TERMS AND CONDITIONS FOR SALE OF PRODUCT AND SERVICES
“Purchaser” means the entity to which Seller is providing Products under the Contract. “Contract” means either the contract agreement signed by both parties, or the purchase order provided by Purchaser and accepted by Seller in writing or electronically, for the sale of Products, together with these Terms and Conditions, Seller’s final quotation, and Seller’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over and supersede other documents included in the Contract. “Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract. “Hazardous Materials” shall have the same meaning as defined by the U.S. Environmental Protection Agency, the U.S. Occupational Safety and Health Administration, the U.S. Department of Transportation, and the U.S. Nuclear Regulatory Commission, and shall also mean any biological, chemical, radiological, and or physical substance, material, waste, good, petroleum or petroleum-derived products or by-products, or any other chemical, substance, material or emission, that is regulated, listed, or controlled pursuant to any national, state, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States of America. “Insolvent/Bankrupt” means that a party is operating in the zone of insolvency, insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under Title 11 of the United States Code. “Products” means the equipment, parts, materials, supplies, software, and other goods Seller has agreed to supply to Purchaser pursuant to the Contract. “Seller” means the entity providing Products under the Contract. “Services” means the services Seller has agreed to provide pursuant to the Contract. “Site” means the premises where Products are used not including Seller’s premises. “Terms and Conditions” means these “Terms and Conditions for Sale of Products and Services”, including any modifications or additions thereto specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.
2. PRICE AND PAYMENT
The purchase price for goods being purchased hereunder shall be the price for such goods as reflected on Seller’s Contract at the time of shipment. Payment shall be made by Purchaser pursuant to the terms set forth on the Contract.
Purchaser shall pay all transportation costs, insurance, and all applicable duties, federal, state, and local sales, use, property, excise, or other taxes, fees, or other charges of any nature, including, but not limited to consumption, gross receipts, import, property, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment imposed on or with respect to the Products being purchased hereunder, except taxes on Seller’s net income. Tax will be charged and shall be paid by Purchaser on all Contracts unless Purchaser timely provides Seller with a valid sales tax exemption certificate within fourteen (14) days of the date of any invoice.
4. CREDIT BALANCE
Purchaser agrees that any credit balance(s) issued must be used within one (1) year from the date the credit was issued and may only be used for purchases of Products. Any unused credit or portion thereof will automatically expire after one (1) year.
All orders are subject to credit approval by Seller. Seller may modify, suspend, or withdraw the Purchaser’s credit amount or payment terms at any time. In the event Seller determines that Purchaser’s financial condition is impaired, Seller may withhold shipment of Product, require cash payments, or require other security satisfactory to Seller. Seller may recover shipped goods from any common carrier pending assurance.
6. SECURITY INTEREST
Purchaser hereby grants Seller a first priority purchase money security interest and/or chattel mortgage in the Products purchased and any cash from resale or accounts receivable thereof until full payment is made to Seller. Purchaser agrees to file, and it permits and authorizes Seller to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of Seller’s lien or security interest.
7. DELIVERIES; RISK OF LOSS; TITLE
In the event the Contract provides that Seller will deliver the Product to Purchaser, the risk of loss of the Products purchased shall pass to Purchaser upon delivery. In the event the Contract provides that the Products are shipped via common carrier, the risk of loss shall pass to the Purchaser when the Product is delivered to the common carrier. Title to the Products shall pass with risk of loss. Purchaser is responsible for all shipping and freight costs. Receipts for shipping and freight charges will not be provided. Purchaser is responsible for all insurance and related expenses including but not limited to taxes, duties, or documentation fees.
8. EXCLUSION OF WARRANTIES
(a) SELLER MAKES NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED. SELLER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SELLER ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR, OR MISAPPLICATION. SELLER EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE. SELLER’S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
(b) IT IS HEREBY EXPRESSLY UNDERSTOOD AND AGREED THAT STATEMENTS MADE IN THE CONTRACT RELATING TO THE PRODUCTS SOLD PURSUANT THERETO ARE NOT EXPRESS WARRANTIES AND DO NOT FORM PART OF THE BASIS OF THE BARGAIN BUT ARE MERELY SELLER’S OPINION OF THE PRODUCTS. ANY DESCRIPTION OF THE PRODUCTS SPECIFIED IN THE CONTRACT OR IN ANY AND ALL BROCHURES, PAMPHLETS, OR OTHER LITERATURE OF SELLER, WHETHER DELIVERED BEFORE OR AFTER THE DATE HEREOF, ARE NOT INTENDED TO BE WARRANTIES, AND ARE RATHER, FOR THE SOLE PURPOSE OF IDENTIFYING SUCH PRODUCTS. THE FOREGOING DESCRIPTIONS ARE NOT PART OF THE BASIS OF THE BARGAIN, AND DO NOT CONSTITUTE A WARRANTY THAT THE PRODUCTS SHALL CONFORM TO THOSE DESCRIPTIONS. THE USE OF ANY SAMPLE OR MODEL BY PURCHASER WAS FOR ILLUSTRATIVE PURPOSES ONLY. CONFORMITY OF THE PRODUCTS TO THE SAMPLE OR MODEL IS NOT PART OF THE BASIS OF THE BARGAIN, AND IS NOT A WARRANTY THAT THE PRODUCTS WILL CONFORM TO THE AFFIRMATION OR PROMISE.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, SELLER IS NOT LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR LOST OPPORTUNITY, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM PURCHASER’S THIRD PARTY CONTRACTS, IMPROPER INSTALLATION OR USE, OR FOR ANY TYPE OF SPECIAL, LIQUIDATED, INDIRECT, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR NATURE. SELLER’S MAXIMUM LIABILITY UNDER THESE TERMS AND CONDITIONS IS THE ACTUAL PURCHASE PRICE RECEIVED BY SELLER FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM. PURCHASER AGREES THAT THE EXCLUSIONS AND LIMITATIONS OF THIS PARAGRAPH WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND SHALL BE GIVEN FULL FORCE AND EFFECT. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF SELLER HAS BEEN ADVISED BY PURCHASER OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS PARAGRAPH EXTEND TO SELLERS AFFILIATES, PARTNERS, PRINCIPALS, SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, PAID PROFESSIONALS, AND SUCCESSORS AND ASSIGNS.
Seller and Purchaser (each, “Indemnitor”) shall indemnify the other (“Indemnitee”) from and against all third-party claims alleging bodily injury, death, or damage to a third party’s tangible property, but only to the extent caused by the Indemnitor’s negligent acts or omissions. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of fault. No part of the Products or Seller’s physical locations are considered third party property. Indemnitee shall provide Indemnitor with prompt written notice of any third-party claims covered by this paragraph. Indemnitor has the unrestricted right to select and hire counsel of its own choosing, and the exclusive right to conduct the legal defense and/or settle the claim on the Indemnitee’s behalf. The Indemnitee shall not make any admission(s) that may be considered prejudicial to the Indemnitor and shall not enter into a settlement without the express permission of the Indemnitor.
11. GOVERNING LAW; VENUE; JURISDICTION
New York law shall govern any and all questions pertaining to the validity, construction, execution, and performance of the Seller and Purchaser under these Terms and Conditions, the Contract, or any other agreement between the parties, without giving effect to any conflicts of law or choice of law rules that would cause the application of laws of any other jurisdiction. PURCHASER IRREVOCABLY, KNOWINGLY, AND VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY MANNER TO THESE TERMS AND CONDITIONS, THE CONTRACT, OR ANY OTHER AGREEMENT BETWEEN THE PARTIES. The Purchaser and Seller each agree that any claims or disputes arising from or out of these Terms and Conditions shall be decided exclusively in either the United States District Court for the Eastern District of New York located in Central Islip, New York, or in the Supreme Court of the State of New York, Nassau County, located in Mineola, New York. The Purchaser and Seller each irrevocably consent to the in personam jurisdiction of the foregoing courts for the purposes of litigating any claims or disputes, and expressly waive any defense based upon forum non conveniens, failure of long-arm jurisdiction, or any analogous legal theory or doctrine.
12. ATTORNEYS’ FEES AND COSTS
In the event that Purchaser fails to comply with the terms, covenants, and conditions of these Terms of Sale, the Contract, or any other agreement between the parties, and the matter is referred to an attorney for purposes of enforcing Seller’s rights thereunder, Seller shall be permitted to an award of reasonable attorneys’ fees. Reasonable attorneys’ fees shall be paid whether a litigation is formally commenced in court. In addition to reasonable attorneys’ fees, Purchaser shall be required to pay all costs, fees, and disbursements attendant thereto.
Notwithstanding anything to the contrary, Purchaser shall pay interest charges on past due amounts arising under the Contract at the rate of 1.5% per month (18% per annum).
14. FORCE MAJEURE/DELAYS
(a) Notwithstanding any provision herein to the contrary, Seller shall not be liable or responsible for any delay in or failure of delivery of Products being purchased hereunder by any reason of force majeure, including, but not limited to the Seller’s inability to obtain Products from its suppliers or to obtain Products on a timely basis, or as a result of interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, war, flood, accidents, terrorism, acts of God, civil disturbance, quota restrictions, cyber-attacks, actions or inactions of government, or any other cause beyond Seller’s control, whether or not such cause be of the same class or kind enumerated above, such enumeration being expressly understood in addition to the other causes or classes of causes, Seller shall have the right to allocate available Products among its customers in such proportions as it deems appropriate, and in its sole and absolute discretion.
(b) In the event Seller is unable to make timely delivery of all or a portion of the Products being sold hereunder, because of any events or occurrences referred to herein, Purchaser must accept delivery of the Products whenever Seller is able to make such delivery regardless of the duration of the delay in the delivery of the Products, or Seller may, in its sole and absolute discretion, cancel the undelivered portions of Products without liability to Seller.
(c) Except as otherwise provided in subparagraph (b) of this paragraph 14, Purchaser is entitled to cancel that portion of any order that is excessively delayed, and only that portion, it being understood that time is not of the essence. Seller shall not be responsible or liable for any resulting back charges or other damages incurred by Purchaser on account of any delays, it being understood that Purchaser’s sole remedy for delays shall be cancellation in the manner and to the extent specified herein. To invoke cancellation of such excessively delayed orders or portions thereof, Purchaser must give Seller ten (10) days prior written notice thereof, and such cancellation shall be effective upon the expiration of such ten (10) day period provided Seller has not ordered or shipped such goods in the interim.
15. PRODUCT RETURN POLICY
Prior to the return of any Product to Seller, Purchaser must identify the Product or portion thereof and obtain written authorization and shipping instructions from Seller. Seller has the right, in its sole discretion, to permit or reject any return. Seller’s authorization to return any Product does not relieve Purchaser of its obligation to pay for the Product. Upon receipt, inspection, and acceptance of the Product by Seller, Seller will issue a credit memo to Purchaser, solely to be used against future purchases, less applicable re-stocking fees. If Seller rejects the returned Product, Seller will not issue a credit memo to Purchaser. Seller reserves the right to reject any hazardous material.
16. GENERAL TERMS
(a) If any provision of these Terms and Conditions are held invalid, illegal, or unenforceable, the remaining provisions will not in any way be affected or impaired. A court may modify the invalid, illegal or unenforceable provision to reflect, as closely as possible, the parties’ original intent.
(b) These Terms and Conditions cannot be modified unless done so in a writing signed by Seller and Purchaser.
(c) These Terms and Conditions are intended by the parties to be a final, complete, and exclusive statement of their agreement with respect to the subject matter hereof. All prior or contemporaneous oral or written statements, including, with limitation, any brochures of Seller, are hereby excluded and are superseded.
(d) The rights of Seller and Purchaser pursuant to these Terms and Conditions is assignable, and shall inure to the benefit of their respective successors and permitted assigns. Notwithstanding the foregoing, Purchaser shall not have the right to assign its rights, benefits, or duties hereunder without the prior written consent of Seller.
(e) These Terms and Conditions supersede and replace any Terms and Conditions contained on any purchase order received from Purchaser.