General Terms and Conditions of Sale
AGREEMENT
1. This acknowledges the sale of Seller to Buyer of the products and/or services described in this invoice (collectively the “products”) on the terms and conditions contained in this document.
2. This sate is limited to the terms and conditions contained herein. Seller hereby notifies Buyer of its objection to all terms and conditions in all communications from Buyer which are additional to, different from or conflicting with the terms and conditions contained herein. If not otherwise accepted, all the terms and conditions contained herein shall be deemed accepted if Buyer shall dispatch any communication, regardless of its label or PURPOSE, which SUBSTANTIALLY agrees with this document to the quantity, description and price of the products.
PRICES | TERMS OF PAYMENT | TAXES | TITLE AND RISK OF LOSS
1. The prices quoted herein do not include applicable taxes. In addition to such quoted prices, Buyer will pay all present and future foreign, federal, state, and local taxes, including sales, use, delivery, port, property, excise and similar taxes, applicable to the sale, purchase, transportation, delivery, or use of the products, except for taxes based upon Seller’s income. To the extent Seller is required to pay or collect such taxes, such taxes will be paid by Buyer to Seller, upon invoice rendered.
2. In addition to the prices stated on the reverse side hereof, Buyer will also pay any special duties, switching, transfer charges, demurrage and any other such charges.
3. Any products to be shipped hereunder which for any reason are not shipped within thirty {30) days of the date hereof will be invoiced at Sellers price at the time of shipment. If such price is higher than the price stated on the reverse side hereof, Buyer shall have the option of canceling any portion of the products not yet shipped.
4. Invoices will be paid in full within thirty (30) days from the date thereof, unless otherwise specified on the invoices, and any amounts not paid within that thirty (30) day period will be deemed past due. Buyer will pay to Seller a service charge equal 1 ½% per month (or portion thereof) of all past due amounts. Time of payment is of the essence. In the event that Buyer shall at any time fail to accept delivery and make payment in accordance with the terms of this invoice, Seller at its option and without prejudice to any other lawful remedy, may suspend some or all further deliveries, or stop any shipments then in transit. If any action is taken to collect any past due invoice, Seller shall be entitled to reasonable attorney’s fees and collection costs, including collection agency fees.
5. Orders amounting to less than the minimum noted on this document will be billed at the minimum charge.
6. Title, risk of loss or damage, and other indicia of ownership shall pass to Buyer upon due tender of the products for delivery at the F.O.B. point subject to Seller’s security interest, which unless noted is F.O.B. origin.
7. Claims for shortage of products must be made within fifteen (15) days of receipt of shipment at destination or are automatically forfeited.
8. Seller shall have no liability for damage to the products after DELIVERY to the Carrier.
TRANSPORTATION CHARGES | BILL OF LADING
1. All prices are F.O.B. origin . No freight is allowed unless otherwise stated in this document. Any freight prepaid by the Seller will be charged to the Buyer. Seller reserves the right to ship in the most economical manner. Any increase in transportation rates prior to date of shipment will be for the account to Buyer.
2. Bill of Lading shall be conclusive evidence of the contents of the material loaded at point of origin. The weight shown on the Bill of Lading is considered the official weight of the content thereof.
3. Seller does not guarantee time of delivery and shall not be liable for claims or damages in connection with delivery delays.
SECURITY INTEREST | DEFAULT
1. To secure payment of all amounts which are or may become due to Seller hereunder, Buyer hereby grants to Seller a security interest in the products and all proceeds thereof until the purchase price for the same is paid and irrevocably authorizes Seller to execute and file financing statements on Buyers behalf. Buyer will segregate or otherwise render easily identifiable all proceeds. Buyer will not grant a security interest in the products or proceeds to any other person, and will refrain from any act tending to impair Seller’s security interest in the products or proceeds.
2. If Buyer makes an assignment for the benefit of creditors, or a voluntary or involuntary petition or other action in bankruptcy or for reorganization or under any other insolvency law shall be filed by or against Buyer, or Buyer shall admit to any person its inability or unwillingness to pay any of its debts, or a trustee, receiver or liquidator is appointed for any part of the assets of Buyer {whether such acts or events be voluntary or involuntary) or Buyer fails to fulfill the terms of payment hereunder, or otherwise breaches this agreement, or Seller reasonably deems itself insecure, then Seller may, at its option, immediately terminate or suspend further work hereunder and charge Buyer on the basis of the percentage of completion of performance at the time and on the price stated herein and/or may require immediate payment for all products delivered and/or may require full or partial payment for all products not delivered. Nothing stated in this section shall in any way limit Seller’s rights or remedies upon default as provided elsewhere herein or as given by law, including but not limited to the recovery of all costs of suit, and reasonable attorneys’ and collection agency’s fees.
FORCE MAJEURE
1. Neither Buyer nor Seller shall be liable for any damages resulting from any delay, damage or loss arising from any act of God, fire, flood, earthquake, hurricane, explosion, labor dispute, strike or slowdown, sabotage, theft, delay of carrier, current or future governmental regulation or order, inability to obtain parts, materials, energy, equipment, inventory, labor or any of the components of the products, any force majeure not enumerated herein or any other interruption of business, casualty, event or circumstance not within the exclusive control of such party, similar, or dissimilar. The party affected by the force majeure shall give prompt notice thereof to the other.
2. In the event of force majeure, the time for performance under this Agreement shall be extended for any period reasonably necessary due to such occurrence, during which period this Agreement shall remain in full force and effect, provided, however, that Seller may terminate this Agreement at any time during such extension period. Notwithstanding the foregoing, the event for force majeure shall not affect or extend the time for performance of Buyer’s obligation to make timely payments to Seller. Seller has the right to allocate its available products and material to itself and its customers as it sees fit and Seller has no obligation to purchase substitute products, material or transportation in order to complete delivery to Buyer. WARRANTY
WARRANTY
1. Seller warrants that the products sold pursuant to this acknowledgement shall conform to the description thereof which appears on the face hereof. SELLER MAKES NO EXPRESS WARRANTIES EXCEPT AS SET OUT HEREIN AND MAKES NO IMPLIED WARRANTY THAT ITS PRODUCTS ARE FIT FOR ANY PARTICULAR PURPOSE NOR ANY IMPLIED. WARRANTY OF MERCHANTABILITY WITH RESPECT TO SUCH PRODUCTS. In lieu of all other remedies for breach of any warranty, or for any other alleged failure of the Seller arising out of the sales, delivery, non-delivery or use of the products described herein, said products will be replaced or repaired F.O.B. point of origin or at the option of the Seller, the purchase price will be refunded, but the Seller shall not be required to make any remedy whatsoever available unless Seller is notified of any alleged nonconformity or other alleged failure within thirty (30) days after the date of delivery, or in the case of non-delivery, within thirty (30) days after the date fixed for delivery.
CANCELLATION OF ORDER
1. If Buyer requests cancellation of order, and order is for items normally stocked, cancellation charges will be limited to actual in and out freight incurred and a minimum of 30% of sales prices for restocking charge if order has been readied for shipment and/or shipped.
2. If order is for special non-stock items, cancellation charges will consist of actual in and out freight charges incurred and the full sales price less value to Seller, if any. Orders canceled in process of manufacture will be valued at the lesser of full sales price or pro-rata of percent complete less salvage value to Seller, if any.
DAMAGE LIMITATION
1. Seller shall, in no event, be liable, in contract, tort or otherwise, for special, indirect, incidental or consequential loss or damage, including but not limited to lost profits, loss by reason of non-operation or increased expense of operation to Buyer or others, or for loss or damage (whether personal, property or otherwise) in excess of the amount paid by Buyer pursuant to this invoice, resulting from, or arising out of, the breach of any term or condition (whether express or implied) of the contract resulting herefrom or otherwise resulting from, or arising out of, the manufacture, sale. delivery, installation and/or servicing of the products or the performance or non-performance of the contract resulting herefrom.
PATENTS AND TRADEMARKS
1. Seller shall defend and hold harmless Buyer from any claim made against Buyer arising out of Buyer’s use or resale of the products while in the same form, state or condition suppiled by the Seller to Buyer alleging that such use or resale by Buyer constitutes infringement of any patent or trademark. Buyer must promptly notify Seller in writing of the claim and must assist Seller fully at Seller’s expense in Seller’s defense of the claim.
2. Buyer shall defend and hold harmless Seller from any claim made against Seller or its suppliers that the manufacture, or sale of goods supplied, constitutes infringement of any patent or trademark, if such goods were manufactured per Buyer’s designs and specifications and were not normally offered for sale by Seller. Seller must promptly notify Buyer in writing of the claim and must assist Buyer at Buyer’s expense in Buyer’s defense of the claim.
GENERAL TERMS
1. This document and the contract resulting herefrom and the performance of the parties hereunder, shall be construed in accordance with and be governed by the internal laws of the State of Pennsylvania, and any contract resulting herefrom shall be deemed to be made in such State. Buyer consents to the exclusive jurisdiction of the Courts of the State of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania in any and all actions, disputes, or controversies relating to this document or the contract resulting herefrom. Buyer waives the right to jury trial and irrevocably consents to service of process by certified or registered mail, return receipt requested, mailed to Buyer’s address set forth herein.
2. No modification, amendment, rescission, discharge, abandonment or waiver of these terms and conditions of sale, or this document, or the contract resulting herefrom, shall be binding upon Seller unless set forth in writing and signed by an officer of Seller.
3. No delay or failure on part of Seller in exercising any right or remedy under the contract resulting herefrom, and no partial or single exercise thereof, shall constitute a waiver of such right or remedy or any other right or remedy.Seller’s rights and remedies under the contract resulting herefrom are cumulative and not alternative.
4. If any term of the contract resulting herefrom or the application thereof shall be illegal, such illegality shall not affect any other term or condition thereof, and such shall continue in full force and effect.
5 The terms and conditions contained herein represent the entire understanding of the parties with respect to the subject matter hereof, and supersede and replace all prior proposals, purchase orders, negotiations, representations, specifications, correspondence, and discussions. Notwithstanding the foregoing, all stenographic, typing, clerical or similar errors or omissions are subject to correction.
6. The contract resulting herefrom shall be binding upon the heirs, personal representatives, successors and permitted assigns as appropriate, of the parties. Buyer may not assign its rights or obligations under this document, or the contract resulting herefrom, without the prior written permission of Seller.
7. Any action against Seller, in contract or tort or otherwise, arising out of or connected with this document or the contract resulting herefrom or in any way related to or involving the products, must be commenced within one (1) year from the date such cause of action arises or accrues; otherwise the same shall be forever barred, notwithstanding any statutory or common law period of limitations to the contrary. Furthermore, all claims and causes of action by, through or on behalf of Buyer or by others arising out of or connected with the contract resulting herefrom, or in any way involving the products, shall expire and be forever barred as against Seller unless action is commenced thereon against Seller, within four (4) years after the date of any contract resulting herefrom.