General Terms And Conditions of Sale
IF YOU (“PURCHASER”) PLACE AN ORDER (AN “ORDER”) WHICH IS ACCEPTED BY REDIMARK (“SELLER”), THE ORDER SHALL BE SUBJECT TO THESE TERMS AND CONDITIONS. THESE TERMS APPLY EXCLUSIVELY WITHOUT REGARD TO ANY ADDITIONAL OR CONFLICTING TERMS CONTAINED IN ANY FORMS OR DOCUMENTS EXCHANGED IN SUPPORT OF AN ORDER. BY PLACING AN ORDER, PURCHASER HEREBY AGREES TO THESE TERMS AND CONDITIONS.
1. LIMITED WARRANTY:
(a) Seller warrants to Purchaser that goods of its own manufacture will, at the time of shipment, be conveyed with good title thereto, and free from security interests, liens and encumbrances unknown to Purchaser. Seller also warrants to Purchaser that goods manufactured by Seller shall be free from defects in material and workmanship for a period of twelve (12) months from the date of shipment if properly installed and maintained by Purchaser and if operated under normal conditions.
(b) Seller’s exclusive obligation and Purchaser’s exclusive remedy for any tender of nonconforming or defective goods or breach of warranty (except as to the warranty of non-infringement which is set forth in paragraph 6 below) shall be expressly limited to Seller’s choice of (i) the repair of the specific nonconforming or defective good, (ii) the replacement thereof with a conforming good at the trade term point designated hereunder, or (iii) the repayment of that portion of the purchase price represented by the nonconforming or defective good. Such repair, replacement, or repayment will be made only upon return of the nonconforming or defective goods to Seller, which shall be at the cost of Seller only after inspection by Seller and receipt by Purchaser of definite shipping instructions from Seller.
(c) Purchaser shall have fifteen (15) days from receipt of any goods provided hereunder to inspect such goods and determine if the goods are nonconforming or defective, or whether any shortages exist. If Purchaser wishes to make a claim for nonconforming or defective goods, or for any shortages, Purchaser must notify Seller in writing prior to the expiration of the fifteen (15)-day inspection period and permit inspection by Seller of such goods. No goods may be returned without prior written authorization from Seller.
(d) ASIDE FROM THE LIMITED WARRANTY SET FORTH ABOVE, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ASIDE FROM THE LIMITED WARRANTIES SET FORTH ABOVE, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. Seller makes no warranty whatsoever with respect to goods manufactured by independent suppliers. Warranties with respect to such goods are limited to those which are offered by such suppliers and which are transferable.
(e) Seller shall not be liable for any incidental, consequential, indirect, special, contingent or punitive damages for any claim whatsoever, whether based on theories of breach of warranty, breach of contract, tort, strict liability or otherwise. In any event, and notwithstanding anything herein to the contrary, Seller’s aggregate liability to Purchaser shall not exceed the purchase price for the goods on which such liability is based.
Unless otherwise stated herein, shipping expenses shall be as set forth in the Order and as selected by Purchaser. Purchaser shall pay for all such shipping expenses, and reimburse Seller for any taxes, excises, duties, fees or other charges which Seller may be required to pay to any Federal, State, or Local government upon the production, sale documentation, delivery and/or transportation of the goods sold hereunder.
3. SELLER’S TERMS ARE SPECIFIED IN THE WRITTEN QUOTATION.
Purchaser shall incur interest at the lesser of the rate of 1.5% per month or the highest rate permitted by applicable law on amounts not paid in accordance with the terms of sale. If Purchaser fails to make timely payments or if, in Seller’s opinion, either the financial condition of Purchaser or Purchaser’s affiliates or other grounds for insecurity warrant such action, Seller may, without limiting its other remedies, (i) suspend shipments pending receipt of payment in advance or other security satisfactory to Seller or (ii) terminate the Order, in which event unpaid invoices shall become immediately due and payable. As to any party, the terms “affiliates” means any corporation, partnership, trust or other entity controlling, controlled by or under common control with such party. Seller shall be entitled to set off any amount owed by Purchaser or by any of Purchaser’s affiliates to Seller or to any of Seller’s affiliates against any amount payable by Seller in connection with the Order.
4. RISK OF LOSS, OWNERSHIP AND TITLE:
Unless otherwise mutually agreed to by the parties in writing, title, ownership, right of possession and risk of loss with respect to the goods shall remain with Seller until the goods are placed at the disposal of Purchaser at the point of shipment. Until such time as Seller has received full payment for goods sold hereunder, Seller shall have available all rights at law or equity to a secured seller, including the right to enter upon the premises where such goods shall be located for purposes of removing same, or rendering it inoperative, and all such rights shall be cumulative.
Any shipping schedules set forth in Seller’s quotation are based on information available to Seller at the time of such quotation and are subject to change based upon information (i) subsequently disclosed in Purchaser’s order, or (ii) which is complete and which contains necessary specifications for Seller to proceed with design and manufacture, is received and accepted by Seller. If a specific shipping date is not designated in the Order or in a subsequent writing signed by Seller, Seller shall not be responsible for any delays in the performance of this Order nor liable for any loss or damages resulting from any delays. If a specific shipping date is designated either on the Order or subsequently by Seller, Seller shall use reasonable efforts to meet such shipping date, but shall have no liability to Purchaser if unable to do so, including without limitation liability for incidental and consequential damages for delays in delivery. Seller will not be liable for delays in filling an Order or failure in the performance of any of its obligations hereunder caused by accidents, differences with workmen, shortages of labor, materials, fuel, power, fires, floods or other Acts of God, acts or omissions of Purchaser, priorities required, requested or granted for the benefit of the Federal or any state government, restrictions imposed hereunder by Federal or state legislation or regulations there under, or any cause, whether similar or dissimilar to those enumerated, beyond the control of Seller.
Purchaser agrees to indemnify Seller, its successors and assigns, against all court assessed decrees and costs resulting from infringement of any United States Letters Patent or other intellectual property right to the extent that such infringement arises from designs, specifications or instructions furnished or expressly or implicitly required by Purchaser. The sale of goods hereunder shall not grant to the Purchaser any right or license of any kind under any patent or other intellectual property right owned or controlled by Seller.
Part or all of this Order may be performed, and part or all of the rights hereunder against Purchaser may be enforced, by Seller or by any one or more of the affiliates of Seller.
Unless otherwise indicated, the quoted prices do not include installation or other services, which may be provided by Seller. If such services are provided by Seller upon Purchaser’s written request, Purchaser shall be charged in accordance with Seller’s prevailing schedule of charges for the applicable services. If Seller’s personnel will be working in an area of Purchaser’s facility with union personnel, Purchaser must make all necessary arrangements for Seller’s personnel to perform installation work in harmony with local unions and applicable laws. Purchaser must secure all applicable building permits and pay all applicable fees and charges prior to Seller performing any installation work.
9. CANCELLATION OR POSTPONEMENT:
Orders shall not be subject to cancellation or delivery postponed by Purchaser except with Seller’s prior written consent. Cancellation charges will be imposed upon terms that will indemnify Seller against all costs incurred, plus 5% of the total order. Cancellation charges are due net twenty (20) days from date of invoice for such charges.
Purchaser assumes and shall bear all responsibility to order, install and use adequate and sufficient safeguards, work handling tools and safety devices to fully protect the operator and any other user of the goods sold hereunder at all times in accordance with legal requirements under applicable federal, state and local laws and codes and industry accepted standards. Seller shall have no liability to Purchaser whatsoever for the failure of Purchaser to order, install or use such safeguards, work handling tools or safety devices and Purchaser agrees to indemnify, defend, and save Seller harmless from all liabilities, claims, demands, losses and expenses (including reasonable attorneys’ fees) resulting from failure to order, install and use such safeguards, work handling tools or safety devices.
Other indemnity provisions notwithstanding, Purchaser shall release, hold harmless, indemnify and defend Seller and its affiliates, and their respective officers, directors and employees, from and against any liabilities (including without limitation liability for negligence or strict liability), losses, claims, suits and costs arising out of, or relating to the design of goods supplied hereunder or the design of packages or containers in which goods supplied hereunder are shipped, if such goods, packages or containers are made in compliance with the Purchaser’s designs or specifications or arising out of or relating to any modifications, alterations or changes by Purchaser of the goods supplied hereunder.
All technical advice or assistance furnished by Seller to Purchaser with regard to use of goods sold hereunder is provided gratis, and Seller assumes no obligation or liability for such advice or assistance given or results obtained. If Purchaser is unable to accept goods on schedule and requests postponement of delivery, Purchaser shall pay Seller for all storage and handling charges for the goods after the first scheduled delivery date, plus a service charge of 1.5% (1.5 percent) per month of the purchase price of such goods.
13. GOVERNING LAW:
These Terms and Conditions shall be governed by and construed under the laws of Pennsylvania, excluding those provisions relating to choice or conflict of law. The parties irrevocably submit to the jurisdiction of the state and federal courts seated in Pittsburgh, Pennsylvania for the resolution of any and all disputes arising for the contract or these Terms and Conditions. Purchaser acknowledges that this forum selection provision is a material, bargained-for term.
14. APPLICATION OF TERMS AND CONDITIONS:
The Redimark TC12 is compliant with the laws, rules and regulations of the United States and Canada. These Terms and Conditions shall only apply to the purchase and sale of Redimark goods to be delivered and used within the United States and Canada. Purchaser represents and warrants to Seller that the goods subject to the Order and these Terms and Conditions are for delivery and use exclusively within the United States or Canada. Any sale, distribution or use of any good sold hereunder outside of the United States or Canada shall be a material breach of these Terms and Conditions and all rights and remedies shall be available to Seller therefor. Purchaser shall defend, indemnify and hold harmless Seller and its affiliates, and their respective officers, directors and employees, from and against any liabilities (including without limitation liability for negligence or strict liability), losses, claims, suits and costs arising from any sale, transfer, distribution or use of the goods outside of the United States and Canada.