ACKNOWLEDGEMENT AND CONFIRMATION. This Confirmation constitutes the complete agreement between the parties and supersedes all previous agreements or representations, whether written or oral, with respect to the subject matter described herein. Buyer is expected to carefully review the Acknowledgement and Confirmation and Buyer relies on the Buyer's own expertise in the suitability of the products(s). Seller and Buyer may cancel orders only as otherwise set forth herein. The parties agree that the products(s) are specially ordered or are a specially made product. The parties further agree that should Buyer breach this Sales Order including by cancellation after acceptance except for unreasonable delay as specified herein, damages would be extremely difficult to fix and the amount of 50% of the item(s) cancelled is presumed to be the amount of damages sustained by Seller upon cancellation. Non-payment of a scheduled payment when due or a failure to accept a lot when ready, and subsequent non-payment or failure to accept within 10 days following notice to cure is deemed cancellation of the order. Upon cancellation of the order, Seller may apply payments/deposits to damages and dispose of the product(s) in any commercially feasible manner without credit to Buyer except to the extent of refunding that portion of payments/deposits received that exceed the cancellation fees.
DELIVERY AND SHIPMENT. Any and all Delivery Date(s) provided is/are an estimate only. Seller is not responsible for consequential damages caused by delays in delivery or failure to deliver. The Buyer's exclusive remedy for Seller's delay in or failure to deliver shall be refund to the Buyer. Upon unreasonable delay in delivery, Buyer must provide sufficient notice to Seller for Seller to cancel the order without expense to Seller, including in cases of delay caused by third party vendors of Seller, Seller must be able to cancel with the third party vendor (orders already in production will ordinarily not be subject to cancellation). Buyer may so cancel products(s) subject to delayed delivery only that lot or portion subject to unreasonable delay. Seller may cancel accepted orders, limited to the delayed lot or portion, caused by unreasonable delay caused by factors beyond the control of Seller without any liability or expense except for refund. The estimated delivery date may change after order acceptance dependent on numerous factors, both foreseeable and unforeseeable, including upon: (1) Untimely reply to communications to the Buyer from Seller, or delay in receipt of progress payments. In the event of delay of reply, or making progress payments, Seller may discontinue work on the project without further consequence, and the order is subject to the cancellation clause; (2) Delays caused by third parties including vendors of Seller; (3) parts delays; (4) Acts of God, acts of Buyer or Buyer's agents; (5) delay, labor trouble, acts of public bodies or inspectors, extra work, litigation, war, fire, floods, or other contingencies. Unless provided for herein, products(s) may be delivered in lots and need not be tendered in a single delivery and an apportioned payment may be demanded by Seller for each lot as delivered. Buyer must accept delivery of the products(s) when ready. Failure to accept products(s) when ready may be deemed a cancellation as set forth herein.
PRICE AND PAYMENTS. Payment is due as set forth on the face of the Acknowledgement and Confirmation. Seller shall have the right to stop work and/or cancel orders and/or withhold delivery if any payment shall not be made as required; Seller may keep work in progress idle until all payments due are received, or until cancellation as provided for herein. If at any time the Seller shall determine that the Buyer's financial condition has become, in its opinion, unsatisfactory, the Buyer shall furnish satisfactory security to the Seller within three (3) days after written notice to his/her/its last known address. The Seller shall have the option to cancel accepted order(s) if Buyer is in default of furnishing said security. In case of such cancellation, the rights of the Seller shall be the same as if the Buyer had failed to perform this Sales Order in whole or in part. Should Buyer direct, and Seller accept, any modification or addition to product and/or work covered by this Sales Order which is not covered by an additional Sales Order, the price shall be added to the sums due Seller. For the purpose of this paragraph, "price," unless otherwise agreed in writing, is defined as the reasonable value of such product. Seller shall be entitled to a lien on the product(s) to the fullest extent allowed by law.
RECEIPT AND INSTALLATION. Unless otherwise provided herein, the place of delivery is the Seller's place of business. The costs of shipment and transportation are the responsibility of the Buyer. Special packaging shall be provided only if Seller agrees in the confirmation to provide special packaging, and then at quoted sum. Buyer will inspect the products(s) immediately upon receipt. Unless, no later than within ten days of receipt, Buyer gives written notice to Seller specifying any defect in or other proper objection to the product(s) Buyer agrees that it will be conclusively presumed, as between Seller and Buyer, that Buyer has fully inspected the product(s) and acknowledged that the product is in good condition and repair, and that Buyer is satisfied with and has accepted the product in that good condition and repair. Buyer is wholly responsible for the use of the product(s).
LIMITED WARRANTY BY SELLER. Seller does not independently warrant products manufactured by third party vendors. In cases of product(s) manufactured by Seller that include product(s) manufactured by third parties, Seller independently warrants only those component parts manufactured by Seller. Seller offers no warranties other than expressed herein, and any warranty of merchantability is expressly limited hereby, and Seller does not offer any warranty of fitness for a particular purpose. Seller shall have no obligation under any warranty set forth in this Acknowledgement and Confirmation in the event: (a) that product(s) is/are not maintained, used, or operated in accordance with the Manufacturers/Seller's instructions, documentation, precautions, standard industry practices, whether by a third party or the Buyer, (b) damage occurs to product(s) due to use of wrong products or procedures or any operating conditions outside of the Manufacturers/Seller's written instructions, (c) repair or replacement arising out of normal wear and tear, (d) any part of the product is modified, (e) abuse, (f) repair or replacement is needed due in whole or part by catastrophe, Force Majeure, negligence or fault by any third party or the Buyer; Seller is not provided the opportunity to remedy as otherwise provided herein. The Buyer will promptly notify in writing the Seller of any defects and send this notification to the Seller. Seller reserves the right, and at its own expense, to repair or replace any defective component at the Buyer's site, or, Seller may request the defective product(s) be transported to a separate location. The Buyers exclusive remedy for Seller's breach of warranty shall be, at the Seller's option, to rework the defective product, or refund to the Buyer the purchase price attributed to such defective product. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT SHALL SELLER BE RESPONSIBLE TO THE BUYER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO THE SALES ORDER OR THE TRANSACTION CONTEMPLATED THEREIN, EVEN IF SELLER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR LIQUIDATED DAMAGES, IF ANY, WHICH ARE EXPRESSLY SET FORTH.
BUYER'S RESPONSIBILITIES AND WARRANTIES. Buyer shall be solely responsible for efforts to co-ordinate delivery of component products or products, checking accuracy of the Acknowledgement and Confirmation, and compatibility of the ordered products(s) with their intended use. Buyer warrants that the product(s) shall not be used for purposes beyond design limits, or in any manner inconsistent with instructions, warnings, notices and specifications. Buyer shall be responsible for and will assume all obligation and liability with respect to the possession of the product(s), and for its use, condition, and storage. Buyer will store and use the products(s) only in safe and proper manner, and will use the product(s) in a careful and proper manner and will not permit any product(s) to be operated or used in violation of any applicable federal, state, or local statute, ordinance, rule, or regulation relating to the possession, use, or maintenance of the product. Buyer will indemnify and hold Seller harmless from any liabilities, forfeitures, or penalties for violations by Buyer of any federal, state, or local statute, rule, or regulation. Buyer expressly assumes the risks for any damages to any persons or property resulting from the use of the product(s). Buyer assumes all risk and liability for the loss of or damage to the product(s)l, for the death of or injury to any person or property, and for all other risks and liabilities arising from the use, operation, condition, possession, or storage of the product(s).
LIMITATION OF LIABILITY, The Buyer agrees that all damages awarded against the Seller, regardless of the nature of the cause of the action on which the award is based, shall not exceed the purchase price of the product(s) as paid by the Buyer.
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