Pfaltz & Bauer
Term's & Conditiions of Sale
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Terms & Conditions
This quotation for products is for immediate acceptance and is subject to change by Pfaltz & Bauer, Inc. ("Seller") without notice. Quotations are valid for 30 days from the date of quotation. All purchase orders for products are subject to Seller's acceptance at Waterbury, Connecticut, U.S.A.
Prices quoted are exclusive of all excise and similar taxes, including, without limitation, taxes on manufacture, sales, receipts, and all costs of transportation, packaging, insurance and other costs, including export and import duties, and associated fees if applicable. All such taxes and costs will be paid directly by Buyer or added to the invoice as a separate charge and paid by Buyer. Prices are based on current costs and therefore subject to change without notice to account for changes in the cost of raw materials and other direct costs beyond Seller's control.
Seller may complete the order with a one percent (1%) over-run or under-run on the actual weight ordered unless otherwise mutually agreed in writing, and Buyer will pay for the actual weight delivered.
All packaging will be Labeled in accordance with Seller’s practices and procedures, and in compliance with all applicable governmental regulations. SELLER WILL NOT BE RESPONSIBLE FOR THE ACCURACY OF ANY SPECIAL LABELING REQUESTED BY BUYER.
SHIPMENT & RISK.
All orders are freight and insurance prepaid by Buyer, Free Carrier Manufacturers Factory, Connecticut, U.S.A. Method and route of shipment are at Seller's discretion, unless Buyer supplies explicit instructions. All shipments are incurred at Buyer's expense and made at the Buyer's risk. Identification of the products to the contract shall occur, and title shall pass, upon receipt of the shipment by carrier. Seller reserves the right to deliver products in installments. Shipments made thirty (30) days after specified date of delivery, if date is so specified, shall constitute good delivery. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered products.
Seller will not be liable for any delay in the performance of this contract, or in the delivery or shipment of products, or for any damages suffered by Buyer by reason of such delay, when such delay is directly or indirectly caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war or insurrection, governmental interference or embargoes (whether by regulations, priorities, rationing or otherwise), strikes, labor difficulties, shortages of labor, fuel, power, internet failure, materials or supplies, transportation delays or any other cause (whether or not similar to any of the foregoing) beyond Seller's control. Seller shall have the additional right if any of the above mentioned contingencies occur, at Seller's option, to cancel in whole or in part, this contract without any resulting liability and to allocate production and deliveries among customers.
TERMS OF PAYMENT & INTEREST.
Terms of payment are net cash thirty (30) days. All payments shall be made in U.S. dollars. Seller reserves the right to require pre-payment or payment pursuant to irrevocable letter of credit issued by a financial institution acceptable to Seller or by documentary draft if specified on the front of this quotation, prior to manufacture, preparation, and shipment of any products. Any payment terms specified on the front of this quotation supersede any inconsistent part of this section. Seller reserves the right to impose a money service charge at the rate of one and one-half percent (1 1/2%) on invoices unpaid after thirty (30) days.
Seller reserves the right to select sources of supply for raw chemicals. Seller does not guarantee the compatibility or performance of raw chemicals with any specific customers' product. Any contract is subject to Seller's ability to obtain the necessary raw chemicals.
SELLER GIVES NO WARRANTY AS TO MERCHANTABILITY OR AS TO FITNESS FOR ANY PURPOSE. The sole and exclusive warranty provided herein is that the products sold are warranted to be free from defects in material or workmanship as established by Seller's standards of acceptable quality. This express warranty is in lieu of all other warranties, express or implied. Buyer's remedy under this warranty is to have its account credited with the invoice amount, or at Seller's sole option to have any products which contain defects at variance with Seller's specifications replaced, provided the specific defect is reported to Seller within thirty (30) days after the date of initial shipment. Every such claim under this warranty shall be deemed waived by Buyer unless it is made in writing within said thirty (30) day period. Defective products or any other product returns may be returned to Seller only after Seller's inspection and then only upon receipt of definite instructions for said return received from Seller, i.e., the Buyer must obtain a written Returned Goods Authorization from the Seller. But Seller may order return of products without inspection. Any products returned without Seller's advance written instructions will not be received for replacement or credit. Products returned without defect which are approved for return by the Seller are subject to a 25% restocking charge.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOSSES OR EXPENSES ARISING FROM THIS CONTRACT OR ITS PERFORMANCE OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THE PRODUCTS FOR ANY PURPOSE WHATSOEVER OR FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY OF THE PRODUCTS. The Buyer shall indemnify and hold Seller harmless from and against all loss, cost, damage or liability arising from the transport, use, storage and disposal of any of the products.
INTELLECTUAL PROPERTY RIGHTS.
Buyer assumes all patent, copyright, and trademark liability, except for Seller's stock items and for any other products to the extent that the claims of Seller's own patents and copyrights read on a feature thereof. Without limiting the meaning of the foregoing, Buyer shall indemnify and hold Seller harmless from and against all loss, cost, claim, expense, or liability for infringement of any letters patent, trademarks or copyrights or otherwise, resulting from or arising in connection with Buyer's printed matter, design, shape, specifications or the sale or use of any item covered by this contract, or Seller's compliance with Buyer's instructions. Buyer shall promptly pay or secure any judgment or recovery which may be obtained against Seller with respect to any claim covered by the foregoing, and will pay Seller reasonable costs and expenses incurred in evaluating, defending and settling such claim in any judicial or administrative proceeding or in any negotiations prior thereto. Buyer shall notify the Seller in writing of any claim, demand or suit against Buyer brought on the ground that use or resale by Buyer, or by anyone purchasing from Buyer, of the products ordered as a result of Seller’s quotation infringes any patent, trademark, copyright, tradename, license or other proprietary right of other parties. The Seller shall, at its option, have the right to take control of and defend such claim, demand or suit at Buyer's expense, to approve counsel and to hire its own counsel at Buyer's expense to participate in such negotiation or litigation.
Any designs, sketches, formulae, proofs, software, computer code, or other intellectual property, originated by Seller are submitted in confidence and will not be disclosed by Buyer to any third party. Unless otherwise agreed in writing, such items and all copyrights or patents protecting them are owned by Seller.
Orders accepted by Seller are not subject to cancellation by Buyer, except with Seller's written consent and upon terms which compensate Seller for any loss or damage arising out of said cancellation. Cancellation requests must be submitted in writing. All cancellations are subject to a 25% cancellation fee from the Buyer. If it appears to the Seller, upon the happening of any of the following events, that Buyer will be unable to meet its payment obligations under the contract, the Seller may, at its option, cancel the contract, demand cash payments, or obtain adequate assurances from the Buyer that such timely payment will be made: (a) the filing of any voluntary or involuntary petition in bankruptcy or for reorganization or arrangement under any statute protecting creditors rights, (b) Buyer's insolvency or inability to meet obligations as they become due, (c) institution of legal proceedings against Buyer by creditors or Stockholders, (d) appointment of a receiver for Buyer, (e) the doing or permitting by Buyer of any act which would or apparently would render Buyer unable to perform this contract.
Modifications, additions, cancellations or suspensions of any order resulting from this quotation shall not be effective or binding upon Seller unless evidenced in writing on the face of the order or in a separate writing, signed by an authorized manager of both the Buyer and the Seller, expressly stating the terms modified and the nature of the modification.
Any contract resulting from this quotation and obligations of the parties hereto, shall be construed in accordance with and all disputes governed by the laws of the State of Connecticut, U.S.A. (without reference to its conflicts of laws principles that would require the application of any other law), including provisions of the Uniform Commercial Code as adopted by the State of Connecticut. The parties expressly reject the applicability to any such contract of the United Nations Convention on Contracts for the International Sale of Goods as then in effect.
Buyer and the Seller, each, to the extent that it may lawfully do so, hereby consents to the jurisdiction of the courts of the State of Connecticut and the United States District Court for the district of Connecticut for any suit, action, or other proceeding arising out of any of its obligations hereunder or with respect to the transactions contemplated hereby, and expressly waives any and all objections such party may have to venue in any such courts. Each party, to the extent that it may lawfully do so, further agrees that a summons and complaint commencing an action or proceeding in any of such courts shall be properly served and shall confer personal jurisdiction if served personally or by certified mail to it as its address provided at the beginning of this quotation or as otherwise provided under the laws of the State of Connecticut.
LIMITATION OF ACTIONS.
No action regardless of form arising out of any contract with the Buyer may be commenced more than one (1) year after the cause of action has accrued except an action for nonpayment. Buyer shall reimburse Seller for any attorney's fees and other expenses incurred in enforcing or defending its rights under any contract arising from any quotation.
This quotation is contingent upon any order received in response thereto qualifying for shipment of products under a General License G-DEST (or other General License) under the Export Administration Regulations (hereinafter "EAR") adopted by the United States Department of Commerce, and that such products are not intended for, and will not be utilized for, shipment to
, or other embargoed country, as prohibited by 31 CFR Chapter 5 of regulations adopted by the United States Treasury Department and 15 CFR Chapter 7 of the EAR. In the event that Buyer places an order in response to this quotation and Seller knows or has reason to know that the products ordered are to be shipped to
, or other embargoed country, then Seller has the right to cancel the order without penalty. Nothing contained in Buyer's purchase order shall cancel, modify or supersede these foregoing provisions. Any attempt to do so shall be null and void or, in the alternative, shall negate any contract between Buyer and Seller so that Buyer's order shall not result in a contract enforceable against Seller. Any purchase order directed to Seller for any products quoted to Buyer must contain the statement: "REPRESENTATIONS AND AGREEMENTS OF COMPLIANCE WITH U.S. EXPORT LAWS AND REGULATIONS ACCEPTED." Failure to include such phrase will result in rejection of purchase order.
FEDERAL CONTRACTS OR SUBCONTRACTS
If this quotation results in a contract with the United States Government or any agency thereof or which is a federal government subcontract, then such provisions as are expressly required by federal laws or regulations applicable hereto will be included as part of such contract and any certification as to any state of facts which applicable federal laws or regulations require Seller to give in such contract are hereby given. Seller makes no other representations as to compliance with any other federal or state laws or regulations.
ARMED SERVICES PROCUREMENT
If this quotation results in a contract which is a United States defense contract or subcontract, then those specific clauses contained in the Armed Services Procurement Regulations ("ASPR") which such regulations require to be included in such contracts, will apply thereto. All other ASPR clauses shall be excluded from said contract.