1. ENTIRE AGREEMENT.
The terms and conditions contained herein supersede all prior purchase orders, agreements, discussions, negotiations, proposals, or communications between the parties and constitute the entire final contract between the parties which may not be varied except by express written modification signed by Seller’s duly authorized representative. Seller’s acceptance of Buyer’s order is expressly conditioned upon Buyer’s agreement to and acceptance of the terms and conditions contained herein together with any special terms set forth on the face hereof by Seller. Seller shall not be bound by any terms and conditions contained in Buyer’s forms which in any way alter the terms and conditions imposed in Seller’s forms. The receipt of these terms and conditions by Buyer is notice to Buyer of objection by Seller to all other terms, warranties or conditions contained in Buyer’s forms. Neither the failure by Seller to object to the purchase order or any other communication from Buyer, nor the delivery of goods and/or the performance of services by Seller shall be deemed a waiver of the provisions hereof or an approval of any terms, warranties or conditions which are additional to, different from, or conflicting with the terms, warranties and conditions contained in these terms and conditions. Seller’s terms and conditions included herein or stated on any of Seller’s forms or packages shall govern and control, regardless of whether Buyer’s purchase order or any other forms precede or succeed this document and regardless of whether the Buyer’s forms indicate that the terms and conditions therein contained are controlling and cannot be varied.
2. CREDIT APPROVAL, INFORMATION AND ACCEPTANCE.
All orders are subject to approval of Buyer’s credit and acceptance by Seller. As a condition of sale, Buyer grants Seller the right to investigate Buyer’s credit, to exchange credit information with others and to report to others about Buyer’s account and relationship with Seller and Seller is released from any liability arising therefrom.
3. TERMS OF PAYMENT.
All invoices are due upon presentment and shall be paid at time of sales order confirmation
4. TAXES AND ADDITIONAL COSTS.
In addition to the purchase price for the equipment and services, Buyer shall be obligated to pay all sales, excise, use, privilege, ad valorem, customs and any other taxes, assessments, tariffs or similar charges imposed, levied or increased by authority of any local, county, state, federal, international or any other county’s law, rule, ordinance or regulation concerning the equipment and/or services sold to Buyer. In the event Seller shall be required to pay such taxes, assessments, duties tariffs or similar charges or incurs such additional costs, Buyer upon demand shall immediately reimburse Seller for such amounts. Buyer shall furnish to Seller upon demand any appropriate tax exemption certificates.
5. FREIGHT AND RISK OF LOSS.
All shipments are F.O.B. Seller’s location in New Jersey. Buyer assumes all risk of loss, shortage, delay or damage in transit once the equipment is delivered to the carrier. Buyer shall be responsible for all freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges and any charges for or increments thereof not set forth in the Quotation, Order Confirmation or initial invoice to Buyer, shall be billed by Seller and immediately paid by Buyer.
6. SERVICE CHARGES, EXPENSES AND FEES OF COLLECTION.
A services charge of 1½% per month (18% per annum) will be charged on all invoices not paid on time (monthly).
7. EXPRESS WARRANTY & PRODUCT RETURN POLICY.
7.1 Seller warrants its services to be free from defects in material and/or workmanship under normal use and service . Seller is not responsible for, and it does not warrant against, any defect or damage caused by transportation, storage, improper installation, maintenance, internal or external hostile environment, misuse, abuse, negligence, accident, modification, tampering, the attachment of any unauthorized accessory, alteration to the goods, or any other conditions whatsoever that do not constitute a defect in material and/or workmanship.
Buyer’s recourse if not satisfied with the product is service cancellation only.
7.2 SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT, OR WITH RESPECT TO ANY OTHER EQUIPMENT OWNED, OR USED, BY BUYER. With respect to equipment provided by or purchased from Seller, Seller shall assign to, or exercise for the benefit of Buyer all manufacturer warranties with respect to suchequipment. If Buyer takes any actions with respect to the equipment that is contrary to the manufacturer’s warranties, or fails to maintain the equipment as required by the manufacturer or as otherwise recommended by
Seller, Buyer may cause such warranties to be voided. If the actions, neglect or omissions of Buyer or those of its agents or invitees cause a manufacturer’s warranty to be voided on equipment that remains the property of Seller during the term of this agreement, then Buyer shall be liable to Seller for the full replacement cost of such equipment.
7.3 EXCEPT FOR THE EXPRESS WARRANTY DESCRIBED HEREIN, SELLER SEPCIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESS AND IMPLIEDWARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE, AND FITNESS A PARTICULAR PURPOSE; ALL IMPLIED WARRANTIES ARISING FORM TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE OR ANY OTHER IMPLIED WARRANTIES; AND THE EXPRESS WARRANTY STATED HEREIN IS IN LIEU OF ALL
OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE GOODS OR SERVICES PURCHASED BY BUYER.
7.4 NEITHER SELLER NOR ITS AFFILIATED COMPANIES SHALL BE LIABLE TO BUYER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) FOR DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS, REVENUE OR GOOD WILL, LOSS OF USE OF EQUIPMENT, FACILITY OR DATA, EXPENSES INVOLVING COSTS OF CAPITAL, COST OF PURCHASED OR REPLACEMENT POWER OR TEMPORARY EQUIPMENT (INCLUDING ADDITIONAL EXPENSES INCURRED IN USING EXISTING FACILITIES), CLAIMS OF CUSTOMERS, EMPLOYEES OR ANY OTHER PERSONS AFFILIATED, ASSOCIATED OR IN PRIVITY WITH BUYER, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF BREACH OF THE EXPRESS WARRANTY STATED HEREIN.
7.5 THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE WITH RESPECT TO BREACH OF THE EXPRESS WARRANTY STATED HEREIN, AND THE TOTAL LIABILITY OF SELLER FOR BREACH OF SAID EXPRESS WARRANTY FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION OR TECHNICAL DIRECTION OF INSTALLATION, REPAIR OR USE OF ANY GOODS OR SERVICES FURNISHED TO BUYER, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), SHALL BE/ THE CANCELLATION OF SERVICE ONLY.
7.6 All Express Warranty claims must be made to Seller or one of its authorized agents, failure to do so shall void the Express Warranty.
Buyer shall maintain in confidence all proprietary or non-public information of Seller that may come into Buyer’s possession in connection with or as a result of this agreement. Upon
the expiration or termination of this agreement, Buyer shall return all such confidential information to Seller, retaining no copies, summaries or excerpts thereof or therefrom.
9. BUYER’S DEFAULT.
9.1 It shall be an event of default under this agreement, if Buyer: (i) fails to make payment
Buyer shall defend, indemnify, and hold Seller, its parent, subsidiaries, affiliates, officers, directors, shareholders, managers, members, employees and agents harmless from and
against all claims, damages, including damage to property or injury to persons, losses and expenses, including but not limited to reasonable attorneys’ fees, arising from, connected with, or incidental to the equipment and/or
services to be provided pursuant to this agreement, except to the extent such claims are caused by the gross negligence or willful misconduct of Seller.
11. TRANSFER OF DATA.
Upon the expiration or termination of this agreement, Buyer may request from Seller a copy of any Buyer related data created by Seller in connection with the performance of services by Seller under this agreement. [The fee for the generation of each set of data files shall be [$ ] per copy]. Seller keep such data files for a period of not less than ninety (90) days after termination or expiration of this agreement (the “Data Retention Period”). If Buyer fails to request data files during the Data Retention Period, Seller may delete such data files.
No waiver will be valid unless in writing, signed by an authorized representative of Seller and no waiver granted will release Buyer from subsequent strict compliance herewith.
13. ASSIGNMENT; BINDING EFFECT.
Seller may assign its rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer’s consent prior thereto. Buyer may not assign its rights nor delegate its obligations under this order without Seller’s written consent, which consent shall not be unreasonably withheld. Any such assignment or delegation without such consent shall be void. This agreement, and the rights, powers and duties set forth herein, shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
14. FORCE MAJEURE.
Seller shall not be liable for any loss, delay or failure to perform if Seller is limited in or is unable to perform hereunder because of any casualty, interruption of business, event or circumstance beyond Seller’s control, including, without limitation, riots, bombings, terrorist acts, insurrections, civil commotions or wars; labor disputes, strikes, lockouts, boycotts, picketing or other industrial disturbances; acts of God or other force majeure events.
15. GOVERNING LAW AND JURISDICTION.
The agreement between the parties shall be deemed to be made in New Jersey and shall be governed by the laws of New Jersey. By accepting this document, Buyer hereby submits to the jurisdiction o the Courts of New Jersey for any purposes dealing with this document or any subsequent agreement between Buyer and Seller or of the breach of or the enforcement thereof or for any purposes of Seller enforcing any of its rights against the Buyer. Whenever a term defined by said Code is used in this instrument, the definitions in the Code shall control its meanings. The parties submit to the jurisdiction of the courts of New Jersey which shall be on the only forum for litigating any disputes arising under this agreement.