|1. TERMS TO GOVERN: These Terms shall be binding upon Nationwide Coils, Inc. (“Seller”) and the buyer (“Buyer”). No modification, amendment or change, whether in Buyer’s purchase order, shipping release forms or otherwise shall obligate Seller, unless authorized in writing by Seller. Any different or inconsistent terms and conditions of sale contained in Buyer’s forms, contracts or invoices are hereby superseded by these Terms.2.ACCEPTANCE OF ORDERS; CANCELLATION: All orders for equipment to be purchased from Seller (“Products”) must be in writing and are subject to acceptance by Seller and are binding when Seller’s order acknowledgment is transmitted to Buyer. All prices quoted are in US Dollars. Prices are valid for (30) thirty days from the date quoted and are subject to stenographic error corrections plus adjustments based on the delivery requirements of Buyer. In the event of specification changes after receipt of Buyer’s order, the Seller will adjust the prices to cover said changes. Buyer may modify or cancel an order upon written notice to Seller prior to Products being put into the production cycle and subject to cancellation charges as determined by Seller. After the Products have been placed into the production cycle, Buyer is liable for the full purchase price of the Products.3. PAYMENT & TAXES: Upon credit approval, payment terms will be thirty (30) days net with no retainages unless contrary terms are otherwise expressly agreed to in writing by Seller. Should Buyer default in the timely payment to Seller of sums due on an order, Seller is entitled to any remedies provided in these Terms or by law. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of the lesser of one and one-half percent (1.5%) per month or the maximum allowable legal interest rate, along with all costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) incurred by Seller. Buyer is responsible for all sales, customs, or use tax imposed by any governmental agency, including, but not limited to, Federal, state, local or international agencies payable on the transaction under any applicable statute, except those taxes due as a result of Seller’s gross profits.4. SHIPMENT & RISK OF LOSS:Shipment dates are estimates only. Shipment shall be FOB Sommerville, Tennessee, with title passing to Buyer upon delivery to the carrier by Seller. Shipping charges will vary based on the applicable freight zone of Buyer. Charges for special handling will apply if special handling is requested. Seller specifically rejects any order containing a time is of the essence clause or liquidated damage penalties for late shipments. Risk of loss, including but is not limited to loss of goods from shortages, damages or transit delays, shall pass to Buyer when the Products have been delivered to any transportation carrier (excluding proprietary transportation facilities of Seller, if any). Buyer is advised to carefully inspect Products upon receipt. Buyer is responsible to document freight loss or damage immediately and file all claims with the carrier upon receipt of Products. Claims for concealed damage must be reported within ten (10) days or the charges to repair are the responsibility of Buyer.
5. PERFORMANCE: Seller shall be obligated to furnish only the Products described in the applicable purchase order or acknowledgement and agreed to in writing. The duty to perform under any order on the part of Seller and the price thereof is subject to the approval of its Credit Department, and is contingent upon the absence of strikes, accidents, floods, act(s) of God, acts of terrorism, war, fires, fuel shortages, the inability to procure materials from the usual sources of supply, the requirements of the US Government (through the use of priorities or preference or any other manner) that Seller divert either the material or the furnished Products to the direct or indirect benefit of the US Government, or upon any like or unlike cause beyond the reasonable control of Seller. Upon disapproval of the Credit Department or upon the occurrence of any such event, Seller may delay performance or, at its option, renegotiate prices and terms and conditions of sale with Buyer. If Seller elects to renegotiate and Seller and Buyer are unable to agree on revised prices or terms, Seller may cancel without any liability.
6. SHORTAGES: No claim for shortages will be allowed unless reported to the Seller within five (5) days from Buyer’s receipt of Products. Any shipping weights given or estimated herein are approximate, and are given for Buyer’s convenience only and are not guaranteed by Seller.
|7. RETURNS: Products may not be returned unless prior written approval is obtained from the Seller. Seller assumes no responsibility for Product returned without such approval, nor for any costs incurred herewith. Non-standard Product may not be returned. A minimum twenty-five percent (25%) handling/reconditioning fee will be charged on all accepted returns. Product authorized for return must be shipped freight pre-paid, FOB. Somerville, Tennessee.8. LIMITED WARRANTY AND DISCLAIMER: Seller warrants to the original user of the Products that at the time of delivery and for a period of twelve (12) months from date of shipment, Products will be free from defects in material and manufacture provided that Products have been correctly installed, applied, and operated under intended design conditions in accordance with the instructions of Seller. Seller’s obligation under this warranty is limited to repair or replacement of Products, at Seller’s option, which upon Seller’s examination at its factory shall appear to have become defective. Correction of such defects by repair or replacement, plus return freight by lowest common carrier, shall constitute fulfillment of Seller’s warranty obligations to Buyer. Seller accepts no responsibility for repairs made outside the factory by others without prior written approval. Limited warranty does not cover labor. No warranty or liability whatever shall attach to Seller until full payment has been received. If the Products are replaced, the replacement may not be new, but will be in good working order and at least functionally equivalent to the item or Products replaced. The replacement assumes the warranty status of the replaced Products. The warranty period does not start over. THIS LIMITED WARRANTY IS IMMEDIATELY VOIDED AND CANCELLED BY ANY MISUSE, NEGLECT, FAILURE TO FOLLOW INSTRUCTIONS, OR MANUALS OF INSTALLATION OR MAINTENANCE REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL. THE WARRANTY AND LIABILITY SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES WHETHER IN CONTRACT, TORT, OR IN NEGLIGENCE, EXPRESSED OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE.9. LIABILITY DISCLAIMER: TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER’S TOTAL LIABILITY FOR CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO SELLER BY BUYER FOR THE PRODUCTS ALLEGED TO CAUSE THE DAMAGE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, DELAY DAMAGES, OR CLAIMS OF THIRD PARTIES) THAT MIGHT OCCUR AS A RESULT OF THE PERFORMANCE OR BREACH OF THE AGREEMENT OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.’10. ASSIGNMENT:No right or interest may be assigned by Buyer, nor may any obligation or performance delegated by Buyer without Seller’s written permission. Any attempted assignment or delegation shall be void and ineffective for all purposes. Seller may assign its rights or obligations under this Agreement in the event of a merger or change of control of Seller.
11. GOVERNING LAW AND VENUE: This agreement shall be governed and construed in accordance with the laws State of New York. Buyer submits to the jurisdiction of the State of New York and consents that any disputes arising out of this Agreement shall be exclusively venued in to Federal or state courts for Westchester County, New York.
12. EXPORT CONTROLS: Buyer shall comply with the export laws and regulations of the United States and other applicable jurisdictions with regard to Products and labor. Buyer agrees it shall not export or enter into an agreement for the export any goods from Seller to any prohibited or embargoed country or to any denied, blocked or restricted person or entity including those so designated by the US Dept. of Commerce or Treasury.
13. MISCELLANEOUS: In the event that any provision of this Agreement is held invalid by the final judgment of any court of competent jurisdiction, the remaining provisions shall remain in full force and effect as if such invalid provision had not been included herein. The waiver or failure of either party to enforce the terms of this Agreement in one or multiple instances shall not constitute a waiver of that party’s rights under this Agreement with respect to other violations. The titles and headings used herein are for convenience only and do not constitute any part of this Agreement. Those sections of this Agreement, which by their nature are intended to survive, shall survive termination of this Agreement. The prevailing party may recover their attorney fees and reasonable out-of-pocket expenses.