Terms & Conditions
Alteration of Terms Not Permitted. Seller's acceptance of Buyer's order,
or Seller's offer, is expressly conditioned on Buyer's agreement to the terms
and conditions of these General Terms and Conditions of Sale (these
"General Terms") that govern any resulting sale. Seller does not
agree to any conflicting terms and conditions proposed by Buyer. Buyer's
acceptance of items described in the accompanying quote ("Products")
sold hereunder will manifest Buyer's consent hereto. If Buyer requests shipment
based on telephone or facsimile order, Buyer does so with the understanding
that these General Terms apply. No variation, addition, termination, or waiver
of any term or condition will be binding on Seller unless in writing and signed
by Seller's duly authorized representative.
Delivery. Except as otherwise
specifically agreed in writing, Seller will not be responsible for freight,
transportation, insurance, shipping, packing, storage, handling, demurrage,
damage, or similar charges. If such charges are by the terms of sale included
in the price, any increase in rates becoming effective after the date hereof
will be for the account of Buyer. Unless otherwise agreed in a writing signed
by Seller, all sales will be Prepay & Add Freight/FOB Origin, Seller's warehouse.
Buyer bears, owns, and files claims and title and risk of loss will pass to
Buyer upon delivery to Buyer at Seller's premises. All distribution drop
shipments and factory direct shipments are non-cancellable/non-returnable.
Prices are based on labor and material costs
as of the quotation date. Any variation in any of those costs after that date
will be for the account of Buyer after written notice of variation in prices
has been given by Seller.
Seller will not be responsible for delays in
delivery or failure to deliver due to causes beyond Seller's control.
Buyer's Specifications and
Indemnification. Where the Products are supplied according to Buyer's
specifications, Buyer indemnifies Seller and its affiliates, officers,
directors, shareholders, managers, agents, employees, suppliers,
subcontractors, servants, customers, successors and assigns from any
liabilities, obligations, losses, damages, penalties, claims, actions, suits,
arbitrations and costs (including, without limitation, attorneys' fees and
costs, litigation support charges, and expert witness fees) and expenses
suffered by Seller with respect to (a) any claim that the Products infringe any
patent, copyright, trademark, trade secret, design, or other intellectual
property right or proprietary or similar rights and (b) any claim that the
Products were incorrectly or improperly installed. Seller will not be liable
for (a) any error, omission, or inaccuracy in drawings or specifications
provided or approved by Buyer and will be under no obligation to check or
confirm the conformity, accuracy, or adequacy of patents, regulatory
requirements, drawings, or similar specifications provided to Seller by Buyer
or (b) any obligation to install the Products correctly or properly.
Installments and Subcontract. Unless
otherwise expressly stated, Seller will have the right to deliver the Products
in installments. All installments will be separately invoiced and paid as
billed without regard to subsequent deliveries. Failure to pay for any installment
when due will excuse Seller from making future deliveries. Seller may
subcontract the performance of the whole or any part of these terms and
conditions to any person.
Limited Warranty; Disclaimer of Implied
Warranties. THE PRODUCTS ARE SOLD "AS IS, WHERE IS". SELLER
MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PRODUCTS SOLD HEREUNDER, AND SELLER HEREBY DISCLAIMS ALL
WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER
ANY SUCH PURPOSE IS KNOWN OR UNKNOWN. THIRD PARTY WARRANTIES WILL BE PASSED ON
TO BUYER AS APPLICABLE.
Third party or manufacturer’s warranty will be facilitated by the seller
under the terms and conditions as indicated by the third party, seller cannot
be held liable for performance or success of any claim. Goods under claim must
be returned to the sellers’ premises or an agreed location at the expense of
the buyer. Claims are subject to an
inspection and evaluation by 3rd party provider and expressly no
goods shall be exchanged unless authorised by the 3rd responsible party.
Payments will be made within the terms stated
on the invoice. If Buyer fails to comply with any terms of payment, Seller may
withhold further deliveries or at its option terminate these General Terms
whereupon any unpaid money will become immediately due. If, by the terms of
sale, credit is extended to Buyer, Seller reserves the right to revoke such
credit if Buyer fails to pay for any Products when due and Seller will then
have the right to demand payment before any further shipments of Products. All
past due payments will bear interest at a rate of one and one-half percent
(1.5%) per month from the past due date until date of receipt of payment
Notice of Claims. Immediately upon
receipt of the Products, Buyer will inspect the same. Any claim for shortage
must be made within ten (10) days after Buyer's receipt of the Products. All
other claims, including claims for alleged defective Products, must be made
within ten (10) days after Buyer learns of the facts upon which such claim is
based, but in no event later than fifteen (15) days after Buyer's receipt of
the Products. All claims not made in writing and received by Seller within the
time period specified above will be deemed waived. With respect to any defects
incapable of discovery until in use or in processing in the manufacture of
other products, all claims for any damages or losses as a result of such defects
will be deemed waived unless made in writing and received by Seller within
fifteen (15) days after Buyer's receipt of the Products or within ten (10) days
after Buyer learns of the alleged defect giving rise to the claim, whichever
will first occur, and, after the expiration of either of said periods, Buyer
expressly assumes all liability for all such damages or losses irrespective of
any processing or use which will have taken place or whether the alleged defect
will have occurred or been discovered prior to expiration of such period.
Buyer will have no right to set off any
amounts due or payable to Seller hereunder against any claim or charge Buyer
may have against Seller.
Termination for Insolvency. Seller may
wholly or partly terminate any sale of Products hereunder if Buyer makes any
assignment or trust for the benefit of creditors, becomes insolvent or
otherwise is unable to pay its debts as they become due, or if proceedings are
commenced by or against Buyer alleging bankruptcy, or insolvency, or involving
the appointment of a receiver.
Exclusive Remedy. BUYER'S EXCLUSIVE
REMEDY UNDER THESE GENERAL TERMS IN LIEU OF ALL OTHER REMEDIES WILL BE FOR
DAMAGES OR, AT SELLER'S ELECTION, REPAIR OR REPLACEMENT OF DAMAGED ITEM(S) OF
PRODUCTS RETURNED AT BUYER'S EXPENSE TO SELLER; IN THE EVENT DAMAGED PRODUCTS
CANNOT BE REPAIRED OR REPLACED, SELLER MAY REFUND THE PURCHASE PRICE PAID BY
BUYER FOR THE PARTICULAR ITEM(S) OF PRODUCTS WITH RESPECT TO WHICH LOSSES OR
DAMAGES ARE CLAIMED.
IN NO EVENT WILL SELLER HAVE ANY OBLIGATION
OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR
OTHERWISE; AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE
OR IMPUTED), REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY OF SELLER)
FOR COVER OR FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES OR LOSS OF
REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THE
PRODUCTS OR A SALE BY SELLER TO BUYER, EVEN IF SELLER OR ITS AGENTS HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER'S AGGREGATE LIABILITY
(WHETHER ARISING IN CONTRACT, WARRANTY, TORT OR OTHERWISE) WITH REGARD TO THE
PRODUCTS OR A SALE BY SELLER TO BUYER WILL IN NO EVENT EXCEED THE PURCHASE
PRICE PAID BY BUYER FOR THE PARTICULAR ITEM(S) OF PRODUCTS WITH RESPECT TO
WHICH LOSSES OR DAMAGES ARE CLAIMED.
Cumulative Remedies; Nonwaiver. Seller's
remedies herein provided will be cumulative and in addition to any other
remedies by law or in equity. Seller's failure to insist upon or enforce strict
performance of any of, or to exercise any rights or remedies under, Seller's
agreement with Buyer will not be construed as a waiver or relinquishment to any
extent of Seller's right to assert or rely upon any such provision, right or
remedy in that or any other instance; rather, the same will remain in full
force and effect.
No course of prior dealings between Buyer and
Seller and no usage of the trade will be relevant to supplement, interpret or
explain these General Terms. Buyer shall comply with all applicable laws,
regulations, rules, orders and other requirements, now or hereafter in effect,
of any applicable governmental authority in its performance of Seller's
agreement with Buyer and use of the Product.
These General Terms bind and inure to the
benefit of Seller, its successors and assigns. Buyer may not assign any right
or interest in Seller's agreement with Buyer nor delegate the performance of
any of its obligations without Seller's prior written consent.
This
instrument contains the entire agreement between the parties, and no promises,
provisions, terms, warranties, conditions or obligations whatsoever, whether
express or implied, other than herein set forth, will be binding upon either
party.