1.
ANY ACCEPTANCE OF THIS OFFER IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS AND
CONDITIONS CONTAINED HEREIN AND IN ANY QUOTATION AND/OR SALES ORDER ACKNOWLEDGEMENT
WHICH IS ISSUBD BY SELLER. ANY PREVIOUS OFFERS MADE BY BUYER, WHETHER WRITTEN
OR VERBAL, NOT ALREADY EXPRESSLY ACCEPTED BY SELLER IN WRITING ARE HEREBY OBJECTED
TO AND REJECTED. IN NO EVENT SHALL THIS OFFER BE DEEMED AN ACCEPTANCE OF ANY
PRIOR OFFER BY BUYER. THE TERMS AND CONDITIONS BELOW SHALL SUPERSEDE ANY PROVISIONS,
TERMS AND CONDITIONS CONTAINED ON ANY CONFIRMATION OR PURCHASE ORDER, OR OTHER
WRITING THE BUYER NAY GIVE OR RECEIVE, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED EXCLUSIVELY BY THE PROVISIONS, TERMS AND CONDITIONS HEREOF. NO CONTRARY,
ADDITIONAL OR DIFFERENT PROVISIONS, TERMS OR CONDITIONS SHALL BE BINDING ON
THE SELLER UNLESS ACCEPTED BY THE SELLER IN A WRITING WHICH MAKES SPECIFIC REFERENCE
TO THIS OFFER AND ACKNOWLEDGES SUCH MODIFICATIONS OR REVISIONS. ONCE THIS OFFER
IS ACCEPTED BY BUYER, THIS ORDER NAY BE CANCELED ONLY WITH SELLER'S WRITTEN
CONSENT AND UPON TERMS THAT WILL INDEMNIFY SELLER AGAINST ANY AND ALL LOSS.
SELLER'S COMMENCEMENT TO PROCURE THE GOODS OR SHIPMENT OF THE GOODS WHICH ARE
THE SUBJECT OF THIS OFFER SHALL BE DEEMED AN EFFECTIVE MODE OF ACCEPTANCE OF
THIS SALES ORDER BY BUYER, UNLESS BUYER, WITHIN A COMMERCIALLY REASONABLE TIME
AFTER BUYER BECOMES AWARE, OR SHOULD NAVE BECOME AWARE, OF SELLER'S COMMENCEMENT
TO PROCURE THE GOODS HEREIN OR OF SHIPMENT OF SUCH GOODS NOTIFIES SELLER IN
WRITING THAT BUYER OBJECTS TO AND REJECTS THIS OFFER. THIS OFFER IS SUBJECT
TO SELLER'S CREDIT APPROVAL OF BUYER.
2. Prices are subject to change without notice and orders calling for future
delivery will be billed according to the price in effect at time of delivery.
Unless expressly provided otherwise, the prices referred to herein shall not
include any charges for freight, transportation custom duties, tariffs, import
or other taxes, insurance or any other charges. Such charges and/or taxes shall
be the sole responsibility and shall be borne exclusively by Buyer.
3. All invoices submitted by Seller to Buyer shall be payable net within 30
days. If payment is not received within the prescribed period, interest shall
accrue on any unpaid balance from its due date until payment is made at the
rate of 1.5% per month. Seller shall retain a security interest in the goods
shipped to Buyer until the entire balance of the price of such goods and all
other monies then due are paid in full. In the event Buyer defaults on any payment
or makes an assignment for the benefit of creditors, or if a preceding in insolvency
or bankruptcy is initiated by or against the Buyer, whether voluntary or involuntary,
Seller shall have the right to withhold shipments, in whole or in part, and
to recall goods in transit, retake same, and remove and/or repossess goods which
may be stored with the seller for the Buyers account, without the necessity
of taking any proceedings and to tale such other action as may be necessary
to protect its security Interest, including any other remedies Seller may have
by operation of law or otherwise All expenses including court and reasonable
attorneys' fees that are incurred in the enforcement of this agreement will
be the sole responsibility of Buyer.
4. All goods shall be shipped F.O.B. Seller’s point of shipment. Risk of
loss shall pass to Buyer upon delivery to the first carrier or shipper. Seller
shall not be responsible for any delay or for any consequence of any delay in
the delivery of the goods, when such delay is due to strike, fire, government
action, the fault of Sellers source of supply or of any transportation company,
or any other cause or causes beyond the reasonable control of the seller.
5. Seller warrants that the goods supplied hereunder shall conform at time of
delivery to the written specifications accepted by the Seller, if any, subject
to Seller’s standard tolerance for variation. SELLER'S SOLE LIABILITY AND
BUYER'S EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY SHALL BE, AT SELLER'S
OPTION, CREDIT OR REPLACEMENT OF THE NONCONFORMING GOODS. FURTHERMORE, SUCH
WARRANTY SHALL BE NULL AND VOID AND SHALL NOT APPLY TO ANY GOODS WHICH ARE (i)
ALTERED, MODIFIED, DAMAGED REPAIRED, ABUSED OR MISUSED (WHETHER INTENTIONALLY
OR ACCIDENTALLY) BY ANY PERSON OTHER THAN SELLER OR ITS AGENTS OR (ii) NOTWITHSTANDING
ITS NONCONFORMITY, ARE USED OR OTHERWISE ACCEPTED BY BUYER OR BUYER WAIVES ITS
CLAIM FOR REJECTION UNDER THE PROVISIONS OF THE SALES ORDER. THE FOREGOING WARRANTY
SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND SELLER DISCLAIMS ALL
OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND/OR PARTICULAR
PURPOSE. SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR SPECIAL, INDIRECT,
PUNITIVE OR CONSEOUENTIAL DAMAGES OF ANY NATURE WHATSOEVER. SELLER SHALL NOT
BE RESPONSIBLE FOR THE RESULTS OF ANY TECHNICAL ADVICE IN CONNECTION WITH THE
DESIGN, INSTALLATION OR USE OF THE GOODS SOLD HEREUNDER.
6. Buyer may reject any shipment of any goods to the extent such shipment does
not conform in any material respect with the written specifications accepted
by Seller, if any. In order to reject a shipment, Buyer must give written notice
to Seller within 10 days after receipt of the shipment. If notice is not received
within the prescribed period, then Buyer shall be determined to have accepted
the shipment of the goods. If notice is received and Seller confirms the nonconformity,
Seller shall, at its sole option, either replace the nonconforming goods with
conforming goods or credit to Buyer the purchase price therefore.
7. Buyer shall indemnify, defend and hold Seller harmless from and against any
and all loss, cost, liability and expense (including, without limitation, reasonable
attorneys' fees and costs) incurred and/or paid by Seller resulting from or
arising out of or in connection with (a) any representation or warranty made
to any third party by Buyer, its affiliates, agents, distributors or employees
which is not expressly authorized by Seller in writing, and (b) any claims asserted
or actions filed against Seller by a third party, including claims for personal
injury or property damage, except if liability for such claims or actions arises
from the willful misconduct of Seller. Buyer agrees to carry and maintain, at
all times after this sale products liability insurance in an amount of not less
than $1,000,000 to cover products liability claims with respect to all semifinished
or finished products in which the goods subject to this sales order may hereinafter
form a part of, and will if requested to do, name Seller as additional insured
and furnish Seller with proper evidence of such coverage.
8. This agreement and the performance of any obligations hereunder, may not
be assigned by Buyer without the prior written consent of Seller. If any part
of this agreement shall be held unenforceable, the remainder of the agreement
shall nevertheless remain in full force and effect. This agreement shall be
construed in accordance with the laws of the State of New Jersey as if the agreement
was performed wholly within the State of New Jersey and without regard to its
conflict of law principles. Buyer hereby consents to the jurisdiction of the
courts of the State of New Jersey and the Federal District Court for the District
of New Jersey. Buyer shall comply with all laws, regulations and/or other requirements
of local, state and federal governments in connection with its performance hereunder.
9. These terms and conditions embody the final, exclusive, and complete expression
of agreement of the parties hereto, and may not be modified orally but only
in a writing duly executed by both parties.
DEECO metals
600 BLOY STREET, BLDG. 5
HILLSIDE, NEW JERSEY 07205 USA
T. 908-688-0333 F. 908-686-0936