Terms and Conditions
TERMS AND CONDITIONS OF SALE
ENTIRE AGREEMENT. The parties agree that there are no understandings, agreements or representations, express or implied, not specified herein, respecting this offer or sale, and that this instrument contains the entire agreement between Seller and Buyer. No prior waiver, course of prior dealing or usage of the trade shall be relevant to supplement or to explain terms used in this agreement.
CONTROLLING TERMS. All sales are expressly limited to, and the rights and liabilities of the parties shall be governed exclusively by the terms and conditions herein. In the event any purchase order or offer from Buyer states terms additional to or different from those set forth herein, this document shall be deemed a notice of objection to such additional or different terms and a rejection thereof. Any acknowledgment or shipment of product by Seller to Buyer subsequent to Seller’s receipt of a purchase order or offer from Buyer shall not be deemed to be an acceptance by Seller of an offer to contract on the basis of any Buyer’s terms and conditions. Receipt and acceptance by Buyer of products shall be conclusive evidence of Buyer’s acceptance of the terms and conditions set forth herein as the sole controlling terms and conditions of the contract between Seller and Buyer. Stenographic and clerical errors by Seller are subject to correction.
ACCEPTANCE OF ORDERS. Seller possesses the exclusive right to accept or refuse any and all orders. No bid, offer, or quotation shall be valid or binding upon Seller, and no order shall be accepted and no sale shall be final, until such bid, offer, quotation, order or sale shall be acknowledged in writing by Seller. See price pages for minimum order amount.
PRICES. All prices are subject to change without notice and shall be adjusted to the Seller’s prices in effect on the date of shipment. Prices reflect standard packaging for domestic shipment only. All prices are in U.S. Dollars. All tooling and equipment Seller produces or acquires for purposes of filling this order shall remain property of Seller. All intellectual property associated with the products shall remain the sole property of Seller.
DELIVERY. Delivery dates are estimates and not a guaranty of a particular day of delivery and are based on the prompt receipt of all necessary information from the Buyer. Seller shall not be liable for failure or delay in shipping goods hereunder if such failure or delay is due to an act of God, fire, flood, war, labor difficulties, accident, strikes, lockouts, civil disorders, governmental priorities or embargoes, inability or difficulty in obtaining raw materials or supplies at customary terms and prices or any other causes or failure of presumed conditions of any kind whatsoever which are either beyond the reasonable control of the Seller or which would make impracticable the fulfillment of Seller’s obligations hereunder. Buyer shall not refuse to accept deliveries so delayed. Seller shall be compensated for any and all extra costs and expenses occasioned by delays attributable to Buyer. If for any reason Buyer fails to accept delivery of any order on the date fixed pursuant to Seller’s notice that the order has been delivered at the Delivery Point, or if Seller is unable to deliver any item at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the order shall pass to Buyer; (ii) the order shall be deemed to have been delivered; and (iii) Seller, at its option, may store the order until Buyer picks it up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
TRANSPORTATION AND RISK OF LOSS. All shipments are freight collect unless eligible for a freight allowance expressly set forth in current price sheets or on the face hereof. Seller reserves the right to select the method and type of transportation. If a method of transportation other than that selected by Seller is requested by Buyer, excess packing, shipping and transportation charges resulting from compliance with Buyer’s request shall be for the Buyer’s account. All shipments are F.O.B. point of shipment and risk of loss shall pass to Buyer after products are delivered to carrier. Claims for damage or loss in transit must be filed by Buyer against the carrier.
CANCELLATION OR MODIFICATION. Buyer may not cancel or modify any order, either in whole or in part, without Seller’s prior written consent and then only upon payment to Seller for all applicable costs incurred by Seller, including, without limitation, costs of materials, labor, equipment and supplies, and for lost profits on cancelled or modified orders. Order changes or additions received after original order has been processed will be treated as a new order.
TAXES. Any taxes which Seller may be required to pay or collect with respect to the sale, delivery or storage of the products, including taxes upon or measured by the receipts from the sales thereof, shall be for the account of Buyer who shall promptly pay the amount thereof to Seller upon demand, or in lieu thereof, furnish Seller with a tax exemption certificate acceptable to the taxing authorities.
WARRANTY AND DISCLAIMER. Seller warrants that its products shall be free from defects in material and workmanship under normal use and service for a period of 12 months from date of delivery. Equipment must have been properly installed, maintained and used under normal conditions. Warranty is offered to original purchaser only, and Seller has sole right to determine whether defective part shall be repaired or replaced. If Buyer wishes Seller to repair or service any item created by Seller, the item must be shipped to Seller’s place of business at Buyer’s expense. Normal and excessive wear on parts such as defined by part use, is specifically excluded from warranty as is breakage of those parts because of inadequate or improper installation, lubrication, and or miss-alignment. Under NO conditions will the Seller be responsible for down-time, loss of good will, or consequential damages. On equipment and materials furnished by Seller but manufactured by others, Buyer shall accept in lieu of any liability or guarantees on the part of Seller, the benefits of guarantees as are obtained by Seller from such manufacturers or vendors.
SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, EXCEPT AS IS EXPRESSLY SET FORTH HEREIN. Failure by Buyer to object to or reject products or materials delivered hereunder, in writing within 30 days from the date of shipment of the products or materials, shall constitute an acceptance and waiver by Buyer of all claims hereunder on account of alleged errors, shortages, defective workmanship or material, breach of warranty or otherwise, discoverable upon inspection by Buyer.
Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the order. Third Party Products are not covered by the warranty. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE
LIMITATION OF LIABILITY. Buyer’s exclusive remedy on any claim of any kind for any loss or damage arising out of, connected with, or resulting from this contract, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, or repair or use of any products covered by or furnished under the contract, including but not limited to any claim for breach of warranty, negligence, strict liability or other tort, shall be the repair or replacement, F.O.B. Seller’s factory, as Seller may elect, of the product or part thereof giving rise to such claim, except that Seller’s liability for such repair or replacement shall in no event exceed the contract price allocable to the products or part thereof which give rise to the claim.
SELLER SHALL IN NO EVENT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
RETURN OF MATERIAL. Seller’s permission must be obtained in writing before any products are returned to it by Buyer. If products are returned without such permission, Buyer authorizes Seller, in addition to such other remedies as it may have, to hold the returned products at Buyer’s sole risk and expense. All returns must be freight prepaid by Buyer. Seller will in no event accept the return of any product that upon return is in the opinion of Seller altered, damaged, used, or in other than first class salable condition.
INDEMNITY. Buyer agrees to indemnify, defend and hold harmless Seller from any claims, loss or damages arising out of or related to Seller’s compliance with Buyer’s designs, specifications or instructions in the furnishing of products to Buyer, whether based on infringement of patents, copyrights, trademarks or other rights of others, breach of warranty, negligence, strict liability or other tort.
STOPPAGE IN TRANSIT. If Seller determines that Buyer’s credit position has changed materially, prior to or during shipment, or at any time before acceptance of the goods by Buyer, then Seller may stop delivery of goods to the carrier or other bailees, or goods in the possession of a carrier or other bailee. Such action by Seller will not constitute a breach of this agreement and Seller shall not be liable for any resulting damages to Buyer.
ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations for its order or under this agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves Buyer of any of its obligations under this agreement.
PAYMENT. All invoices are due net 30 days from date of invoice. Payments not made when due shall bear interest at the prime rate plus 5% per annum or, if lower, the highest rate legally permissible, until paid. Credit balances will be applied against future purchases only and must be claimed within one year of creation or are waived.
TERMINATION. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 5 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
CONFIDENTIAL INFORMATION. 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, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the order and this 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 shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
WAIVER. No waiver by Seller of any of the provisions of this agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
GOVERNING LAW. Any dealings or contract between the parties shall be governed by and construed in accordance with the law of the state of North Carolina, excluding its choice of law provisions. Venue for any controversy arising under or in any way related to the subject matter hereof shall be in Gastonia, North Carolina, U.S.A.