TERMS AND CONDITIONS OF SALE
1. SCOPE: All products and services offered for sale by CONTROLS AND INSTRUMENTATION COMPANY, INC. (hereinafter “Seller”) or through its distributors or sales representatives are sold subject to the terms and conditions stated herein. This offer expressly limits acceptance to the terms hereof and any additional, different or inconsistent terms proposed by Buyer, whether in writing or otherwise, are hereby objected to and rejected and Seller shall not be bound thereby unless expressly agreed in a writing signed by Seller that such terms and conditions shall supercede those contained herein . ACCEPTANCE BY BUYER OF THESE TERMS MAY BE MADE EITHER BY (A) WRITTEN ACCEPTANCE OR (B) FAILURE BY BUYER TO OBJECT WITHIN A REASONABLE PERIOD OF TIME FOLLOWING KNOWLEDGE OF SELLER’S COMMENCEMENT OF PERFORMANCE ON ACCOUNT OF AN ORDER (INCLUDING, WITHOUT LIMITATION, THE SHIPMENT OF CONFORMING OR NON-CONFORMING GOODS); PROVIDED HOWEVER THAT IN THE EVENT SELLER DOES NOT RECEIVE AN EARLIER NOTICE OF WRITTEN ACCEPTANCE BY BUYER, SELLER MAY TREAT ANY OFFER MADE HEREUNDER AS HAVING LAPSED BEFORE ACCEPTANCE; OR (C) BY RECEIPT BY BUYER OF DELIVERY OF ANY PRODUCTS AND FAILURE BY BUYER TO REJECT THE SAME WITHIN TEN (10) BUSINESS DAYS FOLLOWING DELIVERY OF SUCH PRODUCTS AS HEREIN PROVIDED.
2. VALIDITY OF QUOTE: All quotes and prices herein provided quotes in either verbal or written format are valid 30 days from date offered unless specified in writing by Seller.
3. ORDER SUBMIT TO ADDRESS: All orders, regardless of manufacturer of product, shall be sent in writing or called in verbally to Seller’s listed address: Controls and Instrumentation Company, Inc. 7950 West Winds Blvd. Concord, NC 28027 * (704) 786-1700 (P) * (704) 786-1753 (F) * email@example.com (E). Seller reserves the right to have product manufacturer directly invoice Buyer as agreed upon in acceptance of said order.
4. DOCUMENTATIONS: No documentations will be provided by Seller other than what is specified in the quotation.
5. APPROVAL DRAWINGS: No approval drawings to begin fabrication shall be provided by Seller unless otherwise written in the quotation. If approval drawings are to be provided by Seller as agreed to in the acceptance of resulting order, they will be issued to Buyer in the format of the Seller’s choice no later than ten (10) business days after receipt of order. Signed drawings returned from Buyer are required prior to the start of fabrication of purchased goods and any delay in receipt of signed drawings from Buyer will delay quoted delivery.
6. TERMS AND METHOD OF PAYMENT: All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. Unless otherwise stated in the order acknowledgement, standard terms of payment of all invoices shall be as follow: (a) on all sales to customers within the United States, terms are net thirty (30) days from the date of the invoice, and (b) on all sales to customers outside the United States, the terms, unless otherwise agreed to in writing, are either wire transfer of funds to Seller’s bank account prior to release of purchased product(s), acceptance by Seller an approved credit card at a 5% surcharge for processing fees OR payment by the irrevocable letter of credit in a form satisfactory to Seller and issued by a bank satisfactory to Seller payable to Seller in U.S. funds upon the product being released from customs at Buyer’s country. Past due balances may be subject to a monthly service charge computed at a periodic rate (to the extent permitted by law) of one and one-half percent (1.5%) per month (18% per year) of the balance past due. If deliveries are made in installments, each installment shall be separately invoiced and paid for when due without regard to other deliveries. If Buyer fails to make payment for goods delivered as herein provided, or, if in Sellers’ opinion, Buyer’s financial condition or other circumstances do not warrant shipment on the terms originally specified in any contract made hereunder, Seller may at any time limit or cancel Buyer’s credit and may demand payment in cash for delivery of any part of the product. The net invoice price shall be payable in U.S. funds. Amounts owed by Buyer with respect to which there is no dispute shall be paid without set -off for any amount which Buyer may claim are owed by Seller and regardless of any other controversies which may exist.
7. TAXES: All prices quoted or accepted by Seller include applicable United States import duties and fees, but are exclusive of federal, state, municipal or other government excise, sales, use, occupational or like taxes, tariffs, customs, and all export duties and other export costs. Any and all of the foregoing taxes, duties, fees and costs shall be borne by Buyer. Prices are consequently subject to increase by the amount of any such tax, tariff, duty or fee, which Seller pays or is required to pay or collect upon sale or delivery of products. Such taxes, duties, fees and costs, when applicable to sales or to the product, will appear as separate additional items on the invoice to Buyer. Any tax exemption certificate or similar document or proceeding required to exempt the sale of products from sales or use or other tax liability shall be obtained by Buyer, at its expense, and shall be provided to Seller prior to delivery.
8. BUYER CANCELLATION, RETURN AND BILLBACK PROVISIONS: (A) Cancellations: Any request for order cancellation, rescheduling or modification by Buyer must be made in writing and such action must be approved in writing by an authorized agent of Seller. Such request should be made to Seller at least two (2) weeks from scheduled shipment date in order to be considered. Such cancellation, rescheduling or modification shall be subject to the payment of reasonable cancellation charges, which shall include but not be limited to expenses already incurred for labor and material costs, overhead, commitments made by Seller and a reasonable profit. In the event of cancellation, Buyer shall have no rights in partially completed goods. No cancellations, quantity decreases or extended period of acceptance can be made for orders due to ship within two (2) weeks. Seller, in its sole discretion, may accept or reject a request for order cancellation or modification and Buyer shall have no rights to cancel any firm order. Notwithstanding anything contained herein to the contrary, for non-standard products, built to Buyer’s specifications or pursuant to Seller’s design, Buyer shall have no right to cancel or reschedule the delivery of any such non-standard products. (B) Returns: Any request for product return by Buyer must be made in writing. Returns of products will not be accepted for any reason without prior written consent of Seller and issuance on a Return Material Authorization (RMA) number and all goods returned must be in new and unused conditioned or for warranty related returns must be cleaned and decontaminated of all foreign product and have related MSDS information provided. If authorization is granted, unless the returned product is covered by the limited warranty provided herein, Buyer shall pay Seller a restocking fee equal to a minimum of 20% of the current list price for standard products for each product(s) returned, in addition to charges for unearned discounts (bill back) and any other reasonable charges. The RMA paperwork shall specify any additional terms and conditions upon which returns may be made. Buyer shall not return material without first obtaining an RMA number as stated herein. Returns made without obtaining prior authorization shall be returned to sender at Buyer’s expense. Except as provided for in Seller’s limited warranty to Buyer, Seller, in its sole discretion, may accept or reject any request by Buyer to return product for cash or credit. Notwithstanding anything contained herein to the contrary, Buyer shall have no right to return non-standard products, built to Buyer’s specifications or pursuant to Seller’s design. (C) Bill back: Prices indicated are based upon quantities ordered. If, through no fault of Seller, the total quantity ordered is not purchased during the scheduled delivery period, in addition to any other rights available to Seller (including enforcement of the original agreement to purchase) Seller may “bill back” Buyer and Buyer shall pay Seller an amount equal to the difference between the unit price for the quantities actually purchased and the unit price for the quantities originally ordered. The unit price is the price in effect on the date of the original order.
9. CANCELLATION BY SELLER: Upon the occurrence of any of the following events, Seller shall have the sole and absolute right to cancel all of any portion of the products ordered pursuant hereto, without any liability to Buyer thereof: (i) Buyer makes a general assignment for the benefit of creditors or admits in writing any inability to pay its debts as they mature or takes advantage of, or files under any federal, state or foreign insolvency statute or law, including, without limitation, the United States Bankruptcy Code, or consents to the institution of proceedings or the filing of any petition there under, or any proceeding is filed or commenced against Buyer, under any insolvency statute or law which is not stayed and dismissed promptly or any substantial pat of the properties of Buyer are placed in the control of a receiver, custodian, trustee or similar official, or Buyer consents to the appointment thereof; (ii) if Seller is prohibited by any cease and desist order, injunction or other valid order, decree, process of law, or restraint from shipping, selling, exporting, importing, or distributing any products pursuant to the terms hereof. Seller shall have no liability on account of exercising its right to cancel hereunder.
10. CONFIDENTIAL INFORMATION: No information shall be deemed to be given or received in confidence by either party unless and to the extent it is covered by a separate written agreement. Buyer is responsible for the security of its own confidential information.
11. MANUFACTURING INSPECTION: Inspection of manufacturing by Buyer or Buyer’s customer must be stipulated in writing, at the time of ordering, and is subject to reasonable charges and safety and security conditions. Buyer shall have no right of access to Seller’s plant except as specifically authorized in advance by Seller. Buyer or Buyer’s agent shall indemnify and hold Seller harmless from any and all suits,
damages and expenses of Buyer, his agent or his customer resulting from personal injury including death or loss or damage of property occurring during, or in connection with, any visit to Seller’s plant.
12. DELAYS IN DELIVERY AND FORCE MAJEURE: Seller will make commercially reasonable efforts to meet any delivery date(s) quoted in the agreement. However, under no circumstance shall Seller be liable to Buyer for any delay in shipment or failure to meet any quoted delivery date(s) or for any delay in performance hereunder. Seller shall have the right to indefinitely postpone the time for delivery due to unforeseen circumstances or due to a cause beyond its control. Examples of such causes are acts of God, wars, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, strikes, transportation delays or shortages, inability to obtain material or supplies, excessive demand for products over available supply, interruption for nay reason in the manufacture of products by Seller’s supplies, or other causes not within Seller’s control, whether of the class of causes herein before enumerated or not. Where only part of Seller’s capacity to perform is excused under this condition, Seller shall attempt to allocate deliveries among its various customers in a commercially fair and reasonable manner. Where such allocation has been made, reasonable notice of the estimated quota available to Buyer shall be given.
13. SHIPMENTS, PASSAGE OF TITLE AND LIABILITY FOR LOSS: For all shipments to domestic (U.S.) shipping points and those outside the United States, product shall be shipped FOB Seller’s facility. Title to the products and risk of loss or damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of the products to a common carrier for shipment to Buyer, regardless of whether Seller will install or supervise the installment of the product. Products held or stored by Seller for Buyer shall be at the sole risk of Buyer, and Buyer shall be liable for the expense to Seller of holding or storing products at Buyer’s request. In the absence of specific shipping instructions, Seller will ship by the method it deems most advantageous. Transportation charges will be collected, or if prepaid, will be subsequently invoiced to Buyer. Unless otherwise indicated, Buyer is obligated to obtain insurance against damage to the material being shipped. Unless otherwise specified, products shall be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Seller, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced to Buyer. Shipping dates are approximate. All products will be scheduled for shipment in accordance with Seller’s applicable shipment sequence and Seller will confirm in writing, and amend as appropriate, the shipment schedule. Seller reserves the right to make deliveries of product in installments and the contract shall be severable as to each such installment. Under no circumstance shall Seller be liable to Buyer for any delay either in shipment or in delivery. Buyer shall give Seller notice within thirty (30) days after delivery of any incomplete deliveries.
14. INSTALLATION: Seller assumes no obligation to install the products or to place them in operation at Buyer’s premises, unless specifically stated in writing and signed by an authorized agent of Seller.
15. PRODUCT WARRANTY: All products to be covered by Manufacture’s standard warranties and will be provide from Seller at Buyer’s request or noted in the written quotation. No employee or agent of Seller is authorized to make altered warranties from Seller’s standard warranty listed herein, about the products described in this agreement. Seller’s standard warranty states that the products sold hereunder conform to Seller’s written specifications for the product and will be free from defects in material and workmanship, under normal use and service when correctly stored, installed, used and maintained by Buyer, for a period of one (1) year. The warranty period commences on the date that the product is shipped by Seller. Seller’s liability and responsibility under this warranty is limited solely (at Seller’s discretion) to replacing, repairing, or issuing credit for defective products which are returned to it by Buyer and which Seller determines does not conform to the warranty. To assert a claim in the warranty period, Buyer shall (A) notify Seller during the applicable warranty period in writing of any claims, specifying in reasonable detail the nature of the warranty claim; and (B) provide Seller with an opportunity to inspect and test the product claimed to be defective. Claims made after the applicable warranty period are not covered by this or any other warranty. Product returned to Seller for warranty service will be shipped to Seller at Buyer’s expense and will be returned to Buyer at Seller’s expense. Buyer shall not return material without first obtaining an RMA number as stated herein. In no event shall Seller be liable for any defective products if Seller determines upon examination that the defective condition of such products was caused by misuse, abuse, improper storage, installation or application, improper maintenance or repair, alteration, accident or negligence in use, storage, transportation, or handling. The term “specifications” as used herein means specifications for Seller’s products (subject to stated parameters and testing conditions) identified on the face of the order acknowledgement, or if no such specifications are identified, specifications for Seller’s products contained in a data sheet or other similar document in effect at the time of order acknowledgement by Seller and made available to Buyer at Buyer’s request. Such specifications are incorporated herein by this reference. Buyer acknowledges that specifications for Seller’s products may change without notice and hereby affirms that it is familiar with the specifications for Seller’s products in effect at the time of order acknowledgement. In the event that modifications are made to specifications following order acknowledgement and before the expiration of the applicable warranty period, Buyer may cancel and terminate this agreement without penalty by written notice to Seller; provided that no such cancellation right shall exist for modifications to specifications that do not materially affect the performance of such products. In the event that Buyer does not elect to so cancel and terminate this agreement and Seller informed Buyer of such modifications or Buyer otherwise was aware of such modifications prior to the termination of the warranty period, such modified specifications shall be deemed accepted by Buyer and shall thereby supersede and replace the specifications in effect at the time of order acknowledgement for purposes of this warranty. In no event shall Seller be liable under this warranty if (i) Buyer knew of any failure of Seller’s product to conform to specifications prior to purchase or (ii) Buyer was informed of any change in specifications subsequent to purchase and did not avail itself of the option contained herein to cancel or terminate this agreement and/or to make a claim under this warranty within the warranty period. No modification to specifications for Seller’s product published before or after the warranty period shall have the effect of extending the warranty period regardless of whether Seller notified Buyer of such modification. Buyer assumes all risk for operation of products outside parameters and testing conditions stated in the specifications. THE ABOVE WARRANTY IS SUBJECT TO LIMITATIONS AS SET FORTH HEREIN. THE ABOVE WARRANTY IS EXCLUSIVE AND CONSTI TUTES SELLER’S SOLE LIABILITY AND BUYER’S SOLE REMEDY WITH RESPECT TO ANY CLAIMED NONCONFORMANCE OF THE PRODUCTS SOLD HEREUNDER AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LI MITATION AN IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESS OR IMPLIED, ALL OF WHICH SELLER HEREBY DISCLAIMS.
16. BUYER’S UNDERSTANDING: Buyer represents and warrants: (A) that it has read and understood these terms and conditions, and (B) that these terms and conditions are fair and reasonable to Buyer.