1. GENERAL. These Terms and Conditions of Sale are agreed to between Glines & Rhodes, Inc. (“Company”) and the purchaser (“Buyer”) (collectively, the “Parties”). The Terms and Conditions of Sale and the non-conflicting provisions in any quotation, acknowledgment, or invoice from Company (collectively, the “Agreement”) govern in all respects all sales of products (“Products”) from Company to Buyer. No terms stated by Buyer in any purchase order, acceptance or acknowledgement become part of the Agreement unless expressly agreed to and accepted by Company in writing and Company hereby rejects any additional or different terms. The Agreement constitutes the entire, complete, and integrated understanding and agreement between the Parties concerning the subject matter hereof, and supersedes all prior oral or written agreements and proposals. All negotiations between the Parties are merged into the Agreement, and there are no representations, warranties, covenants, understandings or agreements, oral or otherwise, in relation thereto between the Parties other than those incorporated herein. Buyer is prohibited from altering or amending any provision of the Agreement absent written permission from Company. Company’s quotations are offers that may only be accepted in full. All typographical or clerical errors made by Company in any quotation, acknowledgment or publication are subject to correction.
2. FEES AND PAYMENT. Fees are exclusive of all shipping and handling charges, duties, tariffs, value added taxes, sales taxes, use taxes, or assessments levied by any federal, state, municipal, or other government authority that may be owed by Buyer as a result of the purchase of Products, or other charges which may be imposed upon the sale or use of Products so that Company receives the full amount of fees payable without reduction for any taxes or other fees or charges. Such charges paid by Company will be for Buyer’s account. Any claim for exemption from such charges must be plainly designated on the face of the order and accompanied by all required exemption certificates. Unless specifically stipulated on an invoice or otherwise agreed to in writing by the Parties, fees are in U.S. Dollars and are due upon Buyer’s receipt of the invoice, without right to deductions or set-off. Company may require payment to be made C.O.D. or via irrevocable letter of credit in favor of, and acceptable to, Company, established at Buyer’s expense, or require Buyer to provide further assurance of payment satisfactory to Company. If payment is not made when due, Company may suspend all future delivery or other performance with respect to Buyer without liability or penalty and, in addition to all other sums payable hereunder, Buyer shall pay to Company (a) the reasonable costs and expenses incurred by Company in connection with all actions taken to enforce collection or to preserve and protect Company’s rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys’ fees, court costs, and other expenses, and (b) interest on all amounts unpaid after 30 days charged at the lesser of the rate of 1.5% per month (18% per annum) or the highest rate permitted by law.
3. SHIPMENT; DELIVERY; FORCE MAJEURE. Unless otherwise agreed to in writing by the Parties, shipment and delivery of Products are EXW Company’s facility (Incoterms® 2010). Risk of loss and title are transferred to Buyer at Company’s facility. Buyer bears all shipment, insurance, or similar charges and such charges must be prepaid prior to shipment unless otherwise agreed in writing by Company. Buyer must make all claims for loss or damage in transit or for non-delivery against the carrier. At Company’s option, Products may be shipped in advance of the requested shipment date or in installments. Any claims against Company for shortages by it in making shipments must be made in writing to Company within five days after receipt 2 of shipment and any claims for shortages occurring thereafter must be made by Buyer to the carrier. All delivery information (including time for shipment) is approximate. Company’s sole responsibility is to use reasonable commercial efforts to meet specified shipment dates. Buyer expressly absolves Company from any liability for any loss or damage resulting from a failure to deliver or delays in delivery caused by any conditions related to, or caused by, any act of God, strike, work stoppage, governmental act, fire, flood, other labor difficulty, transportation delays or failure or delays in delivery by Company’s suppliers, subcontractors or others, or any other event or cause not within the reasonable control of Company.
4. CANCELLATION; FAILURE TO TAKE DELIVERY. The Agreement, in whole or in part, cannot be canceled or postponed by Buyer except with Company’s prior written consent and upon terms that will indemnify Company against loss. If Company approves a return request, (a) any applicable packing, shipping, and delivery costs will be at Buyer’s expense and (b) all returns must be shipped freight prepaid at Buyer’s expense. If Buyer cancels all or part of an order for Products, Buyer shall pay Company the greater of an amount equal to (i) 15% of the price for the cancelled Products, or (ii) the actual and consequential damages incurred by Company, including without limitation Company’s anticipated profit and expenses already incurred by Company. If Buyer postpones delivery, Buyer shall pay Company monthly charges equal to 1.5% of the total price for the Products subject to such postponement, and reasonable postponement charges.
5. LIMITED PRODUCT WARRANTY; REMEDY; WARRANTY DISCLAIMERS. Limited Product Warranty. Company warrants to Buyer that Products will conform to the purity specifications of the American Society for Testing Materials, as revised from time to time, for the specified material (“Limited Product Warranty”), provided that to obtain service under this warranty: A. Buyer must promptly notify Customer within 30 days of delivery of the warranty claim; B. If so instructed by Company, the Products must be returned to Company, freight prepaid, after Buyer has received a return merchandise authorization number from Company; and C. Company’s examination of such material must disclose to its reasonable satisfaction that the claimed non-conformity in the Products was not caused by post-shipment adulteration. Remedy. Buyer’s sole and exclusive remedy, and Company’s only obligation for breach of the Limited Product Warranty hereunder, shall be, to return such non-conforming Products to Company and issue a credit to Buyer in the amount of unit cost of the non-conforming Products. Buyer acknowledges that this exclusive remedy is an essential term in the bargain represented by the Agreement and that such remedy will, in view of the consideration paid to Company, operate as a full satisfaction to Buyer for any and all claims related thereto. Buyer acknowledges that if a court of competent jurisdiction or an arbitration panel rules this exclusive remedy does not give Buyer the benefit of its bargain or that such exclusive remedy fails for any reason, then any such ruling with regard to such exclusive remedy or any such failure of such exclusive remedy will not affect or modify in any way any limitation or exclusion of warranties, and all such limitations and exclusions will continue in full force and effect. All warranty claims must be brought within one year after delivery. Disclaimers. THE LIMITED PRODUCT WARRANTY SET FORTH IN THIS SECTION IS IN LIEU OF, AND COMPANY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PRODUCTS OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT COMPANY HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN BUYER WITH RESPECT TO THE PRODUCTS. Except for Company’s Limited Product Warranty under this Section 5, Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other products or components, and shall indemnify, defend, and hold Company harmless for any such loss, damage, or injury.
6. EXPORT COMPLIANCE. Products may be subject to export controls under the laws, regulations, or directives of the United States and various other countries. Buyer must comply with such laws and regulations and not export, re-export, or transfer such Products without first obtaining all required authorizations or licenses to any country to which such export, re-export, or transfer is forbidden. Due to government regulations and product availability, not all Products sold by Company may be available in every area.
7. LIMITATION OF LIABILITY; TIME FOR CLAIMS; INDEMNIFICATION. Company is not liable for incidental, special, indirect, consequential or other similar damages, including but not limited to loss of profit or revenues, damage for loss of use of Products, damage to property, or claims of third Parties, whether or not Company has been advised of the potential for such damages. Company’s total liability hereunder from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, product liability, or any other theory of liability, is limited to the lesser of Buyer’s actual damages or the price paid to Company for the specific Products that are the subject of Buyer’s claim. All claims against Company must be brought within one year after the cause of action arises, and Buyer expressly waives any longer statute of limitations. Buyer shall defend, indemnify, and hold Company and its officers, directors, agents, representatives, employees, suppliers, and affiliates harmless from any and all sums, claims, costs, duties, suits, actions, losses, damages, legal fees, obligations, liabilities, and liens arising out of (a) Buyer’s purchase, use, possession, ownership, transfer, export, transportation, or disposal of Products, (b) Buyer’s violation or alleged violation of any foreign, federal, state, county, or local laws or regulation, and (c) Buyer’s breach of the Agreement.
8. MISCELLANEOUS. The Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., without regard to its conflicts of law doctrines. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. For any and all disputes, claims, causes of action or proceedings of any kind arising from or in connection with this Agreement and the Parties’ rights and obligations hereunder, Massachusetts federal courts or Massachusetts state courts located in Suffolk County shall have exclusive jurisdiction (to the exclusion of all other forums) and the Parties hereby consent to personal jurisdiction and venue in Massachusetts federal courts or Massachusetts state courts located in Suffolk County. Company’s rights and remedies under the Agreement are cumulative and in addition to any other rights or remedies provided by law or equity. Neither this Agreement nor any rights or obligations hereunder may be assigned or transferred by Buyer without the prior written consent of Company. The Agreement is binding upon and inure to the benefit of the Parties hereto and their respective successors, permitted assigns, and transferees. Nothing in the Agreement confers upon any person other than Company and Buyer any right or remedy under or by reason of the Agreement. Company’s failure to insist on strict performance of the Agreement or to enforce a default upon the occurrence of any single, repeated, or continuing violation of any particular term or condition hereof, shall not be considered a waiver of Company’s right to insist on strict performance of the Agreement or to enforce a default with respect to the violation of any other term or condition or, at any later time or upon any subsequent occurrence, with respect to that particular term or condition. If any of the provisions of the Agreement are held to be invalid, illegal, or unenforceable, then such provision will be ineffective only to the extent of such invalidity and the unaffected provisions of the Agreement will be unimpaired, and remain in full force and effect. Notice to Buyer will be sent to Buyer’s last known address. Notice to Company must be in writing and sent by postage prepaid first-class mail or receipted courier service to the following address or to such other address (including e-mail) as specified in writing, and will be effective upon receipt: Glines & Rhodes, Inc., 189 East St., Attleboro, MA 02703, USA. Each Party’s obligations that by their nature are intended to survive beyond the termination, cancellation or expiration of the Agreement will survive.