Terms and Conditions of Sale for Products and Services
Exclusivity. Seller’s acceptance of Buyer’s order is expressly conditional upon Buyer’s agreement to these terms and conditions. All inconsistent or additional terms, modifications, or changes are deemed material, are expressly rejected, and do not form a part of this Agreement unless Seller agrees to such terms in writing.
Home Office Approval. Buyer understands that no agent of Seller is authorized to execute this Agreement or bind Seller unless this Agreement and any purported change are signed by a home office Officer of Seller.
Prices and Payments. Prices are exclusive of taxes and may be modified at any time prior to Seller receiving Buyer’s binding order. Upon acceptance, prices are firm for only three months and subject to reasonable escalation. Unless agreed otherwise in writing, all payments are due in full within 30 days of Seller shipping the products or providing the services. All overdue amounts will incur finances charge of the lesser of (a) 1 1/2 % per month and (b) the maximum allowed by law.
Security Agreement. This Agreement shall be considered a security agreement to the maximum extent allowed by law. Seller shall have, retain, and possess a security interest in all products sold to Buyer until Seller is paid in full. Buyer grants to Seller a power of attorney to complete, sign on Buyer’s behalf, and file all forms reasonably necessary to perfect Seller’s security interest. If Buyer defaults, or Seller deems itself insecure of receiving payment, the full unpaid balance shall become immediately due and payable at the option of the Seller, and Seller may retake possession of the products without Court order.
Delivery. Seller shall not be liable for delivery delays beyond its control, including delays caused by its suppliers. All delivery dates and rates of production statements are merely good faith estimates. Unless otherwise stated on Seller’s Order Acknowledgment, all shipments are F.O.B. Seller’s office. Seller reserves the rights to make installment deliveries.
Warranties. Seller warrants the products it manufactures to be free from defects in material and workmanship for a period of twelve (12) months from the date of shipment from Seller’s manufacturing office. Seller does not warrant that the product complies with any particular law or regulation not explicitly set forth in the specifications, and Buyer is responsible for ensuring that the product contains all features necessary to safely perform in Buyer’s and its customer’s facilities, jobsites, and operations. Buyer must notify Seller of any warranty claim within ten (10) days after such claim arises, otherwise Buyer waives all rights to such claim. Products supplied by Seller which are manufactured by others are not warranted by Seller, but rather Seller merely passes through the manufacturer’s warranty to Buyer. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.Unless otherwise agreed in writing, Buyer’s sole remedy for breach of warranty is, at Seller’s option, the repair of the defect, the correction of the service, or the providing a replacement part FOB Seller’s office. Seller will not be responsible for costs of dismantling, reassembling, or transporting the product. Further, Seller will not be liable for any other direct, indirect, consequential, incidental, or special damages arising out of a breach of warranty. THESE WARRANTY REMEDIES ARE EXCLUSIVE, AND ALL OTHER WARRANTY REMEDIES ARE EXCLUDED. Products or parts for which a warranty claim is made are to be returned transportation prepaid to Seller’s office. Any improper use, corrosion, neglect, accident, operation beyond rated capacity, substitution of parts not approved by Seller, or any alteration or repair by others which, in Seller’s judgment, adversely affects the Product, shall void all warranties and warranty obligations. Further, Seller shall not be liable under the above warranties should Buyer be in default of its payment obligations to Seller under this Agreement or any credit agreement.
Changes, Cancellations, and Returns. Buyer will pay reasonable charges and all associated costs and damages arising from canceling or changing this Agreement. No returns shall be allowed other than with Seller’s express permission, and such returns shall include a reasonable restocking charge to the extent permitted by law.
Resellers and Distributors. Should Buyer resell the product to a third party, then Buyer agrees to provide a copy of these Terms and Conditions to such third party prior to the sale, and obtain such third party’s agreement to be bound by the relevant provisions including, but not limited to, the Warranties Section and the Limitation of Liability Section. Buyer agrees to indemnify Seller against any and all claims, damages, or liability (including reasonable attorney fees) arising from Buyer’s breach of the obligations set forth in this Section.
Proprietary Rights. All designs and information provided by Seller remain its property, and Buyer shall honor all proprietary legends.
Limitation of Liability. The Seller’s price is based on the enforceability of this limitation of liability, and the Buyer understands that the price would be substantially higher without this limitation. SELLER SHALL HAVE NO LIABILITY TO BUYER FOR LOST PROFITS OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND, WHETHER ARISING IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POTENTIAL DAMAGES IN ADVANCE.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE CONTRACT PRICE. IN THE EVENT THAT ANY WARRANTY OR WARRANTY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, OR IS HELD TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, IN CONSIDERATION OF THE OTHER PROVISIONS OF THIS AGREEMENT, THE PARTIES AGREE THAT ALL LIABILITY LIMITATIONS WILL NEVERTHELESS REMAIN IN EFFECT.
Governing Law. This Agreement shall be governed by the internal laws of the state or province in which the end user is located, without resort to conflicts of law analysis.
Attorney fees, Collection Costs, and Indemnification. Buyer agrees to defend and indemnify Seller against any claims, damages, or liability (including attorney fees) arising out of Buyer’s violation of any law or breach of its obligations under this Agreement including, but not limited to, personal injury, death, or property damage. In addition, Buyer shall reimburse Seller all reasonable attorney fees and collection costs incurred by Seller to enforce its rights against Buyer under this Agreement.
Manuals and Brochures. Buyer shall communicate to Seller any special needs, pictorials, labels, warning signs, instructions, or language required for the manuals and brochures used for the products. Buyer agrees to pay a reasonable surcharge for additional manuals, special manuals, and brochures.
Severability. Any legally unenforceable provision may be severed from this Agreement, and the remaining terms and conditions will be enforced as a whole as if such provision had not been inserted herein.
Waiver, Entire Agreement. No waiver by either party of a right under this Agreement shall waive any other rights. These terms and conditions and any other writing signed by Seller constitute the entire agreement, and may not be modified other than in writing signed by Seller.