1. CONTRACT TERMS.
(a) These general terms and conditions (these “Terms”) and any terms on the corresponding purchase order (the “PO”), acknowledgement (the “Acknowledgment”), and/or invoice (the “Invoice”) are the only terms that govern the sale of the goods (the “Goods”) described in the PO, Acknowledgment, and/or Invoice by and between Flomatic Corporation (“Seller”) and the buyer named on the PO, Acknowledgment, and/or Invoice (“Buyer”) (the Terms, PO, Acknowledgment, and Invoice comprise, collectively, the “Agreement”). By submitting a PO to Seller, Buyer agrees to be bound by these Terms. If there is, for any reason a conflict between these Terms and the PO, Acknowledgment, and/or Invoice then the terms of the PO, Acknowledgment, and/or Invoice are to be the prevailing terms unless explicitly stated otherwise.
(b) The Agreement comprises the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties and communications, both written and oral.
(c) Unless otherwise permitted herein, no change, addition, modification, or cancellation to the Agreement will be effective unless made in writing and signed by Seller. Any such change, addition, modification, or cancellation may result in additional costs and fees to Buyer.
2. PRICE AND TERMS OF PAYMENT.
(a) Buyer shall purchase the Goods from Seller at the price(s) (the “Price(s)”) set forth on the Invoice provided by Seller to Buyer. Prices are FOB shipping point, as that term is defined in the New York Uniform Commercial Code; therefore, if the cost of the Goods should increase before delivery of the Goods, the Price shall increase, accordingly, and Buyer shall pay for the same as if the increased Price was originally stated on the Invoice.
(b) Buyer shall pay for all shipping costs, insurance, and any other ancillary or incidental costs related thereto, and such amounts are included in the definition of “Price.” Any increase in shipping or other costs shall be paid by Buyer.
(c) Buyer shall pay for all tariffs, sales, consumers and other taxes, assessed or levied and chargeable specifically to the transaction covered by the Agreement, whether or not stated on the Invoice, and such amounts are included in the definition of “Price.” Any increase in tariffs, sales, consumers and other taxes shall be paid by Buyer.
(d) Payment of the Price shall be due on or before the date set forth on the Invoice or, if a prepayment or deposit is required, on or before the date set forth on the Acknowledgment (the “Payment Due Date”). Payment in full must be received by Seller on or before the Payment Due Date. For any amount that is not paid on or before the Payment Due Date, Seller shall be entitled to charge Buyer interest at a rate of the lesser of two percent (2%) or the maximum percentage allowable by law per month on the outstanding balance until paid in full. Buyer shall reimburse Seller for all costs incurred in collecting any late payments including, without limitation, attorneys’ fees and court costs.
3. DELIVERY / RISK OF LOSS. The Goods shall be delivered FOB place of shipment, as that term is defined in the New York Uniform Commercial Code, and Buyer shall bear the risks of loss and damage from the time that the Goods are placed in the custody of the carrier, whether or not shipping costs are prepaid.
4. INSPECTION.
(a) Buyer shall inspect the Goods within ten (10) days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any “Non-Conforming Goods” during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Non-Conforming Goods” means Goods that are different than those identified in the PO, as confirmed in the Acknowledgment, in type only (in other words, not in quantity). If Buyer timely notifies Seller of Non-Confirming Goods and, if applicable, returns the Non-Conforming Goods to Seller within thirty (30) days of receipt, subject to inspection and acceptance by Seller, Seller shall, in its sole discretion, either credit Buyer’s account for the cost of such Non-Confirming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith, or make such Non-Conforming Goods conforming. Buyer acknowledges and agrees that these are its sole remedies for Non-Confirming Goods.
(b) Seller shall address any claims made by Buyer as to the quantity of the Goods delivered by Seller on a case-by-case basis, provided that Buyer gives written notice to Seller of any alleged discrepancy within the Inspection Period.
5. RETURNS. New and salable standard manufacture Goods may be returned for credit upon authorization and approval of Seller, within six (6) months of delivery, on a shipping prepaid basis, subject to inspection and acceptance by Seller at Seller’s place of business. Where returns are accepted, a minimum restocking fee of 25% shall apply and shall be deducted from the credit owed to Buyer. Original shipping and similar charges are non-refundable and shall not be included in the credit. All return shipping and similar charges shall be paid by Buyer. Special order Goods are non-returnable except in Seller’s sole discretion.
6. SELLER’S LIMITED LIABILITY / LIMITED WARRANTY.
(a) In no event shall Seller’s aggregate liability arising out of or related to the Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Seller for the Goods.
(b) No action, suit, or other legal proceeding may be brought by Buyer in connection with the Agreement unless it is commenced within one (1) year after delivery of the Goods.
(c) THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS ARE THAT IT HAS TITLE TO SUCH GOODS FREE AND CLEAR FROM ANY LIEN OR ENCUMBRANCE AND THAT SUCH GOODS SHALL CONFORM TO THE DESCRIPTION AND SPECIFICATIONS SET FORTH IN THE PO, AS CONFIRMED BY THE ACKNOWLEDGMENT. SHOULD SELLER BREACH EITHER OR BOTH OF THESE WARRANTIES, BUYER’S ONLY REMEDY AND THE SELLER’S ONLY OBLIGATION SHALL BE AS SET FORTH IN SECTION 4 HEREIN.
OTHER THAN THE LIMITED WARRANTIES SET FORTH HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, RELATED TO THE GOODS, INCLUDING BUT NOT LIMITED TO THE WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THRID PARTY, AND THE GOODS ARE SOLD “AS IS.” SELLER SHALL NOT BE LIABLE FOR ANY DEFECT IN THE GOODS SOLD HEREUNDER AND BUYER RELEASES SELLER FROM ANY AND ALL LIABILITY FOR NEGLIGENCE BY SELLER WITH RESPECT TO ANY ACTIVITY ENGAGED IN BY SELLER WITH REGARD TO THE GOODS SOLD HEREUNDER AND FROM ANY AND ALL LIABILITY IMPOSED UPON MANUFACTURERS OR SELLERS OF GOODS UNDER SECTION 402A OF THE RESTATEMENT OF TORTS, 2ND, OR UNDER ANY SIMILAR LEGAL THEORY. BUYER ACKNOWLEDGES THAT IT ALONE HAS DETERMINED THAT THE GOODS PURCHASED HEREUNDER WILL SUITABLY MEET THE REQUIREMENTS OF THEIR INTENDED USE. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE GOODS, WHETHER USED ALONE OR IN COMBINATION WITH OTHER GOODS, PRODUCTS, OR SUBSTANCES, OR IF BUYER ALTERS THE GOODS WITHOUT THE PRIOR WRITTEN CONSENT OF SELLER. IN THE EVENT OF RESALE, BUYER SHALL MAKE CONSPICUOUSLY AND UNAMBIGUOUSLY KNOWN IN WRITING TO ANY THIRD PARTY PURCHASER THIS SECTION 6.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, DIMINUTION IN VALUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LABOR COSTS TO REPLACE ANY GOODS) WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ITS ESSENTIAL PURPOSE OF ANY REMEDY AS PROVIDED FOR UNDER THE AGREEMENT.
7. INTELLECTUAL PROPERTY. All intellectual property rights to the Goods, whether standard manufacture or special order, shall be owned by Seller. To the extent that any special order Goods are designed, manufactured, and sold according to Buyer’s specifications, Buyer shall indemnify, defend, and hold harmless Seller from and against any and all claims, costs, expenses (including attorneys’ fees), liabilities, demands, and suits for patent, trademark, and intellectual property infringement on account of such deign, manufacture, and sale.
8. SUSPENSION OR TERMINATION. In addition to any other remedies available to Seller, Seller may suspend or terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due; or (ii) has not otherwise performed or complied with any provision of the Agreement, in whole or in part, including acceptance of delivery; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment of the benefit of creditors. If Seller terminates the Agreement pursuant to this provision, Seller shall be entitled, at its option and without in any way limiting any other remedy available to it at law or in equity, and without liability to Seller, to cancel any unfulfilled part of any PO and/or Acknowledgment, defer delivery of any fulfilled part of any PO and/or Acknowledgment, or stop the Goods in transit. Buyer shall also be liable to Seller for all costs and expenses sustained by Seller, including but not limited to attorneys’ fees, return shipping fees, storage fees, and fees to dispose of the Goods (if required), and, in the case of special order Goods, for the full Price thereof.
9. MISCELLANEOUS.
(a) The Agreement shall not be modified unless specifically and expressly agreed to in writing by Seller, nor shall the Agreement in any way be affected by any course of dealing or performance, by trade usage or unless legally mandatory, by a rule, regulation, ordinance, statute or code.
(b) The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
(c) Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this provision is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement.
(d) All matters arising out of the Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
(e) If any term or provision of the Agreement is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
(f) Seller shall not be liable for any delay in delivery, or failure to deliver, due to any cause beyond the Seller’s control, including but not limited to fires, floods, strikes, or other labor disputes, accidents to machinery, acts of sabotage, riots, precedence or priorities granted at the request or for the benefit, directly or indirectly, of the federal or any state government or any subdivision or agency thereof, delay in transportation or lack of transportation facilities, restrictions imposed by federal, state or other governmental legislation or rules or regulations thereof.
(g) The waiver by Seller of any right or remedy on any occasion or instance shall not constitute or be interpreted as a waiver of that or any other right or remedy on any other occasion or instance.
(h) All notices required pursuant to the Agreement must be in writing and will be deemed given on the date of receipt or rejection if sent to the party’s address set forth on the PO and/or Acknowledgment by: (i) personal delivery, (ii) national recognized overnight courier service with proof of delivery, or (iii) USPS certified mail, return receipt requested, postage prepaid.
(i) Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, any provisions limiting Seller’s liability.
