|
Welcome
to
KENWALT
DIE CASTING COMPANY
Since 1968
Aluminum Die Casting
Zinc Die Casting
1-800-KENWALT
KenWalt
Die Casting
Company is an American
Manufacturer and job shop foundry in the USA specializing in producing high
quality Aluminum Alloy Die Casting and Zinc Alloy Die-Casting using a unique
Vacuum Die Casting Process. The die casting
process is commonly known by words or phrases such as
Aluminum
Die Casting, Zinc
Die
Casting, Aluminium, Zinc, Casting, Castings, Manufacturers, Zink, Foundry,
Alloys, Diecast, Casting Process, Foundries, Zinc
Alloy, Aluminium Alloys, Aluminum Alloys, Zinc Alloys, Die-casting, Metal Casting, Aluminum Casting, High Pressure Die Casting, Diecasting, Mold Casting, Pressure Casting, Zinc Casting, Foundry Casting, Die Casting Aluminum, Casting Zinc
and Die Cast Parts.
KENWALT DIE CASTING COMPANY
TERMS AND CONDITIONS
1. ENTIRE CONTRACT; Waiver, Remedies;
Assignment and Subcontracting - These Terms and Conditions and Seller
quotation constitute the entire contract between Buyer and Seller
(KenWalt Die Casting Corporation, also referred to as KenWalt) with
respect to the subject matter hereof, transcending any oral
arrangements, representations, purchase order or terms and conditions of
Buyer which may be inconsistent therewith. Unless otherwise agreed upon
by Seller, quotations furnished by Seller are not intended as and shall
not be construed as constituting an offer to Buyer. KenWalt's quotation
and Terms and Conditions take precedence over any verbal or written
contract, term, condition, order, representation, understanding, Buyer
terms and conditions, or other like agreement between KenWalt and Buyer.
In addition, all other verbal or written contract, term, condition,
order, representation, understanding, terms and conditions, or other
like agreement between KenWalt and Buyer are hereby deemed null and
void. There are no other verbal or written contracts or other like
agreements different than herein stated. Exceptions to any of KenWalt's
quotation or Terms and Conditions as specified herein or to any
supplements will not be considered as binding upon KenWalt. These
contractual Terms and Conditions shall be effective and binding upon
KenWalt and Buyer upon Buyer acceptance of KenWalt quotation, good or
service. A KenWalt quotation is valid for thirty (30) days from the
quotation date, is based on current material and labor costs, is subject
to applicable taxes, and is subject to change at any time for any reason
and without notice by KenWalt. A KenWalt quotation and Terms and
Conditions shall supersede and prevail over any conflict with a Buyer's
order or terms and conditions. Acceptance by KenWalt of any Buyer order
shall have no binding effect whatsoever on KenWalt. This contract shall
be construed according to the laws of the State of California.
2.
AMENDMENT - No change or modification
of KenWalt's quotation or Terms and Conditions shall be binding upon
KenWalt, except as evidenced by written approval by an authorized
KenWalt officer. KenWalt shall have the right to make changes in
contract, quotation, price, drawing, design, plan, specification, time
and place of delivery, or method of transportation, and Buyer shall
comply with such change immediately upon verbal or written notification
thereof. If any such change causes an increase or decrease in costs or
prices, an equitable adjustment may be made by KenWalt and shall become
effective immediately upon such notification.
3.
PREFERRED/SECURED CREDITOR -
Buyer
hereby agrees and assigns KenWalt as a Preferred Creditor and thus
giving KenWalt first claim to any available funds. Additionally, Buyer
hereby agrees and assigns KenWalt as a Secured Creditor who thereafter
has a lien on the property of the Seller and has the right to repossess
or foreclose on the property or assets against which a lien is held when
Seller is in default.
4.
PRICES - All goods are billed at
Seller's quoted prices, plus metal cost adjustments and applicable
taxes. All
prior quoted prices are subject to change without notice. Buyer shall
accept Seller's certification of prices applicable on each shipment
until the order is completed. Seller reserves the right to adjust part
prices to reflect actual costs at time of shipment. KenWalt quotations
are based on metal costs at the time of quotation. Unless a KenWalt
quotation states a fixed metal cost was used, a metal cost adjustment
increase or decrease will be invoiced to Buyer. Buyer agrees to pay such
metal cost adjustments as invoiced.
5.
TAXES - In addition to the prices
stated herein, Buyer shall reimburse Seller for all taxes, excises,
fees, or other charges which Seller may be required to pay to any
government (National, State or Local) upon the sale, use, production or
transportation of the goods, including tooling, sold hereunder. All
applicable Federal, State, City, Local, Excise, Use, Sales, Value-added,
Personal Property or any other applicable taxes, as well as storage,
tariff, import/export, or any other fees, are due and payable by the
Buyer as required by law. Buyers exempt from tooling or die casting
taxes must promptly submit a valid Reseller's Permit or Resale
Certificate to KenWalt prior to or concurrent with order placement to be
considered for exemption from applicable taxes.
6. DELIVERY - Delivery dates are estimates
only. Time is not of the essence and when time of delivery is given it
shall be deemed to be estimated only and Seller shall not be held
responsible or liable for failure to meet such dates. Estimates of
delivery are subject to revision when complete ordering information is
received by Seller. There shall be no liability for failure or delay of
delivery due to acts of God, acts of Buyer, Government action, accident,
casualty, fire, flood, war, strike, labor trouble or shortage, inability
to obtain materials or supplies, equipment failure, power failure, delay
or interruption of carriers, transportation issues, tool defects, or
other causes beyond the reasonable control of Seller. Upon any such
delay or failure, the delivery date shall be extended or the items
affected may be eliminated from the order (except as provided in
paragraph 18). KenWalt will make an effort to deliver Buyer goods by
specified dates. However, KenWalt shall not be held responsible or
liable for any Buyer damages or losses sustained as a result of late,
delayed or failed deliveries.
7. SHIPMENTS - F.O.B. Seller's plant or
other point of shipment. Title and risk of loss or damage passes to
Buyer on delivery to carrier. Seller may ship all the goods at one time
or in portions from time to time. Unless otherwise specified on Seller's
quotation, shipments will be made using bulk containers/cartons at
Seller's discretion. Buyer agrees to pay for special containers/cartons
and any special shipping costs, including but not limited to, expedited
shipping costs. Goods are packaged to protect against damage during
shipment, however Seller has no control of goods and is not liable for
any damage or loss of goods upon delivery to carrier.
8.
ENGINEERING, DESIGN, INFORMATION
DISCLAIMER - Buyer is solely responsible and liable for the engineering
and design of Buyer's part. KenWalt disclaims any responsibility or
liability for KenWalt furnished information of any kind, including but
not limited to, engineering, design, changes, techniques, methods, or
otherwise, and use thereof by Buyer shall be at Buyer's risk, and
KenWalt shall not be held liable as a result of such use.
9. WARRANTY, GUARANTEE - THERE IS NO
WARRANTY OR GUARANTEE, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OR GUARANTEE OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE OR USE OR WORKMANSHIP, PERFORMANCE, QUALITY, DURABILITY, OR
OTHERWISE, ON THE PRODUCTS, OR ON ANY LABOR FURNISHED DURING THE SALE,
DELIVERY, OR SERVICING OF THE PRODUCTS, EXCEPT AS EXPRESSLY SET FORTH
HEREIN. Buyer warrants the title, design, properties, fit, form and
function, soundness both surface and subsurface, merchantability,
fitness for particular purpose or use or otherwise, and on any labor
furnished during the sale, delivery, or servicing of the products.
Seller agrees at our option to repair, replace, or issue credit,
including metal credit only, for defective die castings provided Buyer
delivers written notice to Seller within ten (10) days after the invoice
date and provided that the goods have not been processed or otherwise
used in any manner and samples of the claimed defective castings are
returned to our factory properly packaged and identified for inspection
and found defective by us. No warranty or guarantee attaches to die
castings altered, machined, finished or otherwise used or modified after
delivery by us.
KenWalt is supplying casting products
to you, from your molds to your specifications of design, quality
standards, and choice of material, KenWalt is prevented from making
changes to your specifications without your prior written notice. Even
though samples or information as to observed properties of the goods may
have been supplied to Buyer, Seller does not warrant or guarantee the
conformity of the goods to the samples or the observed properties. When
differences between models and drawings exist, the Seller shall conform
to specifications of the model or to Buyer's written instructions. It is
understood that our option to repair, replace, or issue credit,
including metal credit only, is the exclusive remedy and our liability
is limited to the invoice price of the castings proved defective. Seller
shall not under any circumstances be liable for any special or
consequential damages. The Buyer assumes risk of loss through fire,
forcible entry, earthquake or casualty, of tooling, parts, inserts, or
other property left in Seller's premises. When Buyer's orders contain
written, printed or stamped provisions conflicting with the written,
printed or stamped provisions of KenWalt's quotation or Terms and
Conditions, KenWalt's quotation and Terms and Conditions will prevail.
The foregoing expresses the entire
liability of Seller regarding the tools and goods.
10.
INDEMNITY - Buyer agrees to indemnify,
defend, and hold harmless KenWalt, its owners, successor, employees,
assigns, agents and users of loss, damage, liability, including costs
and expenses which may be incurred on account of any suit, claim,
judgment or demand involving KenWalt, including produced material and/or
parts, including but not limited to infringement or alleged infringement
of any patent, trademark, invention, copyright rights, in the
manufacture, use or disposition of any material and/or parts supplied or
service provided by KenWalt to Buyer and pursuant to its users.
11.
PATENTS - Buyer assumes responsibility
and liability for any patent, trademark, invention or copyright
infringement. Buyer agrees to indemnify and hold harmless KenWalt of any
damages, losses or liabilities that may occur. Buyer shall pay all
losses, including but not limited to, legal fees, litigation,
negotiation, judgment, settlement, or royalty, to defend KenWalt if a
conflict arises. It is the sole responsibility of the Buyer to provide
license for Seller to produce Buyer's part or any patented design. Buyer
shall defend Seller against any suit or proceeding brought against
Seller related to any claim that any goods furnished under this contract
constitute an infringement of any patent, trademark, invention or
copyright of the United States or any other country. Buyer shall
promptly notify Seller in writing and give authority, information and
assistance (at Buyer's expense) for the defense of Seller and Buyer
shall pay all damages and costs awarded therein against Buyer or Seller,
and Seller shall have no responsibility to defend any such suit or
proceeding or to pay any costs, including but not limited to, legal
fees, court costs, award, royalty, or damages, including if the
infringement claim arises out of or relates to any action, inaction or
omission of Buyer. In case said goods are in any such suit held to
constitute infringing goods and the use or resale thereof is enjoined,
Buyer is nonetheless obligated to pay Seller for the goods received. The
foregoing states the entire liability of Seller for patent infringement
by said goods. No patent license is granted or implied by Seller and no
warranty is given by Seller against infringement of the patents of
others by reason of the use of the goods in combination with other goods
or in the operation of any process. In all events, Buyer shall save
Seller harmless from infringement of patents arising from compliance
with Buyer's designs or instructions. Patent rights to all improvements
embodied in designs, gating, tooling, apparatus, fixtures, drawing
information and equipment made by KenWalt under an order contract, and
exclusive rights for the use and reproduction thereof, are the sole
property of KenWalt.
12.
QUANTITY - Because of conditions
existing in manufacturing the goods, Seller reserves the right to ship
and bill ten percent (10%) more or less than order quantity(s) and Buyer
shall accept and pay for all goods actually shipped within such
allowances.
Buyer agrees that Seller is not liable
for any underage. No claims for shortages in count or weight will be
allowed unless reported to Seller within ten (10) days after the invoice
date. No goods shall be returned to Seller for any reason without
Seller's prior authorization.
13.
ALLOY, MACHINING, FINISH - Castings
will be furnished from the material specified in KenWalt quotation.
Finish as a result of surface condition of tooling and die lubrication
during production. Unless otherwise specified in KenWalt's quotation,
finishing operations such as trimming, machining, deburring, drilling,
tapping, reaming, assembly, etc., or buffing, polishing, anodizing,
painting, plating, etc, are not included.
14.
TOOL CHARGES - (a) Where special
tooling or other manufacturing or production apparatus is required and
specifically paid for by Buyer, one-half of the quoted tool charge must
be paid with the placing of the original order for such tool or
apparatus, and the balance not later than ten (10) days after the
receipt of the first samples. Upon payment in full therefore any such
tools or other apparatus shall become the property of the Buyer, but may
not be removed from possession of Seller (or it's designee) until an
additional engineering charge of 30% of original charge is paid by
Buyer. It is understood that the Seller's charge for new dies may
consist of complete die blocks with cavities, or may consist of die
inserts with cavities for use in Seller's common master unit dies.
Seller's common tooling may consist of mold bases, unit bases, ejector
pins, ejector plates, trim die bases and such cores or slides as may be
necessary. Seller's common tooling is not sold and does not become
property of Buyer, as these items are a part of Seller's die casting
machinery and are interchangeable with numerous other tooling which
Seller operates. Where any such tooling or other apparatus, including
gating design, incorporates trade secrets of Seller, such tooling,
apparatus or gating design may never be removed from Seller's (or its'
designee's) premises but will be kept for the exclusive use of Buyer.
(b) Seller's tools, other apparatus and gating design shall not be
removed from Seller's plant. In the event of Buyer's tool removal, Buyer
shall accept same "as is" F.O.B. Seller's plant and reimburse Seller for
any packing or other charges incurred. Seller reserves the right to hold
up return of tools and such other apparatus until Buyer pays any amount
due Seller and, in that regard, Buyer grants to Seller a security
interest in all of Buyer's right, title and interest in and to (i) any
such tools, equipment or other apparatus now or at any time hereafter
delivered to Seller by or on behalf of Buyer and (ii) any and all
products (including the goods to be shipped hereunder) and proceeds of
the foregoing, to secure payment and performance of all of Buyer's
obligations hereunder and under any and all other invoices or other
documents, agreements and instruments between Buyer and Seller. Buyer
shall execute and deliver to Seller all UCC financing statements
reasonably requested by Seller in connection with the foregoing grant of
a security interest in tools, equipment, apparatus and the products and
proceeds thereof. Seller will for a period of two (2) years after
completion of Buyer's most recent production order, maintain all tools
and other apparatus still in its possession pertaining to said order in
condition to furnish molded pieces, subject to due allowance for
ordinary wear and tear and casualty. Buyer is responsible for repair or
rework of all Buyer tools that are heat checked or worn as a result of
usage, part design or shot cycles. Buyer agrees to indemnify Seller and
hold Seller harmless for any costs associated with failure or pre-mature
failure of all tooling provided by Seller for the production of Buyer's
products. Two (2) years after completion of Buyer's most recent
production order, Seller reserves the right and Buyer consents such
tools and other apparatus, including parts, shall become the sole
property of Seller for all purposes and Seller may thereafter use, sell,
or dispose of such tools and other apparatus, including parts made
therefrom, after giving thirty (30) days written notice thereof to the
Buyer at their last known address, and Buyer agrees to defend, hold
harmless, and reimburse Seller against any loss or damage resulting from
infringement of any patent, trademark, copyright or invention as a
result thereof. Anything contained herein to the contrary
notwithstanding, it is specifically understood and agreed that Seller
shall not be liable to Buyer or any other person, firm, corporation, or
entity, for the loss, damage, destruction or disappearance of any tools
or other apparatus left in Seller's (or it's designee's) possession
and/or control, and in the event of such loss, damage, destruction or
disappearance, Buyer and/or any other person, firm, corporation, or
entity, shall have no claim therefore against Seller whatsoever.
15.
TOOL MAINTENANCE, REPAIR, REPLACEMENT
- Seller to assume general maintenance only (i.e. core pins, ejector
pins). If a tool requires repair for anything other than general
maintenance, Seller reserves the right to charge back Buyer for such
costs. A tool will become less productive compared to when new, which
affects quoted rates and prices. Worn out tools cause slow production
rates, quality problems, increased scrap, increased inspections and
sorting costs, overtime and consume more than standard production
capacity. Buyer delay authorizing a repair or replacement tool may
result in increased or additional costs to Buyer.
16.
GAUGES AND QUALITY EQUIPMENT - If
Buyer uses special gauging to determine the acceptability of goods,
Seller shall receive from Buyer duplicate special gauging, preferably
made at the same time by the same vendor the Buyer used.
17. BUYER SUPPLIED ITEMS - Materials,
inserts or component parts supplied by Buyer must be furnished in a
quantity or amount reasonably in excess of that required to fill an
order and must be delivered F.O.B. the Seller's plant. As a certain
amount of spoilage is unavoidable, such items should be supplied in
quantities ten percent (10%) or greater than the number of parts
ordered. Buyer is liable and responsible for quality, timely delivery,
design, fitness for use, merchantability and maintaining sufficient
inventory. Seller will have no liability or responsibility for damage or
defects to tools, castings, parts or other goods, nor for other
consequential damages, caused by Buyer supplied items.
Buyer supplied items received by us
are not subject to inspection or count, and if they are defective we
assume no liability or responsibility for parts made with such defective
items and such parts are not subject to rejection by you, including but
not limited to, reasons of excessive fins, flash, inaccuracy, or
imperfections caused by such inserts. Buyer supplied items are to be
stored and handled at your risk. We assume no responsibility for losses,
or spoilage in production, other than fair and reasonable care.
Production losses caused by shortage of Buyer supplied items are to be
paid for by Buyer. To avoid such losses, Seller may not set up for
production until all such items are in our plant.
18.
CHANGES AND CANCELLATION - Orders
accepted by Seller are not subject to changes or cancellation by Buyer,
except by Seller's written consent. If this sale covers goods that must
be manufactured especially for Buyer and such change or cancellation is
made, Buyer shall take all completed goods at full price and all goods
in process at cost plus pro-rata profit and Buyer shall reimburse Seller
for any loss on materials purchased or on contract for the filling of
the order. Any order change must be approved in writing by an authorized
KenWalt officer. Verbal changes are unacceptable. KenWalt reserves the
right to cancel or terminate an order or any part thereof at any time
for any reason.
19.
ASSIGNMENT AND SUBCONTRACTING - Order
may not be assigned or subcontracted in whole or in part, nor may any
assignment of any monies due or to become due be made by Buyer without
in each case prior written consent by an authorized KenWalt officer, and
no such assignment or subcontract without such written consent shall be
binding upon KenWalt. Payment to any approved assignee of any claim
under an order shall be subject to setoff or recoupment for any existing
or future claim(s) that KenWalt may have against Buyer.
20. ERRORS - Stenographic and clerical
errors are subject to correction. KenWalt reserves the right to correct
any such errors, at any time, and such corrections do not change the
meaning of this contract.
21. LAWS - Any domestic or international
contractual or legal dispute or controversy shall be settled outside the
courts by arbitration under rules of the American Arbitration
Association in Los Angeles in the State of California. In no case, shall
Seller's liability be in excess of the dollar value of the die castings
received by the Buyer during the thirty (30) days prior to the last
delivery of die castings ordered under this contract.
22. TERMS OF PAYMENT - Buyer hereby agrees
that Seller has a lien on any Buyer tool, mold, insert, apparatus,
component, material, part, merchandise and goods in our possession. The
terms of payment on Seller's quotation are subject to change at any time
for any reason and without notice at the discretion of Seller. Past due
invoices are subject to a service charge of 1-1/2% per month (18% per
annum) or the maximum allowed by law. Buyer agrees to pay all Seller's
collection costs incurred upon demand.
23. BANKRUPTCY/INSOLVENCY - In the
event that Buyer files for any protection from creditors, including
but not limited to, bankruptcy or
insolvency, Buyer shall immediately, and prior to such filing, deposit
in an escrow account all funds due Seller, and immediately following
such deposit in an escrow account all funds due Seller, pay all such
funds to Seller.
24. ATTORNEYS' FEES - Buyer promises to
pay all costs and expenses of Seller and its successors and assigns
incurred in connection with the collection of Buyer's obligations
hereunder or in the enforcement or attempted enforcement of any of
Seller's rights hereunder, including but not limited to, attorneys'
fees, disbursements, and collection costs, whether or not an action is
filed in connection therewith.
25.
REMEDIES
- The remedies herein reserved shall be cumulative and additional to any
other or further remedies provided by law or equity. No waiver of a
breach of any provision of this contract shall constitute a waiver of
any other breach of such provision.
26. COMMISSION OF GRATUITY - Buyer
warrants that it has not directly or indirectly paid or promised to pay
any commission, fee or consideration, nor made or promised to make any
gift or gratuity to any agent or employee of KenWalt for the purpose of
securing a contract with KenWalt.1
27. PROMOTION - Seller reserves the right
to use photos, sketches and other representations of Buyer tooling and
products for the purposes of advertising, marketing or promotion. Buyer
shall not advertise or publish in any manner the fact that Buyer has
contracted Seller to furnish Buyer products or services without first
obtaining written authorization by an authorized KenWalt officer.
28. MISCELLANEOUS - To the extent
otherwise not provided above, NADCA Product Specification Standards for
die castings shall prevail over all other specifications. Gauges which
may be required for inspection of Buyer part, other than standard
calipers or pin gages we may have available, are to be supplied by and
paid for by Seller.
29. EFFECTS OF INVALIDITY - The invalidity
in whole or in part of any provision, term or condition shall not affect
the validity of any other provision, term or condition. If any part of
quotation or Terms and Conditions is held to be invalid, illegal or
otherwise unenforceable, then such provision shall be deemed modified to
the extent necessary to make such provision enforceable, or, if not
practicable, then deleted. The unenforceability of any portion of the
quotation or Terms and Conditions shall not impair or affect the
validity and enforceability of the remainder. Either party's failure to
insist upon full performance of any provision, term, condition or
specification hereof or to exercise any rights or remedies hereunder of
any of the provisions, terms, conditions or specifications hereof or to
exercise any rights or remedies hereunder shall not thereafter be deemed
a waiver of the same or of any other provisions or privileges hereunder.
The individual remedies reserved in the quotation and Terms and
Conditions shall be cumulative and in addition to any other or further
remedies provided at law or in equity. Buyer shall not assign or
subcontract, in whole or in part, its rights or obligations under the
quotation and Terms and Conditions without prior written authorization
by an authorized KenWalt officer.
|
