ACCEPTANCE OF BUYER’S ORDER IS CONDITIONAL ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS.IF BUYER OBJECTS TO ANY TERMS BELOW, SUCH OBJECTION MUST BE IN WRITING AND DELIVERED TO R.B. WOODCRAFT INC. (“SELLER”) WITHIN A REASONABLE TIME.FAILURE TO MAKE SUCH A TIMELY EXCEPTION, OR ACCEPTANCE BY BUYER OF ANY GOODS DELIVERED BY SELLER HEREUNDER, SHALL BE CONCLUSIVELY DEEMED ASSENT TO THE TERMS AND CONDITIONS BELOW.SELLER’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM BUYER WILL NOT BE A WAIVER OF THE PROVISIONS HEREOF.
GENERAL PROVISIONS
1. PARTIES: “Seller” means R.B. Woodcraft Inc. “Buyer” means the vendee to whom this Proposal is addressed.
2. ACCEPTANCE: Acceptance by Buyer of this Proposal is expressly limited to acceptance of the terms and conditions of this Proposal. Any term or condition proposed by Buyer in addition to, or different from the terms and conditions set forth herein are expressly objected to and rejected by Seller in advance, and each shipment received by Buyer from Seller shall be deemed to be only upon the terms and conditions contained in this Proposal, notwithstanding any terms and conditions contained in any acknowledgement, confirmation, or other form from Buyer and notwithstanding Seller’s acceptance of or payment for any shipment, or any course of prior dealings or usage of trade, unless specifically accepted by Seller in writing. Buyer shall be bound by this Proposal and its terms and conditions upon sending to Seller a confirmation, acknowledgment, or purchase order, or upon delivery.
3. PRICE: Prices are firm unless otherwise agreed to by Seller in writing. Any price increases above the prices stated in the Proposal must be negotiated between Buyer and Seller. If no price is stated on the Proposal, it is agreed that the applicable price shall be the price last quoted to or paid by Buyer.
4. TAXES: Prices do not include any sales, use, export, or import taxes, now or hereafter enacted by any federal, state or municipal authority, applicable to the goods sold on this transaction. Buyer shall liable for all sales, use, VAT or other taxes imposed by any governmental authority for the manufacture and purchase of the products Seller supplies, which Seller is required by law to collect from Buyer. If Buyer is exempt, it shall supply Seller with a tax exemption certificate.
5. TERMS AND METHOD OF PAYMENT: Payment will be made within the time period stated on the face of this Proposal or, if not stated, within thirty (30) days. The term of payment period shall commence on the date of receipt by Buyer of an invoice. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice. The amount of credit or terms of payment may be changed, or credit withdrawn by Seller at any time. If the goods are delivered in installments, Buyer shall pay separately for each installment. Payment shall be made for the goods without regard to whether Buyer has made or may make any inspection of the goods. If shipments are delayed by Buyer, payments are due from the date when Seller is prepared to make shipments. Goods held for Buyer are at Buyer’s risk and expense. Buyer shall notify Seller of any objections in Seller’s invoice and the parties shall diligently work to remedy such objections. Upon cure of the objections, the Buyer shall make immediate payment to Seller.
6. LATE PAYMENT CHARGE: Buyer shall pay Seller a late payment charge of 2.0 % per month (24% Annual APR) for each thirty (30) days that payment is not timely received.
7. TITLE AND DELIVERY: Unless installation is by Seller, all shipments of goods shall be delivered F.O.B. Seller’s facility, and title and liability for loss or damage thereto shall pass to Buyer upon Seller’s delivery of the goods to a carrier for shipment to Buyer. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at port of entry and destination. Seller may deliver goods in installments. Shipping dates are approximate only. Seller shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified estimated delivery schedule because of unavoidable production or other delays. All provisions of this Paragraph apply to both domestic and international shipments, except that title to goods shipped outside the shall pass at the point of destination; risk of loss or damage and all expenses associated with goods shipped outside the shall be the responsibility of the Buyer.
8. CANCELLATION AND CHANGES: Seller may cancel this Proposal for any reason prior to acceptance by Buyer. Seller may withdraw this proposal or make changes in this Proposal by issuing a written Change Proposal within 30 days after delivery of the Proposal. Should any change increase or decrease the cost of, the time required for performance of this Proposal, or other provisions of the Proposal, an equitable adjustment in the price, delivery schedule and/or other Proposal provisions will be made.
9. ACCEPTANCE OF GOODS Acceptance shall be presumed conclusively to have occurred thirty (30) days following delivery of product to Buyer, unless Buyer has accepted the product prior to that date. Buyer maintains the right to inspect the products and reject the products which are deemed defective. Products rejected by Buyer must be returned to Seller at Buyer’s expense.
10. LIMITED WARRANTY: Seller, except as otherwise hereinafter provided, warrants the goods for a period of one (1) year against faulty workmanship or the use of defective materials, and that such goods will conform to Seller’s written specifications, drawings, and other descriptions for a period to be agreed upon by both parties. Seller warrants that at the time of delivery Seller has title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller. Continued use or possession of goods after expiration of the applicable warranty period stated above shall be conclusive evidence that the warranty is fulfilled to the full satisfaction of Buyer. Seller’s warranties as hereinabove set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.
11. EXCLUSIVE REMEDIES: If the goods furnished by Seller fail to conform to Seller’s exclusive limited warranty, Seller’s sole and exclusive liability shall be (at Seller’s option) to repair or credit Buyer’s account for any such goods which are returned by Buyer during the applicable warranty period set forth above, provided that (i) Seller is promptly notified in writing upon discovery by Buyer that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. Seller’s plant, and (iii) Seller’s examination of such goods shall disclose to Seller’s satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If Seller elects to repair or replace such goods, Seller shall have a reasonable time to make such repairs or replace such goods. THIS IS SELLER’S ONLY LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DIRECT DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING OUT OF TORT, OR CONTRACT IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PARTICULAR GOODS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE WARRANTIES SET OUT HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE GOODS.
12. TERMINATION: Seller reserves the right to terminate this Proposal in whole or in part for default (i) if Buyer fails to materially perform in accordance with any of the requirements of this Proposal, including but not limited to failure to make all properly due payments, or (ii) if Buyer becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against Seller under any state or federal law relating to bankruptcy, reorganization, receivership, or assignment for the benefit of creditors. In the event of such termination, Buyer shall reimburse Seller for any and all costs incurred to the date of termination, plus its reasonable profit. Any such termination will be without liability to Seller. The rights and remedies of Seller set forth herein are in addition to any and all other rights and remedies Seller has at law or in equity.
13. FORCE MAJEURE: Any loss, damage, or delay in, or failure of, performance by Seller shall not constitute a default hereunder or give rise to any claim for damage if such loss, damage, delay, or failure is attributable in whole or in part to any cause or causes beyond its reasonable control. These causes shall include, but are not limited to, any act of nature; compliance with any order, decree, or request of any governmental authority; economic downturn; terror; rebellion; sabotage; fire; flood; explosion; accident; riot; strike; labor difficulty; national emergency; or any other cause not within the control of the Seller or which the Seller is unable to avoid by exercise of reasonable care. The estimated time for performance and completion of the work shall be extended for a time equal to the delay time reasonably attributable to such cause.
14. INFORMATION: All drawings, specifications, documents, and/or drawings furnished by Seller are the confidential, proprietary information of Seller. Buyer agrees not to disclose, provide, or sell to any third party any confidential drawing, specification, software or technical data furnished by Seller or reproductions thereof, and Buyer shall not use them in any way except in connection with the facility which is the subject hereof. Seller assumes no responsibility whatsoever and shall not be held liable for any damages which may be incurred by Buyer by the unauthorized use of any drawings, specifications and/or software provided by Seller. The ownership right to, all copyrights in and the title to all Information and other documents produced or provided by Seller is and shall be vested solely in Seller
15. INDEMNIFICATION: Except to the extent such loss, damage, or expense results from and to the extent of the acts and/or omissions of Seller, its agents, servants, or employees, Buyer shall protect, indemnify, and save harmless Seller from and against any loss, damage, or expense (including reasonable attorney fees) arising from any claim of death or injury to third parties or tangible property damage to third parties arising out of the performance of the work by Seller or an employee of Seller, including while on Buyer’s property pursuant to this Proposal but only to the extent of the negligent act or omission of Buyer or such employee.
16. CONTRACTS: This Proposal may be used in connection with formal written contracts. In such event, these Seller’s Terms and Conditions shall prevail if in the event they are inconsistent with terms and conditions of such contract, unless otherwise agreed upon in writing.
17. ASSIGNMENT: Buyer shall not assign this Proposal or any part hereof, without written consent of the Seller, which consent shall not be unreasonably withheld except that Seller may delegate performance of any portion of the work to any of its affiliates or established offices. Consent to assignment shall not release the party requesting assignment from its obligations and liabilities hereunder unless expressly agreed to by non assigning party.
18. ATTORNEY’S FEES: In the event that a law suit is commenced in which it is alleged that any party has breached any of the terms hereof, the prevailing party, as determined by the court, shall be entitled to reimbursement from the other party of its reasonable costs and expenses incurred in such law suit, including but not limited to it reasonable attorneys’ fees.
19. WAIVER: Nothing herein shall be construed as limiting either party’s rights otherwise provided by law. Either party’s failure to enforce, or waiver of, any terms hereof shall not be considered a continuing waiver of any such party’s rights.
20. APPLICABLE LAW AND FORUM: The validity, performance and construction of this contract shall be governed by the laws of the State of New York and such shall be the only jurisdiction in which any suit may be brought against Seller regarding any dispute arising out of this transaction. Buyer consents to jurisdiction in Syracuse, New York without the application of the conflict of laws and waives any objection thereto.
