| 1. ACCEPTANCE. This is a quotation, not an offer to sell. This proposal is subject to acceptance by the purchaser within thirty calendar days and in the meantime may be changed or withdrawn upon written notice. All orders are accepted by the Seller to our sales and credit terms only and not to the terms and conditions appearing on Buyer's purchase order or contract. Any Agreement arising out of this proposal shall be subject to all terms and conditions hereof and contains the entire agreement between the parties and supersedes all agreements, express or implied, oral or written. Any terms or conditions contained in any purchase document or correspondence of the customer which are not stated herein shall be of no effect and this agreement is accepted by the customer without any such additional or different terms or conditions. Your agreement with our terms and conditions shall be conclusively evidenced by your acceptance of any shipment.
2. PRICES AND TERMS. Prices are quoted FOB shipping point designated on Seller's sales order acknowledgment to which these terms and conditions are attached, for shipment by an independent carrier and do not include charges for freight. Seller shall select the method and routing of carrier. Certain handling charges may apply. Buyer shall be solely responsible for the costs of shipping and insurance. Buyer shall assume all risks of loss upon delivery of the merchandise to the carrier. Inspection of goods will be at destination appearing on purchase order unless otherwise specified in the order.
3. PAYMENT. All payments are due in full within thirty calendar days of the date of invoicing, which shall be the date of shipment from either Seller's designated freight terminal or original source of goods, and are payable only in US funds at Seller's address. Any amounts remaining unpaid when due shall be subject to an interest service charge of 1-1/2% percent per month or the maximum interest rate permitted by law, whichever is lower, on the unpaid total invoice balance. On accounts placed for collection, Buyer agrees to pay all costs of collection, including reasonable attorney's fees. All invoices of Seller shall be deemed correct unless written claim is received within ten calendar days of invoice date.
4. TERMS OF DELIVERY. Seller may make delivery of the merchandise in installments. Each installment or partial shipment shall be invoiced separately. In the event that Buyer fails to make any payment when due for any such installment, Seller, without prejudice to any other remedy provided herein or by law, may treat such default as a breach of the entire agreement. The delivery dates set forth on the quotation or sales order acknowledgment to which these terms and conditions are attached, is an estimate only, and delays in delivery shall not relieve the Buyer of its obligation to accept delivery of any shipment. Seller shall not be responsible for any failure or delay in delivery arising from causes beyond its control, including without limitation, war, governmental regulation or interference, labor controversy, labor shortage, failure of source of supply, interruption of transportation facilities, fire, flood, accidental damage to its place(s) of business, strikes, riots, failure to receive materials, and failure or breakdown of production facilities. If Seller shall be delayed in any phase of the contract by action or inaction of Buyer, payment shall be due as if Seller had shipped the goods as called for in the contract, and when so delayed Seller may, at its option, store the goods for Buyer's account and risk or consider the contract breached. Seller may, at its option, delay delivery of future shipments until such time as there are no payments due.
5. TAXES. Buyer shall pay all taxes due on any order including, but not limited to, sales, use, excise or direct or indirect tax of a similar nature of federal, state, county, or municipal origin. A tax exemption certificate must accompany order if such is applicable to the goods or services being furnished. If Seller is required to collect/pay such taxes, Buyer shall reimburse Seller for the full amount.
6. SECURITY INTERESTS. Buyer hereby grants a security interest in the merchandise described in the quotation or sales order acknowledgment to which these terms and conditions are attached to secure the payments of any sums now or hereafter due to Seller from the customer. To permit Seller to perfect its security interests, Buyer shall prepare, execute and file financing statements in the appropriate place(s) upon Seller's request.
7. CHANGES OF DESIGN. Seller shall not be liable for any changes or modifications by the manufacturer in the design or construction of the merchandise sold.
8. CHANGES/CANCELLATION. Changes to the sales order requested by the Buyer, whether in design, quantity, or shipping schedule, will be subject to acceptance by seller. Cancellation of orders accepted by the Seller can be made only with the Seller's consent. Should cancellation be accepted by the Seller, the Buyer shall pay the agreed cancellation fee of any charge up to a maximum of one hundred percent of sales order value, plus other any reasonable additional charges which Seller has incurred up to the point of Buyer's change or cancellation notice directly related to acquiring and preparing goods for shipment.
9. DESIGN,DRAWINGS,TOOLS,ETC. All data, drawings, designs, ideas, sketches, patterns, dies, tools, jigs, fixtures, and any other special appliance relating to the order, whether reflected in the purchase price of the order or not, remain Seller's property unless otherwise specified in the sales order. No license is granted to the Buyer except the right to use the equipment in the manner intended and Buyer agrees to return all drawings, etc., upon demand.
10. INDEMNITY. Where the Buyer has provided the design for the merchandise sold and, at the request of the Buyer, the merchandise is labeled or marked with a trademark or tradename, Buyer hereby agrees to defend through counsel acceptable to Seller and hold harmless Seller in any action, civil or criminal, brought against Seller by any third party for the infringement or misuse of any patent, trademark or tradename. Buyer shall indemnify and hold harmless Seller and its agents and employees from and against any and all losses, damages, claims or expenses, including legal expenses, arising out of the use, condition or operation of the merchandise.
11. NOTICE OF CLAIMS. All claims resulting from an alleged breach of warranty or for variances from or shortages in orders must be made in writing and sent by certified or registered mail to Seller. No claim shall be allowed if made later than ten calendar days after Buyer's receipt, or delivery of, the merchandise.
12. LIMITATION OF LIABILITY; RETURNS. The Buyer's exclusive remedy for claims shall be for damages or, at Seller's election, the repair or replacement of defective or damaged merchandise. No claims shall be allowed unless notice is given in accordance with paragraph 11 hereof. No merchandise may be returned to Seller without Seller's consent. In the event that merchandise is returned to Seller without is consent, the Buyer shall be liable for Seller's costs in handling and storing the returned goods. Seller's liability for any and all losses and damages to the Buyer resulting from any cause whatsoever, including the company's negligence or alleged defective merchandise, regardless of whether such defects are discoverable or latent, shall in no event exceed the purchase price of the particular merchandise with respect to which losses or damages are claimed. In no event, including the case of a claim of negligence, shall Seller be liable for incidental or consequential damages. The Buyer shall indemnify and hold harmless Seller and its agents from and against any and all losses, damages, claims, or expenses, including legal expenses, arising out of the use, condition or operation of the merchandise. No back charges for labor or materials will be accepted unless previously authorized by the Seller in writing. Seller shall incur no liability hereunder or otherwise, for removal, installation or reinstallation of equipment or for loss of product or down time.
13. DISCLAIMER OF WARRANTY. Seller is not the manufacturer but is the reseller of goods subject to certain limited warranties of the manufacturer. Seller disclaims any warranty, express or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Seller does not warrant directly or indirectly that the merchandise is free of the rightful claim of any third party by way of infringement or the like. To the extent Buyer furnishes specifications to Seller, Buyer hereby holds Seller harmless against any claim of a third party infringement including loss and reasonable costs of defense.
14. BANKRUPTCY OR INSOLVENCY. In the event Buyer becomes insolvent, or files petition of bankruptcy, or is subject to an involuntary petition or arrangement under the federal bankruptcy law, or makes an assignment for the benefit of creditors or has a receiver appointed, Seller may, at its sole option, terminate without liability, its obligation hereunder by giving written notice to Buyer. Such termination shall not prejudice Seller's right to any amount then due from Buyer.
15. DEFAULT. Buyer shall be in default under this Agreement if Buyer fails to make any payment due, conditions of paragraph 14 apply, or violates any of the terms of this agreement.
16. PROVISIONS SEPARABLE. The provisions of this Agreement are independent of and separable from each other, and no provision shall be rendered invalid or unenforceable by virtue of the fact that for any reason any others of them may be invalid or unenforceable in whole or in part.
17. VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. Any legal action shall be resolved in the courts of Somerset County, New Jersey |
