EMPIRE – EMCO, INC

SALES ACKNOWLEDGEMENT

TERMS AND CONDITIONS

  1. SECURITY – If at any time, in the Seller’s opinion, Buyer’s credit is impaired, Seller shall have the right to require payment in advance before making any further shipment.  If Buyer shall fail, within a reasonable time, to make payment in advance, or if Buyer shall fail to make any payment when due, Seller shall have the right to terminate this contract by giving written notice of its intention to do so.  In the event that payment is not made as provided on the face hereof, Buyer agrees to pay the maximum interest rate as permitted by law from the due date and in addition thereto to pay any cost of collection including reasonable attorney fees.

 

  1. INSPECTION – Buyer acknowledges that Three (3) days provides Buyer with a reasonable amount of time to inspect the Articles.  Therefore, the Articles shall be subject to final inspection and acceptance by Buyer within Three (3) days after receipt by Buyer and any and all expenses in connection with such inspection shall be borne solely by Buyer.  Buyer’s failure to inspect within said time shall constitute a waiver of Buyer’s rights of inspection and rejection.  Upon inspection of the Articles within said Three (3) days, Buyer shall immediately notify Seller in writing as to any Articles that Buyer intends to reject and particularize in detail all defects therein.  If upon inspection Buyer fails to immediately notify Seller as to which Articles it intends to reject, such failure to notify shall be deemed an acceptance of the Articles by Buyer.  Upon Seller’s receipt from Buyer of a timely notice to reject, Seller may, at its option cure within a reasonable amount of time. Any Article properly rejected by Buyer shall be returned to Seller upon written approval of Seller and at Buyer’s risk and expense plus applicable transportation charges.  All articles not properly rejected hereunder shall be deemed conforming.

 

  1. QUANTITIES – Seller reserves the right to ship and invoice and Buyer agrees to accept and pay for overruns or underruns at the rate, plus or minus 10%, unless otherwise specified in writing.  Shipments within the above limits will constitute complete fulfillment of the order by Seller.

 

  1. CANCELLATION – This order cannot be cancelled other than in writing. Upon receipt of written notice of cancellation Seller will take reasonable action to minimize additional expenses, however, Buyer will be responsible for portions of orders completed at the rate specified plus all expenses incurred by Seller in connection with the order and its cancellation.

 

  1. WARRANTY – Seller represents and warrants that the Articles shall be free from defect of material and workmanship.  THE AFOREMENTIONED WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A GENERAL OR PARTICULAR PURPOSE OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.  Buyer’s sole and exclusive remedy for the aforementioned warranty shall be the replacement of the Articles proven to be defective or, at Seller’s option, refund or credit to Buyer equal to the amount paid by Buyer for the defective articles.  Subject to any generally applicable law, Seller shall in no event be liable to Buyer or to any third party for; (a) indirect, special or consequential damages alleged to have been caused by the Articles, whether claimed under contract, warranty, tort or strict liability theories; or (b) damages in excess of the price of the Articles claimed to be defective.

 

  1. ENTIRE AGREEMENT – This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions of their agreement that can be modified or rescinded only by a writing signed by both parties.  In case of any conflict with any other forms of Buyer, this agreement shall prevail.

 

  1. CHOICE OF LAW – This Sales Acknowledgment shall be governed by and construed in accordance with the laws of the State of New York without reference to principles of conflict of laws, and, with respect to this Sales Acknowledgment, Buyer consents to the jurisdiction and venue of the Supreme Court of the State of New York, County of Erie.

 

  1. WAIVER – The failure of Seller to enforce at any time the provisions of this Sales Acknowledgement shall in no way be construed to be a waiver by Seller of such provision, nor in any way to effect the validity of this Sales Acknowledgement (or any part hereof) or the right of Seller thereafter to enforce each and every such provision.  No waiver by Seller of any breach of this Sales Acknowledgement shall be held to be a waiver of any other or subsequent breach.  All claims of Buyer arising under this Sales Acknowledgement shall be deemed waived by Buyer unless reported by Buyer to Seller in writing within Thirty (30) days after receipt of the Articles

 


 

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