This order is accepted on and subject to the following terms and conditions, which may be modified only if Seller agrees in writing. Any inconsistent terms in Buyer’s order or confirmation will not be binding on seller.
Except as otherwise provided herein, Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. If such charges are by the terms of the sale included in the price, any increase in rates becoming effective after the date hereof shall be for the account of the Buyer.
All sales, excise and similar taxes which the Seller may be required to pay or collect with respect to the goods covered by this order shall be for the account of the Buyer, except as otherwise provided by law.
Buyer may cancel the purchase order (or equivalent document) that is the subject of this order acknowledgement from Seller, but Buyer is financially responsible for a percentage of the total order value on the basis of the percentage-of-cost incurred by the seller to produce the material ordered, up until the date of written notice of cancellation. To assist buyer, seller agrees to attempt to sell such material to alternate Buyers, within 30 calendar days of receipt of written notice of cancellation.
There are no Warranties, Express of Implied, which extend beyond the description on the face hereof; seller disclaims any implied warranty of merchantability or of fitness for a particular purpose.
Seller shall not be responsible for delays in delivery or any failure to deliver due to causes beyond Seller’s control, including but not limited to acts of God, war, or foreign government regulations or orders, fires, floods, strikes, lockouts and other labor difficulties or shortages of material or inability to obtain shipping space or transportation.
Seller shall not be liable for normal variations in tolerance dimensions, weights and quantity. Weights, sizes and quantities as determined at Seller’s mill or other source of supply shall be conclusive.
If an inspection or testing of the goods has been agreed upon such inspection or testing shall be made at Seller’s mill, or other source of supply before shipment of the goods, and approval or rejection shall be made promptly and in any event before shipment. No claims will be entertained thereafter. In all other cases Buyer is required to give written notice to Seller of any claim promptly upon receipt of the goods and in any event within fifteen (15) days thereafter, and Seller shall thereupon be afforded a reasonable opportunity to inspect the goods. Buyer may not cancel this order for any delays in delivery or otherwise.
If any portion of the goods delivered to Buyer are defective or are otherwise not in accordance with contract specifications, Seller shall have the right in its discretion either to replace such defective goods or to refund the portion of the purchase price applicable thereto. No goods shall be returned to Seller without Seller’s written consent. In no event shall Seller be liable for the cost of processing, lost profits, injury to good will or any other special or consequential damages.
Unless otherwise expressly stated, Seller shall have the right to make delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay for any installment when due shall excuse Seller from making further deliveries. Delay in delivery of any installments shall not relieve Buyer of its obligation to accept remaining installments.
If by the terms of sale credit is extended to Buyer, Seller reserves the right to revoke such credit if Buyer fails to pay for any goods previously delivered when due or, if in the judgment of Seller, there has been a material adverse change in Buyer’s financial condition and thereupon Seller shall have the right to demand payment before further shipment of any goods.
Any increase in Seller’s costs due to increase in cost of labor, raw materials or energy or due to governmental legislation, regulation, rule, order or directive providing for a tax or other assessment on any materials, goods, sales, use or process, or providing for any regulation or control of Seller’s operations, purchases, materials, labor, costs, sales or business, or due to any delay caused by such governmental legislation, regulation, rule, order or directive, may be added to the price specified herein as to any undelivered portion of this contract.
No rights in patterns and designs of goods covered by this contract pass to the Buyer except as an integral part of the goods, and the Buyer, as a special inducement to the Seller, agrees not to copy or cause to be copied or reproduced, either directly or indirectly, any such patterns or designs. If Seller agrees to confine any of the goods sold herewith, it shall be responsible only for ordinary and reasonable care in confining such goods to the specified purpose, and unless otherwise expressly provided in writing, goods in patterns confined to buyer may be sold by Seller to the export trade, and to domestic customers who do not compete with Buyer. No right to the use of any trademarks or trade names of Seller pass to Buyer under this contract and Buyer agrees to refrain from using, either directly or indirectly, any of Seller’s trademarks or trade names, unless specifically authorized in writing by the Seller.
All controversies and claims arising out of or relating to this contract, or the breach thereof, shall be settled solely by arbitration held in New York City in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon any award thereon may be entered in any court having jurisdiction thereof. Any demand for arbitration hereunder shall be made not later than ninety (90) days after delivery of the goods.
This contract may not be modified or terminated orally. No claimed modification, termination or waiver of any of its provisions shall be valid unless in writing signed by the Seller’s duly authorized representative.
This contract shall be governed by and construed according to the laws of the State of New York.
Manufacturing Operations - PO Box 556 188 Thacher Street Hornell, NY 14843-0556