The following Terms and Conditions of Sale (the “Terms”) are applicable to the provision or sale of all Services, as such term is defined herein below, rendered by E B Industries, LLC (“Seller”) to any purchaser thereof (“Buyer”).
- OFFER. A quotation from Seller constitutes an offer to sell. Any purchase order or purchase order number received by Seller, whether verbal or written, shall be construed as a written acceptance of Seller’s offer and shall be filled in strict compliance with the terms and conditions of sale set forth herein.
- CONTROLLING TERMS. No oral understanding, agreement or other modification of the terms and conditions set forth herein shall have any force or effect whatever unless confirmed in writing by Seller at Farmingdale, NY. Any terms and conditions in Buyer’s purchase order which in any way modify, contradict or add to the provisions of this offer are material alterations to the terms of this offer and are rejected by Seller and waived by Buyer. If Buyer intends not to waive any such printed terms and conditions of sale, the purchase order shall bear on the face thereof in letters at least one-half inch high the words “This is a counter-offer”. Seller and Buyer shall then negotiate mutually acceptable terms and conditions, including additional charges as required.
- PRICES. Subject to the provisions of Paragraph 4, all prices quoted and deliveries are FOB Seller’s plant at Farmingdale, NY. Unless otherwise specified, all prices are subject to change without notice prior to Buyer’s acceptance of Seller’s offer. Unless otherwise specified, prices listed on Seller’s quotation are for orders in the quantities shown in the quotation. The quotation shall be void and of no effect unless Seller receives Buyer’s acceptance within sixty (60) days from the date hereof. At Seller’s sole option, this offer may be revived if Seller receives an acceptance after sixty (60) days.
Prices are based upon Seller’s present cost structures and are subject to increase by Seller at any time prior to delivery, to the extent necessary to cover any of Seller’s increased costs (including without limitation increased costs due to tariffs, inflationary raw material, component and supply chain issues). If there is any delay in completion or shipment of order, including due to any change requested by Buyer, or as a result of any delay on Buyer’s part in furnishing information necessary for completion of the order, the price initially agreed upon at time of acceptance is subject to change. Should parts that arrive at the Seller’s facility differ in any way from the quoted parts or process, the price initially agreed upon at time of acceptance is subject to change.
- DELIVERY. All shipments shall be FOB Seller’s plant with freight by the least expensive method of shipment. When at the Buyer’s insistence other than the least expensive method is used shipments shall also be FOB Seller’s plant. Delivery shall occur, and risk of loss shall pass to Buyer, upon delivery of the material to a carrier at the point of shipment. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only.
- TERMS OF PAYMENT. Net 30 days unless otherwise specified on the quotation, subject to credit approval. Bills will be dated the day of shipment. Seller reserves the right to assess reasonable interest charges on any amounts not paid by the date such payments are due. Seller reserves the right to withhold shipment or to require other adequate assurances of performance of Buyer’s payment obligations as Seller in its discretion may require, notwithstanding any order confirmation issued by Seller.
- PACKING. No charge will be made by Seller for packaging or casing any materials shipped in standard packages. Where special cases (such as wooden crates, military packaging etc.) are required or other than standard packing is necessary, the expense thereof will be charged to the Buyer.
- TAXES. Any excise, levies, retail sales or use taxes which Seller is required to pay or collect under any existing or future law or regulation (domestic or foreign), upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation or any of the material covered hereby, shall be for the account of Buyer and, if paid or required to be paid by Seller, the amount thereof shall be added to the price payable by Buyer.
- DELAYS. Each order shall be subject to, and Seller shall be excused from, any prohibition, failure, interruption or delay in manufacture or delivery which may be occasioned by sabotage, fire, flood, explosion, labor dispute, strike, work stoppage, riot, insurrection, war, act of God, or priorities granted by request of or for the benefit, directly or indirectly, of any governmental body, authority or agency, or other cause beyond Seller’s control. In no event shall Seller be liable for any damages or claims for labor resulting from failure or delay in delivery, damages or defects (see Paragraphs 12-14).
- VARIATIONS. Seller reserves the right to make partial shipments against the amount ordered and up to ten percent (10%) over the amount ordered unless it is otherwise specifically agreed.
- INDEMNITY. Buyer agrees to assume all patent liability for goods manufactured by Seller to Buyer’s design or specifications or specially designed by Seller to meet Buyer’s specifications (“Goods”). Buyer shall indemnify, defend, and hold Seller and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, losses, damages, costs and expenses (including reasonable attorneys’ fees) resulting or arising from: (a) Buyer’s negligence or willful misconduct, (b) Buyer’s use, sale, handling, storage, or disposal of the Goods, or (c) a claim by a third party for injury or death to any person or damage to property as a result of the negligent performance or nonperformance by Buyer of its obligations under this Agreement. The foregoing shall apply, without limitation, to injury to persons (including death) or damage or harm to property or the environment.
- COMPLIANCE WITH LAWS. Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the Goods, including, without limitation, those pertaining to labor wages, hours and conditions of employment and tax and foreign exchange legislation or regulations.
- DEFECTS. Seller warrants to Buyer all of the Services sold by it to buyer for a period of one (1) year from the date of shipment against defects in material (but only if Seller furnished such material) and workmanship only. Notice of any claimed defect and the right of inspection while the item is in the claimed defective condition must be given to Seller within the above one (1) year period. Any and all other warranties, including warranties of merchantability and warranties of fitness for intended use, express or implied, arising out of the work by Seller, and any and all obligations or liabilities of Seller to Buyer or any third party based on tort or other grounds arising out of the work by Seller, except as provided herein, are hereby excluded.
- DAMAGES FOR BUYER’S PROPERTY; LIMITATION OF LIABILITY. Seller’s liability for Buyer’s property while such property is within Seller’s possession and control shall not exceed the fair value of such property or the price of the Services sold by Seller for such property, whichever is less. Except as provided herein, by issuing an order to Seller, Buyer assumes the risk of any and all damage to its property arising out of the work by Seller. Seller shall not be liable for the reasonable wear and tear of such property. IN NO EVENT SHALL SELLER’S LIABILITY HEREUNDER EXCEED THE AMOUNT PAID TO SELLER FOR THE SERVICES GIVING RISE TO SUCH LIABILITY, WHETHER ARISING OUT OF CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER TORT, INCLUDING INTENTIONAL TORTS, OR ANY OTHER CAUSE OF ACTION.
- DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. SELLER SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE GOODS, OR THE SERVICES, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH, EVEN IF BUYER HAS BEEN ADVISED OF A POSSIBILITY OF SUCH DAMAGES. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT.
- CANCELLATION. Orders received by Seller are not subject to cancellation except with Seller’s consent and after arrangement of terms which will indemnify Seller for any losses or damages occasioned by such cancellation.
- GOVERNING LAW. The sale of goods hereunder shall be governed, interpreted and construed by and in accordance with the internal substantive laws of the State of New York, United States of America, without regard to the conflict of laws provisions thereof, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising hereunder shall be resolved in the United States federal courts serving Farmingdale, New York, U.S.A. or in the courts of the State of New York, as may be applicable. Such courts shall have exclusive jurisdiction and venue for resolution of all such disputes and the parties hereto do hereby irrevocably submit to such jurisdiction and venue and waive any objection to the contrary hereafter.
- COMPLETE AGREEMENT. These Terms contain the complete and final agreement between Buyer and Seller and supersede all other and further agreements, representations, warranties, covenants, promises, and other contractual obligations between the parties in respect of the subject hereof unless otherwise agreed to in a writing signed by
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