These terms and conditions are intended as the final expression of the parties’ agreement and are the complete and exclusive Statement of the terms thereof no statements or instructions, oral or written, shall vary or modify these written terms, and neither party shall claim any amendment, modification or release from any provision hereof by reason of (a) a course of action or mutual agreement unless such agreement is in writing signed by the other party and specifically stating it is an amendment to this contract, (b) course of performance or (c) usage of trade no modification or addition to any contract or sales agreement shall be effected except by the prior written acknowledgement and acceptance by seller. Buyers acceptance or use of any services delivered constitutes the buyers full acceptance of these terms and conditions
TERMS AND CONDITIONS
1. Entire contract
Hereby incorporated into this contract are the following document(s) in priority order:
i. Seller’s order acknowledgement
ii. Seller’s quotation/proposal
iii. Buyer’s purchase order
Included on the purchase order and provided by buyer shall be the following information: 1) contact person and title including, telephone number, fax number and email address; 2) shipping address; 3) emergency 24 hour phone number; 4) receiving hours (specific days of the week and lime schedules), and 5) preferred shipping company and account number if applicable.
Seller’s quotation is based on the receipt of an order for the items/services 1n the quantities and delivery schedule quoted, unless otherwise indicated by seller’s quotation/proposal, and is subject to adjustment in the event that different items/services/quantities or delivery schedules are requested. These prices do not include sales or use taxes, which may be applicable to the goods and/or services hereunder. Delivery dates are our best estimates regarding the availability of items/services ordered.
3. Taxes and fees
Buyer shall reimburse seller for any federal, state or local excise or other tax, assessment, license fee or other charge, or increases thereof, which seller may be required to pay upon the sale, production, transportation, delivery or use of the product. Taxes will be billed separately on each invoice unless seller is provided with a properly authorized sales tax exemption certificate or other appropriate documentation as may be required.
4. Payment terms
All prices /rates are in U.S. dollars, unless otherwise indicated on seller’s order acknowledgement. And payment is due within thirty (30) days of invoice date unless otherwise indicated on seller’s order acknowledgement payment terms are subject to credit review or changes at any time.
All late payments are subject to an interest charge of 2% per month, which will be billed separately.
The parties acknowledge and agree that all ordering information will be treated confidentially.
6. Effective date
Buyer’s purchase order shall take effect only upon the issuance of order acknowledgement by seller, and after receipt by seller of a fully executed purchase order, and after receipt by seller of all relevant licenses and permits, and shall have a period of performance as stated seller’s order acknowledgement from this effective date. Unless extended in writing by mutual agreement.
7. Inspection and acceptance
The buyer shall inspect the products/services promptly after receipt thereof and shall notify seller in writing. Within ten (10) days of receipt of the items, of any failure of the supplies/services to meet the requirements or the contract. If no such notice is given by the buyer to seller, it will be deemed conclusively that there are no deficiencies and that the supplies/services conform to the requirements of the order and the buyer will be liable for payment therefore in accordance with the terms of the order.
The weights, fares and tests fixed by seller’s invoice shall govern unless proved to be inaccurate. Claims relating to quantity, quality, weight, condition and loss of or damage to any of the product sold hereunder shall be waived by buyer unless made within fifteen (15) days after receipt of product by buyer.
Seller warrants to the buyer that the services provided by seller shall be performed by qualified technical personnel with a reasonable level of skill and training which is commensurate with industry standards.
Products provided by seller to the buyer shall conform to the specifications as stated herein on seller’s order acknowledgement.
Except for the express warranty state herein. Seller disclaims all other warranties, including all implied warranties of merchantability, fitness for a particular purpose or suitability for a particular use. There shall be no liabilities on the part of seller for damages including but not limited to special, indirect or consequential damage, or loss of revenues, or profits arising out of or in connection with the use of the materials delivered under the terms of this agreement, or arising out of the breach of any warranty. Seller shall not be responsible for any personal injury or injuries related to or arising out of the items or services related to this agreement, and hereby further disclaims any liability therefore.
10. Limitation of liability
Buyer’s exclusive remedy and seller’s exclusive liability under a contract or sales agreement (including negligence) shall be for, at seller’s opinion, either replacement of nonconforming goods at the fob point stated in this contract or damages which shall in no event exceed so much of the purchase price as is applicable lo that portion of the particular shipment with respect to which damages are claimed. In no event shall seller be liable to buyer for any incidental or consequential damages arising in connection with the contract or sales agreement or the product sold. Buyer assumes all risks and liability, and seller assumes no liability. With respect to unloading and discharge of the product (including failure of discharge or unloading implements or materials use by buyer, whether or not supplied by seller). Storage, handling, sale and use of the product (including its use alone or in combination with other substances or in operation of any process), and the compliance or non-compliance with all federal, state and local laws and regulations applicable to the product.
If any provisions of this document shall be prohibited or invalid, that provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of that provision and the remaining provisions of the contract.
Buyer shall assume full responsibility for the use of the products or deliverables after purchase and will indemnify and hold seller harmless from and against any and all liability resulting from such use.
13. Intellectual property
All drawings, technical manuals, software, and other technical data which may be provided to the buyer pursuant to this contract are the property of seller and shall not be released outside the buyer’s organization or resold without the written approval of seller.
This contract is not assignable without the prior written consent of seller. Neither a contract or sales agreement nor any right or obligation under same is assignable or transferable by either party in whole or in part without the prior written consent of the other party and any such purported assignment without such consent shall be void, except that seller shall have the right to assign any contract or sales agreement and its rights and obligations. Without obtaining the prior written consent of buyer, to any entity with which seller (a) merges, (b) sells a substantial part of its assets or businesses, or (c) sells a substantial part of its assets or business relating to the manufacture and/or sale of the product.
15. Applicable law
This contract shall be governed by and construed in accordance with the laws of the state of New York.
16. Title/risk of loss
Title and risk of loss to all items hereunder shall pass to the buyer at the shipment destination upon delivery to Common Carrier indicated by the FOB point applicable to this order.
Regardless of any disclosure by the buyer to seller of the ultimate destination of the products, buyer will not export, directly or indirectly, any seller’s product without first obtaining the appropriate export approvals or licenses from the department of commerce or other agency of the United States government, as may be required. Buyer is required to certify the end item use for this material on the order. If material is in support of a U.S. government contract, please include the contract number.
18. Force majeure
Neither party shall be liable for its failure to perform if due to any contingency beyond the reasonable control of the party affected, including but not limited to acts of god, war, fire, bad weather, flood, accident, labor trouble or shortage, civil disturbance, plant shutdown, equipment failure, issues involving national security or voluntary or involuntary compliance with any applicable governmental act. Regulation or order seller shall not be liable for its failure to perform if such failure is due to any shortage or inability to obtain (on terms deemed economically practicable by seller) any raw material (including energy), equipment or transportation. Any quantities not delivered or accepted because of such a contingency shall be eliminated from any contract or sales agreement seller shall not be obligated to deliver the product from other than the production or shipping points designated and there shall be no obligation to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill the contract or sales agreement. During any period when seller is unable to supply the contract quantity of the product, whether caused by the circumstances above or otherwise. Seller may allocate any available product among its customers, including its own subsidiaries, divisions and departments, on such basis as seller deems fair and reasonable.