CONTRACT, ORDER ACCEPTANCE
All orders are subject to acceptance by Seller. Any such order shall be in the accordance with these General Terms and Condition. If the Seller starts to perform on an order or contract, this will imply the acceptance of the order or contract by the Purchaser and these General Terms and Conditions shall apply. Also, non-signature of an order or contract by Purchaser does not render null and void the terms of the order or contract. All contracts have end dates which the seller is not obligated to extend beyond that date. However, if the seller agrees to extension beyond the original end date, any and all carry charges or related expenses associated with the extension will be the responsibility of the purchaser.
SHIPPING TERMS; CLAIMS
Ownership and risk of loss will transfer upon signature of Purchaser on the bills of lading. If product is shipped by a freight carrier arranged by Seller any damages or risk of loss remains with the Seller until Purchaser signs bills of lading. Seller will file all claims for loss or damages associated with carriers Seller arranges. If Purchaser arranges the freight carrier, ownership, risk of loss and damages will transfer upon signature of bill of lading by Purchaser or their agent. Therefore, all shipping claims must be processed by the Purchaser with the shipping carrier. Seller is not responsible for goods lost or damaged in transit. Claims for shortages in shipment not chargeable against the carrier will not be considered unless notice is given within five (5) days from date of receipt of the product. The Seller has the discretion to determine shipping location. Purchaser will take delivery of the product during the delivery period reflected on the sales confirmation and, unless otherwise indicated on the sales confirmation, in approximately equal monthly installments.
Purchaser agrees to pay for product in accordance with Seller’s standard payment terms as set forth on Seller’s invoice. Terms of payment are subject to revision by Seller at any time. Purchaser is not entitled to set-off amounts due or claimed due from Seller against any amounts Purchaser owes to Seller. Any increase in rail, intermodal, truck freight or fuel surcharge is for Purchaser’s account. If any additional specifications or shipping instructions are required, Purchaser shall furnish them in writing to Seller not less than thirty (30) days before contract date of shipment. In the absence of such written specifications or shipping instructions, Seller, at its option, may either ship the product to Purchaser or may retain the product in its possession for account of Purchaser, and in either case, may invoice the product to Purchaser and such invoice is due and payable on presentation; or Seller may at its option request Purchaser to take delivery within a specific time and if Purchaser does not there upon take delivery within a specific time, the neglect or refusal of Purchaser shall be a breach of the entire contract.
Non-standard product not in stock with Seller that the Purchaser orders cannot be cancelled, and the non-standard product is not returnable. Shipping variances of +/- 10% may apply.
RETURNS AND CANCELLATIONS
In the event Purchaser rejects product as non-conforming, Purchaser must send a notice to Seller of rejection within five (5) days from date of receipt of the product. Purchaser shall hold such non-conforming product until Seller removes the product or provides Purchaser with other reasonable instructions. Seller’s liability under these circumstances is limited to either replacing the non-conforming product or refunding to Purchaser its purchase price paid for such product. Purchaser is prohibited from selling rejected product in a secondary market without Seller’s prior written consent.
Claims based on quality or kinds of product shipped are to be adjudicated in accordance with trade practices established by the industry furnishing such product to Seller. Order cancellations are subject to acceptance in writing by Seller. Seller reserves the right to assess additional cancellation charges in the event the quantity cancelled is in excess of Seller’s normal stock requirements.
PRICING AND TERMS OF PAY
Seller may increase or decrease such credit limit from time to time, in its reasonable discretion. Seller’s failure to enforce the credit limit in any instance shall not constitute a waiver of Seller’s right to subsequently enforce the credit limit.
LIMITATION ON LIABILITY: THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS OF ANY KIND, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, PRODUCTION, SALES OPPORTUNITIES OR BUSINESS REPUTATION. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY, WHETHER BASED UPON THEORIES OF TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT PURCHASER PAID TO SELLER PURSUANT TO THE PURCHASER ORDER OR PURCHASE CONTRACT.
DELIVERY; FORCE MATURE
While Seller understands the importance of maintaining the delivery schedule, Seller will not be liable or responsible for any charges, costs, expenses or other damages or liabilities caused by non-delivery or late delivery of product relating to or arising from strikes; riots; fires; floods; acts of god; shortages; inability to secure materials, ingredients, cargo space or shipping facilities; disasters; terrorism or war; laws, rules, regulations or changes thereto; and/or action of any government or department or agency thereof, or any person acting or purporting to act under the authority of any government; or other accidents or occurrences beyond Seller’s control. Non-delivery or delay shall not affect the balance of the contract. In the event of the occurrence of any such event, Seller shall have the right, but not the obligation, to allocate product among its customers.
Seller may elect to withhold or suspend shipment of product or stop in transit any such shipment should any doubt arise as to Purchaser’s credit or financial responsibility. Should the Purchaser make an assignment for the benefit of creditors, become involved in any bankruptcy, reorganization or insolvency proceedings, or should any liens be filed against Purchaser’s property, or should a receiver, trustee or similar party be appointed for it, Seller may, without liability, cancel any unfilled portion of this contract and all costs and damages of the Seller, together with any unpaid balances otherwise due, shall immediately be due and payable to the Seller by the Purchaser.
All matters arising out of or relating to our agreement to which these Terms & Conditions apply and the duties and obligations contemplated thereby, shall be governed by and construed in accordance with the laws of the State of New York, USA, without reference or regard to the conflicts of law rules thereof or of any other state. Each party hereby consents and submits to the exclusive jurisdiction of, and agrees that the forum is convenient and venue is proper in, the Circuit Court of New York, New York County, and the United States District Court for the Southern District of New York, for any actions, suits or proceedings arising out of or related to our agreement.