TERMS AND CONDITIONS OF SALE
1. APPLICABILITY.
The following terms and conditions (“Terms
and Conditions”) are deemed part of all quotations, proposals,
acknowledgments, invoices, orders, statements and other documents,
whether electronic or in writing, relating to the sale of goods or
services (“Products”) by AmChar Wholesale, Inc., a New York
corporation (“Seller") to Seller’s customers (“Buyer”). These terms
and conditions, together with the foregoing documents, constitute the
entire contract of sale and purchase between Seller and Buyer with
respect to the Products, will supersede all previous communications,
agreements or contracts, written or verbal between Seller and Buyer,
and no understanding, agreement, term, condition or trade custom at
variance herewith will be binding on Seller. In the event of a conflict
between or among the terms of documents relating to the Products,
the following order of priority will govern, except where the specific
terms of a document provide otherwise: (a) any applicable order
acknowledgment and invoice;
(b) these Terms and Conditions; (c) the applicable quotation; and (d)
the applicable purchase order. No waiver, amendment or
modification of these Terms and Conditions will be effective unless
in writing and signed by an officer of Seller. SELLER OBJECTS
TO, AND IS NOT BOUND BY, ANY TERMS OR CONDITIONS
ON BUYER'S PURCHASE ORDER, CONFIRMATION FORMS
OR OTHER DOCUMENTS, WHICH ATTEMPT TO IMPOSE
UPON SELLER ANY TERMS AND CONDITIONS AT
VARIANCE WITH SELLER'S TERMS AND CONDITIONS OF
SALE SET FORTH HEREIN, AND SHIPMENT OR OTHER
PERFORMANCE BY SELLER SHALL NOT CONSTITUTE
ASSENT TO ANY SUCH INCONSISTENT TERMS.
2. QUOTATIONS.
All quotations by Seller are subject to change
or withdrawal without prior notice to Buyer unless otherwise
specifically stated in the quotation. Quotations are made subject to
approval by Seller of Buyer’s credit. Seller shall have no obligation
to sell or deliver Products covered by Seller’s quotation unless and
until Seller issues an order acknowledgement form or upon the shipment of Products by Seller.
3. TERMS OF PAYMENT.
Unless otherwise expressly agreed to
by Seller in writing, terms of payment are cash to be paid in
accordance with the terms of the invoice. Time of payment is of
essence. Any invoice not paid in immediately available funds and
in accordance with the terms of the invoice is subject to a late
payment fee of one and one-half percent (1.5%) per month, or, if
such rate exceeds that permitted by applicable law, then the highest
lawful rate. Buyer also agrees to indemnify Seller for all collection
costs on any delinquent accounts, including, without limitation,
attorneys' fees and court costs. The inspection rights granted to
Buyer hereunder will not affect or alter the payment terms or the
timing of Buyer’s payment obligations. Under no circumstances will
Buyer have a right of set-off. Any returned checks will be subject to
a $35.00 service charge.
4. CREDIT.
All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department. Seller may
invoice Buyer and recover for each shipment made pursuant to these
Terms and Conditions as a separate transaction without regard to any
other purchase order or agreement with Seller. All overdue amounts
must be paid before additional shipments are made, and Seller
reserves the right to cancel any purchase order or refuse to accept or
fill any purchase order then outstanding until all overdue amounts are
paid in full. In the event that Seller, in its sole and absolute discretion,
deems Buyer's credit to be unsatisfactory, Seller shall have the right,
in addition to any of its other remedies, to
(a) limit the amount of credit which Seller extends to Buyer and
delay the delivery of Products based upon such limitations; (b)
require full or partial payment in advance, (c) deliver Products to
Buyer C.O.D., or (d) cancel or refuse to accept or fill any purchase
order from Buyer then outstanding or thereafter placed. Buyer
grants to Seller a purchase money security lien interest in any
Products sold to Buyer on credit to secure the payment of such
amounts. Buyer hereby authorizes Seller.to sign any document
required to perfect Seller’s security interest, including financing
statements under the Uniform Commercial Code. Buyer shall
immediately notify Seller. of any event or development that could
reasonably be expected to have a material adverse effect on the
assets, operations or financial condition of Buyer and any change in
the senior the senior management of Buyer.
5. PRICES AND TAX.
Prices and other information shown in any
Seller publication (including product catalogs, brochures and
electronic price lists) or provided by Seller verbally are subject to
change without notice and to written confirmation by Seller. Such
publications and verbal quotations are maintained and provided to
Buyer only as a source of general information. Published or quoted
Product prices do not include sales, use, excise, customs, valueadded or similar taxes. Such taxes shall be the responsibility of
Buyer and invoiced as a separate item to be paid by Buyer unless
Seller is provided with a resale tax certificate to support any
exemption. Failure by the Seller to collect any such fees or taxes
shall not affect Buyer’s obligations hereunder, and Buyer shall fully
defend, indemnify and hold harmless Seller with respect to such tax
obligations. Unless otherwise set forth, prices reflect a discount of
2.5% for cash equivalent payment which is calculated off the
standard pricing of Seller’s Products. Payments by credit card or
non-cash equivalent means are not eligible for such discounted
pricing and subject to Seller’s standard Product prices.
6. MINIMUM BILLING CHARGE.
Seller shall not accept any
purchase order for any Products where the aggregate price for all
Products listed thereon is less than $100.00, exclusive of all taxes,
shipping, insurance and other costs. Upon Buyer’s request, Seller
may waive the minimum order requirement, subject to an additional
$25.00 handling charge. All such Purchase Orders must, and all
invoices related thereto will, list the handling charge as a separate
line item.
7. TITLE, RISK OF LOSS, AND SHIPPING TERMS.
Unless
otherwise agreed in writing by the parties, deliveries of Products
shall be made F.O.B. Seller's facility in Rochester, New York. Title
shall pass to Buyer and Buyer will be responsible for and shall
assume all risk and liability for, and agrees to indemnify Seller for
any use or misuse by third parties who may acquire or use the
Products, after Seller’s delivery of the same to the carrier. Any loss
occasioned by damage or shrinkage in
transit will be for Buyer’s account, and Buyer shall file any damage
or loss claims directly with the carrier. Unless otherwise agreed in
writing by the parties, packaging methods, shipping documents and
manner, route and carrier of shipment shall be at Seller's sole
discretion. Seller reserves the right to ship items in a single or
multiple shipments. Unless otherwise agreed in writing by the
parties, all freight charges and insurance costs shall be the responsibility of Buyer and will be invoiced as a separate line item
to be paid by Buyer.
8. INSPECTION AND ACCEPTANCE OF GOODS.
Buyer shall examine Products promptly upon receipt of delivery from the
carrier. Buyer shall advise the carrier of any damages or shortages
prior to acceptance of Products and, except for any latent defects,
shall advise Seller of any claims with respect to shortages,
damages or discrepancies within ten (10) days after receipt thereof.
If Buyer does not so notify the carrier and Seller of any
nonconforming or damaged Products during this period, the
Products shall be deemed accepted and it is expressly agreed that
Buyer shall have waived all claims based on any defects that were
or would have been discovered on reasonable inspection during
this period. Buyer shall afford Seller a reasonable opportunity to
inspect such nonconforming or damaged Products and to cure any
nonconformity. BUYER'S FULL OR PARTIAL PAYMENT OR
ACCEPTANCE OF DELIVERY OF PRODUCTS WITHOUT
NOTIFYING THE CARRIER AND SELLER OF ANY
DAMAGES OR SHORTAGES IN ACCORDANCE WITH THIS
SECTION 8 SHALL CONSTITUTE ACCEPTANCE OF SUCH
PRODUCTS.
9. DELIVERY.
Seller's delivery or shipping dates are
approximate only and merely represent Seller’s best estimate of
time required to make delivery or shipment. Shipment dates are
contingent on prompt receipt by Seller of all necessary shipping
information. Seller shall not be held responsible for failure to
meet estimated shipping dates, and in no event shall Seller be
liable for any loss, cost, damage or expense whatsoever incurred
by Buyer or its customers that may result therefrom.
10. RETURN POLICY.
No Products shall be returned without the
prior written authorization of Seller. Seller, in its sole discretion
may reject any nonwarranty return requests. Defective Products are
to be returned directly to the manufacturer in accordance with their
warranty and return policies. Non-warranty returns of unused and
resalable Products for credit will be subject to Seller’s return
policies in effect at the time, including applicable restocking
charges (currently 10%) and other conditions of return. Return
requests of incorrectly ordered items will only be accepted against
a restocking charge of 20% within ten (10) days after delivery.
Products returned under warranty must be properly packed and
shipped to Seller specified locations. All shipping containers must
be clearly marked per Seller’s instruction. Buyer will be
responsible for all costs and expenses associated with any returns
of Products (other than products returned at Seller’s request
pursuant to Section 13 hereof) and will bear the risk of loss or
damage of all returned Products, unless Seller agrees otherwise in
writing. Seller, in its sole discretion may reject any return of
Product not approved by Seller in accordance with this paragraph
or otherwise not returned in accordance with Seller’s then current
return policies.
11. ORDER CANCELLATION.
Purchase orders acknowledged
or shipped by Seller may not be canceled, altered or modified by
Buyer except as otherwise permitted herein or agreed to in writing
by Seller. Buyer will indemnify Seller for all costs and expenses
already incurred and commitments made by Seller related to any
terminated, cancelled or modified purchase order. Cancellation by
Buyer prior to shipment pursuant to any standing, recurring or
release purchase order is permitted only by written notice sixty (60)
days before the originally scheduled shipment date as confirmed
by Seller on the order acknowledgement related to such purchase
order and is subject to reasonable cancellation and restocking
charges,
including
reimbursement
for
direct
costs.
Notwithstanding any term to the contrary contained herein, a
"special product" (non-stock product) will be identified and
acknowledged when requested or ordered and cannot be canceled
or returned. Buyer will be responsible for cancellation charges of
the actual selling price for any cancelled or returned special
products.
12. NO SELLER WARRANTY.
The only warranties applicable
to the Products are any applicable express warranties from the
manufacturer of a Product. Buyer understands and agrees that
Seller makes no representations or warranties of any kind or
nature concerning the Products. Buyer agrees to waive any and all
implied warranties, including merchantability or fitness for a
particular purpose. SELLER MAKES NO WARRANTIES
WHATSOEVER, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NONINFRINGEMENT. THE REMEDIES GRANTED BY
EACH PRODUCT MANUFACTURER SHALL BE BUYER'S
SOLE AND EXCLUSIVE REMEDY UNDER THESE TERMS
AND CONDITIONS AND IS EXPRESSLY MADE IN
SUBSTITUTION OF ANY AND ALL REMEDIES
OTHERWISE PROVIDED.
13. LIMITATION OF DAMAGES.
IN NO EVENT SHALL
SELLER, ITS AFFILIATES, OFFICERS, AGENTS OR
EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION
WITH OR ARISING FROM THESE TERMS AND CONDITIONS
OR THE PRODUCTS OR SERVICES PROVIDED HEREUNDER,
INCLUDING (WITHOUT LIMITATION) LOSS OF PROFITS OR
REVENUES, INTERRUPTION OF BUSINESS, LOSS OF USE OF
THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT,
MATERIALS, COMPONENTS OR PRODUCTS, DAMAGE TO
ASSOCIATED EQUIPMENT, MATERIALS, COMPONENTS OR
PRODUCTS, COST OF SUBSTITUTE PARTS, OR CLAIMS OF
BUYER'S CUSTOMERS FOR SUCH DAMAGES. SELLER WILL
NOT BE LIABLE TO BUYER FOR ANY LOSS, DAMAGE, OR
INJURY TO PERSONS OR PROPERTY RESULTING FROM
THE HANDLING, STORAGE, TRANSPORTATION, RESALE,
OR USE OF ITS PRODUCTS IN MANUFACTURING
PROCESSES, OR IN COMBINATION WITH OTHER
SUBSTANCES, OR OTHERWISE, INCLUDING (WITHOUT
LIMITATION) ANY OBLIGATIONS OR LIABILITY ARISING
OUT OF SELLER'S NEGLIGENCE OR FAULT. IN NO EVENT
WILL SELLER’S LIABILITY UNDER THESE TERMS AND
CONDITIONS OR IN CONNECTION WITH THE SALE OF
PRODUCTS BY SELLER, WHETHER SUCH LIABILITY
ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE
SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE
CLAIM IS MADE.
14. INDEMNIFICATION.
Buyer shall indemnify and hold Seller,
its officers, directors, employees, agents, affiliates, successors and
assigns harmless from and against all claims, liabilities, losses,
damages, costs and expenses sustained by them (including court
costs and attorneys' fees) arising out of or in any way connected with
the breach of these Terms and Conditions by Buyer or any of its
affiliates, employees, officers or agents.
15. REGULATORY
COMPLIANCE
AND
EXPORT
RESTRICTIONS. Sales of firearms and explosives are subject to
compliance with federal, state, and local rules and regulations
(including but not limited to the Gun Control Act of 1968), and to
approvals by the Bureau of Alcohol, Tobacco, Firearms and
Explosives and relevant state and municipal governmental
authorities. All sales of Products by Seller to Buyer shall be subject
to such restrictions and Buyer shall obtain and maintain all licenses
and permits required in connection therewith. Buyer further
acknowledges that it is subject to and agrees to abide by federal laws
and regulations (including the Export Administration Act of 1979,
the Arms Export Control Act and International Traffic in Arms
Regulations) and restrictions of and controls imposed by Product
manufacturers relating to the export of the Products. Buyer shall, if
requested by the Seller, provide such assurances and representations
to the Seller, as the Seller may deem necessary or desirable to
confirm the compliance of Buyer with all applicable legal
requirements. Buyer shall immediately notify Seller of any
revocation of its required licenses or of any changes in the ownership
or control of its business or in the form of its business entity (e.g.
partnership, corporation, sole proprietorship).
16. OWNERSHIP OF INTELLECTUAL PROPERTY.
All
drawings, know- how, designs, specifications, inventions, devices,
developments, processes, copyrights and other information or
intellectual property disclosed or otherwise provided to Buyer by
Seller and all rights therein (collectively, “Intellectual Property”) will
remain the property of Seller and will be kept confidential by Buyer
in accordance with these Terms and Conditions. Buyer shall have no
claim to, nor ownership interest in, any of the Intellectual Property,
and such information, in whatever form and any copies thereof, shall
be promptly returned to Seller upon written request from Seller.
Buyer acknowledges that no license or rights of any sort are granted
to Buyer hereunder in respect of any Intellectual Property.
17. CONFIDENTIAL INFORMATION.
All confidential
information furnished or made available by Seller to Buyer shall be
held in confidence by the Buyer. Buyer agrees not to use such
information or disclose such information to others without Seller’s
prior written consent. The obligations in this paragraph will not
apply to any information which (a) at the time of disclosure was or
thereafter becomes, generally available to the public by publication
or otherwise through no breach by the Buyer of any obligation
herein, (b) the Buyer can show by written
records was in the Buyer’s possession prior to disclosure by Seller,
or (c) is legally made available to the Buyer by or through a third
party having no direct or indirect confidentiality obligation to Seller
with respect to such information.
18. FORCE MAJEURE.
Seller shall not be liable for failure to
perform or delay in performance or delivery of any Products due to
(a) fires, floods, strikes, or other labor disputes, accidents, sabotage,
terrorism, war, riots, acts of precedence or priorities granted at the
request or for the benefit, directly or indirectly, of any federal, state
or local government or any subdivision or agency thereof, delays
in transportation or lack of transportation facilities, restrictions
imposed by federal, state or local laws, rules or regulations; or (b)
any other cause beyond the control of Seller. In the event of the
occurrence of any of the foregoing, the time for performance shall
be extended for such time as may be reasonably necessary to enable
Seller to perform. Seller may, during any period of shortage due to
any of the above circumstances, allocate its available supply of
Products among itself and its Buyers in such manner, as Seller, in
its judgment, deems fair and equitable.
19. ASSIGNMENT AND DELEGATION.
No assignment of any
rights or interest or delegation of any obligation or duty of Buyer
under these Terms and Conditions, Seller’s quotation, order
acknowledgement, or invoice, or Buyer’s purchase order may be
made without the prior written consent of Seller. Any attempted
assignment or delegation will be wholly void and totally ineffective
for all purposes.
20. WAIVER.
No failure of Seller to insist upon strict compliance
by Buyer with these terms and conditions or to exercise any right
accruing from any default of
Buyer shall impair Seller’s rights in case Buyer’s default continues
or in case of any subsequent default by Buyer. Waiver by Seller of
any breach by Buyer of these terms and conditions shall not be
construed as a waiver of any other existing or future breach.
21. LIMITATION OF ACTIONS.
Notwithstanding any contrary
statute of limitations, any cause of action for any alleged breach of
these terms and conditions by Seller shall be barred unless
commenced by Buyer within one (1) year from the accrual of such
cause or action.
22. LITIGATION COSTS.
If any litigation or arbitration is
commenced between Seller and Buyer concerning any provision of
these Terms and Conditions, the party prevailing in the litigation or
arbitration is entitled, in addition to such other relief
that is granted, to a reasonable sum as and for their attorney’s fees
in such litigation or arbitration, provided that if each party prevails
in part, such fees shall be allocated in such manner as the court or
arbitrator shall determine to be equitable in view of the relative
merits and amounts of the parties’ claims.
23. DISPUTES.
Either party may give the other party written notice
of any dispute arising out of or relating to these Terms and
Conditions and not resolved in the normal course of business. The
parties shall attempt in good faith to resolve such dispute promptly
by negotiations between executives who have authority to settle the
dispute. If unsuccessful, the parties further will attempt in good
faith to settle the dispute by nonbinding third-party mediation
administered by the American Arbitration Association under its
Commercial Mediation Rules before resorting to arbitration, with
mediator fees and expenses apportioned equally to each side.
Subject to the foregoing, the parties shall settle any dispute arising
out of or related to these Terms and Conditions, or the breach
thereof, by arbitration in Rochester, New York in accordance with
the rules of the American Arbitration Association. The parties shall
agree upon a single arbitrator or, if the parties cannot agree upon an
arbitrator within thirty (30) days, then the parties agree that a single
arbitrator shall be appointed by the American Arbitration
Association. The arbitrator may award attorneys' fees and costs as
part of the award. The award of the arbitrator shall be binding and
may be entered as a judgment in any court of competent
jurisdiction. These procedures are the exclusive procedures for the
resolution of all disputes between the parties; provided, however,
that, notwithstanding the foregoing, Seller will have the right, and
in addition to all other remedies available to it at law, in equity or
under these Terms and Conditions, to affirmative or negative
injunctive relief from a court of competent jurisdiction in the event
Buyer violates or threatens to violate the terms of Sections 16 or 17.
Each party acknowledges that a violation of Sections 16 or 17
would cause irreparable harm and that all other remedies are
inadequate. Each party further agrees and acknowledges that any
such action or proceeding for equitable relief must be brought in a
state or federal court having jurisdiction in Monroe County, New
York, and each party irrevocably submits to the jurisdiction and
venue of any such court in any such action or proceeding and agrees
to waive any defenses to venue and jurisdiction including forum non
conveniens.
24. GOVERNING LAW.
The laws of the State of New York
shall govern the validity, interpretation and enforcement of
these Terms and Conditions, without regard to its conflicts of
law principles. The application of the United Nations
Convention on Contracts for the International Sale of Goods
shall be excluded. Should any term or provision hereof be held
wholly or partly invalid or unenforceable under applicable law,
the remainder of the agreement evidenced hereby will not be
affected thereby.
25. COUNTERPART AND ELECTRONIC SIGNATURES.
This Terms and Conditions may be executed in multiple
counterparts by the parties hereto. All counterparts so executed
shall constitute one agreement binding upon all parties,
notwithstanding that all parties are not signatories to the
original or the same counterpart. Each counterpart shall be
deemed an original to this Terms and Conditions, all of which
shall constitute one agreement to be valid as of the date of
these Terms and Conditions. Documents executed, scanned
and transmitted electronically and electronic signatures shall
be deemed original signatures for purposes of this Terms and
Conditions and all matters related thereto, with such scanned
and electronic signatures having the same legal effect as
original signatures.