS EXPRESSLY PROVIDED BELOW, EFI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY OR FITNESS OF THE MERCHANDISE FOR ANY PARTICULAR USE OR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, ARISING FROM THE USE OF SUCH MERCHANDISE OR FOR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OF TIME, LOST PROFITS, OR LOSS OF INCOME.
- Limited Warranty: EFI will replace or repair any castings or goods containing manufacturing defects caused by EFI provided that Customer notifies EFI within one (1) year from the date of shipment. Claims for defects will be honored only if EFI is notified within the foregoing one (1) year time period and Customer has paid EFI in full for those castings and goods. EFI shall have a reasonable time in which to ascertain the validity of the claim and shall notify Customer if the claim is rejected. The provisions of this paragraph are available only to Customer, and do not extend to any subsequent owner of any casting or goods sold initially to Customer by EFI. EFI shall not be responsible for the following: (i) damage due to Customer’s welding of castings; (ii) damage due to Customer’s machining of castings; (iii) Customer’s labor charges on castings, unless it is less than twenty percent (20%) of the unmachined casting price and has been agreed in writing by EFI; (iv) personal injury or property damage; (v) consequential, incidental, or other damages, losses or expenses incurred in connection with castings or goods or delay in delivery of castings or goods.
- In cases where partial shipments are made against an order, Customer shall pay a proportionate part of the purchase price in accordance with the terms agreed to. Customer’s failure to pay as agreed gives EFI the option to terminate the contract, without prejudice to any claims for damage that EFI may have.
- EFI shall not be liable to Customer for any loss or damage caused by fire, strikes or other labor troubles, accidents, delays in delivery, acts of God, or any other causes beyond the control of EFI.
- Any item not specifically provided for herein is subject to the Standard Customs, Terms and Conditions of Sale of the Steel Founders’ Society of America. To the extent of any conflict between these terms and conditions and the Terms and Conditions of Sale of the Steel Founders’ Society of America, these Terms and Conditions shall control and govern.
- These Terms and Conditions and the Order Confirmation and any and all disputes arising between EFI and Customer shall be governed exclusively by the laws of the Commonwealth of Pennsylvania, excluding its conflicts of law rules that would necessitate the application of the laws of any other jurisdiction. Any and all disputes and actions between or involving Customer and EFI shall be brought exclusively in the Court of Common Pleas of Northampton County, Pennsylvania, or the United States District Court for the Eastern District of Pennsylvania. Customer and EFI hereby submit to the exclusive jurisdiction of said Courts and acknowledge that the venue of said Courts shall be proper in all respects. Customer agrees and covenants that it shall not object to or assert any defense to the jurisdiction or venue of said Courts including, without limitation, pursuant to forum non convenient.
- Failure to enforce these terms does not constitute a waiver of EFI’s rights against Customer, and EFI reserves its right to pursue any and all legal and equitable remedies against Customer, including the recovery of court costs and attorney’s fees. Customer agrees and acknowledges that it shall pay all reasonable attorneys fees and court costs incurred or paid by EFI in connection with enforcing these Terms and Provisions (including, without limitation, in connection with the collection of any amount due to EFI from Customer).
- In the event that any provision of these Terms and Conditions shall be invalid, illegal, or otherwise unenforceable, the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
- Customer may not transfer or assign any of its rights or delegate any of its obligations hereunder without the express prior written consent of EFI. These Terms and Conditions shall be binding upon, and inure to the benefit of, EFI and its successors and assigns, including any corporation with which, or into which, EFI may be merged or which may succeed to its assets or business.
- In the event of Customer’s Bankruptcy, EFI, without any prejudice to any other right or remedy available hereunder or pursuant to applicable law, shall be entitled to cancel and terminate this Order or suspend any further deliveries under Customer’s Order without any liability of any nature to Customer, and to the extent of goods, products or services delivered but not paid for, the total amount due for said goods, products or services shall immediately become due and payable notwithstanding any previous agreement or arrangement to the contrary. For purposes of this paragraph, Customer’s Bankruptcy shall mean any event in which Customer shall become insolvent, shall request its creditors for a moratorium, shall enter into an assignment for the benefit of creditors, or shall suffer the appointment of a temporary or permanent receiver, trustee or custodian for all or a substantial part of its assets which shall not be discharged within thirty (30) days, or shall file a voluntary petition for relief under the United States Bankruptcy Code, as amended from time to time or similar foreign law, or in the event an order for relief under the Bankruptcy Code shall be entered concerning Customer or if a petition or an answer shall be filed proposing the entry of an order for relief against Customer under the Bankruptcy Code, which is not discharged or denied within thirty (30) days after the filing thereof. EFI shall otherwise be entitled to terminate this Order upon five (5) days prior notice to Customer in the event Customer breaches any of the terms and/or provisions contained herein. Notwithstanding any other provision herein to the contrary, in the event that Customer fails to remit payment in accordance with the terms herein, EFI may suspend any and all performance hereunder until such time as Customer becomes fully current on any and all payments due to EFI hereunder. The parties agree that EFI’s remedies hereunder shall be fully cumulative and the exercise of one or more remedies shall not prejudice or prevent EFI from exercising any and all remedies provided hereunder or pursuant to applicable law.
- Customer shall be responsible for complying with any and all laws and/or regulations governing the exportation of any goods or products delivered hereunder from the United States and the importation of any such goods or products in the country of destination, including, without limitation, the payment of any taxes and/or duties thereof.
- Customer shall and hereby covenants to protect, defend, indemnify and hold harmless EFI which for the purpose of this paragraph shall include EFI’s parent, affiliates, subsidiaries, associates, directors, officers, employees, and agents) of, from and against and from any and all losses or damages, including (without limitation) any judgments, civil penalties, interest, expenses and costs (including, without limitation, attorneys’ fees), claims, lawsuits, actions, proceedings or investigations (“Claims”) which are made or brought against EFI by any person, government or entity arising out of or in any way related to (a) the death of or injury to any person or damage to any property that resulted or is alleged to have resulted from the negligence or willful misconduct of Customer, its employees, subcontractors, and agents, in the performance of their obligations hereunder, or from the Customer’s use of the goods sold hereunder; (b) in connection with any patterns, drawings, schematics, promotional or advertising matter, guarantees, warranties, labels, or instructions furnished by Customer or submitted to EFI by Customer; (c) out of any infringement of any patent, design, trade name, trademark, copyright, trade secret, or any other intellectual property right or entitlement of any third party; or (d) out of any environmental, property or toxic tort claim, lawsuit, judgment, loss, civil penalty or action.