- PRODUCTS AND SERVICES
Seller sells products and provides services to its customers (“Buyer”) as part of its normal course of business. “Products” referenced herein shall include and shall be limited to those products, services, specifications, and procedures reflected in Seller’s quote(s) to Buyer and Buyer’s purchase order (“Order) as agreed to by Seller. Unless otherwise stated, the Products supplied or provided by Seller shall be limited to those items specifically agreed to in writing.
- ACCEPTANCE OF ORDERS
All Orders from Buyer issued to Seller whether by email, fax, telephone (“verbal”), or other means of communication are subject to acceptance by the Seller and shall constitute a legally binding contract only upon acceptance by Seller. Failure by Seller to confirm Buyer Order shall be deemed not to be an Order and Seller shall not be held liable, until such time Seller confirms Order via email, fax, telephone or other means of communication. Seller’s quote shall be incorporated into the Order by reference herein under these terms and conditions including but not limited to all the quote’s specifications, content and provisions unless expressly agreed to in writing by Seller.To the extent a conflict arises between Buyer’s Order and Seller’s quote and not agreed to as a deviation, and not cured by written agreement, Seller’s quote shall supersede Buyer’s specifications contained in its Order.Verbal Orders: To avoid duplication of verbal orders please ensure Buyer records information manually. Otherwise, duplications of orders will result, and the charges involved will be at Buyer expense. Acceptance of all verbal orders is expressly limited to, these terms and conditions as stated herein.
- CHANGES OR CANCELLATIONS
Should Buyer find it necessary to change the specifications of a Buyer Order while work is in progress, Seller will make every effort to accommodate Buyer. However, it will be necessary for Seller to charge Buyer and Buyer agrees to pay for any services, labor, or material which are discarded or unusable because of such changes requested by Buyer.Should Buyer for any reason, desire to cancel an Order, Buyer agrees to reimburse Seller for any and all costs and expenses which Seller may have incurred as a result of its performance under the Order, prior to Buyer notification of cancellation. Buyer also agrees to pay for any material which has been cut or fabricated for the Order and which is unusable. Seller agrees to credit Buyer with the value of the scrap value of the material which is discarded.
Unless otherwise agreed to between Buyer and Seller, prices are subject to change without notice to reflect the price in effect at time of Order. Seller shall make every effort to timely notify Buyer of any such changes in price. Seller reserves the right to revise the price if there is any change in quantity, size, analysis, finish or method in timely shipment different from those contained in the original Order (or any subsequent revisions to original Order).
- DELIVERY DATES
UNLESS expressly stated in writing by Seller that delivery date is “guaranteed” and such written, delivery dates are quoted in good faith and are not guaranteed, and Seller shall not be liable for damages of any kind on account of its failure to deliver Products in accordance with delivery dates in Seller quotes or Buyer Order. Seller may ship product prior to delivery date and Buyer shall accept such early delivery date, subject to normal Inspections provisions contained herein.
- DELIVERY TITLE RISK OF LOSS OR DAMAGE
Title shall pass upon delivery of the Products to the common carrier freight on board Seller facility, or in the case of delivery on Seller’s trucks, title shall pass upon the earlier of (a) when the goods are properly tagged, banded, and prepared for shipment or (b) when the goods are loaded on Seller’s truck at Seller’s facility. Buyer bears the risk of loss or damage to or the destruction of the goods from the time of their delivery by Seller to the common carrier or in the event delivery will occur on Seller’s truck when the goods are placed on Seller’s truck for shipment to you. All claims for loss, damage, or destruction attributable to shipping should be made directly to the carrier, and unless they are shipped on Seller’s truck, Seller shall not be responsible for any such loss, damage, or destruction. The common carrier, although selected by Seller, shall be deemed your agent.
- PACKING AND SHIPPING
Unless Buyer has furnished shipping instructions to Seller prior to the time Seller begins manufacturing the Products in the Order, all Orders will be shipped by either common carrier or Seller’s own trucks. In either event, whether the shipment be by common carrier or Seller’s own trucks, Buyer shall pay freight charges from Seller’s shipping point, unless Seller has included freight for Buyer benefit. Seller shall also be entitled to make additional charges for special packing if, in Seller’s discretion, special protection is necessary to insure safe delivery. Special accuracy, ground and polished stock, and turned, and ground, and polished shafting is either boxed, “burlapped”, or “paper tubbed” covered in conformity with tariff regulations and for the protection of the Products.
- INSPECTION AND ACCEPTANCE BY BUYER OF PRODUCT
Buyer shall promptly inspect the Products and notify the Seller within ten (10) days after the receipt thereof that the goods are not in conformity with applicable Order specifications and where such specifications were in writing. Seller shall be given a reasonable opportunity to inspect the same and if any Products shall be found to be not in conformity with the applicable Order specifications, then Seller shall replace such Products at the original point of delivery or repair such product within a reasonable time frame, to which Buyer hereby agrees.No Products may be returned without Seller’s prior written consent. Seller shall furnish instructions regarding the disposition of rejected Products.All claims for shortages, shipping or clerical errors, shall be made in writing no later than ten (10) days after Buyers receipt of the Products.
Buyer’s failure to notify Seller of nonconformance within ten (10) days shall relieve Seller of liability for replacement or corrective action to meet Order specification.
Buyer’s failure to comply with the terms of this paragraph and ten (10) day notice requirements and as otherwise provided in this document shall constitute an irrevocable acceptance of the Products as conforming to Order specifications and bind Buyer to pay Seller the Order price for the Products without any discount, back charge, or any offsetting credit. All claims must be made prior to the installation or other use of the goods.
If Buyer has accepted the Products tendered under this document in any manner provided in the Uniform Commercial Code, the Buyer shall have no right to revoke its acceptance.
- TERMS OF PAYMENT
Unless otherwise expressly provided, Seller’s payment terms are net thirty (30) days from date of invoice. A cash discount may or may not be offered to Buyer for payment within ten (10) days from the date of the invoice. Payments not received timely for cash discount may result in a backcharge to Buyer for late payment. Seller reserves the right to assess a finance charge as liquidated damages of up to two (2) percent over the prime rate (computed annually) on the amount of the invoice which remains unpaid thirty (30) days after the invoice date, as pro-rated for days the payment is late.
- SUSPENSION OF PERFORMANCE
If Buyer fails to: pay any amount owing to Seller or, if in Seller’s judgement there is reasonable doubt concerning Buyer’s financial responsibility, Seller may suspend performance or terminate this Order without liability and without prejudice to other remedies, as to further delivery and work, and no forbearance or course of dealing affects this right of Seller. Notwithstanding any previous shipment on credit Seller may, at any time, demand, payment on delivery, require payment in advance or upon tender of shipping documents.
The prices quoted do not include sales, use, value added, excise or other taxes unless otherwise stated on the invoice. These taxes and any other measured in whole or in part by gross receipts applicable to this transaction shall be paid by Buyer in addition to the quoted purchase price. If Buyer claims exemption from any of these taxes, Buyer shall furnish satisfactory proof of such exemption.
- RIGHT OF RESALE
If Buyer breach’s or repudiates a provision of the Order or fails to comply with the Order, Seller may resell the goods which have not already been delivered Buyer together with any Products reclaimed by Seller or to which Seller may agree to accept return. The sale may be public or private, wholesale or retail, and Seller may hold more than one (1) sale. In addition Buyer shall pay Seller the amount by which the price established in this Order exceeds the amount received from the public or private sale, together with all incidental damages occasioned by Buyer’s default and Seller agree that at five (5) days’ written notice of resale at public sale or private sale which Seller conducts as a result of Buyer’s default is reasonable notice to Buyer of the sale.
- LIMITED WARRANTY
All Products are sold subject to Seller’s regular tolerances and variations, including but not limited to deviations listed in Seller’s quote. Seller’s only obligation under this warranty shall be to issue credit for, or to repair of replace any item or part thereof, which is proven to be other than as warranted, when such Products are in the hands of the Buyer. Seller’s maximum liability hereunder shall not exceed the contract price received by the Seller. Seller shall not be liable for any incidental or consequential damages arising out the breach of any term or provision hereof. This warranty does not extend to any Products which have been subjected to misuse or neglect, damage by accident, rendered defective by reason of improper assembly and/or installation. Every claim for breach of the warranty herein contained shall be deemed to be waived by the Buyer unless made promptly in writing. All or any materials which are alleged to be defective shall be retained for Seller’s inspection.THE ABOVE WARRANTY COMPRISES SELLER’S SOLE AND ENTIRE WARRANTY OBLIGATION AND LIABILITY TO BUYER AND ASSIGNS, IN CONNECTION WITH THE PRODUCTS SOLD HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR AN INTENDED PURPOSE ARE EXPRESSLY EXCLUDED. FURTHER, SELLER SHALL HAVE NO LIABILITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM DEFECTS IN THE PRODUCTS SOLD HEREUNDER OR ANY OTHER SUCH LOSSES, WHETHER THE SAME ARE BASED UPON CONTRACTUAL OR TORT THEORIES OF LIABILITY.
Buyer shall indemnify, defend, and hold Seller, its officers; and agents harmless from and against all loss, liability, cost, damage, or expense whatsoever incident to any claim, action, or proceeding against Seller (i)arising out of (a) the negligent design of good furnished per Buyer specifications, (b) installation, (c)maintenance, (d) use, (e) fabrication, and (f) operation of the Products by Buyer or on Buyer’s behalf, or, (ii)based on the allegation that any of the Products or any part thereof sold hereunder pursuant to Buyer’s design or specification infringe any patents applied for or issued as of the date of this order.
- FORCE MAJEURE EVENT
Seller shall not be liable for damages for any delay or failure in the performance of this Contract resulting from any cause beyond its reasonable control. Such causes shall include, but not be limited to, acts of God, strikes, riots, sabotage, war, fire, explosion, snow, ice, floods, tornado, cyclone, hurricane, acts of terrorism, accidents, epidemics, governmental order or regulations or inability to secure any necessary governmental or other permits, court orders, breakdown in machinery or, despite Seller’s due diligence, the failure of its suppliers to provide materials in a timely manner (collectively “Force Majeure Event”). Seller shall provide Buyer notice within a reasonable time period of a Force Majeure Event as is reasonably possible under the circumstances giving rise the declaration of a Force Majeure Event. This provision shall supersede all other provisions contained herein.
- ATTORNEYS’ FEES
In the event it becomes necessary for Seller to, retain legal counsel to implement collection procedures, or to undertake litigation, or to otherwise protect Seller’s rights under the contract, or to defend itself against claims, which are Buyer’s responsibility, Buyer shall pay Seller a reasonable sum for the attorneys’ fees and related costs, whether or not such litigation proceed to final judgment.
No waiver of any breach or default of Buyer under, these terms and conditions operates as a waiver of any future default, whether of like or different character except as otherwise provided in these terms and conditions.
If any provision of these terms and conditions as applied to any party or, to any circumstance shall be found by a court to be void, invalid, or unenforceable, it shall not affect any other provision of these terms and conditions, the application of any such provision in any other, circumstance, or the validity of enforceability of these terms and conditions.
- ENTIRE AGREEMENT
The terms and conditions set forth here constitute the entire agreement between Seller and Buyer relating to the sale of the Products, and this agreement prevails over any and all terms contained in Buyer’s, purchase order or acknowledgments unless explicitly stated to the contrary in a writing executed by Buyer and Seller. This agreement cannot be modified except by a writing signed by both Buyer and Seller.