Terms and Conditionsadmin2019-01-04T17:24:40-07:00
GENERAL. The Seller (“Seller”) and the Purchaser (“Buyer”) named on the face hereof agree that the following terms and conditions apply to the materials, goods and/or products (the “Goods”) listed on the front of this agreement (“Agreement”) or subsequently ordered pursuant to this Agreement.
ACCEPTANCE/SOLE TERMS. This order is expressly conditioned upon Buyer’s acceptance to the foregoing terms. Buyer is hereby put on notice that no terms additional to or deviating from the foregoing terms shall become part of the order, unless and until letter acceptance of such additional or deviating terms, signed by an officer of Seller has been issued to Buyer. Buyer’s acceptance of any Goods supplied by or on behalf of, Seller shall, without limitation constitute acceptance of Seller’s foregoing terms.
PRICE. All prices are F.O.B. Seller’s plant unless otherwise specifically set forth on the face side hereof. Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules; (ii) increase in the cost of fuel, power, material supplied, or labour, and/or (iii) foreign or domestic legislation enacted by any level of government, including tax legislation which increases the cost of producing, warehousing or selling the Goods purchased hereunder. No discount will be allowed unless specifically set forth on the face side here. Buyer agrees to pay a delinquency charge of 1 1/2% per month or if such rate shall exceed the maximum rate allowed by applicable law, then a delinquency charge calculated at such maximum rate on the outstanding balance not paid when due, from the date such balances were due until payment with respect thereof is made in full. If, in Seller’s opinion, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms of payment specified, Seller may require full or partial payment in advance. Terms of payment are those appearing on the reverse side of the invoice.
WARRANTY/REMEDY. Seller warrants that the materials, Goods manufactured by it will be free from defects in material and workmanship for five (5) years following the date of shipment. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY SET FORTH HERE, ARE HEREBY EXCLUDED. NO AFFIRMATION OF SELLER, BY WORDS OR ACTION OTHER THAN AS SET FORTH IN THIS WARRANTY CLAUSE SHALL CONSTITUTE A WARRANTY, GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES, IF ANY, OF THE MANUFACTURERS THEREOF. Seller’s warranty does not apply to any Goods which have been subjected to misuse, mishandling, misapplication, neglect, accident, improper installation or modification (including but not limited to use of unauthorized parts or attachments).
a. If any of the Goods are found by Seller to be defective, such Goods will, at Seller’s option, be replaced or repaired at Seller’s cost or Seller will refund the purchase price or give Buyer a reasonable allowance thereof. The parties hereto expressly agree that Buyer’s sole and exclusive remedy against the Seller shall be for the repair or replacement of the defective Goods or the refund of the purchase price or allowance thereof. Buyer hereby agrees that this exclusive remedy shall not be deemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective Goods in the prescribed manner or refund the purchase price of or give Buyer an allowance thereof.
Any warranty claim by Buyer with reference to the Goods sold hereunder shall be deemed waived by the Buyer unless submitted in writing to Seller.
Seller’s remedies relating hereto shall be cumulative and in addition to any other remedies provided herein or by law or in equity.
LIMITATIONS OF LIABILITY, SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING (AT SELLER’S OPTION) GOODS FOUND BY SELLER TO BE NON-CONFORMING, OR AT SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE OF THE NON-CONFORMING GOODS. At Seller’s request, Buyer will send, at Buyer’s sole expense, any allegedly defective Goods to Seller’s plant.
DISCLAIMER OF CONSEQUENTIAL AND INCIDENTAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING WITH LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. THE REMEDY UNDER THE WARRANTY PROVISION IS LIMITED TO REPAIR OR REPLACEMENT. Consequential damages for purposes hereof shall include, without limitation, loss of use, income or profit or losses sustained as the result of injury to any person or loss of or damage to property (including, without limitation, property handled or processed by the use of the goods). Buyer shall indemnify Seller against all liability, cost of expense which may be sustained by Seller on account of any such loss, damage or injury.
ACCEPTANCE OF GOODS, DELIVERY AND TRANSPORTATION. Upon buyer’s receipt of shipment, buyer shall immediately inspect the Goods. Unless Buyer provides Seller with written notice of any claim or shortages of or defects in the Goods within forty-eight (48) hours after receipt of shipment, such Goods shall be deemed finally inspected, checked and accepted by Buyer. Seller shall use its own discretion in choice of carrier and method of packing. Seller shall not be responsible for insuring shipments unless specifically requested by Buyer and any insurance so requested shall be at Buyer’s expenses and valuation.
TITLE AND RISK OF LOSS. Title to any Goods sold and risk of loss of such Goods passes to Buyer upon delivery by Seller to carrier, and any claims for losses or damage shall be made by Buyer directly to carrier.
CREDIT TERMS. All orders and shipment shall at all times be subject to the approval of the Seller’s Credit Department. The Seller reserves the right to decline to make shipment whenever, for any reason, there is doubt as to Buyer’s financial responsibility and Seller shall not in such event be liable for breach or non-performance of this contract in whole or in part.
SECURITY/INTEREST. To ensure prompt payment of the purchase price for the goods identified on the face hereof, Buyer hereby grants to Seller a purchase money security interest in the goods purchased from Seller and all proceeds thereof (the “Collateral”). Buyer agrees to execute and deliver to Seller financing statements, together with any and all other documents, and shall take such other action, as may be required to perfect Seller’s security interest in the Collateral.
COSTS OF COLLECTION. If, at any time or times, Seller incurs legal expenses or other costs or expenses in connection with; (i) any litigation, contest, suit, dispute, proceeding or action in any way relating to the Collateral; (ii) any attempt by Seller to enforce any rights of Seller against Buyer or any other person which may be obligated to Seller hereunder; or (iii) any attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate or dispose of the Collateral; then, in any such event, the expenses and costs (including attorney’s fees) relating to any of the foregoing events or actions shall be payable by Buyer on demand to Seller and shall be considered additional obligations hereunder secured by the Collateral. Seller reserves the right to revoke any credit extended to Buyer at any time, because of Buyer’s failure to pay for any goods when due or for any reason deemed good and sufficient by Seller.
TAXES. Any sales, use or similar taxes, export charges, fees or other levies, taxes or surcharges now or hereafter imposed in connection with the production, sale, delivery, use or proceeds of the goods herein specified (except for taxes on Seller’s net income) shall be payable by Buyer, and if such taxes or fees are paid or are required to be paid by the Seller, the amount thereof shall be added to and become part of the price payable by Buyer hereunder, unless Buyer provides Seller with a valid tax exemption certificate.
PACKAGING. Prices stated are based on Seller’s standard packaging. Seller reserves the right of packaging the Goods in pallets, bulk or individual cartons. Packaging will be standard commercial package and acceptable to commercial carrier. Special customer packaging will be furnished only when specified and so stated herein, and the cost thereof shall be borne by Buyer.
DELAYS. Unless expressly specified to the contrary, Goods in stock will be shipped immediately, and Goods not in stock will be shipped as soon as possible. However, all shipping dates are approximate, and are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment of other non-performance of this Agreement caused by or imposed by: (a) strikes, fires, disasters, riots, acts of God, (b) acts of Buyer, (c) shortages of labour, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor or supplier delay including, but not limited to failure by subcontractor or supplier to make timely delivery, or (f) any other cause of condition beyond Seller’s reasonable control. In the event of any such delay or non-performance, Seller may, at its option, and without liability, cancel all or any portion of the Agreement and/or extend any date upon which any performance hereunder is due.
TERMINATION, CANCELLATION AND CHANGES. Orders cannot be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Seller, except with Seller’s written consent and subject to reasonable charges for expenses incurred and work executed by Seller or its suppliers. Purchaser shall be obligated to accept any portion of the goods shipped or delivered by Seller pending Seller’s written approval of cancellation. Orders for custom made material may not be cancelled after Seller has been in production, unless Seller agrees in writing.
RETURNED PRODUCTS. Delivered Goods returned to Seller require prior written approval from Seller before such goods will be accepted. Handling, inspection, restocking and invoicing charges will be assessed. If applicable, plus any outgoing packing and freight expenditures paid by Seller. All returns allowed must be shipped to Seller prepaid and must be in excellent resale condition. Goods processed to Purchaser’s specifications are not returnable. A restocking fee of 20% will apply on unused product if Original Invoice date is within 30 – 60 days. A restocking fee of 40% will apply on unused product if Original Invoice date is within 61 – 90 days. ALL RETURNS MUST HAVE A RETURN AUTHORIZATION NUMBER issued by Tapmaster Incorporated and must have this number clearly marked on package. All returns must be returned via First Class Postal Service and any customs and or brokerage charges incurred will be deducted from applicable credit.