TERMS AND CONDITIONS
ACCEPTANCE. The terms and conditions set forth herein contain the sole, entire and exclusive agreement between the Seller and the Buyer in this transaction, superseding all prior discussions, proposals, negotiations, representations and agreements. Any additional or conflicting terms, whether or not material, shall not, in any manner, by implication, by waiver, or otherwise, govern the relationship between Seller and Buyer. Any waiver, modification or amendment of these terms and conditions shall only be effective as against the Seller if such waiver, modification or amendment is contained in a written instrument duly executed by or on behalf of Seller. Specification changes are subject to acceptance by Seller, to price revisions and to any adjustments necessary to cover material procured and processed and labor expended prior to receipt by Seller of revised specifications. These terms and conditions are subject to Seller’s ability to obtain necessary materials, Seller’s current schedules, government priorities and other government regulations, orders, directives and restriction that may be in effect from time to time.
APPLICABLE LAW. This instrument and performance hereunder shall be governed by the laws of New York and this instrument shall be considered a contract made in that state. Buyer agrees that it may bring suit against Seller only in said state, and for purposes of suit against Buyer, submits itself to the jurisdiction of that state.
PRICES. PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. Unless specifically set forth on the face hereof, prices will be those in effect on date of shipment. Verbal quotations are subject to daily changes, and expire the same day they are made. Written quotations automatically expire in ten (10) days, unless the terms of the quotation specifically provide otherwise, and are subject to termination by written notice at any time prior to their expiration. Seller may change prices for future deliveries without prior notice to Buyer whether or not any portion of any order has been delivered, but Seller shall notify Buyer of the price changes put into effect after the date of Seller’s instruments, and Buyer shall have the right to cancel any order or portion thereof not delivered at the date of such changes in prices by giving notice to the Seller within five (5) days of the date of Seller’s notice. Failure to so notify Seller shall constitute acceptance of such changed price.
TERMS OF PAYMENT. Net amounts of Seller’s invoice are due within thirty (30) days of date of invoice, or upon receipt of invoice, depending on the terms indicated on each individual’s sales invoice. Amounts not paid within thirty (30) days of due date will incur an interest charge of the lower of 1% per month or the highest rate allowed under applicable law applied to the previous balance which is overdue after deducting current payments and/or credits received during the billing cycle. If Buyer defaults in payment and Buyer’s account is turned over to Seller’s attorney for collection, Buyer will be required to pay all costs of collection including but not limited to interest charges and attorney’s fees.
TAXES AND OTHER CHARGES. Buyer shall provide Seller with a tax exemption certificate acceptable to the authorities imposing the same.
SHIPMENT. Except as otherwise provided on the face hereof all prices are F.O.B. Seller’s place of business. Method and route of shipment will be at the discretion of Seller unless Buyer specifies same.
INSURANCE. Seller will insure all shipments at Buyer's expense for $0.35/$100. No insurance charges will be invoiced if customer provides either: 1) a letter claiming self-insurance, signed by a company officer, or 2) a valid Certificate of Insurance listing transportation coverage.
DELAYS. Seller shall attempt to meet any shipment or delivery date specified, but in no event shall Seller be responsible or liable for failure to ship or deliver by such date. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR INDIRECT OR CONSEQUENTIAL DAMAGES DUE TO DELAYS IN THE SHIPMENT OR DELIVERY OF GOODS. Shipments made within a reasonable time after a specific date of delivery shall constitute a good delivery. Seller shall not be liable in any way for any delay due to strikes, accidents to equipment, delays of carriers, fires, acts of God or a public enemy, or other causes of delay beyond its control.
ACCEPTANCE OF GOODS. Buyer shall examine all goods immediately upon receipt and shall be deemed to have accepted such goods as conforming unless Seller is notified to the contrary within ten (10) days after receipt.
SELLER’S LIMITED WARRANTY. EXCEPT AS STATED BELOW, SELLER MAKES NO WARRANTIES – EXPRESS OR IMPLIED – OF MERCHANTABILITY, FREEDOM FROM DEFECTS IN MATERIAL OR WORKMANSHIP, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE. Seller warrants only that goods delivered to Buyer shall meet Seller’s standard specification or standard of operation. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES. Seller’s sales representatives are not authorized to make warranties about the merchandise sold by Seller. SELLER’S SALES REPRESENTATIVE’S ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES, shall not be relied upon by the Buyer, and are not part of the contract for sale. The entire agreement between parties is embodied in this writing and NO OTHER WARRANTIES are given beyond those set forth in these terms and conditions for sale. (To the extent Seller provides analysis or information to assist Buyer in the application of Seller’s products, SUCH ANALYSIS OR INFORMATION SHALL NOT CONSTITUTE A WARRANTY OF ANY KIND WITH RESPECT TO THAT APPLICATION. The advice of Seller’s technical staff may be available to Buyers, but because the Seller does not control or supervise the subsequent manufacture, fabrication or installation of its products for their use after sale, the Seller does not guarantee such advice, and such advice does not constitute a warranty.)
LIMITATION OF LIABILITY. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO THE BUYER OR ANY THIRD PARTIES FOR SPECIAL OR CONSEQUENTIAL DAMAGES, such as, but not limited to, damage or loss of other property or equipment, loss of profits or revenue, cost capital, cost of purchased or replacement goods, or claims of customers of Buyer for service interruptions. Buyer’s remedies as set forth herein are exclusive, and Seller’s liability with respect to any contract, or anything done in connection therewith, such as the performance or breach thereof, or from the manufacture, sale, delivery, resale, installation or use of any goods covered by or furnished under this contract whether arising out of contract, negligence, strict tort, or under any warranty or otherwise, shall not, except as expressly provided herein, exceed the price of the goods upon which such liability is based.
RETURN OF GOODS. Prior to returning any goods Buyer shall obtain written authorization by submitting to Seller a written request for authorization and a statement of its claim including full particulars in support thereof. All costs associated with returning any goods must be prepaid by Buyer. Seller may refuse goods shipped collect and reserves the right to charge back and set off all transportation costs. Returned goods found by Seller to meet its warranty requirements may be subject to reasonable service charges for examination, testing, and re-stocking. All transportation costs for the reshipment of returned goods (whether or not repaired) to Buyer and for the shipment of replacement goods, if any, shall be the responsibility of Buyer. Risk of loss for all goods returned to Seller shall at all times be upon Buyer and if any replacement goods are shipped to Buyer, risk of loss for such goods during shipment shall be upon Buyer. UNDER NO CIRCUMSTANCES MAY GOODS BE RETURNED TO SELLER PRIOR TO SELLER’S WRITTEN CONSENT.
BUYER’S WARRANTIES. Buyer warrants that shipment of the goods to it will not violate any law, regulation, rule, order or restriction of the United States or any state or government, and Seller will furnish goods only upon such representation.
CANCELLATION, SUSPENSION, OR MODIFICATION BY BUYER. These terms and conditions can be cancelled, suspended or modified only with Seller’s written consent and upon terms that will indemnify Seller against loss arising from such cancellation, suspension or modification.
CUMULATIVE RIGHTS AND REMEDIES OF SELLER. All rights and remedies available to Seller hereunder shall be cumulative and in addition to all rights and remedies available to Seller under all applicable laws including without limitation, the Uniform Commercial Code in effect in New York. No waiver of any right or remedy available to Seller in any instance shall constitute a waiver of any right or remedy subsequently.
SEVERABILITY. If any provision or clause of these terms and conditions of sale or any application thereof to any person or circumstances is held invalid or unconscionable, such invalidity or unconscionability shall not affect other provisions or application of the terms and conditions of sale which can be given effect without the invalid or unconscionable provision or application, and to this end the provisions of this agreement are declared to be severable.
This writing constitutes the final expression of the parties’ agreement with respect to the subject matter hereof, and it is a complete and exclusive statement of the terms of that agreement.