STANDARD TERMS AND CONDITIONS OF SALE
Acceptance of any order by Seller is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein. In the event that any of the terms or conditions of any purchase order, order confirmation or other communication of Buyer conflict with any of the terms and conditions set forth herein, these terms and conditions shall govern, and Seller hereby gives notice of its objection to any additional or different terms or conditions in any such purchase order, order confirmation or communication.
- ACCEPTANCE OF ORDERS – All orders are subject to acceptance by Seller at its place of shipment, and Seller reserves the right to accept or reject any order. Possession of a price list does not constitute an offer to sell. Seller reserves the right to discontinue the manufacture or sale of any product at any time.
- SHIPMENTS – Quoted shipping dates are based on estimates at the time of quotation. Seller will use its best efforts to meet such shipping dates, but seller shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages resulting from late deliveries.
- PRICE – All prices are subject to change without notice. The price charged will be the price in effect at the time of shipment. Seller reserves the right to correct any obvious typographical errors in prices or specifications.
- CREDIT – Approval of Buyer’s credit is required prior to any shipment. If Buyer’s credit is unsatisfactory to Seller at any time for any reason, Seller reserves the right to suspend further deliveries, to require payment in advance, and/or to take such other actions as Seller determines in its sole discretion are advisable.
- TERMS OF PAYMENT – Invoices are payable in U.S. dollars only. If any discounts are offered on invoice, payments must be received by the actual discount due date. Actual discount due date and net due date are based on “calendar days” from the invoice date. Discounts apply only to the net purchase price for goods and do not apply to any other invoice charges, including without limitation any applicable charges for packaging, handling or transportation.
If any amount is not paid when due, Seller shall have the right, in addition to any other remedy available to it, to charge interest on such overdue amount at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law. In addition, if it becomes necessary to place Buyer’s account with an attorney or other agency for collection, Buyer shall be responsible for all costs and expenses, including reasonable attorneys’ and/or collection fees, incurred by Seller in connection therewith.
ALL PAYMENTS, WHETHER UNDER THE STANDARD PAYMENT TERMS OR OTHERWISE, SHALL BE CONSIDERED RECEIVED BY SELLER AS FOLLOWS:
(A) FOR PAYMENTS BY CHECK, WHEN THE CHECK IS RECEIVED AT SELLER’S DESIGNATED PAYMENT LOCATION AND (B) FOR PAYMENTS BY ELECTRONIC FUNDS TRANSFER, THE BUSINESS DAY IMMEDIATELY PRECEDING THE DAY ON WHICH THE FUNDS ARE IMMEDIATELY AVAILABLE TO SELLER.
If Buyer (i) becomes insolvent or otherwise unable to pay its debts as they become due, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) takes action to liquidate or otherwise cease doing business as a going concern, (iii) undergoes a change in ownership, (iv) sells or otherwise transfers a substantial portion of its assets, (v) fails to provide adequate assurance or security for credit extended, or (vi) takes any other action that Seller determines in its sole discretion adversely impacts the conditions under which credit was extended, then all amounts outstanding from Buyer hereunder shall at Seller’s option become immediately due and payable.
- TAXES – All federal, state or local sales, use or other taxes, and all duties, import fees or other assessments, imposed on goods sold hereunder, or on the manufacture, sale or delivery thereof, shall be the responsibility of Buyer.
- FREIGHT – Unless specified in writing to the contrary by Seller, freight will be paid by Buyer. Seller reserves the right to ship orders at the most economical rate. If Buyer requests special packaging, handling and/or transportation, any additional cost(s) incurred shall also be charged to Buyer on the invoice. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, Seller may increase its price without any advance notice to reflect such additional costs. The increased price shall apply to all goods shipped on or after the effective date of such increase, ruling or regulation.
- DAMAGE OR LOSS IN TRANSIT – All shipments of goods hereunder shall be F.O.B. Richmond, IN or place of shipment. Title to, and the risk of any damage to or loss or shortage of, such goods shall pass to Buyer upon delivery of such goods by Seller to the carrier. Any claims for loss or damage should be filed by Buyer with the carrier in writing immediately upon receipt of the goods and should be supported by an inspection report or signed delivery receipt noting such loss or damage. In no event shall Seller be liable for damage or loss to a shipment caused by any carrier.
- NOTICE OF CLAIM – Any Claim on account of short count or for any other cause shall be deemed as waived by Buyer unless made within ten (10) days from the date of delivery of products to which claim relates.
- TECHNICAL ADVICE – Any technical advice provided by Seller is furnished solely as an accommodation to the Buyer; and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer’s sole risk.
- WARRANTY/LIABILITY DISCLAIMER- Seller warrants its products to be free from defects for a period of 90 days after delivery. Individual products may carry warranties as printed on the product label. SAVERSYSTEMS MAKES NO OTHER WARRANTIES WITH RESPECT TO ITS PRODUCTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR USE FOR A PARTICULAR PURPOSE. Seller’s liability shall be limited in all events to supplying sufficient product to re-treat the specific areas to which defective products have been applied. Seller shall have no other liability, including liability for incidental, consequential or resultant damages whether due to breach of warranty, negligence or strict liability. Seller’s liability for any loss or damage arising out of or resulting from any breach or default by Seller in connection with the sale of goods hereunder shall not exceed the purchase price thereof, regardless of whether such liability arises in contract, tort (including without limitation negligence or strict liability) or otherwise, and in no event shall Seller be liable for incidental or consequential damages of any kind. No representative of Seller, nor any of seller’s distributors or dealers, is authorized to modify this section or to issue any warranty, oral or written, regarding goods delivered hereunder on behalf of Seller. Buyer agrees that any civil action against Seller relating to or arising out of the sale of goods hereunder shall be commenced within one (1) year of the date the cause of action accrued; otherwise it shall be barred.
- RETURN OF GOODS – Seller will refund the entire purchase price, including shipping costs, for material determined to be defective by Seller. Seller will accept no returns without prior, written authorization. No returns will be accepted after six (6) months from date of delivery. Only complete, unopened cases and pails may be returned. Buyer is responsible for all freight charges on the returned product. Customer’s account will be credited for the returned product less a 20% restocking fee, as long as product is returned in resalable condition. Returns that must be re-worked will receive only partial credit.
- PAYMENT OF UNDISPUTED INVOICES – Buyer shall pay any undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, Buyer shall pay all amounts not in dispute. Buyer expressly waives the right to assert any offset or counterclaim with respect to amounts due under any invoice issued by Seller hereunder.
- FORCE MAJEURE – Seller shall not be liable for delays or failure to perform hereunder for any cause beyond Seller’s reasonable control, including without limitation: fire, flood or other casualty or Act of God; strikes, lockouts or other labor trouble; shortage of labor, materials, fuel, or production facilities; equipment or other production sanctions or embargoes; and legal restrictions or actions of any governmental authority.
- FAIR LABOR STANDARDS ACT – Seller hereby certifies that the goods sold hereunder that were produced in the United States were produced in compliance with all applicable requirements of Sections 6i, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
- CHANGE IN TERMS AND CONDITIONS OF SALE – These terms and conditions set forth the entire agreement between Seller and Buyer and supersede any and all prior representations, agreements or understandings, whether oral or written, relative to the goods delivered hereunder. No course of dealing or usage of trade shall be relevant to supplement or explain any of these terms or conditions. No modification or waiver of any of these terms and conditions shall be effective unless made in writing and signed by Seller. These terms and conditions supersede, and shall not be supplemented by, the terms of any purchase order, order confirmation or other communication of Buyer in connection with the purchase of goods from Seller. In the absence of buyer’s written acceptance of these terms and conditions, the acceptance by Buyer of any goods delivered hereunder shall constitute acceptance of these terms and conditions.
- GENERAL – No agreement by Seller to supply goods to Buyer may be assigned or transferred (by operation of law or otherwise) by Buyer without the prior written consent of Seller, and any purported assignment made without such consent shall be null and void. For these purpose, an assignment shall include the sale or other transfer of a controlling interest in the stock or other equity of Buyer and any merger of Buyer with or into another entity. These terms and conditions shall inure to the benefit of and be binding upon Seller and Buyer and their permitted successors and assigns.
Seller may terminate any agreement to supply goods to Buyer immediately in the event that Buyer becomes insolvent or otherwise unable to pay its debts as they become due, is declared insolvent or bankrupt, files or has filed against it a petition in bankruptcy, makes any assignment or trust mortgage for the benefit of creditors, or has a receiver, guardian, conservator, trustee in bankruptcy, or similar official appointed by court of competent jurisdiction to take charge of all or any part of its property.
All agreements by Seller to supply goods to Buyer, and all disputes arising there from, shall be governed by, and construed in accordance with, the substantive laws of the state of Indiana, notwithstanding that by application of the Conflicts of Laws doctrines of said state, the substantive law of another jurisdiction would otherwise apply. The courts of the state of Indiana shall have exclusive jurisdiction of all matters relating to or arising out of any sale of goods by Seller to Buyer. Buyer hereby consents to the jurisdiction of such courts and waives any claim that any such court is an inconvenient forum. Preferred venue for any such action shall be in Wayne County, Indiana, for an action within the jurisdiction of the state judicial system, and in the federal judicial district within Indiana that includes Wayne County, Indiana, if federal jurisdiction would otherwise arise with respect to such action. In all such actions, each of the parties waives its right to demand trial with benefit of a jury and agrees that all claims asserted or capable of assertion therein, regardless of whether such claims be characterized as actions at law or in equity, shall be submitted to the court without benefit of jury. In any such action, the prevailing party, as determined by said court or tribunal, shall be entitled to recover from the other party its reasonable attorneys fees and litigation expenses.