TERMS OF SALE
APPLICABLE TO ALL SALES, OFFERS, OR QUOTATION
1.1. These terms and conditions are an integral part of this Sales Order/ Confirmation and represent the agreement of sale between Carl F. Ewig, Inc., d/b/a Martec International or d/b/a UB Lights as Seller and the party identified as the party to whom the Goods and Merchandise (hereinafter collectively the “Goods”) are to be billed, its designees, agents or persons acting on its behalf, all of whom are collectively referred to as Buyer;
1.2. All plans, specifications or documents describing the Goods being sold are incorporated herein only to the extent they are not in conflict with these terms and conditions.
1.3. The terms of any prior offer from Buyer are rejected and are replaced by this counter offer. Buyer’s acceptance of these terms and conditions is effected by its specific acknowledgment, by its knowledge of these terms through prior transactions, by its acceptance of shipping dates set by Buyer or by its full or part acceptance of the Goods described herein.
1.4. Any recitation of a Buyer’s purchase order, quotation or other document number is solely to accommodate the identity of this sale and is not an agreement by Seller to accept any terms and conditions set forth by Buyer. In the event of any discrepancy between the terms hereof and the terms of the Buyer’s purchase order, letter of credit, or other document incidental to this contract, these terms shall prevail.
2. TERMS OF OFFER
2.1. Unless otherwise stated in writing, Seller’s quotations (including price, quantity, delivery schedules and other particulars) are subject to withdrawal at any time, but shall in any event expire unless Buyer’s order is received within sixty (60) days of the date of any offer made by Seller.
2.2. .Terms and prices published by Seller, or advertised in general literature, brochures or advertising material distributed by or on behalf of Seller, are subject to change without notice and possession of price discount sheets do not obligate Seller to sell to Buyer at prices indicated therein.
2.3. All orders are subject to final approval and acceptance by Seller
2.4. Orders not subject to a prior quotation will be billed at the prices and delivered on the terms applicable on the date of shipment.
3. PAYMENT; TITLE TO GOODS
3.1. Unless installment, credit or other terms are specifically agreed in writing, payment for all merchandise is due in cash in United States dollars upon shipment.
3.2. In an installment or credit sale, if payment of any installment is not made when due, Seller may elect upon five (5) days notice to cure, to accelerate the payment schedule and demand full payment of any outstanding amount in addition to all other rights and remedies set out herein.
3.3. If full payment is not made when due, Seller, in addition to its other rights, Seller may charge Buyer interest from the due date on the unpaid balance at the rate of 1 1/2% per month (18% per annum) or pro rata. Seller shall also charge all costs of collection, including reasonable attaorney fees.
3.4. Until full and unqualified payment is received by Seller, title to all Goods shall remain in Seller, and Buyer agrees that Seller shall be entitled to a lien on all Goods which comprise this Sales Order to the extent payment has not been made.
3.5. Notwithstanding Seller’s retention of title, risk of loss to the Goods shall pass to Buyer upon delivery to Buyer or to an independent carrier in accordance with Paragraph 5 of these Terms of Sale.
4. SALES AND SIMILAR TAXES.
4.1. Seller’s prices are exclusive of all present and future federal, state or municipal sales, use, excise or similar taxes, which are the sole obligation of the Buyer.
4.2. Where Seller is obligated to collect taxes, Buyer shall pay all taxes in addition to the specified sale price, or present Seller with a tax exemption certificate acceptable to the taxing authorities.
5. DELIVERY BY SELLER
5.1. Unless specifically agreed to the contrary, or except as hereinafter set out, all deliveries by shall be FOB Seller’s factory.
5.2. Where goods are sold on a named destination basis, or where Seller has agreed to arrange for transportation or transmittal of the Goods, Seller shall have the sole right to select the method of transportation and routing, and any increased costs for transport methods demanded by Buyer shall be paid by Buyer as part of the purchase price.
5.3. Risk of loss or damage to the Goods shall pass to Buyer upon transfer of the Goods to an independent trucker, courier service, or Buyer’s designated trucker of equipment. Risk of loss or damage on Goods being delivered by Seller’s own equipment shall pass to Buyer on arrival of the Seller’s truck at Buyer’s warehouse or terminal.
5.4. Buyer’s sole remedy in the event of loss or damage to the Goods during transit shall be against the trucker or courier service, and Buyer grants Seller permission to engage a carrier or courier service whose contracts of carriage include limitations of liability. In the event Seller undertakes to present and pursue claims for lost of damaged Goods against truckers or courier services, it shall do so as agent for Buyer
6. RETURN GOODS
6.1. . All sales are final and no goods or merchandise may be returned unless notice has been given to Seller no later than 60 days after the date of delivery as provided herein.
6.2. All costs incurred in connection with returning any merchandise, including repacking, transportation and relate charges are for the account of and shall be borne by Buyer, and Seller will not accept any COD or freight collect shipments
6.3. All returns shall be subject to a 15% restocking fee, and payment of that fee shall be made at the time of shipment of the return goods or merchandise.
7. FORCE MAJEURE.
7.1. Seller shall be excused for any failure or delay in delivery of any of the goods, material or equipment, or for any loss or damage thereto due to Acts of God, acts of the Buyer, acts of civil or military authority, labor disputes, accidents, shutdowns, embargoes, governmental orders or restrictions, war, fires, flood epidemics, quarantine restrictions default or delay by suppliers of the items being sold by Seller, or breakdown in manufacturing facilities, machinery or equipment, delays in transportation or difficulties in obtaining necessary materials due to causes beyond Seller’s reasonable control.
7.2. In the event of any of the acts set out in paragraph 6.1, Seller may at its option terminate this contract or extend the time for performance for one or more successive periods not exceeding 90 days and Buyer shall extend any applicable letter of credit for equal periods; provided that Seller’s election to extend the time for performance shall not preclude Seller from subsequently terminating this contract during the continuance of the event which excuses performance.
7.3. Any termination of this contract by reason of the foregoing conditions shall be without liability of either party to the other.
8. SOLVENCY; CREDIT TERMS.
8.1. Buyer represents that it is solvent and capable of complying with the terms of this contract. but if Seller at any time in good faith deems it necessary to limit or withdraw credit terms, Seller may require cash payment or satisfactory additional security before shipment.
8.2. If Buyer is a party to a petition in bankruptcy or is adjudicated a bankrupt or if Buyer becomes insolvent or makes assignment for the benefit of its creditors or an arrangement pursuant to any Bankruptcy Act or discontinues its entire business, or if a Receiver is appointed for Buyer or any part of its business, Seller may at its option cancel the contract as to any undelivered goods and demand the return (at Buyer’s expense) of any delivered but unpaid goods.
8.3. Seller’s election to cancel the contract shall not relieve Buyer of the contract price for any delivered goods and any damages as to any undelivered goods.
9. SELLER’S SOLE WARRANTIES.
9.1. Seller warrants to Buyer that the goods, material and equipment delivered hereunder will be free from defects in material and workmanship when used under proper and normal use for a period of one hundred and eighty (180) days from the date of shipment (whether by sale, lease or rental) and should any failure to conform to the above occur within the said 180 day period Seller agrees, upon prompt notification thereof and confirmation that the equipment has been stored installed, operated and maintained in accordance with recommendations of the Seller and standard industry practice, to correct the nonconformity at Seller’s option either by repairing any defective part or parts or by making available at Sellers factory a repaired or replacement part.
9.2. No warranty is made with respect to equipment, accessories, components ports or auxiliary equipment not manufactured by Seller, such being subject only to warranties made by their respective manufacturers. Seller shall in no event be responsible or liable for modifications, alterations, misapplication or repairs made to its products or equipment by Seller or others or for damage caused thereto by negligence, accident overloading or improper use by Buyer or others.
9.3. The liability of Seller to Buyer arising out of the supplying of said equipment or its use, whether in warranty, contract or negligence shall not in any event exceed the cost of correcting defects in the material or equipment as herein provided, and upon the expiration of said 180 days all such liability shall terminate.
9.4. The foregoing liability of Seller shall constitute the sole and exclusive remedy of the Buyer and the sole obligation of the Seller. This warranty does not and shall not include reimbursement for the expenses of labor, transportation installation removal from the line or any other expenses which may be incurred by Buyer.
9.5. Before any material is returned, Buyer must contact Seller as outlined under Returned Goods.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED OR IMPLIED (INCLU-DING ANY WARRANTY ON MERCHANTABILITY OR FITNESS FOR ANY PARTI-CULAR PURPOSE). THERE ARE NO IMPLIED WARRANTIES OF MERCHANT-ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE EXCEPT AS STATED ABOVE.
10. LIMITATION OF LIABILITY; NOTICE OF CLAIM TIME FOR SUIT
10.1. Seller’s liability on any claim or of any kind, including negligence for any damage or loss arising out of, connected with or resulting from this contract or from the performance or breach thereof , or from the manufacture sale, delivery resale repair or use of any equipment covered by of furnished under this contract, shall in no case exceed the contract purchase price allocable to the equipment or part thereof which gives rise to the claim, the Seller shall not be liable for any special or consequential damages, such as loss of profits or revenue, loss of the equipment from service or reinstallation or disassembly or reassembly ,or claims of third parties against the Seller.
10.2. No claim or cause of action of any kind arising under this contract may be asserted against Seller unless notice of claim is given not more than six (6) months after delivery of the goods and unless any legal or arbitral action is commenced not more than six months after Notice of Claim or one year after the date of delivery of the Goods at the place of delivery set out on the Sales Invoice, whichever is less.
11. NO WAIVER No waiver of any breach of any terms or conditions of this contract shall constitute a waiver of any subsequent breach of that or any other term or condition, whether similar or dissimilar.
12. ARBITRATION: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association pursuant to its Commercial Rules, including its Rules of Mediation and Rules for Expedited Arbitration and any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
13. GOVERNING LAW; JURISDICTION.
13.1. This contract shall be governed by the laws of the State of New Jersey, and Buyer agrees to submit to the jurisdiction United States District Court, District of New Jersey (unless such court does not have subject matter jurisdiction, in which event the Superior Court, Union County, New Jersey) with respect to any interim relief , enforcement of any arbitral award or prosecution of any non-arbitrable dispute
13.2. In the event this contract of Sale is subject to United Nations Convention on Contracts for the International Sale of Goods (1980), [CISG] the terms of said CISG shall be excluded as provided for in Article 6 thereof, to the extent that any provision hereof is in conflict with the terms of CISG.
13.3. In the event this contract of Purchase is subject to United Nations Convention on Contracts for the International Sale of Goods (1980), [CISG] the terms of said CISG shall be excluded as provided for in Article 6 thereof, to the extent that any provision hereto
14. COMPLETE CONTRACT. These terms and conditions, together with the terms and conditions of any documents, plans or specifications applicable t the Goods being sold, constitute the final, complete and exclusive statement of the agreement between Seller and Buyer. No additional or different terms or conditions shall become part of the contract, and no modification, rescission or waiver by Seller shall be effective, unless in writing signed by an authorized agent of Seller. Any terms of Buyer’s invoices or other forms, inquiries, letters or elsewhere, irrespective of their materiality, which are either different from or in addition to the Seller’s conditions set forth herein are objected to and excluded unless expressly accepted in a separate document signed by Buyer..