Prior Sale, Availability
All material is offered subject to prior sale and /or availability of
current materials and Seller shall have no liability whatsoever from a failure to provide goods because of
prior sale or unavailability of materials.
Unless otherwise specified herein, prices noted on the face of this document are firm
for seven (7) days; subject, however, to the provision that, if, before shipment of this order, Seller
should receive increases from its manufacturers or suppliers, the right is reserved to adjust the above
price to those in effect at time of shipment without notice.
Seller shall not be responsible for any failure or delay in delivery due to Acts of God,
fires, floods, labor troubles, storms or any other weather condition or Perils of the Sea, whether or not
due to fault of the Seller, breakdowns, delay of carriers, material delay, total or partial failure for any
reason of the usual sources of supply or transportation, requirements or request of any government or
subdivision thereof, or any similar or dissimilar cause beyond the Seller’s direct control. In the event of
inability of the Seller, for any cause beyond Seller’s control, to supply the total demands for any
materials specified in this order, Seller may allocate its available supply among any or all Buyers on such
basis as Seller at its sole discretion may decide without liability for any failure to perform the contract
which may be of consequence thereof. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY
CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER RESULTING FROM ANY FAILURE OR DELAY IN
DELIVERY WHETHER FROM CAUSES BEYOND SELLER’S CONTROL OR NOT.
Payments and Credit
Shipments, deliveries and performance of work shall at all times be
subject to the approval of the Seller’s credit department. Invoices submitted by Seller under this order
are payable at par in legal tender of the United States of America in the city designated in the
remittance address , upon the payment terms and in the amounts set forth hereon. Discount is
applicable only to the amount shown on the face of the invoice as “Discount Amount”. Whenever
reasonable grounds for insecurity should arise with respect to due performance by the Buyer, Seller
may demand different terms of payment from those specified on the face of this order and may demand
satisfactory security for the performance of Buyer obligation . Any such demand shall be in writing and
Seller may, upon making such demand, suspend shipments hereunder. If, within the period stated in
such demand, Buyer fails or refuses to agree to such different terms of payment , or fails or refuses to
give adequate security for due performance, Seller may at its option treat such failure or refusal as a
repudiation of a portion of order which has not been fully performed or may resume shipments under
reservation of possession or of a security interest and may demand payment against tender of
documents of title. AS LIQUIDATED DAMAGES AND NOT AS A PENALTY BUYER SHALL BE OBLIGATED TO
PAY on ALL ACCOUNTS NOT PAID ON THE DUE DATE THEREOF, THE LOWER OF (I) 2.0% PER MONTH
ON THE OUTSTANDING ACCOUNT BALANCE OR (II) THE HIGHEST RATE PERMITTED BY LAW TOGETHER
WITH ALL ATTORNEY’S FEES INCURRED BY SELLER TO COLLECT ANY DELINQUENT ACCOUNTS. Buyer
agrees that notwithstanding any endorsements or legend appearing on Buyer’s checks, drafts or other
orders for payment of money they do not, solely because of such endorsement of legend or otherwise,
constitute payment in full or settlement of the account. No failure of the Seller to exercise any right
accruing from any default of the Buyer shall impair Seller’s right in case of any subsequent default of the
Buyer. Materials are invoiced upon delivery or at time of material readiness for shipment to the
delivery destination, whichever comes first.
Except in particulars specified by the Buyer expressly agreed to in
writing by Seller, the materials furnished hereunder are produced in accordance with standard
manufacturing practices at the country of origin. All materials are subject to material tolerances and
variations consistent with normal manufacturing practice with respect to dimension, weight,
straightness, section, composition and mechanical properties, normal variations in surface and internal
conditions and in quality, to deviations in tolerances and variations consistent with practical testing and
inspection methods and to regular practices of Seller’s suppliers of over and under shipments. The Seller
is not responsible for any deterioration in quality which may result from processing operations or
improper use by the Buyer.
Order or specifications may not be cancelled or changed except upon terms that
will indemnify the Seller against all loss. Postponement of delivery at Buyer’s request, if for a period of
more than thirty days, will not be made without Seller’s approval first being obtained. Seller assumes no
responsibility for any changes in specifications unless such changes are confirmed in writing by Buyer
and accepted in writing by Seller. Any price variation resulting from such changes shall become effective
immediately upon the acceptance of such changes.
Delivery and Transportation
Delivery terms are as stated on the face of this document.
Terms are subject to change without notice to those in effect at time of shipment.
- Shipments F.O.B. DestinationUnless indicated otherwise on the face of this document, all
shipments made F.O.B. destination at Buyer’s plant or such other place served by common carrier at
which Buyer or his representative takes custody of the product, when custody is taken at a point within
the United States, are based upon prevailing freight rates. Freight will be allowed on delivered prices
only to the extent set forth on the face of the invoice. In the case of pickup by the Buyer, Buyer’s truck is
destination and Seller will not deliver or bear any cost of shipment or transportation or make any
allowance with respect thereto. Seller will in no event be responsible for spotting, switching, drayage, or
other local charges at destination.
- Deliveries F.O.B. Shipping PointUnless indicated otherwise on the face of this document,
when the order is sold F.O.B. shipping point, whether the same be premises of Seller or its supplier, the
cost of transportation thereof shall be borne by the Buyer.
Where Buyer is to inspect, inspection and acceptance must be made before
Warranty and Limitation of Remedies
Seller undertakes that the products sold hereunder
shall conform to specifications on the face hereof. Upon receipt of definite shipping instructions from
Seller, Buyer shall return all defective material or material not conforming to such specifications to
Seller after inspection by Seller, or at Seller’s election subject to inspection by Seller’s representative.
The material returned must be returned in the same condition as when received by the Buyer. Defective
material or material not conforming to specification so returned shall be replaced or repaired by the
Seller without an additional charge or, in lieu of such replacement or repair, Seller may at its option,
refund the purchase price applicable to such material. Seller agrees to pay return transportation
charges not exceeding those which would apply from original destination on all defective material or
material not meeting specification. However, Seller shall not be obligated for such charges when
material returned proves to be free from defect and to meet specifications. Material which proves to be
free from defect and to meet specifications shall be held by Seller for shipping instructions. Buyer shall
furnish such instructions promptly upon request. SELLER’S LIABILITY SHALL BE LIMITED SOLELY TO
REPLACEMENT OR REPAIR, OR, AT SELLER’S OPTION TO REFUNDING THE PURCHASE PRICE APPLICABLE
TO DEFECTIVE MATERIAL OR MATERIAL NOT MEETING SPECIFICATIONS. SELLER SHALL IN NO EVENT BE
LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR LOSS, DAMAGES OR EXPENSES
DIRECTLY OR INDIRECTLY ARISING FROM THE USE OF THE MATERIAL INCLUDING, WITHOUT
LIMITATION, WAREHOUSING, LABOR HANDLING AND SERVICE CHARGES NOT EXPRESSLY AUTHORIZED
BY SELLER. THIS WARRANTY IS IN LIEU AND EXCLUDES ALL OTHER WARRANTIES (except for any
warranty furnished by any supplier which runs directly in favor of the Buyer) GUARANTEES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
Any course of dealings between the parties to the contrary notwithstanding, at Seller’s
election any claim for breach of warranty, failure or delay in delivery or otherwise, shall be deemed
waived by the Buyer unless presented in writing to the Seller within ten days after receipt of material.
No inspection or investigation of claims by the Seller even though occurring after the period above
specified, shall be deemed a waiver of this provision. Carriers are responsible for goods lost or damaged
in transit and Buyer must immediately notify the carrier in writing of such loss or damage.
All taxes of any sort now or hereafter imposed by any federal, state, municipal or other
governmental agency that may be levied against this transaction at any time now or in the future are
for the Buyer’s account. Including but not limited to import and/or anti-dumping taxes, duties or fees.
Source of Materials
Unless otherwise expressly agreed upon, Seller has the right to obtain the
material ordered from any source at its discretion.
If any material shall be sold by Seller to meet Buyer’s specifications or requirements
and is not a part of Seller’ s standard line offered by it to the trade generally in the usual course
ofSeller’s business, Buyer agrees to defend, protect and save harmless Seller against all suits at law or in
equity and from all damage, claims and demands for actual or alleged infringement of any United States
or foreign patent and to defend any suits or action which may be brought against Seller for any alleged
infringement because of the sale of any such material.
No waivers by the Seller of any breach of any provisions hereof shall constitute a
waiver of any other breach of such provision. Seller’s failure to object to provisions contained in any
communication from the Buyer shall not be deemed an acceptance of such provisions or as a waiver of
the provisions of this contract.
Compliance With Laws, Rules and Regulations
In the performance of its obligations
hereunder, Seller shall comply with all applicable laws, ordinances, rules and regulations including,
without limitation: Executive Order 11246 (Equal Employment Opportunity); Executive Order 11625
(Minority Business Enterprises), Vocational Rehabilitation Act of 1973 and Executive Order
11758 (Employment of Handicapped Persons); Veterans Employment and Readjustment Act of 1972
and Executive Order 11701 (Disabled Veterans and Vietnam Veterans ); Executive Order11141 (Age
Discrimination in Employment); and Fair Labor Standards Act of 1938.
Timing of Billing to Buyer
Seller will invoice Buyer upon shipment from its supplier or facility,
or upon material readiness for shipment, unless otherwise indicated on the face of this document.
Storage of Material For Buyer
If, at Buyer’s request, goods covered by this document are held at
Seller’s facility or service provider for more than 21 days after they are available for shipment, Buyer
shall accept Seller’s invoice and pay said invoice based on payment terms set forth herein. Storage fees
Seller will only reserve material for 30 days with receipt of an excecuted
purchase order, quote or order acknowledgement acceptable to Seller. After that time, material
availability, price and shipment date may be adjusted, at Seller’s option.
Title to Goods
Under the UCC, title to all goods sold by the Seller to the Buyer does not pass to
Buyer until Buyer pays for the goods in its entirety. Seller reserves a purchase money security interest in
all goods sold until all amounts due to Seller have been paid.
No assignment of rights or delegation of duties by Buyer shall be binding upon Seller
without Seller’s written consent.
The sale of goods shall be governed by the laws of the State of New York,
exclusive of choice of law rules.
Applicable Venue and Jurisdiction
Buyer consents to jurisdiction and venue in any court of
competent jurisdiction in New York City, New York, for any and all suits or actions brought for any and
every breach of this contract.