ORIG ISSUE DATE: 1 JANUARY 2008
REV: 20 April 2023
- Buyer’s Acceptance of Seller’s Standard Terms and Conditions. Seller acknowledges and accepts Buyer’s Sales Order for product identified therein (individually referred to as a “Product” and collectively as the “Products”) upon Buyer’s assent to all of the standard terms and conditions contained herein and no others. Objection is hereby made to any terms or conditions at variance with, different than or additional to those stated herein. No terms or conditions other than those stated herein, whether contained in Buyer’s Sales Order or elsewhere that purport to vary or are different than these Standard Terms and Conditions or include additional terms and conditions shall be binding on Seller unless hereafter set forth in a writing signed by Seller. Buyer’s assent to these Standard Terms and Conditions shall be conclusively presumed from Buyer’s receipt of any Products ordered. Buyer’s Sales Order constitutes an offer to Seller, which shall be subject to the written acceptance by Seller in the form of an Order Confirmation, and these Standard Terms and Conditions are incorporated by reference into Buyer’s Sales Order and Seller’s Order Confirmation. Buyer’s Sales Order, Seller’s Order Confirmation and these Standard Terms and Conditions are collectively hereinafter referred to as this “Agreement”.
- Prices. All prices are in U.S. Dollars and are valid only for Products delivered within sixty (60) days from the date of the quotation issued by Seller to Buyer for the Products contained therein, unless otherwise agreed to in writing by Seller and Buyer. All Products shipped within the United States are understood to be F.O.B. Seller. All Products shipped to destinations outside of the United States are understood to be MRI “Ex-Works” in accordance with ICOTERMS 2020. Freight for all Products shipped shall be shipped on a “freight collect” basis to Buyer unless otherwise agreed to by Seller and confirmed by Seller’s Order Confirmation.
- Cancellation and Returns. Buyer’s Sales Orders that are accepted by Seller via Seller’s Order Confirmation may be deferred or cancelled, in whole or in part, only upon written notice to Seller at least thirty (30) days prior to the ship date and only upon the express prior written consent of Seller and shall be subject to a charge of ten (10%) for any such cancellation or deferral. In each such instance, Buyer shall pay to Seller in advance, as a condition precedent to obtaining such consent, an amount equal to the full value of work completed in connection with the Products, together with any cancellation charges, plus anticipated profit, handling and overhead charges, all as conclusively and finally determined by Seller. Product returns will be permitted only upon written notice to Seller and upon the express prior written consent of Seller and shall be subject to a twenty percent (20%) handling charge. Product returns shall not be permitted for excess stock, slow moving items, or incorrectly ordered Products.
- Terms of Payment. Unless otherwise agreed, Seller’s terms of payment are net thirty (30) days from the date of invoice. All amounts due and owing are to be paid either by cash, check or wire transfer of immediately available U.S. funds. A late charge of ten percent (10%) per month or the maximum rate allowed by applicable law, whichever is less, shall be charged to Buyer on all past due amounts. Buyer shall reimburse any and all costs and expenses, including, but not limited to attorneys’ fees, incurred by Seller to collect any amounts that are not paid by Buyer when due. Any amounts due Seller by Buyer hereunder may not be withheld or offset by Buyer against amounts due Seller for any reason. If Buyer has an account that is past due, it shall not be eligible for discounts and shall not receive any further shipments until its account is current. Seller shall have the right to terminate this Agreement and any other agreements between Buyer and Seller upon the failure of Buyer to timely make payment or otherwise perform in accordance with these Standard Terms and Conditions.
- Taxes. Any taxes (other than income taxes of Seller), tariffs, levies, duties, license or permit fees, excise or governmental charge imposed upon the production, sale, use, transportation or importation of, or value added to, the Products sold hereunder shall be timely paid by Buyer in addition to the purchase price. Buyer shall provide Seller, upon request, with completed exemption certificates for any tax from which Buyer claims exemption. Buyer shall indemnify Seller from and against any and all loss, cost, damage or expense arising therefrom.
- Product Delivery and Variation. All shipping information transmitted to Buyer, including shipping and delivery dates and times, represents only the best estimate of Seller and are not a condition for performance of the transactions contemplated by this Agreement. In the event that Seller encounters delays in obtaining equipment, materials and/or services, the shipping schedule will be extended as necessary to accommodate such delays. Seller shall not be liable for any failure to make a delivery date nor for any loss or consequential or other direct or indirect damages of any kind arising from a failure or a delay in delivery however caused. Delivery of Products shall be subject to normal variations in weight, color, size, quantity, etc. as are standard in the Products industry. Products delivered to Buyer shall not be considered defective or non-compliant with Buyer’s Sales Order even though not in precise conformity with the specifications, if any, if the Products substantially fulfill such specifications, if any, or those performance requirements set forth in writing by Buyer to Seller and agreed to in writing by Seller.
- Limited Warranty. As to the Products sold to Buyer, Seller warrants good title and conformance to Seller’s standard specifications and those specifications, if any, agreed upon in writing by Seller. SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY SET FORTH HEREIN. No warranty of Seller shall apply to any Products which have been subject, in Seller’s sole opinion, which shall be conclusive, to misuse, neglect, accident, or improper application or installation, nor shall any warranty extend to any Products which have been repaired or altered by any party other than Seller, without the express prior written consent of Seller. Buyer shall notify Seller in writing within ten (10) days after its receipt of the Products of any suspected breach of Seller’s warranties and return such Products to Seller for inspection.
- Limitation of Liability. BUYER’S EXCLUSIVE REMEDY AND SELLER’S EXCLUSIVE LIABILITY FOR SELLER’S BREACH OF THESE STANDARD TERMS AND CONDITIONS OR ANY OF SELLER’S WARRANTIES SHALL BE TO REPLACE NONCONFORMING PRODUCTS AT THE ORIGINAL POINT OF DELIVERY OR TO REFUND THE PURCHASE PRICE PAID BY BUYER FOR THE NONCONFORMING PRODUCTS, WHICHEVER OPTION SELLER SELECTS IN ITS SOLE DISCRETION. SUCH REPLACEMENT OR REFUND SHALL BE MADE ONLY UPON THE RETURN OF THE NONCONFORMING PRODUCTS, WHICH MAY BE RETURNED AT SELLER’S COST ONLY AFTER INSPECTION BY SELLER AND RECEIPT BY BUYER OF DEFINITIVE SHIPPING INSTRUCTIONS FROM SELLER. SELLER’S LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM OR IN ANY WAY CONNECTED WITH THE PRODUCTS SHALL NOT EXCEED BUYER’S PURCHASE PRICE FOR THE PRODUCTS UPON WHICH SUCH LIABILITY IS BASED, REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT (INCLUDING, BUT NOT LIMITED TO, FAILURE OR DELAY IN PERFORMANCE OR DELIVERY DUE TO ANY CAUSE WHATSOEVER), TORT, (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR LOSS OF PRODUCTS OR REVENUE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, DIRECT, SPECIAL OR PUNITIVE DAMAGES.
- Waiver of Claims. Regardless of prior delays, any claim from Buyer from any cause, including, but not limited to, claims based on the quantity of Products received, shall be deemed waived unless made, in writing, within ten (10) days of the receipt by Buyer of the Products to which such claim relates. No legal proceedings for any breach of this Agreement may be brought by Buyer more than six (6) months after the accrual of the cause of action therefore.
- Indemnity. Buyer agrees to release, indemnify, defend and hold harmless Seller, and its employees, agents, officers, directors, members, managers, successors, assigns and affiliates from and against any and all loss, cost, damage, or expense, including legal fees, costs and expenses and actual or alleged injuries to and death of any person and loss of or damages to property arising, directly or indirectly, from (a) any violation by Buyer of any applicable law, rule or regulation and (b) the Products sold hereunder, other than such claims, demands, obligations and liabilities which result directly from the sole and exclusive gross and intentional negligence of Seller and the aggregate liability of Seller pursuant hereto shall not exceed, even in the instance of the sole and exclusive gross and intentional negligence of Seller, the amount paid to Seller pursuant to the terms and conditions hereof. If the Products sold by Seller are to be provided and delivered, in whole or in part, according, in whole or in part, to any specifications, Buyer does hereby release and agree to defend, indemnify and hold harmless Seller from and against any and all claims or liabilities, including, but not limited to, legal fees, costs and expenses, with respect to, or arising out of, actual or alleged violation of any of the intellectual property rights of any party. Buyer does hereby release and agree to indemnify, defend and hold harmless Seller for any violation by Buyer of any law, rule or regulation in connection herewith. If Buyer fails to indemnify Seller, in any way, Seller may, at its sole option, take such actions and make any necessary payments Seller deems prudent and Buyer shall be required to indemnify, defend and hold harmless Seller with respect to each of the foregoing and repay, upon demand, Seller for such amounts. Seller shall not indemnify, defend and/or hold harmless Buyer for any claims not expressly described in these Standard Terms and Conditions unless otherwise agreed in writing by Buyer and Seller.
- Foreign Governments and Indian Nations. If Buyer is a foreign government or Indian Nation, Buyer hereby expressly waives any defense based upon sovereign immunity in the event of a dispute between Buyer and Seller related to the sale of the Products hereunder. Buyer hereby expressly agrees to the jurisdiction of the federal and state courts of the United States of America to adjudicate any dispute hereunder.
- Excuses for Nonperformance. Seller shall be excused from its obligations to the extent that performance is directly or indirectly delayed or prevented by any circumstances, reasonably beyond its control or by fire, explosion, breakdowns, accidents, strikes or other labor trouble, plant shutdown, unavailability of, interference or delay with the usual means of transporting the Products, acts of God, war, riot, acts of terrorism, embargoes, lack of adequate instructions from Buyer, or compliance with any law, regulation, order, recommendation or request of any governmental authority. If, because of such circumstances, there should be a shortage of Products, Seller shall not be obligated to purchase Products in order to perform under this Agreement and may apportion its available Products among all its contract customers and its own internal uses in such a manner as Seller finds fair and reasonable in its sole discretion. Quantities of Products subsequently undelivered will be deducted from the applicable remaining quantity obligation unless the parties otherwise agree.
- Assurances. If, at any time Seller is insecure with respect to the prospective performance by Buyer, Buyer shall furnish such assurances as Seller shall request.
- Security Interest. Until such time as Seller has received payment in full for the Products sold hereunder, Seller shall have a security interest in the Products supplied and to be supplied by Seller hereunder and is hereby irrevocably appointed as attorney-in-fact of Buyer in order to execute and deliver such financing and other documents and instruments as Seller may, at any time desire in connection therewith. Buyer agrees to extend such cooperation as Seller may require, at any time with respect to the execution of such financing statements or other documents necessary, in Seller’s sole opinion, in order to cause such security interest to be perfected against third parties. In the event of a default by Buyer, Seller shall have available to it all rights afforded, at law or in equity, to a secured seller including, but not limited to, the right to enter upon the premises where such Products shall be located for purposes of recovering the same and Buyer shall cooperate with Seller with respect to any such action. Upon repossession of such Products, Buyer agrees to waive any and all rights to notice of sale or reinstatement and any and all rights afforded Buyer as a debtor under the Uniform Commercial Code.
- Notices. Notice by either Seller or Buyer will be made only by facsimile or similar electronic transmission, effective on the first business day after confirmed receipt, or by letter addressed to the other party at its address as provided in this Agreement, effective three (3) business days after deposit with the U.S. Postal Services, postage prepaid, or one (1) business day after deposit with a recognized overnight express service.
- Assignability. Neither this contract nor any claim arising directly or indirectly out of or in connection herewith shall be assignable by Buyer or by operation of law, without the prior written consent of Seller. This document shall be binding upon and inure to the benefit of each party hereto and their respective permitted successors and assigns.
- Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of West Virginia, without regard to its conflict of laws provisions. Buyer and Seller expressly agree to submit to the personal jurisdiction of the federal and/or state courts sitting in Charleston, WV and agree that such courts may be utilized if necessary to obtain injunctive or any other relief. The Hague Convention and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the construction or interpretation of these Standard Terms and Conditions or affect any of its provisions.
- Miscellaneous. Seller may in its sole discretion immediately terminate Buyer’s ability to purchase merchandise on credit or otherwise at any time. Prices and other terms and conditions are subject to change by Seller without prior notice. Seller reserves the right to discontinue Products and to make changes in Products at any time. This Agreement constitutes the entire agreement of the parties with respect to the transactions contemplated herein. No person is authorized to make any oral modification of these Standard Terms and Conditions and any written modification of these Standard Terms and Conditions may only be made by a duly authorized officer of Seller. In the event of any conflict or variance between these Standard Terms and Conditions and Buyer’s business terms, these Standard Terms and Conditions shall govern. In the event that any provision contained herein is held to be invalid or unlawful, such provision shall be severable from the remaining provisions herein, which shall remain in full force and effect. No waiver of any provision herein shall constitute a waiver of any other provision and no single provision shall be held to constitute a continuing waiver or a subsequent waiver.