Terms and Conditions of Sale
AGREEMENT OF SALE: Acceptance by Seller of any order placed for Seller’s products (the “Products”), whether submitted by telephone or on Buyer’s purchase order form or otherwise, shall be subject to these Terms and is conditioned upon the Buyer’s acceptance of these Terms. Any terms or conditions appearing on the Buyer’s purchase order or other forms which are inconsistent with the terms and conditions hereof shall not be binding on Seller and shall not be considered applicable to the sales or shipment of the Products. This Invoice shall be deemed notification of an objection to such inconsistent, additional and/or different terms and a rejection thereof. Receipt by Buyer or Buyer’s agent of the Products will constitute Buyer’s acceptance of these Terms, although Buyer’s indication of acceptance is not limited to the foregoing method.
RISK OF LOSS: Title, risk of loss or damage, and possession shall pass to Buyer when the Products are delivered to the carrier or picked up at the Seller’s facility by or on behalf of Buyer, as the case may be, and the Products shall be at the risk of Buyer from and after such delivery or pick up.
TAXES; PAYMENT: Taxes and duties of any nature imposed by reason of sale or use of the Products will be added to the selling price and Buyer agrees to pay and save Seller harmless from all such taxes or duties payable by Buyer to any governmental unit, including penalties and interest. If Buyer fails to comply with any terms of payment, in addition to Seller’s other rights and remedies, but not in limitation thereof, any unpaid amount shall become due immediately together with a service charge of 1 1/2% per month and reasonable attorneys’ fees incurred by Seller.
FORCE MAJEURE: Seller shall not be liable for any delay or default in performance of orders, or in the delivery of the Products, or for any failure of such performance or delivery, or for any damages suffered by Buyer by reason thereof, when such delay, default or failure is, directly or indirectly, caused by or in any manner arises from any emergency, cause, condition, contingency or other event affecting, or beyond the reasonable control of, Seller, including, without limitation, strikes, lockouts, slowdowns, boycotts, picketing, riots, civil commotion, sabotage, acts of war, embargoes, carrier shortage, material shortage, utilities, prohibition or restrictions against manufacture, sale and shipment of the Products imposed by any Federal, state or municipal authority, orders of any domestic or foreign state or nation or municipal authority, fires, accidents, floods, and any and all other acts of God. In the event of any such contingency, the time for performance by Seller shall be extended for a period equal to the time lost by reason of the delay.
WARRANTIES, INSPECTION, AND DISCLAIMER: Seller warrants, only to Buyer, the Products will be sold free and clear of all liens and encumbrances and in conformance with the description and specifications, if any, set forth on the face of this Invoice. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. As between Seller and Buyer, except as provided herein, the Products are delivered to Buyer “as is.” Seller has not designed or manufactured the Products and is not responsible for any design or manufacturing defects. Final determination of the suitability of the Products for the use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall in no way be responsible for the suitability of the Products for any particular end use. Buyer shall inspect the Products immediately upon their receipt. Claims for shortage or for mistakes or errors in billing or as to a defect or nonconformity in any Products must be presented within 15 days from the date of receipt of the Products and must state the date of such receipt and the invoice number applicable to the claim. Any claims for the defective, nonconforming or non-functioning product must be accompanied by a test report by an independent third party test lab along with a complete documented chain of possession within one year. Any claim not so presented will be conclusively deemed waived. Buyer must hold any Products claimed to be defective or nonconforming until such Products are evaluated by Seller. Resion warrants that for a period of one year following the delivery of product to Purchaser, the products will be free from defects in material and workmanship and will function in substantial compliance with the manufacturer’s written specifications. If any Products are defective or nonconforming, BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S SOLE OBLIGATION UNDER THIS WARRANTY SHALL BE REPLACEMENT OF THE DEFECTIVE PRODUCTS OR REFUND OF THE PURCHASE PRICE THEREOF, AS DETERMINED IN SELLER’S SOLE OPTION.
Resion hereby attests that the parts provided under this purchase order are unused, unaltered, have not been salvaged, reclaimed, otherwise used, or previously rejected for any reason.
This statement is based on our Rigorous Supplier Selection, Evaluation and Qualification practices supported by Resion inspections and testing of the specific parts supplied that are designed to prevent the supply of fraudulent/counterfeit parts.
LIMITATION OF LIABILITY: Limitation of Liability: Upon refund of the purchase price or replacement, the seller shall have no further obligation to the buyer with respect to the products. Under no circumstances shall seller be liable to buyer or any third party for special, incidental or consequential damages or other damages, losses, or expenses in connection with, or by reason of the inability to use the products for any purpose, or for damages and/or injuries incurred by buyer, its agents and employees, by virtue of defects in the products, even if seller has been advised of the possibility of such damages. Any action against Seller for breach of warranty or contract, negligence or other alleged liability arising out of this Invoice must be commenced within one year after such cause of action accrues, and must otherwise conform to the requirement of these Terms. If the foregoing limitation is held to be unenforceable, the maximum liability of Seller and its service providers to you shall not exceed the number of fees paid by you and for the products you have purchased from Seller. Some jurisdictions do not allow the limitation or exclusion of liability for certain damages, so the above limitations and exclusions may not apply to you to the extent such jurisdiction’s law is applicable to this agreement.
Export Compliance: Buyer shall comply with, and be responsible for obtaining all licenses, permits and other approvals required under, all applicable foreign, national, state and local laws and regulations relating to the purchase or use of the Products, including laws regulating exports and transactions with non-U.S. persons and the laws of foreign countries, including laws regulating the import of the Products. The Products are not designed, intended or authorized for use in life support, life-sustaining, nuclear, or other applications in which the failure of such products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Buyer will release, defend, indemnify and hold Seller harmless from and against any and all claims, damages, losses, costs, expenses, and liabilities arising out of or in connection with Buyer’s violation of any of this Section 6.
BUYER/SELLER RELATIONSHIP: Buyer and Seller are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by your purchase.
ENTIRE AGREEMENT; WAIVERS, ETC.: (a) This Invoice shall inure to the benefit of Seller’s successors and assigns and shall be binding upon Buyer’s successors and assigns. (b) This Invoice shall be governed by the laws of the State of New York. Whenever possible, each of the terms and conditions of this Invoice is to be interpreted in such manner as to be effective and valid under applicable law, but if any such term or condition is prohibited or invalid under such law, such term and condition is to be ineffective only to the extent of such prohibition and invalidity, without invalidating the remainder of such term or condition or the remaining terms and conditions hereof. (c) These Terms together with any other terms and conditions set forth in this Invoice constitute the entire agreement between the parties governing the purchase and sale of the Products indicated on the face hereof and supersede all prior and contemporaneous discussions and agreements between the parties concerning such Products. There are no promises, covenants, representations or agreements, oral or written, other than as expressly set forth herein.
(d) This Invoice may not be modified, amended, changed or terminated, and no term or condition hereof may be waived, unless such waiver, modification, amendment, change or termination is in writing and signed by duly authorized employees of Seller and Buyer. No delay or omission by Seller in exercising any right or remedy shall be a waiver thereof or of any other right or remedy, and no single or partial waiver thereof shall preclude any other right or remedy. No waiver of any term or condition, or the breach thereof, in any instance, shall be deemed a waiver of any other term or condition hereof or any subsequent breach thereof. All rights or remedies of Seller hereunder are cumulative. (e) Buyer hereby consents to the jurisdiction of any state or federal court located within the State of New York and waives personal service of any and all service of process upon it and consents that all such service of process be made by certified or registered mail directed to Buyer at the address specified on the face hereof, and service so made shall be deemed to be complete upon receipt thereof. Buyer waives any objection to jurisdiction and venue of any action instituted against it as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. If a dispute arises out of or relates to this contract or breach thereof and if said dispute cannot be settled through negotiation, the parties agree first to try, in good faith, to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association before resorting to arbitration. Said mediation shall last a minimum of four hours and the parties agree to share equally in the cost of the mediator.
(f) If You are a company with its principal place of business outside of the United States, then any dispute, controversy or claim arising out of or relating to this contract, including the validity, invalidity, breach or termination thereof that cannot be resolved by mediation within 30 days, shall be finally resolved by binding arbitration pursuant to the New York Treaty of the United Nations administered by the American Arbitration Association (AAA), and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction pursuant to the New York Treaty. The arbitration shall be conducted in English in New York, New York, United States of America in accordance with the United States Arbitration Act. There shall be one arbitrator, named in accordance with such rules, and the parties shall share equally in the cost of the arbitrator. You agree that You will reimburse Seller for any cost associated with enforcement of Seller’s rights to payment for the Products that it sells to Buyer under this agreement including but not limited to, collection costs and attorney fees.