Terms Of Sale
All sales by Seller are made pursuant to the following terms. No other or additional terms or conditions are
or will be accepted
ACCEPTANCE OF ORDERS -
All orders, whether placed directly or through an agent, and all
subsequent amendments thereto, are subject to a final approval and
acceptance by Seller's main office.
LIMITATION OF WARRANTIES, REMEDIES AND DAMAGES -
THE WARRANTY STATED BELOW IS GIVEN IN PLACE OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR OTHERWISE. NO PROMISE OR
AFFIRMATION OF FACT MADE BY ANY AGENT OR REPRESENTATIVE OF SELLER SHALL
CONSTITUTE A WARRANTY BY SELLER OR GIVE RISE TO ANY LIABILITY OR
Seller warrants that on the date of its delivery to carrier the goods are free from defects in workmanship and materials.
SELLER'S SOLE OBLIGATION IN THE EVENT OF BREACH OF WARRANTY OR CONTRACT
OR FOR NEGLIGENCE OR OTHERWISE WITH RESPECT TO GOODS SOLD SHALL BE
EXCLUSIVELY LIMITED TO REPAIR
OR REPLACEMENT, F.O.B. SELLER'S POINT OF SHIPMENT, OF ANY PARTS WHICH
SELLER DETERMINES TO HAVE BEEN DEFECTIVE or if Seller determines that
such repair or replacement is
not feasible, to a refund of the purchase price upon return of the goods
Any action against Seller for breach of warranty, negligence or
otherwise must be commenced within one year after such cause of action
NO CLAIM AGAINST SELLER FOR ANY DEFECT IN THE GOODS SHALL BE VALID OR
ENFORCEABLE UNLESS BUYER¿S WRITTEN NOTICE THEREOF IS RECEIVED BY SELLER
WITHIN ONE YEAR FROM THE
DATE OF SHIPMENT.
Seller shall not be liable for any damage, injury or loss arising out of
the use of the goods if, prior to such damage, injury or loss, such
goods are (1) damaged or
misused following Seller's delivery to carrier; (2) not maintained,
inspected, or used in compliance with applicable law and Seller's
written instructions and
recommendations; or (3) installed, repaired, altered or modified without
compliance with such law, instructions or recommendations.
CIRCUMSTANCES SHALL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES AS THOSE TERMS ARE DEFINED IN SECTION 2-715 OF THE UNIFORM
TERMS OF PAYMENT -
Unless otherwise stated herein, payment of each invoice is required
within thirty (30) days after date of shipment. Any balance unpaid after
the required payment date
shall be subject to a service charge of 1% per month from such date.
PRICE ADJUSTMENTS -
Amendments made by the Buyer to orders already placed shall, without
formal notice to the Buyer, be subject to extra charges. If the
estimated shipping date for
the goods is more than sixty (60) days after date of order, the price of
the goods are subject to increase by Seller.
Any sales, use, excise, and other taxes applicable to this transaction
and the goods and/or services furnished by Seller are not included in
the price and shall be paid
by Buyer when due. If Seller pays any such taxes, Buyer shall reimburse
Seller upon demand.
INDEMNIFICATION AND SAFE OPERATION -
Buyer shall comply with and require its employees to comply with
directions set forth in instructions and manuals furnished by Seller and
shall use and require
its employees to follow such instructions and manuals and to use
reasonable care in the use and maintenance of the goods. Buyer shall not
remove or permit anyone to
remove any warning or instruction signs on the goods. In the event of
personal injury or damage to property or business arising from the use
of the goods, Buyer shall,
within forty-eight (48) hours thereafter, give Seller written notice of
such injury or damage. Buyer shall cooperate with Seller in
investigating any such injury or
damage and in the defense of any claims arising therefrom.
If Buyer fails to comply with this section or if any injury or damage is
caused, in whole or in part, by Buyer's failure to comply with
applicable federal or state safety
requirements, Buyer shall indemnify and hold Seller harmless against any
claims, loss or expense for injury or damage arising from the use of
GOVERNING LAW -
This agreement shall be governed by and construed under the laws of the State of New York.
DELIVERY AND DELAYS -
Unless otherwise specified herein, deliveries shall be F.O.B. Seller's
point of shipment and risk of loss shall pass to Buyer upon Seller's
delivery to carrier. All
shipping dates are approximate and Seller shall not be liable for loss
or damage because of delays occasioned by labor disputes, damage to
facilities, or failure of
suppliers or subcontractors to meet scheduled deliveries or any other
cause beyond Seller's reasonable control or making its performance
Notwithstanding other provisions hereof, if shipment is delayed at
Buyer's request, the goods shall be deemed to be stored at Buyer's risk
and expense and Seller may
thereupon bill Buyer for the full price and storage costs. Buyer shall
pay such bill within 30 days after mailing thereof.
INSPECTION UPON RECEIPT OF SHIPMENT -
Buyer shall inspect the goods as soon as received. If any loss or damage
is discovered, Buyer must notify both the carrier and Seller at once.
Seller will cooperate with
Buyer in filing claims with the carrier.
CHANGES AND CANCELLATION -
Seller reserves the right to change or cancel any order whenever
circumstances require allocation of production or delivery or Seller
deems change or cancellation to be
necessary to comply with applicable laws, ordinances, regulations,
directives or administrative actions. Seller reserves the right to make
changes in materials or design
which it determines appropriate for the goods.
SECURITY INTEREST AND REPOSSESSION -
Until full payment has been made therefor, Seller shall have a security
interest in goods shipped to Buyer and the goods shall remain personal
request Buyer shall execute and deliver to Seller security agreements
and financing statements further evidencing Seller's security interest.
Buyer authorizes Seller to
file a financing statement or statements relating to the goods, without
Buyer's signature thereon, as Seller may deem appropriate and appoints
Seller as Buyer's
attorney-in-fact for the limited purpose of executing (without requiring
Seller to do so) financing statements in Buyer's name and performing
other acts which Seller
deems appropriate to perfect and continue its security interest and to
protect and preserve the goods.
In the event Buyer defaults in making any payment due Seller, Seller in
addition to any other rights or remedies provided by law, shall have the
right, with or without
legal process, to enter the place where said goods are located and to
repossess the goods in accordance with the Uniform Commercial Code.
Shipment by Seller shall at all times be subject to the prior approval
of its credit personnel and Seller may, at any time, decline to make
shipment except upon receipt
of prior payment or upon other terms and conditions or security
satisfactory to such personnel.
Except as to goods manufactured according to design supplied by Buyer,
Seller will defend and hold Buyer free and harmless in a suit or
proceeding brought against Buyer
insofar as it is based on a claim that use of the goods by Buyer
constitutes an infringement of any existing U.S. Patents, provided,
however, that Buyer gives Seller
prompt written notice of such suit or proceeding; permits Seller,
through its counsel, to defend and/or settle the same; and gives Seller
all necessary information,
assistance and authority to enable Seller so to do. If Buyer's use of
the goods is held to constitute infringement and further use is
enjoined, Seller shall, at its
option, either (i) procure for Buyer the right to continue using the
goods; or (ii) replace the goods with non-infringing goods; or (iii)
modify the goods to
non-infringing goods. The foregoing states Seller's entire liability for
patent infringement and shall not be construed to render Seller liable
for damages based on
This instrument constitutes the entire agreement between Seller and
Buyer, superseding all previous understandings and writings regarding
this transaction. Any
amendment or modification of this Agreement shall be void unless in
writing and signed by Seller.
No delay or omission by Seller in exercising any right or remedy
hereunder shall be a waiver thereof or of any other right or remedy, and
no single or partial exercise
thereof shall preclude any other or further exercise thereof or the
exercise of any other right or remedy. All rights and remedies of Seller
Sales made pursuant to this Agreement shall be governed by the Uniform
Commercial Code as the same may from time to time be construed and in
effect in the
state wherein Seller has its main office.
All disputes that may arise between the parties regarding the
interpretation of the contract and the legal effect of the contract
shall, to the exclusion of any court of
law, be arbitrated and determined in accordance with the latest
Commercial Arbitration Rules of the American Arbitration Association.
The arbitration proceeding shall be
held in the city in that state where the principal office of the Seller
is located. The parties recognize and consent to the above mentioned
jurisdiction over each and every one of them.
USTS rev. 2/98