TERMS & CONDITIONS
Acceptance of any order by Seller is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein. In the event that any of the terms or conditions of any purchase order, order confirmation or other communication of Buyer conflict with any of the terms and conditions set forth herein, these terms and conditions shall govern, and Seller hereby gives notice of its objection to any additional or different terms or conditions in any such purchase order, order confirmation or communication.
1. ACCEPTANCE OF ORDERS - All orders are subject to acceptance by Seller at its place of shipment, and Seller reserves the right to accept or reject any order. Possession of a price list does not constitute an offer to sell. Seller reserves the right to discontinue the manufacture or sale of any product at any time.
2. SHIPMENTS - Quoted shipping dates are based on estimates at the time of quotation. Seller will use its best efforts to meet such shipping dates, but Seller shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries.
For orders with indefinite delivery dates, Seller shall have the right to manufacture or procure the goods covered thereby and hold such goods for Buyer’s account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein, Buyer agrees to purchase, and will be charged for, all material ordered.
3. PRICE - All prices are subject to change without notice. The price charged will be the price in effect at the time of shipment. Should any governmental action or request prevent Seller from implementing any price or continuing any price already in effect, Seller may cancel Buyer’s order or any part thereof.
4. CREDIT - Approval of Buyer’s credit is required prior to any shipment. If Buyer’s credit is unsatisfactory to Seller at any time for any reason, Seller reserves the right to suspend further deliveries, to require payment in advance, and/or to take such other actions as Seller determines in its sole discretion are advisable.
5. TERMS OF PAYMENT - Payment terms shall be as stated on individual invoices to Buyer. Invoices are payable in U.S. dollars only, unless otherwise expressly noted on the invoice. To earn cash discounts, payments must be received by the actual discount due date. Actual discount due date and net due date are based on “calendar days” from the invoice date. Cash discounts apply only to the net purchase price for goods and do not apply to any other invoice charges, including without limitation any applicable charges for packaging, handling or transportation.
If any amount is not paid when due, Seller shall have the right, in addition to any other remedy available to it, to charge interest on such overdue amount at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by law. In addition, if it becomes necessary to place Buyer’s account with an attorney or other agency for collection, Buyer shall be responsible for all costs and expenses, including reasonable attorneys’ and/or collection fees, incurred by Seller in connection therewith.
ALL PAYMENTS, WHETHER UNDER THE STANDARD PAYMENT TERMS OR OTHERWISE, SHALL BE CONSIDERED RECEIVED BY SELLER AS FOLLOWS:
(A) FOR PAYMENTS BY CHECK, WHEN THE CHECK IS RECEIVED AT SELLER’S DESIGNATED PAYMENT LOCATION AND (B) FOR PAYMENTS BY ELECTRONIC FUNDS TRANSFER, THE BUSINESS DAY IMMEDIATELY PRECEDING THE DAY ON WHICH THE FUNDS ARE IMMEDIATELY AVAILABLE TO SELLER.
If Buyer (i) becomes insolvent or otherwise unable to pay its debts as they become due, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) takes action to liquidate or otherwise cease doing business as a going concern, (iii) undergoes a change in ownership, (iv) sells or otherwise transfers a substantial portion of its assets, (v) fails to provide adequate assurance or security for credit extended, or (vi) takes any other action that Seller determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding from Buyer hereunder shall at Seller’s option become immediately due and payable.
6. TAXES - All federal, state or local sales, use or other taxes, and all duties, import fees or other assessments, imposed on goods sold hereunder, or on the manufacture, sale or delivery thereof, shall be for Buyer’s account.
7. FREIGHT - Unless specified in writing to the contrary by Seller, freight will be paid by Buyer. Seller reserves the right to ship orders at the most economical rate. If Buyer requests special packaging, handling and/or transportation, any additional cost(s) incurred shall also be charged to Buyer on the invoice. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, Seller may increase its price without any advance notice to reflect such additional costs. The increased price shall apply to all goods shipped on or after the effective date of such increase, ruling or regulation.
8. RISK OF LOSS; DELIVERY - All shipments of goods hereunder shall be FOB (incoterm 2010). Seller’s place of shipment. Title to, and the risk of any damage to or loss or shortage of, such goods shall pass to Buyer upon delivery of such goods by Seller to the carrier. Any claims for loss or damage should be filed by Buyer with the carrier in writing immediately upon receipt of the goods and should be supported by an inspection report or signed delivery receipt noting such loss or damage. In no event shall Seller be liable for damage or loss to a shipment caused by any carrier.
9. ADVICE - Upon request, Seller may furnish Buyer with advice, recommendations and services with respect to the cutting, processing or other use of the goods subject to the contract. Buyer hereby acknowledges that any such advice, recommendations and services is given free of charge and accepted at Buyer’s risk, and Seller assumes no obligation or liability for the advice, recommendations and services given or results obtained.
10. CLAIMS AND/OR COMPLAINTS - All claims/complaints must be in writing and must refer to the specific order and shipment or invoice number. If multiple shipments are involved, a separate claim/ complaint must be filed for each shipment. General claims/ complaints against unspecified shipments will not be accepted.
Claims/complaints regarding goods sold hereunder must be submitted to the local Seller sales representative promptly upon receipt of the goods by Buyer, and in any event within 90 days of receipt, and such goods must be retained by Buyer and made available for inspection by an Seller representative.
11. WARRANTY/LIABILITY DISCLAIMER - The goods delivered hereunder are sold by Seller without any express guaranty and/or warranty, oral or written (whether or not such goods remain in the form in which they are originally delivered to Buyer or are fabricated by Buyer or any other party to produce any other finished product) and, to the extent permitted by applicable state law, SELLER EXPRESSLY DISCLAIMS ALL GUARANTIES AND/OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller’s liability for any loss or damage arising out of or resulting from any breach or default by Seller in connection with the sale of goods hereunder shall not exceed the purchase price thereof, regardless of whether such liability arises in contract, tort (including without limitation negligence or strict liability) or otherwise, and in no event shall Seller be liable for indirect, incidental or consequential, punitive or special damages, including but not limited to lost profits or revenue under any theory of law or equity. No representative of Seller, nor any of Seller’s distributors or dealers, is authorized to modify this section or to issue any warranty, oral or written, regarding goods delivered hereunder on behalf of Seller.
Buyer agrees that any civil action against Seller relating to or arising out of the sale of goods hereunder shall be commenced within one (1) year of the date the cause of action accrued; otherwise it shall be barred.
12. RETURN OF GOODS - Goods may not be returned without the prior approval of an authorized Seller representative. Only products identified as “standard” on the applicable price sheet and/or packaging data sheet in effect at the time such return is requested will be considered for return. All returned goods must arrive at the point of return designated by Seller in salable condition before any credit will be issued.
13. CHANGE ORDERS - Orders may be revised or canceled by Buyer prior to the following dates only, and only with Seller’s prior consent:
Prior to loading at the place of shipment.
Prior to manufacture.
Standard and Made-To-Order Products are as defined in applicable price sheets and/or packaging data sheets in effect at the time such revision or cancellation is requested.
14. PAYMENT OF UNDISPUTED INVOICES - Buyer shall pay any undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, Buyer shall pay all amounts not in dispute. Buyer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by Seller hereunder.
15. FORCE MAJEURE - Seller shall not be liable for delays or failure to perform hereunder for any cause beyond Seller’s reasonable control, including without limitation: fire, flood or other casualty or Act of God; strikes, lockouts or other labor trouble; shortage of labor, materials, fuel, or production facilities; equipment or other production failures; delay or interruptions in transportation; war, blockades, sanctions or embargoes; and legal restrictions or actions of any governmental authority.
16. FAIR LABOR STANDARDS ACT - Seller hereby certifies that the goods sold hereunder that were produced in the United States were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
17. CHANGE IN TERMS AND CONDITIONS OF SALE - These terms and conditions set forth the entire agreement between Seller and Buyer and supersede any and all prior representations, agreements or understandings, whether oral or written, relative to the goods delivered hereunder. No course of dealing or usage of trade shall be relevant to supplement or explain any of these terms or conditions. No modification or waiver of any of these terms and conditions shall be effective unless made in writing and signed by Seller. These terms and conditions supersede, and shall not be supplemented by, the terms of any purchase order, order confirmation or other communication of Buyer in connection with the purchase of goods from Seller. In the absence of Buyer’s written acceptance of these terms and conditions, the acceptance by Buyer of any goods delivered hereunder shall constitute acceptance of these terms and conditions.
18. GENERAL - No agreement by Seller to supply goods to Buyer may be assigned or transferred (by operation of law or otherwise) by Buyer without the prior written consent of Seller, and any purported assignment made without such consent shall be null and void. For this purpose, an assignment shall include the sale or other transfer of a controlling interest in the stock or other equity of Buyer and any merger of Buyer with or into another entity. These terms and conditions shall inure to the benefit of and be binding upon Seller and Buyer and their permitted successors and assigns.
Seller may terminate any agreement to supply goods to Buyer immediately in the event that Buyer becomes insolvent or otherwise unable to pay its debts as they become due, is declared insolvent or bankrupt, files or has filed against it a petition in bankruptcy, makes any assignment or trust mortgage for the benefit of creditors, or has a receiver, guardian, conservator, trustee in bankruptcy, or similar official appointed by a court of competent jurisdiction to take charge of all or any part of its property.
All agreements by Seller to supply goods to Buyer shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to its conflicts of law provisions. The courts located in Pennsylvania shall have exclusive jurisdiction of all matters relating to or arising out of any sale of goods by Seller to Buyer, and Buyer hereby consents to the jurisdiction of such courts and waives any right to claim that any such court is an inconvenient forum.