No terms and conditions other than the terms and conditions contained herein shall be binding upon Seller unless accepted by it in writing signed by the Seller's president. All terms and conditions contained in any prior oral or written communication, including without limitation Buyer's purchase order, which are different from or in addition to the terms and conditions herein, are hereby rejected and shall not be binding.
Payment is due at time of purchase, unless Buyer is extended an open account of credit pursuant to agreement with Seller. If Buyer is extended an open account of credit, Buyer must pay Seller current amount due, in full, every month credit is extended. All past due amounts are subject to service charges at the maximum contract rate permitted by law, and Buyer agrees to pay for the products according to the Seller's payment terms. If an order is placed by telephone, Buyer has twenty-four (24) hours from the time of any confirmation email to review the telephone order and cancel the telephone order.
Remedies Of Seller
Upon default by Buyer, Buyer agrees to reimburse Seller all attorney fees and court costs incurred by Seller in connection therewith. Buyer agrees that any of the following shall constitute an event of default which shall enable seller, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of a receiver by Buyer or for the materials covered by this order or the filing of any petition to adjudicate Buyer bankrupt, (d) the death, incompetence, dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by Seller or (f) if Seller in good faith believes that Buyer's prospect of performance under this Agreement is impaired. All rights and remedies of Seller herein are in additional to, and shall not exclude, any rights or remedies that Seller may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorney's fees will be added to the balance due and Buyer shall pay all such charges.
THE BUYER'S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE PRODUCT'S MANUFACTURER. SELLER MAKES NO EXPRESSED OR IMPLIED WARRANTIES. SELLER HEREBY DISCLAIMS ALL EXPRESSED OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL SELLER BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OR REPAIRS OF INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE PRODUCTS SOLD BY SELLER. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL SELLER'S LIABILITY, IF ANY EXCEED THE NET SALES PRICE OF THE DEFECTIVE PRODUCT(S); NO ADDITIONAL ALLOWANCE SHALL BE MADE FOR THE LABOR OR EXPENSE OF REPAIRING OR REPLACING DEFECTIVE PRODUCTS OR WORKMANSHIP OR DAMAGE RESULTING FROM THE SAME. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, ALL PRODUCTS AND/OR SERVICES PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED "AS IS", "WHERE IS" AND "WITH ALL FAULTS."
The Buyer shall at its own expense apply for and obtain any permits and inspections required for installation and/or use of the products. Seller makes no promise or representation that the products or services will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by Seller. The Seller's products are not for use in or with any nuclear facility unless specifically so stated by Seller in writing. Seller shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper installation or misapplication of the products. Buyer shall defend, indemnify and hold harmless Seller and its agents and employees against any loss, damage, claim, suit, liability, judgement or expense (including without limitation, attorney's fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use or repair of the products by Buyer or of the information, designs, services, or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees, or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
Seller will make a good faith effort to complete delivery of the products as indicated by Seller in writing, but Seller assumes no responsibility or liability and will accept no backcharge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Seller. Seller shall have no liability for Seller's non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of Seller. Under no circumstances shall Seller be liable for any special or consequential damages or loss, damage, or expense (whether or not based upon negligence) arising directly or indirectly from delays or failure to give notice of delay.
All products are shipped and title passes F.O.B. Shipping Point. Risk of Loss shall transfer to Buyer upon delivery of goods to common carrier, Buyer or Buyer's representative. The cost of any special packing or special handling caused by Buyer's requirements or request shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if Seller ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs shall be borne solely by Buyer. No claim for shortages or shipping errors will be allowed unless made in writing within seven (7) days of receipt of a shipment. Claims for products damaged or lost in transit should be made by Buyer to the carrier, as Seller's responsibility ceases upon delivery to the carrier.
Inspection And Acceptance
Buyer must immediately describe on Bill of Lading any damage to any and all products upon delivery. Otherwise, Buyer shall be deemed to have irrevocably accepted any and all products. Only if damage is noted on Bill of Lading, Buyer shall have seven days from the date Buyer receives any products to notify Seller, in writing, of any defects, nonconformance or rejection of such products. After such seven-day period, Buyer shall be deemed to have irrevocably accepted the products, even if damaged and even if not previously accepted. Buyer hereby agrees that such seven-day period is a reasonable amount of time for such notification. After acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance.
This transaction shall be governed in all respects by the laws of the State of Alabama (excluding choice of law provisions) and all actions commenced shall be brought in a court of competent jurisdiction residing in Birmingham, Alabama.
The amount of any sales, excise or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the taxing authorities. Any taxes which Seller may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to Seller upon demand. Buyer is subject to, and responsible for paying consumer use taxes in all states except Alabama.
If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance wherefrom.
Set-Off And Non-Waiver
Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Seller in connection with this transaction. Seller's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Seller's president.
Returned Goods Policy
Seller cannot accept return of any goods unless prior written permission has been given. Credit memorandums issued for authorized returns shall be subject to the following deductions and conditions: (a) Stock items-merchandise must be stock material consisting of the original parts, unaltered, of reasonable quantity and in resalable condition as determined by a Seller's representative; (b) all merchandise must be accompanied by documentation providing Seller with the following information: invoice number and date, quantity of items being returned and reason for return. In addition, if proper documentation as outlined in (b) above is not provided then an additional handling charge may be charged to cover our additional expenses incurred in researching proof of purchase. Non-stock/special order items must have factory approval before returning and are subject to any manufacturer charges, special handling fees and any freight before any credit, if any, can be issued. Therefore, Seller cannot authorize these products to be returned to Seller until such returns have been approved by the manufacturer or its representatives in writing to Seller. All returns are to be authorized by the issuing of a "Return Material Authorization." Note: all cash sales are final.