EMPIRE–EMCO, INC. (“Seller”)
TERMS AND CONDITIONS OF SALE
GOODS AND SERVICES COVERED BY THIS ORDER ARE BEING SOLD ONLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, AND IN SELLER’S QUOTATION OR ACKNOWLEDGMENT (IF ANY). SELLER OFFERS TO SELL THE GOODS OR SERVICES DESCRIBED HEREIN ONLY UPON THE TERMS AND CONDITIONS CONTAINED HEREIN. THE OFFER SHALL BE DEEMED ACCEPTED AND SHALL BECOME A BINDING CONTRACT ON THE TERMS AND CONDITIONS CONTAINED HEREIN ON THE EARLIEST OF THE FOLLOWING TO OCCUR: (A) SELLER’S COMMENCEMENT OF PERFORMANCE; (B) BUYER’S PAYMENT OF ANY AMOUNTS DUE TO SELLER; (C) BUYER’S DELIVERY TO SELLER OF ANY MATERIAL TO BE FURNISHED BY BUYER; OR (D) ANY OTHER EVENT CONSTITUTING ACCEPTANCE UNDER APPLICABLE LAW. BY ACCEPTING THIS OFFER, BUYER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM, ADDITIONAL TO, OR CONFLICTING WITH THOSE CONTAINED HEREIN, AND ALL SUCH DIFFERENT, ADDITIONAL OR CONFLICTING TERMS AND CONDITIONS ARE EXPRESSLY REJECTED BY SELLER AND SHALL BE NULL AND VOID AND OF NO EFFECT. NO COURSE OF PRIOR DEALINGS BETWEEN SELLER AND BUYER AND NO USAGE OF TRADE SHALL BE RELEVANT TO, SUPPLEMENT OR EXPLAIN ANY TERMS USED HEREIN.
Prices are subject to change by Seller without notice. Increases in labor, freight and material costs before completion of the contract plus applicable overhead, as well as surcharges, may be invoiced to Buyer.
2. DELIVERY OR PERFORMANCE.
Unless otherwise specified by Seller in writing, all deliveries are F.O.B. point of shipment. Shipment will be made in accordance with instructions issued to Seller. Upon delivery of goods to the carrier, Buyer assumes the risk of all loss and damage resulting from any cause whatsoever. Shipping, delivery or performance dates are approximate and are not guaranteed. Seller will use reasonable commercial efforts to meet the delivery dates but is not liable for any direct or indirect costs resulting from late delivery. Seller reserves the right to ship and invoice for a quantity of goods which may vary up to ten percent (10%) over or under the quantity specified and Buyer agrees to accept delivery and pay for such revised quantity and consider the shipment to be complete. Partial deliveries shall be accepted by the Buyer and paid for at contract prices and terms. Buyer shall have no right to delay the delivery or shipment date. Seller may charge storage charges for any goods which it holds for Buyer.
3. FORCE MAJEURE.
Seller shall not be liable for any delay or other failure of performance due to causes beyond its reasonable control, including without limitation acts of God, acts of Buyer, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, delays in transportation or car shortages, inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through Seller’s usual and regular sources at usual and regular prices or failure or inability of the manufacturer of the goods to perform. In any such event, Seller may, with notice to Buyer, at any time and from time to time without further liability to Buyer (a) postpone its performance, (b) make partial performance or cancel all or any portion of this contract or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of this contract shall not affect Seller’s right to payment for performance of any other part hereof.
4. WARRANTY, REMEDY, AND LIMITATIONS.
Seller warrants that, for a period of thirty (30) days from the date of delivery of the goods to Buyer, the goods (a) conform to the specifications set forth in Seller’s quotation and (b) will be free from defects in workmanship and materials. IN THE EVENT OF ANY BREACH OF SUCH WARRANTY, SELLER’S SOLE OBLIGATION SHALL BE EXCLUSIVELY LIMITED TO, AT THE OPTION OF SELLER, REPAIR OR REPLACEMENT, F.O.B. POINT OF SHIPMENT, OF ANY GOODS THAT SELLER DETERMINES TO HAVE BEEN DEFECTIVE OR A REFUND OF THE PRICE PAID BY BUYER TO SELLER UPON RETURN OF THE GOODS TO SELLER. NO CLAIM AGAINST SELLER FOR ANY BREACH OF SUCH WARRANTY SHALL BE VALID OR ENFORCEABLE UNLESS BUYER’S WRITTEN NOTICE THEREOF IS RECEIVED BY SELLER WITHIN ONE (1) YEAR FROM THE DATE OF DELIVERY OF THE GOODS TO BUYER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTIES WITH RESPECT TO THE GOODS, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND/OR THOSE ARISING BY STATUTE OR OTHERWISE BY LAW OR FROM ANY COURSE OF DEALING OR USE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. Seller shall not be liable for any damage, injury or loss arising out of the use of the goods if, prior to such damage, injury or loss, such goods are altered or modified by Buyer or any third party. No warranties may be assigned to any subsequent purchaser or user of the goods.
5. LIMITATIONS OF SELLER’S LIABILITY.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY WITH RESPECT TO ANY GOODS, WHETHER IN CONTRACT, TORT OR OTHER THEORY OF LAW, FOR LOSS OF PROFITS OR LOSS OF USE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, DIRECT OR INDIRECT DAMAGES, HOWSOEVER CAUSED. SELLER’S MAXIMUM LIABILITY TO BUYER WITH RESPECT TO THE GOODS SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR THE GOODS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
6. BUYER’S USE.
Buyer is solely responsible for analyzing, testing and/or determining the suitability and/or compatibility of all goods supplied by Seller with any other good or material. Buyer agrees that it is not relying on Seller in making such determination even if Seller provided any assistance or guidance. Buyer assumes full responsibility for any particular use or purpose. Buyer will not order or use any goods or services unless it is satisfied that the goods and services are suitable for Buyer’s use and conform to all of its requirements. Buyer agrees to store and use all goods and services in a safe manner. Seller is cautioning Buyer that not all products are compatible with plastic, glass, metal or the other goods and Buyer agrees not to use any goods with any abrasive, caustic or acid solutions or any other substance which may cause injury to persons or property.
7. LIMITATION OF ACTIONS.
Any action against Seller for breach of warranty, negligence or otherwise must be commenced by Buyer within one (1) year after the date of delivery of the goods to Buyer. Any such action not commenced within such one (1) year period will be forever barred and waived and released by Buyer.
8. INDEMNIFICATION AND WAIVER.
Buyer shall defend, indemnify and hold harmless Seller from any cost, loss or damage sustained by Seller and from and against all claims asserted against Seller by Buyer or any other party with respect to the goods or services which are the subject of this contract. This indemnity includes but is not limited to costs, loss, damages and claims arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees or customers to comply with all applicable laws and regulations, including, but not limited to any applicable Federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, (c) misuse of the goods by Buyer, its agents, employees or customers including use of goods with any substance that causes injury to person or property, (d) misrepresentation by Buyer, its agents, employees or customers, (e) the sole or contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyer’s designs, plans, specifications or directions, (g) any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including attorneys’ fees and legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance or repair of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Seller except for claims directly resulting from Seller’s gross negligence. Buyer hereby waives and releases Seller from all rights of contribution or indemnity to which it may otherwise be entitled. As used in paragraph 8 hereof, the term “Seller” shall mean the Seller, its officers, directors, employees, parent, subsidiaries, divisions, affiliates, successors, and assigns. This Indemnity shall continue in full force and effect notwithstanding the termination of any order or contract.
9. CANCELLATION BY BUYER.
Buyer may cancel this contract only upon Seller’s written agreement and payment of reasonable cancellation charges including, without limitation, (1) the price for goods, services and raw materials completed or ordered prior to Seller’s receipt of such notice together with reasonable profit thereon, (2) all costs previously incurred in connection with uncompleted goods or services together with reasonable profit thereon, and (3) all other expenses incurred by Seller by reason of such cancellation.
Unless otherwise specified by Seller in writing, all taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the goods (other than income taxes) are not included in the price and shall be paid by Buyer. Buyer shall defend, indemnify and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by Seller in connection therewith. If applicable, Buyer shall provide Seller with a tax exemption certificate from the taxing authorities.
11. ADVICE AND ASSISTANCE.
Upon request, Seller in its discretion may furnish to Buyer technical advice, design services or assistance regarding the goods or services. Seller assumes no obligation or liability for the advice, services or assistance given or results obtained, which shall be at Buyer’s sole risk.
Buyer acknowledges that three (3) business days provide Buyer with a reasonable amount of time to inspect the goods. Therefore, the goods shall be subject to final inspection and acceptance by Buyer within three (3) business 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 goods within said three (3) business day period, Buyer shall immediately notify Seller in writing as to any goods that Buyer intends to reject and particularize in detail all defects therein. If upon inspection Buyer fails to immediately notify Seller as to which goods it intends to reject, such failure to notify shall be deemed an acceptance of the goods 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 good 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 goods not properly rejected hereunder shall be deemed conforming.
13. SELLER’S PROPRIETARY RIGHTS.
Seller shall be the sole owner of all drawings, inventions, tooling, and improvements made by or for Seller in connection with the performance of this contract. Buyer shall not reproduce any drawing furnished by Seller. Buyer shall not use or disclose any of Seller’s trade secrets or confidential information, whether or not designated as such, except as required in connection with the use or resale of the goods or services covered by this contract.
14. CREDIT AND COLLECTION.
Seller is relying upon Buyer’s representation of solvency and if Seller at any time reasonably believes that Buyer is insolvent or its credit is impaired, Buyer shall be in material breach hereof and Seller may, without liability to Buyer, withhold performance, change payment terms and/or repossess goods previously delivered. Title to goods shall remain in Seller until payment in full is received. Unless otherwise expressly agreed to in writing by Seller, payment of each invoice is required within thirty (30) days after Buyer’s receipt of the goods or services. In extending any credit hereunder. Buyer shall pay to Seller interest on the unpaid amount at the maximum annual rate permitted by law, or one and one-half percent (1-1/2%) per month, whichever is less, and if Buyer fails to pay according to the terms of this contract, Seller may make such charges and may also collect the amount unpaid with Buyer being liable to Seller for all costs of collection including attorney’s fees and court costs.
15. BUYER’S FINANCIAL RESPONSIBILITY.
If Seller shall at any time doubt Buyer’s financial responsibility, Seller may demand adequate assurance of due performance or decline to make any further shipments except upon receipt of cash payment in advance or security. If Seller demands adequate assurance of due performance and the same is not forthcoming within 10 days after the date of Seller’s demand, Seller may at its option (1) defer shipments under any order from Buyer which Seller has accepted until adequate assurances are received or (2) cancel this order and any other order from Buyer which Seller has accepted and recover damages.
This contract constitutes the entire agreement between Buyer and Seller relating to the goods or services which are the subject hereof. No modifications or amendments of this contract shall be binding upon the Seller unless in writing signed by Seller’s President. If any term or provision of this contract shall to any extent be invalid or unenforceable, such provision will be enforced to the maximum extent permitted by applicable law and the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law. No waiver by either party of default shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance.
17. CHOICE OF LAW AND JURISDICTION.
These terms and conditions shall be construed in accordance with the laws of the State of New York, without regard to principles governing conflicts of laws. Any action to enforce, arising out of, or relating in any way to, any of the provisions of this contract shall be brought and prosecuted in a state or federal court located in Buffalo, New York or the Western District of New York as is provided by law, and Seller and Buyer consent to such exclusive jurisdiction and venue.
18. ATTORNEY’S FEES.
If Seller pursues any legal action to enforce any of its rights, Seller shall be entitled to recover from Buyer all reasonable attorneys’ fees and all other costs and expenses incurred by Seller in connection with such action.