The offer in any purchase order or other document tendered, either heretofore or hereafter, by Customer is hereby expressly rejected in whole. This document is a counter-offer to the offer in any purchase order or other document tendered by Customer. Acceptance of this counter-offer by Customer is expressly limited to the terms and conditions herein contained. Seller is proceeding with this transaction based on Customer's expressed interest in purchasing the Goods and/or services covered by this document. In the event Customer elects to reject this counter-offer, Customer may only reject the same in whole in writing prior to the earlier of delivery of the Goods, commencement of service, the expiration date, or ten (10) days after Customer's receipt of these terms and conditions; otherwise, Customer shall be deemed to have agreed to the terms and conditions herein contained. The counter-offer may be withdrawn by Seller at any time prior to acceptance by the Customer of each and every term and condition hereof.
Delivery date or shipping schedules are approximate, based upon the most recent information available to Seller and may be adjusted by Seller upon receipt of subsequent information. Any changes in Customer's requirements will require confirmation or revision of estimated delivery or shipping date. Customer shall be responsible for all freight charges, both to Seller's designated facility where the Goods will be tendered or commissioned services will be performed , and the return delivery upon completion of any commissioned services or purchased Goods. Upon delivery of the Goods by Seller to carrier, the carrier shall be deemed to be the agent of the Customer and thereafter risk of loss shall be on the Customer.
Descriptions, specifications, drawings, and similar documentation relating to the Goods sold by or on Seller's behalf ARE NOT WARRANTED, AND SELLER IS NOT BOUND THEREBY, UNLESS EXPRESSLY SO CONFIRMED BY SELLER IN WRITING. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR PERFORMANCE DATA OR STANDARDS RELATING TO GOODS SOLD HEREUNDER, WHETHER SUCH DATA OR STANDARDS ARE SUPPLIED BY SUBCONTRACTORS OR PERSONS OTHER THAN SELLER. If the Goods sold are to be subject to acceptance tests before shipment, the terms of such tests must be approved by Seller in writing prior to acceptance by Customer of this counter-offer. Tolerances relating to the Goods are based on the Seller's assumption that all material used in connection with the manufacture of the Goods was properly processed through previous operations, and that locating surfaces will permit the quoted tolerances within the applicable production rate estimated by Seller.
If any payment is not made on or before the due date thereof, the unpaid balance thereof shall bear interest at the rate of eighteen percent (18%) per annum. Customer agrees to pay Seller all of its fees and expenses incurred by it for the purpose of collecting all payments due Seller, or in recovering possession of the Goods, including without limitation attorneys' fees and expenses. If any shipment is delayed by reason of the act of Customer, or delayed by Seller because Customer's account is in arrears, all payments and other indebtedness then owed by Customer to Seller shall become due on the date that Seller is prepared to make shipment of the Goods. All Goods held by Seller for Customer shall be at the risk and expense of Customer. Seller may decline to deliver except for cash or stop Goods in transit, if reason to question Customer's financial responsibility develops. Invoice terms will be subject to such change as Seller may impose because of Customer’s financial or credit conditions existing at time of proposed shipment.
Acceptance of the counter-offer shall be an irrevocable sale and is non-cancelable. Any cancellation must be accepted by Seller in writing, and Seller shall have the right to retain all amounts paid to it by Customer as a nonrefundable deposit against payment of the purchase price therefore without further liability of Seller to Customer. Customer will be responsible for all costs, fees and expenses, including without limitation attorneys' fees and expenses, incurred by Seller as a result of the cancellation of this agreement. Seller shall have the absolute right to cancel this agreement upon breach thereof by the Customer, failure by the Customer to make any payment required by this agreement, or the insolvency or bankruptcy of the Customer.
In the event of any breach of this agreement by Customer, Seller may decline to perform further services or make further shipments of Goods without affecting its rights arising hereunder including these terms and conditions. If Seller elects to continue to perform services or make shipment of Goods to Customer, such action shall not constitute a waiver by Seller of any of its rights or remedies hereunder.
The terms and conditions of this agreement shall be binding upon and inure to the benefit of the successors and assigns of Seller and Customer, and may be assigned to any successor organization or affiliate or related entity of Seller without the written consent of Customer, but shall not be assignable by Customer without prior written consent of Seller.
Seller shall bear the risk of loss of or damage to the Goods until delivery to Customer at the F.O.B. point of shipment. Any loss or damage subsequent to such delivery shall be at the sole risk of Customer.
Customer shall have seven (7) calendar days to inspect the Goods one Goods arrive at Customer’s facility (“Inspection period”). If the Customer does not notify Seller in writing that Goods are defective of damaged, then Seller sall be deemed to have accepted Goods and waives all right to contest, set-off, or refuse payment for Goods.
Customer hereby agrees to hold harmless, protect, defend and indemnify, and hereby releases, Seller and its trustees, officers, directors, shareholders, employees, contractors, agents, subsidiaries, related entities, and affiliates, and its and their respective successors, trustees, and assigns from and against any and all claims, demands, causes of action, suits, sums paid in settlement of any of the foregoing, judgments, losses, damages, injuries, liabilities, penalties, enforcement actions, fines, taxes, liens, encumbrances, costs or expenses (including, without limitation, attorneys' fees, litigation, arbitration and/or administrative proceeding costs, expert and consultant fees and laboratory costs), whether direct or indirect, known or unknown, arising out of, connected with or incidental to Customer's use of the Goods or services, and/or Customer's breach of this agreement.
Except for Seller's express obligations herein, Customer shall be fully responsible for all regular, daily and other customary maintenance and repair of its equipment.
Any term or condition hereunder which is determined by a court of competent jurisdiction to be prohibited or unenforceable in any jurisdiction shall, as to such prohibition or unenforceability, be ineffective only to the extent of such prohibition or unenforceability, without invalidating the remaining terms and conditions of sale.
No addition to, or modification of this agreement shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller. This agreement constitutes the entire agreement of the parties hereto with respect to the sale of the Goods and provision of services hereunder, and supersede all prior discussions, agreements and understandings of any nature whether written or oral, with respect thereto, and no conditions, warranties or representations other than as expressly provided herein shall be binding upon Customer or Seller.
Seller shall not be responsible for any failure to perform its obligations with respect to the Goods sold or services performed arising from causes beyond Seller's control. These causes shall include, but not be limited to: fire, war, insurrections, acts of God, explosions, accident, labor disputes, shortages of material, weather, delays in transportation, inability to secure raw materials or machinery for the manufacture of Goods, acts of any government or any agency thereof or judicial action. Failure of Seller to perform for these reasons aforesaid shall not be grounds for Customer's cancellation of this agreement but the delivery date shall be extended accordingly.
Seller retains for itself any and all property rights in and to all designs, engineering details and other data pertaining to any Goods designed in connection herewith and to all right of discovery, invention or patent rights arising out of the work done in connection herewith. The Customer expressly agrees that it will not assert any property rights therein, except the right for itself and subsequent owners to use the Goods. As Goods sold may be used by the Customer for uses beyond Seller’s control and the manufacturers of products sold exert their own patents policy, Seller shall not be held liable for any patent infringements and actions concerning patent questions shall be handled by Seller's manufacturer suppliers in accordance with their policies.
The Goods sold are priced and will be designed and manufactured to Seller's interpretation of the Occupational Safety and Health Act of 1970. Seller considers that it is in substantial compliance with the general requirements of OSHA directly associated with Operational Safety and Noise Level Control. The technical detail of OSHA and many additional references to other standards render it impossible to state complete compliance or objection unless specific sections or paragraphs of OSHA are identified by the Customer. Because of changes which occur in OSHA, state codes and company safety programs, Seller must be advised by the Customer if it deems modifications in the Goods are required for compliance. A quotation will be submitted for changes.
This contract shall be governed by and construed in accordance with the laws of the State of North Carolina with venue being at any State or Federal court located in Wake Country, North Carolina.
