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Terms
& Policies
of Sales.
The purchaser named herein offers and agrees to purchase the goods
described from "seller" on the following terms and conditions:
1. This offer is subject to approval
and acceptance by the seller's authorized officers at seller's city
and state. Such approval will cover materials and services specified
in writing on this order, and no statement, promise, warranty or agreement
made by any salesman, field representative or third party shall be
binding upon the seller.
2. This offer is a firm offer.
It will be held open and will not be revoked for 90 days.
3. This offer may be accepted
by confirmation, by performance or the making of arrangements preparatory
to performance, or in any other appropriate manner. The seller need
not give the purchaser notice of acceptance. After acceptance, this
agreement cannot be modified, rescinded, waived or changed, except
by a writing signed by the party to be bound thereby. Any request
for cancellation must be submitted in writing to the seller and purchaser
agrees to pay for any expenses incurred by seller prior to such request
for cancellation.
4. The seller may tender any quantity
of goods which is not less than 90% nor more than 110% of the quantity
specified herein. Such tender shalt be a conforming tender and the
price specified herein shall be ratably adjusted.
5. The seller may ship the goods
at any time convenient to the seller, in a single lot or in several
lots. Subject to any shipping instructions set forth herein, the seller
or its agent may pack and ship the goods, select a carrier, make a
transportation contract, and put the goods into the possession of
a carrier, in any manner and on any terms the seller or its agent
may see fit. The seller need not notify the buyer of any shipment.
6. This sale is made F.O.B. point
of shipment. All goods are shipped at the purchaser's risk. The purchaser
shall duly pay for, and the seller shall have no liability for goods
damaged, destroyed or lost in transit.
7. The seller reserves a security
interest in the goods as security for payment of the price and all
other obligations of the purchaser hereunder.
8.
LIMITED WARRANTY: The seller warrants that the goods will at the time
of delivery conform to the description on page 1 hereof and that the
purchaser will acquire good title to the goods. THE SELLER MAKES NO
OTHER AFFIRMATIONS, PROMISES OR WARRANTIES, EXPRESS OR IMPLIED, as
to the goods or the condition, quality or characteristics of the goods,
or as to any other matter whatsoever. THE SELLER SPECIFICALLY DISCLAIMS
AND EXCLUDES ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE.
9. In the event of any breach
of the warranty made in paragraph 8, the seller will, upon reasonable
notice from the purchaser, either replace the affected goods with
conforming goods or refund the purchase price paid by the purchaser
to the seller for the affected goods, at the seller's option. The
foregoing remedies shall constitute the SOLE AND EXCLUSIVE REMEDY
for any breach of warranty. This exclusive remedy shall not be deemed
to have failed of its essential purpose under any circumstances. THE
SELLER SHALL NOT BE LIABLE UNDER THIS AGREEMENT, OR WITH RESPECT TO
THE SALE CONTEMPLATED HEREBY, FOR INCIDENTAL DAMAGES, FOR CONSEQUENTIAL
DAMAGES, FOR BREACH OF WARRANTY DAMAGES, OR FOR ANY OTHER DAMAGES
OF ANY KIND.
10. No goods may be returned by
the purchaser to the seller without the seller's prior written consent,
and then only to the extent of the quantity and under the terms and
conditions set forth in such writing.
11. The purchaser shall pay the
purchase price set forth on page 1hereof to the seller within thirty
days after date of invoice unless the due date is otherwise stated
on the face of the invoice. If the purchaser fails to pay the purchase
price, or any part thereof, when due, the purchaser will further pay
a service charge (i) at the rate of 18% per annum applied to the unpaid
balance of the purchase price, if the purchaser is a corporation;
and (ii) at the highest lawful contract rate permitted under the laws
of the State of seller, applied to the unpaid balance of the purchase
price, in all other cases. In addition the purchaser agrees to pay
a 25% collection fee should it become necessary for the seller to
engage outside professional services in the collection of this obligation
due to the purchaser=s failure to duly and punctually pay the price
due and/or reasonable attorney's fees with court costs.
12.
The seller shall not be liable for any breach, default or delay caused
by inability to obtain transportation, inability to obtain materials,
delay in transit from a manufacturer or supplier or failure to make
delivery by a manufacturer or supplier, shortage of fuel, failure
of sources of supplies, strike, lock out, labor disputes, fire, flood,
accident, invasion, riot, war, revolution, embargo, restraint or demand
of the United States or any other government, failure of the purchaser
to perform its obligations with respect to this transaction, or any
other cause or contingency beyond the control of the seller.
13. The purchaser will indemnify
the seller and hold the seller harmless from and against all claims,
demands, liabilities and expenses, including (without limitation)
claims of infringement of patent, trade mark, copyright or other proprietary
right, invasion of privacy, or any other matter, arising from the
use of any picture, plate, advertising copy, specifications or material
furnished to the seller by the purchaser or prepared by seller at
purchaser's request including reasonable attorney's fees with court
costs.
14. The purchaser will pay all
sales, use and other taxes and impositions, except net income taxes,
due or arising in connection with this sale or applicable to the goods
after delivery.
15. If the purchaser shall fail
to pay any indebtedness owed to the seller, shall become insolvent,
shall cease to carry on business substantially as now conducted, shall
suffer the appointment of a receiver or the commencement of any proceeding
under any bankruptcy or insolvency law, or if the seller shall at
any time in good faith believe that any such event has occurred or
that, for any other reason, the prospect of due and punctual payment
of the purchaser's obligations is impaired, then the seller may immediately
suspend its performance under this agreement and may demand immediate
payment of all amounts due or to become due to the seller from the
purchaser with respect to this transaction.
16. The purchaser acknowledges
that the seller's representative has no authority to agree or accept
any advances, loans or payments.
17. This agreement sets forth
the entire agreement of the parties with respect to the subject matter
covered. It supersedes all prior offers and agreements. The provisions
of this agreement shall govern and displace any inconsistent provisions
which may be set forth in any purchase order form or other document
heretofore or hereafter submitted to the seller by the purchaser.
The seller specifically objects to the inclusion of any terms or conditions
proposed by the purchaser which are different from or additional to
the terms and conditions set forth herein.
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