Terms and Conditions
1. GOVERNING TERMS AND AGREEMENT
The following general terms and conditions and those stated in Seller’s proposal, quotation or acknowledgement (“Terms”) and the provisions on the face hereof shall exclusively govern the transaction(s) of sale of goods and/or services between Buyer and Seller and shall constitute the entire agreement between Buyer and Seller as to the sale of such goods and/or services (“Agreement”). Notice of objection to any different or additional terms proposed by Buyer is hereby given. These Terms shall not be modified, except in writing, executed by an authorized officer of Seller.
Buyer expressly waives all provisions contained in any of Buyer’s correspondence or forms, including purchase orders, involved in this sale which negate, limit, extend or conflict with the Terms and this Agreement. Buyer agrees that it has not been induced to enter into this Agreement by any oral or written representation, guarantee or warranty made by Seller, its employees, agents or representatives, other than as expressly set out in this Agreement.
2. PRICE AND TERMS OF PAYMENT
All goods and services will be invoiced at the price in effect at time of shipment, whether or not Buyer is in possession of a price book or price sheet reflecting prices different than those prices in effect at time of shipment, unless expressly provided otherwise in this Agreement. All prices are exclusive of any and all taxes, duties or government fees. Any tax or other government charge upon production, sale, use or shipment of goods or services imposed by federal, state, municipal or other authorities shall be charged to and paid by the Buyer in addition to the purchase price.
All prices are F.O.B. Seller’s point of shipment unless otherwise specified in this Agreement. Upon due tender of the goods for delivery at the F.O.B. shipping point, title to the goods passes to Buyer and all risks of loss or damage pass to Buyer, regardless of terms of payment or form of bill of lading, or the mode of shipment, or who pays the actual transportation charges.
Seller may refuse, change or withdraw extensions of credit at any time in its sole discretion. Seller shall have the right to demand payment on delivery of the goods or prior to shipment of the goods to the extent it deems advisable. Seller reserves the right to require payment in cash or by certified check. BUYER WAIVES ANY RIGHT OF SET-OFF AND SHALL MAKE NO DEDUCTIONS FROM PAYMENTS DUE TO SELLER OR FOR ANY DAMAGES OF ANY TYPE CLAIMED BY BUYER AGAINST SELLER. IF, IN SELLER’S JUDGMENT, BUYER’S FINANCIAL RESPONSIBILITY IS OR BECOMES IMPAIRED OR UNSATISFACTORY, OR IF BUYER HAS FAILED OR FAILS TO PERFORM UNDER ANY CONTRACT, SELLER SHALL HAVE THE RIGHT TO DEMAND AND BUYER SHALL PROVIDE ADVANCE CASH PAYMENT OR SECURITY SATISFACTORY TO SELLER AND SELLER MAY WITHHOLD SHIPMENT UNTIL RECEIPT THEREOF.
If payment due Seller is not made in accordance with these terms, Buyer agrees to pay all costs and expenses of collection including but not limited to attorney’s fees incurred, up to the maximum permitted by applicable state law. A service charge will be imposed on overdue amounts. Overdue payments shall bear interest at the lesser of 1.5% per month or the maximum permitted by law.
For all prices or charges due Seller for goods sold under this Agreement, Seller reserves a security interest in those goods which have been purchased until all goods have been paid in full. A copy of this Agreement may be filed on Seller’s behalf with appropriate state authorities at any time as a financial statement.
Seller assumes no responsibility for the suitability, accuracy or reliability of materials, components, design conditions, specifications, data or other items supplied, selected or furnished by Buyer.
4. LIMITED WARRANTY
SELLER’S DEFAULT AND BUYER’S EXCLUSIVE REMEDY. GOODS SOLD BY SELLER ARE WARRANTED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF THIRTY (30) DAYS FROM DATE OF DELIVERY. IF IT IS DETERMINED TO SELLER’S REASONABLE SATISFACTION UPON INSPECTION, THAT GOODS SOLD BY SELLER PURSUANT TO THIS AGREEMENT ARE NOT AS WARRANTED, SELLER’S SOLE OBLIGATION SHALL BE AT ITS OPTION TO REPAIR OR REPLACE THE GOODS, OR AT SELLER’S SOLE DISCRETION, TO EITHER REFUND AMOUNTS PAID FOR SUCH GOODS UPON ITS RETURN TO A LOCATION DESIGNATED BY SELLER OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECT.
THIS LIMITED WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE INCLUDING ANY WARRANTY OF MERCHANTABILITY OR THAT THE GOODS ARE FIT FOR, OR CAN BE USED FOR ANY PARTICULAR PURPOSE DESIRED BY BUYER. SELLER DISCLAIMS AND BUYER WAIVES ALL REMEDIES NOT PROVIDED HEREIN INCLUDING ANY LIABILITY OF SELLER IN TORT, STRICT OR OTHERWISE, FOR DAMAGES OR INJURIES TO PERSONS OR PROPERTY, OR FOR LOSS OF USE, REVENUE OR PROFIT, WHETHER DIRECT, INCIDENTAL OR CONSEQUENTIAL, RESULTING FROM ANY DEFECT IN DESIGN, MATERIAL, WORKMANSHIP OR MANUFACTURE, WHETHER OR NOT CAUSED BY NEGLIGENCE ON THE PART OF THE SELLER, ORAL STATEMENTS MADE BY SELLER’S REPRESENTATIVES ABOUT THE PRODUCTS AND WRITTEN DESCRIPTIONS OF THE GOODS APPEARING ELSEWHERE THAN ON THE FACE HEREOF ARE NOT WARRANTIES AND SHALL NOT BE RELIED UPON BY BUYER. THIS WRITING CONSTITUTES THE FINAL COMPLETE AND EXCLUSIVE EXPRESSION OF THE TERMS OF THE PARTIES AGREEMENT.
SELLER DOES NOT WARRANT THAT THE GOODS SOLD WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OR USE OF THE GOODS WILL BE UNINTERRUPTED OR ERROR FREE.
SOME STATES HAVE LAWS WHICH REQUIRE WARRANTY AND LIABILITY RIGHTS DIFFERENT FROM THOSE STATED HEREIN. IN SUCH STATES, IF SUCH LAWS ARE APPLICABLE, THE MINIMUM REQUIRED WARRANTY AND LIABILITY TERMS WILL APPLY.
Any claim on account of a defect in goods sold or for any other cause whatsoever shall be deemed WAIVED by Buyer unless written notice thereof is given to Seller within thirty (30) days after date of delivery. Seller shall be given reasonable opportunity to investigate all claims and no goods shall be returned to Seller or disposed of in any manner until after inspection and approval by Seller and receipt by Buyer of written shipping or other instructions from Seller.
The limited warranty granted pursuant to this Agreement is extended to Buyer as the original purchaser from Seller and is non-transferable to and non-assignable. No rights against Seller shall be created by any transfer or assignment, nor shall any rights against Seller survive any transfer or assignment. Buyer, its agents or representatives shall not claim, represent or imply nor permit its customers, distributors, applicators or contractors to claim, represent or imply that this limited warranty extends or is available to parties other than Buyer, and to the limit of its legal right to do so. Buyer shall cause any party to cease and desist of any misrepresentation.
SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY SPECIAL INCIDENTAL, CONSEQUENTIAL, CONTINGENT, NEGLIGENT OR PUNITIVE DAMAGES RESULTING FROM BREACH OF WARRANTY, DELAY OF PERFORMANCE OR ANY OTHER DEFAULT HEREUNDER.
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY DAMAGES ARISING OUT OF ANY DELAY IN DELIVERY OF GOODS OR SERVICES.
6. DEFAULT BY BUYER
Each shipment hereunder shall be deemed a separate contract and if Buyer fails to pay any invoice when due, or fails to accept any shipment as scheduled, Seller may, without prejudice to other remedies, either defer further shipments until the default is corrected or cancel the unused portion of this order and of any or all other orders. Seller’s waiver of any provisions herein or any breach thereof shall not constitute a waiver of any subsequent breach nor of any other provision herein. Orders may not be cancelled or terminated by Buyer without the written consent of Seller and subject to payment or reimbursement of Seller’s costs, expense or loss, including overhead and anticipated profit.
7. FORCE MAJEURE
Seller shall not be liable for any loss, damage, expense, cost, product, failure, cover, non-performance, delay or breach caused or occasioned by acts of God or any governmental authority, labor disputes (including lockouts), unusual weather conditions, fire, flood, accident, unavailability of materials or components or late delivery thereof, boycott, embargo, insurrection, riot, civil disturbance, war, exposure to conditions or processes not specified by Seller, or any other cause which is unavoidable or beyond Seller’s reasonable control.
No waiver by Seller or any breach of these Terms shall constitute a waiver of any other breach or of such provision. Seller’s failure to object to provisions contained in any communication from Buyer shall not be deemed an acceptance of such provisions or a waiver of these Terms.
9. LIMITATION OF LIABILITY
Seller’s liability to Buyer on any claim or cause of action of any kind in contract, tort or otherwise, for any losses, costs, damages, expense, statutory violation, fine or penalty, loss of use, non-performance, exercise of cover or any breach or fault by Seller whatsoever, shall be limited to the purchase price paid by Buyer for the products or services, or the portion thereof allocable to the part, component or work out of which the claim arose. Under no circumstances shall Seller be liable for any special, incidental or consequential damages, including without limitation, the cost of removal or reinstallation of Seller’s products.
10. RESOLUTION OF INDEMNIFICATION DISPUTES
Any controversy, claim, cause of action or dispute arising out of, or relating to this Agreement (“Disputes”) shall be submitted to final and binding arbitration as the sole and exclusive remedy for any such controversy or dispute. The right and duty of the parties to this Agreement to resolve Disputes by arbitration shall be governed exclusively by the Federal Arbitration Act, as amended, and arbitration shall be conducted pursuant to the then-prevailing Commercial Arbitration Rules of the American Arbitration Association (herein “AAA”). The arbitration shall be held at the office of the AAA in Philadelphia, Pennsylvania unless agreed otherwise by the parties hereto. Any dispute as to the arbitrability of any controversy, claim, cause of action or dispute shall also be determined by arbitration. One arbitrator shall be selected from a panel of neutral arbitrators provided by the AAA and shall be chosen by the striking method. The parties each shall bear all of their own costs (including attorney’s fees) of arbitration; however, the fees of the arbitrator shall be divided equally between the parties. The arbitrator shall have no authority to amend or modify the terms of this Agreement. Except as and to the extent expressly provided to the contrary by law, all parties shall maintain all aspects of the arbitration proceeding in confidence, and shall not disclose any information about the proceeding to any third party other than legal counsel who shall be required to maintain the confidentiality hereof.
11. GOVERNING LAW
These terms, this Agreement and the transaction between Buyer and Seller shall be governed, interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws rules.
12. LIMITATION PERIOD
No claim for breach of contract or warranty shall be asserted in any court or arbitration proceeding after one year from the date the cause of action accrues, except for claims by Seller to recover all or part of the purchase price or additional charges.
13. ATTORNEYS’ FEES
Seller shall be entitled to recover its reasonable attorneys’ fees incurred in connection with collection of all or a portion of the purchase price and/or reasonable additional charges from Buyer.
14. NO OTHER REPRESENTATIONS
There are no understandings, agreements, representations or warranties, either written or oral, relative to the goods that are not fully expressed in these Terms, which supersede and cancel any previous understanding or agreement between the parties with respect to the subject matter of the order. Any subsequent representation made by any person, including distributors, dealers, employees and representatives of Seller, which is inconsistent with or adds to these Terms shall not be binding on Seller unless approved in writing by an authorized officer of Seller.
15. ENTIRE AGREEMENT AND ENFORCEABILITY
This Agreement shall not be altered in any manner except by a separate, written agreement executed by authorized officers of both Buyer and Seller. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions shall not be affected