- Weights of all shipments shall be determined at the point of shipment by ascertaining the gross and tare weight of each container. Claims on account of weight are allowable only when all of the following conditions are met.(1) When the variation exceeds the following amounts:
(a) for all shipments except bulk rail cars and trucks, one-half percent (½%) of the entire contents;
(b) for bulk rail cars and trucks, one percent (1%) of the entire contents.
(2) When made within ten (10) days of receipt at destination.
(3) For bulk rail car shipments, when supported by certified railroad scale tickets.
(4) When buyer proves to satisfaction of the seller that the container in question was emptied in it entirety.
- Shipments shall not be diverted nor reconsigned except with consent of Seller.
- Seller makes no warranty of any kind, express or implied, except that the goods shall be of processable quality; that is, of fair average quality in the trade and within the description herein. Any affirmation of fact or promise made by Seller shall not be deemed to create an express warranty that the goods shall conform to the affirmation or promise; any description of the goods is for the sole purpose of identifying them and shall not be deemed to create an express warranty that the goods shall conform to such description; any sample or model is for illustrative purposes only and shall not be deemed to create an express warranty that the goods shall conform to the sample or model; and no affirmation, promise or description of sample or model shall be deemed to be part of the basis for the bargain. The Buyer assumes all risk and liability resulting from the use of the material and/or equipment, whether used singly or in combination with other products. SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO DESCRIPTION, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, PRODUCTIVENESS OR ANY OTHER MATTER OF ANY GOODS WHICH THE SELLER SHALL SUPPLY. SELLER SHALL IN NO WAY BE RESPONSIBLE FOR THEIR PROPER USE AND SERVICE, AND THE BUYER HEREBY WAIVES ALL RIGHTS OF REFUSAL AND RETURN OF GOODS. Seller shall in no way be deemed or held to be obligated, liable or accountable upon or under any guarantees or warranties, express or implied whether by operation of law or otherwise, in any manner or form beyond the express agreements herein set forth. Seller shall not be liable for normal manufacturing defects or for customary variations from specifications.
- Orders are accepted based on inspection and acceptance by the buyer at the factory. If Buyer does not wish to inspect the material, the Manufacturer will, on request, furnish a certified report to Buyer that the material was inspected and tested in the usual manner according to the companys guidelines, which may be revised from time to time, and was found to have met the physical property requirements typical of this product. If requested, a sample of the material covered by the certified report will also be furnished. After material has been approved and released for shipment from the factory, further claims, if any, are limited to those covered by Sellers standard warranty.After receipt of the goods, Buyer shall inspect them within 24 hour and either accept or reject them. If the goods are rejected, written notice must be given to Seller so that such notice will be received no later than 48 hours after Buyers receipt of the goods. Should any such materials prove defective due to manufacturing faults or fail to meet the written specifications of the goods, Buyer shall notify Seller immediately, stating full particulars in support of its claim; and Seller shall either replace the goods upon return of the unsatisfactory material or, at its option, adjust the matter fairly and promptly or refund the purchase price without further responsibility. Buyer shall not return the goods unless authorized to do so by Seller. Under no circumstances shall Seller be liable for consequential or other damages, losses or expenses in connection with or by reason of the use of or inability to use materials purchased for any purpose. If Buyer accepts the goods tendered, such acceptance shall be deemed a complete discharge of all of Seller’s obligations, and after such acceptances, Buyer shall have no remedy against Seller nor the right to revoke such acceptance for any reason.All claims for damages to packaging, errors or shortages must be made by Buyer in writing within two days from the time the shipment is examined by Buyer, but not later than 30 days after the goods are delivered. Failure to make such claim within the stated period shall constitute an irrevocable acceptance of the goods and an admission that they fully comply with all of the terms, conditions and specifications of this agreement.All claims relating to the processable quality of the goods as that term is defined in paragraph 3 hereof shall be made by Buyer in writing within 30 days after Buyers receipt of the goods. Failure to make such claim within this period shall constitute an irrevocable acceptance of the goods and an admission that they fully comply with all of the terms, conditions and specifications of this agreement.
- The Buyer shall reimburse the Seller for all taxes, excises or other charges which the Seller may be required to pay to any Governmental Authority (Federal, Provincial, or Local) upon the sale, production or transportation of the commodities sold hereunder. Seller shall under no circumstances be responsible for any of the above, even if it is due to warranty claims or if it replaces detective material and/or equipment.
- No claim of any kind shall be allowed in amount greater than the purchase price of the goods in respect of which such damages are claimed. No charge or expense incident to any claims will be allowed unless approved in writing by Sellers authorized representative. Goods shall not be returned to Seller without Sellers authorization. No claim shall be allowable after goods or equipment has been installed or used or processed in any manner or in any way altered from the form delivered, except for laboratory quantities necessary to ascertain quality.
- Additional charges may apply if goods or materials are shipped in a non-standard form of transportation. These charges shall be agreed to by Buyer prior to such shipment.
- Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of Buyers default or defaults, to withhold shipments in whole or in part and to recall goods in transit, retake same, and repossess all goods which may be stored with Seller for Buyer*s account without the necessity of taking any other proceedings, and Buyer consents that all of the merchandise so recalled, retaken or repossessed shall become Seller*s absolute property, provided that Buyer be given credit therefore. The remedies reserved to Seller by the terms and conditions of this Invoice shall be cumulative and in addition to all other or further remedies provided by law. No waiver by Seller of any breach, default or violation of any of the terms or conditions hereof shall constitute a waiver of any subsequent breach, default or violation of the same or other term or condition.
- Except as otherwise agreed to in writing, the parties recognize and consent to the jurisdiction over them of the Courts of the State of New York, for all purposes hereunder. Except as otherwise agreed to in writing, the relationship between the parties shall be governed by the terms of document only and by the laws of the State of New York without giving effect to the conflict of laws provision thereof.
- Seller will not be liable for any delay in the performance of orders or contracts or in the delivery or shipment of goods or for any damages suffered by Buyer if such delay is directly or indirectly caused by or in any manner arises from fires, floods, accidents, civil unrest, acts of G-d, war, governmental interference or embargo strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays or any other causes (whether or not similar in nature to any of these herein above specified) beyond its control.
- Special orders. If any materials shall be manufactured and / or sold by Seller to meet Buyer*s particular specifications or requirements and such material or goods are not part of Sellers standard product line offered by it to the trade generally in the usual course of Sellers business, Buyer shall defend, protect and hold harmless Seller against all suits at law or in equity and from all damages, claims and demands for actual or alleged infringement of domestic or foreign patents, and shall defend any suit or actions which may be brought against Seller for any alleged infringement because of the manufacture and/or sale of the material covered thereby.
- Fitting up charges. Fitting up charges to Buyer cover part of the necessary tools and fixtures required for the particular work. Such tools and fixtures remain Seller’s sole property and are retained in Seller*s possession for use exclusively in filling orders for Buyer. There will be no additional charge for upkeep or replacement, but if, at any time, a period of two years has elapsed since the receipt of any order from Buyer requiring the use of such tools and fixtures, Seller may thereafter make any such use or disposition of such tools and fixtures as Seller desired, without any accounting to Buyer for such use or disposition of the proceeds thereof.
- It is further understood and agreed between Buyer and Seller that if the material and/or equipment sold is manufactured especially for the Buyer and if suspended or terminated by the Buyer for any reason, Buyer will take delivery of and make payment for such material and/or equipment as has been completed and such as is in process on the date notice to the Seller of the suspension or termination is received from Buyer. If Buyer for any reason cannot or does not accept delivery of such material, buyer will make payment as though delivery has been made and Seller will store such material for Buyer*s account at Buyer’s expense.
- This agreement is not assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller.
- Technical advice. Upon buyers request, Seller shall furnish such technical advice as it has available in reference to the use of the goods sold. It is expressly understood that any technical advice furnished by Seller is provided without payment or other consideration. Moreover, since Seller is not controlling or supervising the subsequent manufacture, fabrication or installation of its products or their use after sale, Seller assumes no obligation or liability for the advice given or the results obtained, all such advice being given and accepted at Buyer*s risk.
- These terms and conditions shall supersede any provisions, terms and conditions contained in any Purchase Order or other writing Buyer may give or receive and the rights of the parties shall be governed exclusively by the provisions, terms and conditions hereof. Seller makes no representations or warranties except such as are expressly contained herein.
- No modification of the terms hereof shall have any force and effect unless in writing and signed by an executive officer of the corporation. Salesmen and sales representatives are not executive officers and have no authority to whatsoever to modify or alter the terms hereof.
- In the event of the failure of the buyer to make payment for the goods shipped, the Buyer shall be obligated to pay to the Seller, interest on all unpaid amounts due at the rate of one and one half (1-1/2) percent per month until the entire amount is paid in full, in addition to all other remedies. In the event the buyer defaults in failing to make any payment required to be made hereunder, the seller shall be entitled to recover all of the costs and expenses in recovering any unpaid amounts and interest due thereon, including reasonable legal fees.
- Unless otherwise indicated, all monetary amounts are in United States of America currency.