Terms And Conditions Of Corporate Sale
APPLICABILITY: These terms and conditions of sale (“Terms”) apply to the purchase of products and ancillary services (collectively the “Products”) by the seller (“Seller”) and the buyer (“Buyer”), each of which is identified in the accompanying quotation, credit application, proposal, order acknowledgment, or invoice (the “Sales Confirmation”). These terms and the sales confirmation comprise the entire agreement between the parties (collectively, the “Agreement”). Buyer accepts these terms by signing and returning seller’s quotation, by sending a purchase order in response to the quotation, or by buyer’s instructions to seller to ship the product. No terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions whether contained in buyer's purchase order or shipping release forms or elsewhere, shall be binding on seller unless hereafter made in writing and signed by seller's authorized representative. Buyer is hereby notified of seller’s express rejection of any terms inconsistent with this agreement or to any other terms proposed by buyer in accepting seller’s quotation. Neither seller's subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by seller to any terms.
CANCELLATION: Cancellation or modifications of all or part of any order are subject to seller’s prior written consent in each instance. If cancellation or modification is allowed, the buyer agrees to pay to seller all expenses incurred and damage sustained by seller on account of the cancellation or modification, plus a reasonable profit.
PRICE: Prices in any sales confirmation from seller are subject to change upon notice sent to buyer at any time before the sales confirmation has been accepted. Prices for products covered by this agreement may be adjusted by seller, upon notice to buyer at any time before shipment, to reflect any increase in seller’s cost of raw materials (e.g., packaging) incurred by seller after issuance of the applicable sales confirmation. All stated prices are exclusive of any taxes, fees, duties, and levies, however, designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this agreement (collectively, “Taxes”). Any taxes related to the products purchased according to this Agreement are the responsibility of buyer (excluding taxes based on seller’s net income) unless buyer presents an exemption certificate acceptable to seller and the applicable taxing authorities. If possible, seller will bill taxes as a separate item on the invoice presented to buyer. If any exemption certificate presented by buyer is held to be invalid, then buyer will pay seller the amount of the tax and any penalties and interest related thereto.
PAYMENT: Unless otherwise outlined in the sales confirmation, the buyer will pay all invoiced amounts on the delivery day. Seller reserves all other rights. In addition to all other remedies available to seller (which seller does not waive by the exercise of any rights here under), seller may suspend the delivery of any products if buyer fails to pay any amounts when due and the failure continues for five (5) days following buyer’s receipt of notice thereof. The buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with seller, regardless of whether relating to Seller’s breach, bankruptcy, or otherwise.
DELIVERY SHIPPING:
(a) Seller will deliver the products within a reasonable time after receiving buyer’s purchase order, subject to their availability. The delivery date provided by seller for the products is only an estimate and is based upon prompt receipt of all necessary information from buyer. If the buyer causes seller to delay shipment or completion of the products, seller will be entitled to any extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on seller’s part.
(b) Unless otherwise agreed in writing by the parties, seller will deliver the products, at the location specified in the sales confirmation (the “Delivery Location”), using seller’s standard methods for packaging and shipping the same. Buyer will take delivery of the products within three (3) days of seller’s notice that the products have been delivered to the delivery location. If buyer fails to take delivery of the products within this three (3) day period buyer will pay seller for the products and all storage expenses incurred by seller. Seller may, in its sole discretion, without liability or penalty, make partial shipments of products to buyer. Each shipment will constitute a separate sale, and the buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of buyer's purchase order. The buyer is responsible for obtaining any other consents required for a product shipment at its own expense and will provide the licenses and consents to the seller before shipment.
RISK OF LOSS:
(a) The risk of loss or damage passes to the buyer passes upon delivery to the carrier. If buyer fails to accept delivery of any of the products on the date outlined in seller’s notice that seller has delivered the products to the delivery location, or if seller is unable to deliver the products to the delivery location on the date because buyer has failed to provide appropriate instructions, documents, or authorizations, then: (i) risk of loss to the Products will pass to Buyer; (ii) the products will be deemed to have been delivered to buyer; and (iii) seller, at its option, may store the products until buyer takes possession of them, at which time buyer will be liable for all costs and expenses resulting from the failure (including but not limited to the cost of storage and insurance).
(b) Title passes to buyer upon buyer’s payment in full for the products.
INSPECTION, REJECTION OF PRODUCTS:
(a) As used in this section 7, “Nonconforming Products” means only the following: (i) the items shipped are different from those identified in buyer’s purchase order; or (ii) the labels or packaging of the items incorrectly identifies them. The buyer will inspect the products within five (5) days following receipt thereof (the “Inspection Period”). The products will be deemed accepted at the end of the inspection period unless buyer notifies seller in writing of any nonconforming products and furnishes seller with written evidence or other documentation reasonable required by seller.
(b) If buyer timely and properly notifies seller of any nonconforming products, then seller will, in its sole discretion, (i) replace the nonconforming products with conforming products or (ii) credit or refund the purchase price for the nonconforming products, together with any reasonable shipping and handling expenses incurred by buyer. At seller’s request, buyer will dispose of the nonconforming products or return the nonconforming products to seller at seller’s expense. Upon receipt of the nonconforming products, seller will promptly refund the monies owed or ship the replacement products to the delivery location at seller’s expense, with seller retaining the risk of loss until delivery.
(c) Buyer acknowledges and agrees that the remedies outlined in this section 7 are buyer’s exclusive remedies for the delivery of nonconforming products, and except as outlined in this section 7, the buyer has no right to return the products to seller without seller’s written authorization.
LIMITED WARRANTY:
(a) Seller warrants to buyer that the products will be free from defects in material, following the date of delivery to the delivery location (the “Warranty Period”). Notwithstanding the foregoing, the warranty period for consumable products will in no event exceed recommended replacement intervals outlined in the published specifications and instructions provided by seller or its suppliers or subcontractors instructions (“Instructions”). If, before the expiration of the warranty period, buyer informs seller in writing of any breach of this limited warranty, then seller may repair or replace the products that gave rise to the breach or, in seller’s sole and exclusive discretion, refund the amounts that buyer paid for the products.
(b) The foregoing limited warranties do not apply to (i) any defect in products not manufactured by seller; and (ii) any products manufactured according to buyer’s specifications.
(c) The buyer will bear the costs of access, the shipment of the products to seller, and back to buyer. Any repair or replacement according to this limited warranty will not extend the warranty period. Seller does not warrant the products.
(b) The foregoing obligations are conditioned on buyer (i) notifying seller promptly in writing of the action, (ii) making no admission of liability and giving seller sole control of the defense there of and any related settlement negotiations, and (iii) cooperating and, at seller’s request and expense, assisting in the defense.
CHANGES: Seller reserves the right to alter, modify, or redesign its products without any obligation to replace previous shipments to buyer.
CONFIDENTIALITY: All non-public, confidential, or proprietary information of seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that seller discloses to buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the agreement is confidential, solely for the use of performing the agreement, and may not be disclosed or copied unless authorized in advance by seller in writing. Upon seller's request, buyer will promptly return all documents and other materials received from seller.
CHOICE OF LANGUAGE: It is by the express intention of the parties here to that the present agreement and all its related documents be drafted in english.
MISCELLANEOUS: The buyer acknowledges that is has not been induced to purchase any the products from seller by any representation or warranty not expressly outlined in this agreement. These terms and the sales confirmation constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. None of the terms may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorized representative of seller that specifically references these terms and states that it modifies them. If there is a conflict between the provisions of the sales confirmation and these terms, then the terms of the sales confirmation will govern. No waiver by seller of any of the provisions of these terms is effective unless explicitly outlined in writing that specifically references these terms and is signed by seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these terms operates or may be construed as a waiver there of. No single or partial exercise of any right, remedy, power, or privilege here under precludes any other or further exercise there of or the exercise of any other right, remedy, power or privilege. The section headings contained in these terms are for convenience only and will not affect the interpretation of any provision. If any provision of this agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. The buyer will not assign any quotation or accepted order for the products, in whole or in part, without seller’s prior written consent.