Terms and Conditions of Sale
PRICES, PAYMENT: Unless otherwise expressly agreed in a writing signed by an authorized representative of Seller, the price for the products shall be Seller’s price in effect for such products on the date of shipment. Unless otherwise specifically provided herein, terms are as set forth on the accompanying invoice of Seller. In case Buyer shall fail to make payments in accordance with terms and conditions stipulated herein, Seller may defer further shipments until such payments are made or may, at its option, cancel the unshipped balance.
DELIVERY, FORCE MAJEURE, LIMITATION OF LIABILITY: All shipments are F.O.B. Seller’s plant unless otherwise provided on Seller’s invoice. All risk of loss shall pass to Buyer when the products are delivered to Buyer or the carrier at such plant or otherwise leave the care, custody and control of Seller. Shipping and delivery dates are approximate and are based on prompt receipt of all necessary information. Seller shall not be liable for any delays or defaults hereunder by reason of accident, fire, flood, weather conditions, acts of God, acts of Buyer, labor troubles, delays or defaults by suppliers, subcontractors or carriers, inability to secure materials, components, fuel or labor, acts of government or other similar or dissimilar causes beyond its reasonable control. Whether or not any delay or default is so excusable, Seller shall not be liable for any damages of any kind whatsoever, whether direct, indirect, incidental, special or consequential, including, without limitation, any damage or injury to person or property, lost sales or profit or increased cost or expense, resulting, directly or indirectly, from delay in delivery or failure to manufacture.
CANCELLATIONS, CHANGES: Cancellations or changes by Buyer may only be made with Seller’s prior written consent, and any such cancellation or change, even if consented to by Seller, is subject to payment of cancellation charges or other equitable adjustment to cover any increased cost or expense or loss of profit thereby incurred by Seller. Without limiting the foregoing, any request for a decrease in scheduled quantities must be received by Seller in writing at least ninety days prior to the scheduled delivery date. Thereafter, no reduction in quantity will be permitted and payment in full must be made for the full quantity scheduled.
RETURNS OF MERCHANDISE FOR CREDIT:
a) No returned products will be accepted unless Buyer has first received written authority from Seller.
b) Requests for return of products must be made within six months from date of purchase.
c) No products which have been made specially will be accepted for return.
d) No returned products will be accepted for credit unless they are in saleable condition.
e) Transportation charges must be prepaid on all return shipments. Products shipped collect will not be accepted from the carrier.
f) All credits issued will be at the lower of current or purchase price, less a ten percent (10%) handling charge.
g) Return products must be accompanied by a packing slip showing in detail the list of the products and the date of the letter authorizing their return.
SPECIAL TOOLING: All special tooling used in the manufacture of the products covered by this contract is expendable and shall be and remain the property of Seller, except as stated on the face hereof. All tooling charges will apply to the initial order only. Replacement and repair costs with respect to the special tooling, other than those caused by changes in the basic design, shall be borne by Seller. Should Buyer elect to remove tooling from Seller’s premises for reasons other than nonperformance, a tooling engineering charge equal to one-third (1/3) of Seller’s original tooling cost shall be paid by Buyer.
TAXES: All sales, use, excise, or other tax payable as the result of this sale, use or installation, shall be paid by Buyer, and Seller may add any such tax to the price quoted herein, and collect and remit any such tax to the proper taxing authority, unless an acceptable exemption certificate is provided in accordance with applicable law.
WAIVER: All claims for failure of products shipped to conform to the description or quantity appearing on the face hereof shall be waived unless presented to Seller in writing within fifteen days after receipt of the shipment by Buyer. Waiver by Seller of a breach by Buyer of any provisions of this agreement shall not be deemed a waiver of future compliance therewith, and such provisions, as well as all other provisions hereof, shall remain in full force and effect.
WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY AND REMEDY: Seller warrants its products sold hereunder to be free from defects in material and workmanship under normal use for a period of thirty days after first use provided that the products shall not have been altered or repaired after shipment to Buyer by anyone except Seller’s authorized employees. If Buyer is an original manufacturer and incorporates Seller’s products as a component, the warranty period shall commence upon the shipment of the assembly by Buyer or twelve months after first shipment of its products by Seller, whichever is earlier. Seller must be given an opportunity to make an investigation and inspection of any asserted defects which must be reported promptly in writing within ten days of discovery and not later than ten days after expiration of the applicable warranty period. Products manufactured by others but furnished by Seller are not covered by this warranty, but are limited to the original manufacturer’s warranty. EXCEPT FOR THE FOREGOING, IT IS EXPRESSLY AGREED THAT NO WARRANTY OF MERCHANTABILITY, NOR ANY OTHER WARRANTY, EXPRESS OR IMPLIED OR STATUTORY, IS MADE BY SELLER HEREUNDER. SELLER’S ENTIRE AND EXCLUSIVE LIABILITY, WHETHER FOUNDED ON WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE, AND BUYER’S EXCLUSIVE AND SOLE REMEDY IS LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS, F.O.B. SELLER’S FACTORY, OR AT SELLER’S OPTION THE RETURN OF THE PURCHASE PRICE. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE OR INJURY TO PERSON OR PROPERTY, LOSS OF SALES OR PROFIT OR INCREASED COST OR EXPENSE.
PATENT WARRANTY: Seller shall indemnify Buyer to the extent stated below against any money judgment (including any settlement to which Seller consents) for infringement of a United States patent by reason of the use or sale of the products furnished hereunder in the form supplied (but not by reason of their use or sale in combination with one or more products not furnished hereunder), provided that Buyer notifies Seller promptly in writing of all claims of infringement, and permits Seller, at its option, to defend or be represented by counsel in defense thereof and provides Seller with all cooperation and information necessary or helpful in defending or settling any such claim or suit. Seller’s liability under the preceding sentence shall in no event exceed the purchase price of such products, nor shall Seller in any event be liable for any indirect, special or consequential damages, including, without limitation, loss of business or profit or injury to reputation. Notwithstanding the above, Seller shall not be liable for the infringement or claimed infringement of any patent arising out of the manufacture, sale or use of any products made in accordance with any or all designs, drawings, formulae or other specifications furnished by Buyer, and BUYER AGREES TO DEFEND AND HOLD SELLER HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS OR JUDGMENTS THEREFOR.
NO OBLIGATION TO STOCK SPARE OR REPLACEMENT PARTS: Seller reserves the right to discontinue or modify any line or type of product at any time without liability except to refund any sums already paid by Buyer for the undelivered portion of such products. SELLER SHALL HAVE NO OBLIGATION TO STOCK OR SUPPLY REPLACEMENTS OR PARTS FOR THE PRODUCTS IT SELLS.
OVER/UNDER SHIPMENTS: Seller reserves the right to over or under ship any release by ten percent (10%) or less.
FEDERAL LAW COMPLIANCE: Seller certifies that the products or services described on Seller’s invoice comply with the applicable requirements of the Fair Labor Standards Act of 1938, as amended.
ASSIGNMENT: Buyer may not assign any rights hereunder without first obtaining the written consent of Seller.
GOVERNING LAW: This contract shall be construed and enforced according to the domestic substantive laws of the State of Ohio without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other state. If any provision of these terms and conditions is declared unlawful or invalid, the remaining provisions shall nevertheless continue in full force and effect.
ENTIRE AGREEMENT: These terms and conditions and the provisions on Seller’s invoice constitute the sole and entire agreement between Seller and Buyer, and shall govern exclusively as to the sale and delivery of any goods or services to Buyer. Such terms and conditions supersede any different, additional or inconsistent language, terms and conditions in Buyer’s order or in any other communication between Seller and Buyer, notwithstanding any statement in Buyer’s terms to the contrary. All prior communications, representations, negotiations and promises with respect to this sale are deemed to be merged herein. Any purported modification or rescission of this agreement or any part hereof, or waiver of any breach thereof, whether written or oral, shall be of no effect unless expressly agreed to in a writing signed by an authorized representative of each party.
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