TERMS AND CONDITIONS OF SALE – U.S.A.
These General Terms and Conditions of sale (“Terms”) and the Seller’s Sales Order Confirmation (as referenced in Section 2 below), are the only terms and conditions which govern the sale of the goods (“Goods”) by Fastenere, Inc., a new York corporation, (“Seller”), to the purchaser of the Goods from Seller (“Buyer”). Any terms and conditions contained in any Buyer purchase order or other document, that are not consistent herewith, or contain additional or different terms, shall be deemed rejected absent a mutually executed written agreement by the parties to the contrary.
All purchase orders are subject to the terms and conditions of these Terms and are subject to Seller’s acceptance upon (i) the issuance by Seller and (ii) Buyer’s written acceptance of Seller’s Sales Order Confirmation (these terms and conditions and those of any Sales Order Confirmation shall be collectively referred to as the “Agreement”) and the date of acceptance shall be referred to as the “Date of Purchase”, the Agreement, as defined constitute the entire agreement between Seller and Buyer and supersede, in their entirety conflicting terms and conditions proposed by Buyer and any oral or written communications that are not entirely incorporated herein. Seller’s Sales Order Confirmation may include additional, modified, or amended terms and conditions. Neither submission of a purchase order alone, or the nor the commencement of performance or shipping shall constitute Seller’s acceptance of any of Buyer’s terms and conditions not specifically set forth in Seller’s Sales Order Confirmation or within these Terms.
Seller retains the right to review and approve each purchase order and to withhold acceptance thereof at Seller’s sole discretion. All orders shall also be subject to Seller’s review and approval of Buyer’s credit.
All price quotations are valid for five (5) business days, except Stainless Steel product quotes are valid for three (3) business days. Final prices shall be reflected on Seller’s Sales Order Confirmation.
Cancellation and Return Policy:
(a) Upon delivery to Buyer and subject to the terms of the Section 12 herein below, all sales are final and no returns will be accepted.
(b) Upon acceptance of an order pursuant to the terms of Section 2 above, such order becomes final, non-cancelable and Seller shall have no liability to Buyer to refund any amounts received upon such order.
Shipping Terms and Delivery of Goods:
(a) Seller shall make delivery F.O.B. shipping point unless otherwise stated on the face of the Sales Order Confirmation using Seller’s standard methods for packaging and shipping. All orders are subject to a separate packaging charge.
(b) All Sales Order Confirmations will have a ship date of not more the seven (7) calendar days after the Date of Purchase unless otherwise agreed upon in writing.
(c) Seller may, in its sole discretion, without liability or penalty, make incremental shipments of purchased Goods to Buyer. Each such shipment will constitute a separate sale and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any purchased Goods within seven (7) calendar days of the date set forth on the Sales Order Confirmation, or if Seller is unable to deliver the Goods by such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations, Seller may either (A) cancel the order or (B) (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered and Buyer will be invoiced on or before the tenth (10th) day following the Date of Purchase; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, transportation, storage and insurance.
(e) Unless otherwise expressly agreed, delivery times shall not be regarded as binding and delays in delivery shall not entitle Buyer to claim damages.
Title and Risk of Loss:
Title and risk of loss passes to Buyer upon Seller’s delivery of the Goods within the terms of Section 6. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and upon the Goods, wherever located, and whether presently existing or thereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision shall constitute a purchase money security interest under the Uniform Commercial Code as adopted by the State of New York.
Should Buyer request delivery of ordered Goods via a common carrier of Buyer’s choice, the terms of delivery must be either “Collect” or “3rd Party” and title and risk of loss passes to Buyer once the Goods are loaded onto the Buyer controlled transport vehicle.
Amendment and Modification:
These Terms may be amended or modified at any time by Seller, by posting such amendment or modification on Seller’s website.
Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s Sales Order Confirmation. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, customs duties, fees and charges of any kind imposed by any Governmental Authority. Buyer shall be responsible for all such charges, costs and taxes.
(a) Buyer shall pay in full all invoiced amounts due to Seller in US Dollars within thirty (30) days from the Seller’s invoice. Buyer shall make all payments hereunder by wire transfer or check in US dollars. Payment by credit card may also available upon Seller’s issuance of its invoice, however, the payment will not include discounts. Buyer shall not withhold payment of any invoiced amounts by reason of any set-off for any claim or dispute with Seller.
(b) Buyer shall pay interest on the outstanding balance of all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts within ten (10) days following any applicable payment due date. Seller shall not be obligated to deliver any late payment notice or demand before the accrual of any interest.
Unused customer credits may be applied subject to approval by Seller’s Accounts Receivable department. Buyer may not unilaterally take customer credits. For information concerning unused customer credits, Buyer may contact Seller’s Accounts Receivable department or Buyer’s customer representative.
Backorders: Seller does not accept or create backorders of any kind.
Inspection and Rejection of Nonconforming, Defective or Damaged Goods:
(a) Seller warrants the Goods sold to Buyer will be free from material defects, will conform to Seller’s Sales Order Confirmation and will conform to product specific industry specifications. This section 12 is not transferrable and extends only to Buyer.
(b) Buyer shall inspect the delivered Goods and make claim(s) for any nonconforming, damaged, or defective Goods within five (5) days of the date of Buyer’s receipt of such Goods (the “Inspection Period”).
(c) Buyer will be deemed to have accepted the delivered Goods unless it notifies Seller in writing of any nonconforming, defective or damaged Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is in breach of the Agreement as (1) the Goods do not conform to the Sales Order Confirmation, (2) the Goods are incorrectly labeled; (3) the Goods are materially defective, or (ii) the Goods are damaged upon delivery. Buyer must not alter the Nonconforming Goods.
(d) Nonconforming Goods may be returned to Seller subject to: (i) the terms of this Section 12, and (ii) Seller’s issuance of a Merchandise Return Authorization (“MRA”). An MRA may be issued following Buyer’s written notice of Nonconforming Goods. The returned Nonconforming Goods must be returned in the same condition as was originally delivered by Seller. No return will be accepted without an issued MRA and shipped to the address specified on the MRA.
(e) Buyer’s notice of Nonconforming Goods must be delivered to Seller within five (5) days of Buyer’s receipt of Goods as set forth in Section 12(b). The notice shall be in writing and accompanied with (i) photographs or test reports that clearly display or describe the nonconformity, (ii) a copy of the mill test report and packing list corresponding to the Goods subject to the claim, and (iii) a description of the nonconformity.
(f) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall promptly review such claim. If the Nonconforming Goods require laboratory testing, Buyer will be responsible for the payment of the laboratory testing fees and related costs should the test report prove Seller’s Goods meet the applicable industry specification. All Nonconforming Goods returned shall be shipped freight prepaid by Buyer. If any Nonconforming Goods are returned (i) without a valid MRA or, (ii) the Nonconforming Goods are not returned in the same condition as was originally delivered by Seller, the Nonconforming Goods will be returned to Buyer at Buyer’s cost. A restocking fee of fifteen percent (15%) of the invoice price shall apply for all MRA authorized returns.
(g) If Seller accepts Buyer’s claim, Seller shall issue an MRA and in Seller’s sole discretion, Seller may either: (i) replace such Nonconforming Goods with conforming Goods or (ii) credit or refund the Price for such Nonconforming Goods upon receipt of return to Seller of the Nonconforming Goods. Upon Seller’s instructions, Buyer shall ship, at its expense and risk of loss (subject to any applicable credit), the Nonconforming Goods to Seller’s facility as set forth in the MRA. No debit memo shall be deducted from Seller’s invoices or charges until a return or claim has been entered reviewed and accepted by Seller and Seller has issued credit memo. Buyer’s debit deductions prior to the issuance of Seller’s credit memo will be rejected and Buyer shall be responsible for immediate payment of the subject invoice is full.
(h) Buyer’s Exclusive Remedies. Buyer acknowledges and agrees that the remedies set forth in Section 12(g) are Buyer’s sole and exclusive remedies for Seller’s delivery of Nonconforming Goods. Except as provided under Section 12(g), all sales of Goods to Buyer are made on a one-way basis and Buyer may not return Goods purchased without Seller’s issued Merchandise Return Authorization. THIS SECTION 12(g) SETS FORTH THE BUYER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY FOR NONCONFORMING GOODS AND ANY BREACH OF THIS AGREEMENT.
Disclaimer of Warranty:
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY OTHER REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF.
Waiver: Requests to change Billing Address, Ship to Address and/or Customer Contact Info should be sent to the Accounts Receivables Department.
Confidential Information: All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Force Majeure:Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement, for any failure, cancellation, or delay in fulfilling or performing upon any Agreement or any term thereof when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, (including, but not limited to, adverse trade actions; imposition of tariffs and/or quotas; anti-dumping actions; and action taken for reasons of national security), war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Limitation of Liability:
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THE AGREEMENT, OR ANY PART THEREOF, OR FROM THE GOODS SOLD, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY SELLER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY.
(b) 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 AFFECTED GOODS SOLD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT (OR ANY PART THEREOF), OR PRODUCTS OR SERVICES FURNISHED THEREUPON BY SELLER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
Assignment: Buyer may 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 Section is null and void. No permitted assignment or delegation relieves Buyer of any of its obligations under the Agreement.
Relationship of the Parties: The relationship between the parties is that of independent contractors without any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship.
No Third-Party Beneficiaries: The Agreement is for the sole benefit of Buyer and Seller and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever thereunder.
Governing Law: All matters arising out of or relating to the Agreement is governed by and construed in accordance with the internal laws of the State of New York.
Submission to Jurisdiction: Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located within the County of Nassau, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Notices: All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability: If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Customer Credits and other Billing Related Issues: Buyer’s inquiries regarding unused credits or requests to change billing addresses, ship to addresses and/or contact information, shall be addressed to Seller’s Accounts Receivable Department.