Terms and Conditions of Website Orders
TERM AND CONDITIONS FOR WEBSITE ORDERS
1. OFFER AND ACCEPTANCE:
The receipt of an order by Seller from Buyer is an offer to purchase the product(s) ordered. A contract (the “Contract”) is made after (i) Seller has confirmed that the full payment for the product has been deposited by Buyer into Seller’s account, and (ii) Seller accepts Buyer’s offer by a written or by an electronically transmitted acceptance of the offer. The Contract terms will be (i) the terms in Seller’s acceptance, (ii) these Terms and Conditions for Website Orders, and (iii) the Conditions of Website Use. Seller has no obligation to sell Buyer any product until Seller has confirmed the deposit and accepted the offer as stated in this Section 1. If Seller does not accept Buyer’s offer, no contract is made, and Seller will return the amount that Buyer deposited into Seller’s account.
2. DELIVERY, TITLE AND RISK OF LOSS:
Delivery will be made Ex Works Seller’s facility (Incoterms 2000), with packaging, shipping, insurance and Taxes (as defined in Section 8) prepaid by Buyer. Title and risk of loss or damage pass to Buyer on delivery to carrier, and Buyer is responsible for making claims, if necessary, pertaining to damage or loss with the carrier chosen by Seller. Seller shall not be responsible for shipment or charges associated with overseas containers, containerizing or packaging for long term storage, pier handling, marshalling, demurrage, lighterage, heavy lifts and damages.
3. INSPECTION AND RETURN POLICY:
Even though none of the products sold to Buyer contains any warranty or guaranty of any kind, and are sold “as-is – where-is”, Buyer has a thirty (30) day inspection period after Buyer receives the product in which to inspect and return the product ordered in the event that Buyer is not satisfied with the product, so long as Buyer complies with Seller’s return policy described in this Section 3. Parts and components of a product cannot be returned, unless Seller has agreed in writing in advance. Only unused, undamaged and saleable products are subject to Seller's return policy in effect at the time, including a twenty per cent (20%) restocking charge and other conditions of return. Only the entire product is eligible for return, not parts or components. Buyer must contact Seller for a Return Merchandise Authorization ("RMA") before Buyer sends any product back to Seller. After Buyer has been given an RMA, Buyer must properly pack and ship the product to Seller in the original packaging and packing materials using shipping containers that are clearly marked per Seller's instructions. All containers must be marked with the RMA number on the outside of the containers and must be shipped freight and insurance prepaid by Buyer. The amount of insurance that Buyer purchases for the product must be at least equal to the amount that Seller purchased when Seller sent the product to Buyer. All documentation and instructions that were included with the product must be returned in the package. In the event that the product is not returned in the same condition as it was when shipped by Seller, or Buyer has not complied with all of the requirements of this Section 3, Buyer agrees that Seller is authorized to make the necessary deductions from the amount that Buyer paid for the product, as well as the restocking charge, in order to compensate Seller for its losses. In the event that Buyer complies with every provision of this Section 3, Seller will return to Buyer the price that Seller received from Buyer for the product, less all costs for packaging, shipping, insurance, restocking charges and Taxes (as defined in Section 8).
A product is not eligible for return if it has been subjected to any wear or damage not the cause of Seller, including but not limited to, wear or damage caused by acts of God or operation, erosion, corrosion, material deposits, exposure to fluids, water or other substances, being subjected to any other kind of misuse or detrimental exposure, being involved in an accident, damage during shipment, catastrophe, power failure or transients, overvoltage on interfaces, undue mechanical stresses, environment extremes, improper use, maintenance and application of the product or use of unauthorized parts, or damage in any other way.
Buyer returns will not be allowed if Buyer has submitted requests for more than 2 returns in any one calendar quarter.
Seller reserves its right to modify its return policy as expressed in this Section 3 from time to time, so please check Seller’s website from time to time for the latest return policy.
4. EXCUSABLE DELAYS:
Seller shall not have any liability or be considered to be in breach or default of its obligations under the Contract to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to: (i) causes beyond its reasonable control; or (ii) acts of God, acts (or failures to act) of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, war (declared or undeclared), epidemics, civil unrest, riot, terrorist acts, delays in transportation, or car shortages; or (iii) acts (or omissions) of Buyer, including failure to promptly: (a) provide Seller with information and approvals necessary to permit Seller to proceed with performance immediately and without interruption, (b) comply with the terms of payment, or (c) provide Seller with such evidence as Seller may request that any export or import license or permit has been issued; or (iv) inability on account of causes beyond the reasonable control of Seller to obtain necessary labor, materials, components or services through Seller’s usual and regular sources at usual and regular prices. Seller shall notify Buyer in the event of any such delay. The date of delivery or of performance shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of such excusable delay. Seller shall notify Buyer, as soon as practicable, of the revised delivery date. If Seller is delayed by acts or omissions of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall also be entitled to an equitable price adjustment.
5. PAYMENTS AND FINANCIAL CONDITION:
Except to the extent otherwise specified by Seller, full payment for all products ordered is due at the time that the order is placed by Buyer and includes all packaging and shipping costs, insurance and Taxes (as defined in Section 8). However, Seller has no obligation to accept the order, and prior to Seller’s acceptance as described in Section 1, above, Seller may sell the products to another buyer without any obligation of any kind to Buyer. Buyer is liable for and must pay all expenses associated with making payment to Seller e.g., all credit card, PayPal or other financial institution fees, penalties, charges and expenses of any kind, whether Seller accepts the order or not.
If Buyer fails to fulfill any condition of its payment obligations (for example, not prepaying for all Taxes) Seller may suspend performance and delivery. Any charges incurred by Seller in accordance with such suspension, including storage charges, shall be payable by Buyer upon submission of Seller’s invoices. Performance of Seller’s obligations shall be extended for a period equaling the period of Buyer’s non-fulfillment of any portion of the payment terms, whether or not Seller suspends performance and such additional time as may be reasonably necessary in the circumstances. If Buyer does not promptly correct such failure in the manner and time satisfactory to Seller, then Seller may, at its option, terminate the Contract in respect to the portion of the products not delivered and work not yet performed. In the event of termination, Buyer shall pay Seller’s reasonable and proper termination charges, in addition to suspension charges and attorney’s fees, and among other things, Seller shall be entitled to keep all payments received.
Any order for products from Buyer shall constitute a representation that Buyer is solvent. In addition, upon Seller's request, Buyer will furnish a written representation concerning its solvency at any time prior to shipment.
If Buyer's financial condition at any time does not justify Seller’s performance hereunder on the agreed terms of payment, Seller shall be entitled to cancel Buyer’s order and the Contract. If Buyer becomes bankrupt or insolvent, or if any proceeding is brought against Buyer, voluntarily or involuntarily, under the bankruptcy laws or any insolvency laws, Seller shall be entitled to cancel Buyer’s order and the Contract. Buyer shall pay Seller its reasonable and proper termination charges in the event of such cancellation, in addition to suspension charges, and Seller shall be entitled to retain such charges from the payment(s) received. Seller's rights under this Section 5 are in addition to all rights available to it at law or in equity.
6. EXCLUSION OF WARRANTIES:
THE PRODUCTS SOLD HEREUNDER, WHETHER NEW OR USED, ARE PURCHASED IN THEIR “AS IS” AND “WHERE IS” CONDITION. THE SELLER MAKES NO REPRESENTATION, GUARANTY, OR WARRANTY EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, CONDITION, WEIGHT, SIZE, OR DESCRIPTION OF ANY PRODUCTS, AND EXCLUDES ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARISING BY OPERATION OF LAW OR OTHERWISE, AND IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
SELLER DOES NOT WARRANT THAT THE PRODUCTS SOLD HEREUNDER CONFORM WITH ANY PLANS OR SPECIFICATIONS OR MEET ANY REQUIREMENTS, INDUSTRY SPECIFICATIONS, CODES, STANDARDS, LAWS, RULES, REGULATIONS AND ORDINANCES OF ANY FEDERAL, STATE OR LOCAL GOVERNMENT AUTHORITY OF ANY COUNTRY, INCLUDING BUT NOT LIMITED TO, THE UNITED STATES Occupational Safety and Health Administration (“OSHA”) requirements PERTAINING TO SAFETY OR INSURANCE. SELLER MAKES NO WARRANTY THAT BUYER WILL HOLD THE PRODUCTS FREE OF CLAIMS OF THIRD PERSONS, INCLUDING BUT NOT LIMITED TO, CLAIMS OF ALLEGED PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT. SELLER SPECIFICALLY DISCLAIMS ANY PATENT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY INDEMNITY AND/OR WARRANTY THAT MAY BE EXPRESSED OR IMPLIED BY ANY STATUTE OF ANY COUNTRY, INCLUDING BUT NOT LIMITED TO, THE UNIFORM COMMERCIAL CODE.
Any descriptions or illustrations contained in Seller’s catalogues, price lists, website, or other advertising materials are intended merely to present a general description of the products and shall not form a part of the Contract. There are no warranties and guarantees whether written, oral, implied or statutory. As the end use of the products cannot be predetermined, Seller takes exception to any and all requirements as are, or may be set forth by OSHA (and any other similar entity in any country) with respect to the products and Seller will not be bound thereby. In the event that OSHA (and any other similar entity in any country) requires additions or modifications to the products before they may be used, it shall be the obligation of Buyer, at its expense, to make such additions and modifications.
Notwithstanding any other provision of the Contract, in no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall Seller have any liability to Buyer or its insurers for any loss, damage, fines, penalties, or injury arising out of, connected with, or resulting from the Contract, or from its performance or breach, or from the use or consumption of the products or services by Buyer or any subsequent user of the products or services. Buyer expressly agrees that as a condition of its purchase of the products or services, Buyer shall indemnify and hold Seller harmless of, and from any and all liability which may be asserted against or incurred or suffered by Seller by virtue of any suit or claim of any kind arising out of, connected with, or resulting from the Contract, or from its performance or breach, or from the use or consumption of the products or services by Buyer or any subsequent user of the products or services, including claims or suits for breach of contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, including any claim that the products or services furnished by Seller hereunder fail to conform to or comply with any federal, state or local environmental, health or safety laws, regulations or standards of any country, or any claim based upon alleged environmental liability, exposure to hazardous materials, alleged non-compliance of the products or services with OSHA or any other law or regulation, or infringement of patent, trademark or other intellectual property rights involving products or services alone or in combination with any other goods, materials, products or services, or on any other theory of law. Buyer makes this indemnity on its own behalf and on the behalf of its officers, agents or employees, and Buyer's successors, assigns or customers, whether direct or indirect, for losses and damages that may result in connection with the products or services furnished hereunder, excluding losses and damages that are caused by the sole negligence of Seller, its officers and employees. Buyer shall pay any and all judgments rendered against Seller as a result of the foregoing and shall pay all costs and expenses incurred by Seller in defending any action brought against Seller as a result thereof, including Seller’s reasonable attorney’s fees and expenses, expert witness fees and expenses and court costs. If requested by Seller, Buyer shall, at its own cost and expense, defend any and all such actions on Seller’s behalf, and agrees not to take a position contrary to Seller’s interests in defending such actions. If Buyer is a California resident, and this indemnity is interpreted as a release, Buyer waives California Civil Code §1542 and similar provisions, which express an objective similar to: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
WARNING: THE PRODUCTS SOLD HEREUNDER MAY BE DANGEROUS IF IMPROPERLY USED. THEY MAY CONTAIN HAZARDOUS CHEMICALS OR OTHER HAZARDOUS MATERIALS, WHICH MAY BE HAZARDOUS TO LIFE, HEALTH OR TO PROPERTY BY REASON OF TOXICITY, FLAMMABILITY, AND EXPLOSIVENESS OR FOR OTHER SIMILAR OF DIFFERENT REASONS.
In addition to any price specified herein, Buyer shall pay all “Taxes” applicable to the price, sale or delivery of any products or services furnished hereunder or to their use by Seller or Buyer, or Buyer shall furnish Seller with evidence of exemption acceptable to the taxing authorities. “Taxes” means all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto) imposed by any governmental authority of any country on Seller or its employees or subcontractors due to the performance of this Contract.
9. LIMITATIONS OF LIABILITY:
The total liability of Seller, on all claims of any kind, whether in contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, arising out of or related to the Contract, its performance or breach, or from use of any products, shall not exceed the price allocable to the part of the particular product giving rise to the claim. In no event will such liability exceed five percent (5%) of the total price paid to Seller for the product under the Contract. All liability shall terminate one year from the date of Seller’s acceptance of the order.
In no event, whether as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, shall Seller or its subcontractors or suppliers be liable for loss of profits or revenues, loss of use of the products or any associated equipment, cost of capital, cost of substitute products, facilities, services or replacement power, downtime costs, claims of Buyer’s customers for such damages, or for any special, consequential, incidental, indirect or exemplary damages, or penalties of any description.
If Seller furnishes Buyer with advice, information or assistance concerning any products, systems or work, including but not limited to, the furnishing of parts from the original equipment manufacturer or otherwise, the furnishing of such advice, information or assistance will not subject Seller to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
Buyer waives rights of recovery against Seller, whether Buyer’s claim is brought under breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, for loss or damage to Buyer’s property to the extent such claim is covered by Buyer’s insurance.
For the purposes of Sections 7 and 9, the term "Seller" shall mean Seller, its directors, officers, agents, employees, successors and assigns, authorized representatives, subsidiaries and affiliates, subcontractors and suppliers of any tier, and their respective agents and employees, whether individually or collectively.
The provisions of Sections 7 and 9 shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising the agreement between Buyer and Seller, except to the extent that such provisions further restrict Seller's liability.
10. COMPLIANCE WITH LAWS:
All transactions hereunder shall at all times be subject to and conditioned upon compliance with all applicable export control laws and regulations of the U.S. Government and any amendments thereof. We are prohibited, except as said laws and regulations may expressly permit, to sell any goods to denied parties (persons or entities) or to embargoed countries as put forth under US. Export Control Laws. The Buyer agrees that it shall not, except as said laws and regulations may expressly permit, make any disposition by way of transshipment, re-export, diversion or otherwise, of U.S. origin goods and technical data (including computer software), or the direct product thereof, supplied by Seller hereunder. The obligations of the parties to comply with all applicable U.S. export control laws and regulations shall survive any termination, or discharge of any other contract obligations.
The Buyer undertakes to keep itself fully informed of, and to comply with, the export control laws and regulations of the U.S. Government and any amendments thereof.
Buyer certifies that the products, materials, services, technical data, software or other information or assistance furnished by Seller under the Contract will not be (i) used by any individual or entity listed as a prohibited party on any list of the U.S. Government of prohibited or denied parties, (ii) sent to any party in a country listed as a prohibited country by the U.S. Government, or (iii) used in the design, development, production, stockpiling or use of chemical, biological, or nuclear weapons either by Buyer or by any entity acting on Buyer’s behalf.
The products sold hereunder are not intended for application, and are prohibited from use, in connection with any hazardous application. A hazardous application is one in which any failure, malfunction or inaccuracy of a product carries a risk of death or serious bodily injury, such as, but not limited to nuclear facilities, medical equipment, aircraft operation or navigation or communications, air traffic control, weapons systems, life support or other applications representing a similar degree of hazard. Buyer warrants that it shall not use any products for such applications, or permit others to use the products for any such applications. If, in breach of the foregoing, any such use occurs, Seller shall have no liability for any damages or injuries, including but not limited to nuclear or other damage, injury or contamination, and Buyer shall indemnify, defend and hold Seller harmless from all claims, losses, damages and expenses, including reasonable attorney's fees, arising from any prohibited use or hazardous application of any product, whether based on breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
11. TECHNICAL ADVICE AND OTHER SERVICES:
Buyer is responsible for the design, processing, testing and labeling of any product that Buyer makes using products bought from Seller, and Buyer will not rely on anything on Seller’s website or any statement by Buyer about the suitability of products or services provided hereunder. Buyer has tested and investigated products sold by Seller enough to form an independent judgment concerning their suitability for the use, conversion or processing intended by Buyer and will not make any claim against Seller based on the technical advice, statements, data, services or recommendations of Seller.
12. Security Interest:
Seller reserves, until full payment has been received, a purchase money security interest in the products sold. If the Buyer defaults on any of its obligations to Seller, Seller will have the right to take all actions necessary to repossess the products sold hereunder without liability to Buyer and without posting a bond. Buyer may satisfy the security interest of Seller by paying for the products purchased hereunder in full. Buyer agrees to execute any UCC Financing Statement or such other document appropriate or necessary to perfect the security interest, or in the alternative, Seller may file the Contract as evidence of a financing statement and/or chattel mortgage.
13. DISCLOSURE OF INFORMATION:
Any information, suggestions or ideas transmitted by Buyer to Seller in connection with performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by a duly authorized representative of Seller.
In the event that any product contains computer software, Buyer must contact the owner of such software to negotiate a software license agreement with such owner in order to use such software. Seller makes no representation that it is the owner or licensee of such software, or that it has any right to sell, or grant any license to Buyer to use, such software.
Seller makes no warranty that Buyer will hold the products free of claims of third parties, including claims of alleged patent, trademark or other intellectual property infringement. Seller specifically disclaims any patent, trademark, or other intellectual property indemnity and/or warranty that may be expressed or implied by any statute of any country, including the Uniform Commercial Code.
16. APPLICABLE LAW:
The validity, performance and all matters relating to the interpretation and effect of the Contract and any amendment hereto shall be governed by the law of the State of New York, excluding its conflict of law rules which would result in a choice of law for the Contract other than New York law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
The parties irrevocably agree that any legal suit, action or proceeding in any matter arising out of or in relation to or based upon the Contract may be instituted only in the United States District Court for the Northern District of New York, or if such court refuses jurisdiction, in any New York State court which shall have jurisdiction in such matter. Each party irrevocably waives, to the fullest extent it may effectively do so, any objection which it may have or hereafter have to the jurisdiction of or the laying of venue in any of the above courts, including the defense of an inconvenient forum. The parties further agree that any controversy which may arise under this Contract is likely to involve complicated and difficult issues, and therefore each party irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Contract. The parties agree that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or by any other manner provided by law.
The delegation or assignment by Buyer of any or all of its duties or rights under the Contract without Seller’s prior written consent shall be void.
The provisions of the Contract are for the benefit of the Buyer and the Seller and not for the benefit of any other party.
No amendment or modification hereto nor any statement, representation or warranty not contained herein shall be binding on either party unless made in writing and signed by an authorized representative of each party. Prior dealings, usage of the trade or a course of performance shall not be relevant to determine the meaning of the Contract even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. The Contract contains the entire and only agreement between the Buyer and Seller respecting the terms and conditions of sale of products or services from Seller to Buyer and supersedes and cancels all prior negotiations, agreements, commitments and representations between the parties, whether written, oral or implied. Each party agrees that it has not relied on, or been induced by, any representations of the other party not contained in the Contract.
The invalidity in whole or in part of any part of the Contract shall not affect the validity of the remainder of the Contract. Section headings in the Contract are for convenience of reference only, and do not define, limit, or fully describe the scope or intent of these provisions. The Contract and any other documents attached to or incorporated in the Contract shall be interpreted according to their plain meaning and without regard to factors such as the party who prepared them or the relative bargaining power of the parties.
As used on Seller’s website, in Seller’s acceptance of Buyer’s order, the Conditions of Website Use and these Terms and Conditions for Website Orders, the terms: “product(s)” means all equipment, parts, materials, supplies, products, components, and other goods, which are described on Seller’s website in the advertisement for the specific item for sale, and in Seller’s acceptance to Buyer, and which are available to Seller to sell to Buyer at the time that Seller sends its acceptance to Buyer; "including" means "including but not limited to" the specifically enumerated things, states, or actions that follow the term; "or" means "one or the other or all" of the specifically enumerated things, states, or actions that follow the term; and "shall" or "will" means the listed duties or actions are mandatory.
The Contract cannot be canceled, terminated or modified by Buyer in whole or in part except with Seller's consent in writing and then only upon terms and conditions then to be agreed upon which shall include protection of Seller against all losses.
Sections 3 through 17, and any remaining payment obligations of Buyer, shall survive the termination of the Contract.