1. Incorporation by Reference & Complete Agreement. All Terms and Conditions herein are explicitly referenced by Seller’s invoices, packing slips, and other transactional documents/contracts. All Terms and Conditions herein, in addition to, and incorporated by, Seller’s, forms; acknowledgments; quotations; invoices; and extensions of credit constitute a complete, binding, and exclusive contract. All oral understandings merge into this contract. Buyer has certified that he/she has read the Terms and Conditions herein and agrees that they constitute a complete, binding, and exclusive agreement. Seller’s acceptance of any order is conditioned on Buyer’s assent to all of the terms and conditions set forth herein. Buyer’s assent to these terms and conditions shall be deemed manifested by Buyer’s acceptance of all or any part of the Goods/Materials ordered or purchased. No additions, modifications, or alteration of any kind, of these terms and conditions by Buyer shall be binding upon Seller, unless agreed to in a signed writing, by an authorized representative of Seller. If a purchase order or other correspondence submitted by Buyer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in any of Seller’s forms, Seller’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Buyer, and will not constitute a waiver by Seller of any of the terms and conditions contained herein or on any of Seller’s forms.
2. Pricing & Payments. Prices quoted or otherwise communicated are in U.S. Dollars, and do not include handling fees, freight, taxes, or duties, and are subject to change or correction without notice. Certain products are “market sensitive,” or commodities, and as such, will be priced according to current market conditions. Buyer should contact Seller for current pricing. Special orders and/or export orders may be subject to other special pricing. Seller reserves the right to accept or reject any order.
All payments must be made in U.S. Dollars. Buyer agrees to assume responsibility for, and Buyer hereby unconditionally guarantees payment of, as provided herein, all purchases made by Buyer, its subsidiaries and affiliates. Each of Buyer’s subsidiaries and affiliates purchasing from Seller are jointly and severally liable for purchases with Buyer, and Buyer is also acting as agent for such subsidiaries and affiliates.
3. Sales Tax. Buyer is solely responsible for payment of all required state and local taxes, or in the alternative, for providing a valid sales tax exemption certificate.
4. Finance Charges. An interest rate of 1.5% per month, which is the equivalent of 18% per year, will be charged on balances remaining unpaid 30 days after the date of invoice.
5. Collections. Should it become necessary to pursue collection procedures of any outstanding sums, through litigation or otherwise, Seller shall seek reasonable attorneys’ fees from Buyer in addition to any other reasonable costs incurred.
6. Receipt of Materials & Substitution of Products. Buyer certifies that he/she has checked and approved the contents of their purchase, and affirms that all materials have been received by Buyer in good order. At the discretion of Seller, any and all products may be substituted with a product, or products, of equivalent efficiency.
7. Delivery of Materials & Job Acknowledgment. An authorized representative of Buyer is receiving any goods delivered. It is represented by Buyer that the products/materials herein are being used & installed at the job site reflected on the invoice or other purchase form, or properly recorded on a job record, in order to protect Seller’s lien rights.
8. Returns & Other Claims. All returns and claims MUST be accompanied by the invoice for the products/materials to be returned within 15 days of receipt of merchandise, and are subject to a restocking charge. All claims and disputes MUST be in writing within 15 days of receipt of invoice. All claims thereafter shall be waived if such communication is not received.
9. Order Cancelations. All order cancellations must be approved by Seller, and may be denied by Seller, and may be subject to fees or other charges.
10. Freight Policy. All purchases are F.O.B. origin. Seller charges a shipping and handling fee, (which includes internal handling and related costs), on each order, in its discretion, which may be applied at, or later than, the time of the order and may be reflected on Buyer’s invoice. Receipts for shipping and handling charges may not be furnished. From time to time, Seller may, in its discretion, cover shipping and handling costs for standard ground delivery. Further terms and conditions may apply for shipments other than standard ground delivery (“Other Freight Services”), including, without limitation, expedited same day delivery, air freight, freight collect, export orders, hazardous materials, customer’s carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Any charges incurred for Other Freight Services must be paid by customer. Fuel surcharges may be applied. Title and risk of loss pass to customer upon tender of shipment to the carrier. If the product is damaged in transit, customer’s only recourse is to file a claim with the carrier.
11. Force Majeure. Seller shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, or any circumstance or cause beyond the reasonable control of Seller in the conduct of its business, including but not limited to, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), “acts of God,” governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, floods, hurricanes, tornados, other severe weather conditions, inability to procure or ship products or obtain permits and licenses, inability to procure supplies or raw materials, or any other catastrophic or unanticipated events.
12. Disclaimer of Warranty; Due Diligence. The Goods/Materials purchased are sold “as is,” and other than the implied warranty of title under article 2 of the Uniform Commercial Code, or otherwise required by State law, SELLER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges that it has not been induced by any statements or representations of any person with respect to the quality or condition of the Goods and that no such statements or representations have been made. Buyer acknowledges that it has relied solely on its own investigations, examinations, and inspections as the Buyer has chosen to make, and that the Seller has afforded the Buyer the opportunity for full and complete investigations, examinations, and inspections. Buyer hereby assumes full and total responsibility for all necessary certifications of all Goods/Materials purchased or leased.
13. Limitation of Liability. Seller will not be liable for any indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to this agreement or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) and irrespective of whether the Seller has been advised of the possibility of any such damage. In no event will the Seller’s liability exceed the price the Buyer paid to the Seller for the specific Goods provided by the Seller giving rise to the claim or cause of action.
14. Limitation of Actions. No action arising out of or relating to this agreement or the transactions it contemplates may be commenced against Seller more than 12 months after the basis for such claim could reasonably have been discovered.
15. Governing Law and Designation of Forum. (a) The laws of the State of New York (without giving effect to its conflicts of law rules) govern all matters arising out of or relating to this agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, validity, performance (including the details of performance), and enforcement.
(b) A party bringing a legal action or proceeding against the other party arising out of or relating to this agreement or the transactions it contemplates must bring the legal action or proceeding in any court of the State of New York sitting in Kings County. Each party to this agreement consents to the exclusive jurisdiction of the courts of the State of New York sitting in Kings County and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to this agreement or the transactions it contemplates.
16. Independent Contractors. Seller and Buyer are independent contractors and not principal and agent. Nothing in this agreement shall be construed or interpreted as creating a partnership, agency, employment, dealership, reseller, joint venture relationship, or any relationship beyond mere Seller and Buyer. Buyer does not have the right to bind or otherwise obligate Seller in any way, nor may Buyer represent to anyone that it has the right to do so.
17. Assignment. Buyer shall not assign any order, or any interest therein, without the prior written consent of Seller. Any actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel such order.
18. No Third Party Benefit. The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
19. Waiver. The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party.
20. Severability. If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as they are written.
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