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EVERCHEM
TERMS AND CONDITIONS
TERMS AND CONDITIONS OF QUOTATION AND SALES
1. CONFIRMATION
Any order, written or verbal emanating from a quotation, will only be accepted
under the terms and conditions set out below, unless otherwise agreed in
writing. This Agreement between
Everchem, LLC (the “Seller”) and the buyer (“Buyer”) of products (“Products”)
shall consist of and be contingent upon the Seller’s acceptance of the Purchase
Order submitted by Buyer.
2. QUOTATIONS
& PRICES
Written quotations automatically expire thirty (30) calendar days from the date
issued unless sooner terminated by notice. Seller’s publications are maintained
as sources of general information and are not quotations or offers to sell. Prices
are subject to change from time to time.
All clerical errors are subject to correction.
3. LIMITED
WARRANTY
Seller warrants the goods sold hereunder to be free from defects in material
and workmanship under normal use and service not arising from misuse,
negligence or accident, in connection with the use, of the goods by Buyer, its
agents, servants, employees. Seller’s obligations under this warranty are
limited to remedying any deficiencies in the goods at such place or places in
the United States of America as may be designated by Seller. This warranty
shall pertain to any Products to which Buyer has, within 1 year following
delivery of such goods to Buyer or its nominees or the carrier, as the case may
be, given written notice of claimed defects to Seller. Buyer shall be required
to furnish Seller with details of such defects and this warranty shall be
effective as to such goods which Seller’s examination shall disclose to its
satisfaction to have been defective and which at Seller’s option shall promptly
thereafter be returned to Seller or it’s nominees. This warranty is expressly
in lieu of all other warranties expressed or implied.
In no event shall the Seller be liable to the Buyer or to any other
person for any loss or damage, direct or indirect, arising out of or caused by
the use or operation of the goods, or for the loss of profits, business, or
good will. Seller shall in no event be liable to any person or firm (including
any assignee of Buyer) except Buyer and its successors. Seller’s liability is limited to furnishing
or repairing at Seller’s option products determined by Seller to be defective. Seller may sell from time to time distressed
products to Buyer. Any distressed
products sold without any representations or warranties whatsoever, Seller
shall have no liability with respect to such distressed products.
4. SHORTAGE AND
NON-CONFORMITY
Any claim of shortage or that the goods do not conform with the specifications
of the order or model must be made in writing within ten (10) days after
delivery of the goods (as to which such claim is made) to Seller or its
nominees, but in no event shall the claim be later than within the time limit
provided by the carrier or insurance company, otherwise such claim shall be
deemed waived. The samples, measurements, dimensions and weights contained in
the Seller’s catalogues, sales manuals, photographs, and drawings constitute
only an approximate guide. The Seller reserves the right to make any changes
that which the Seller, in its absolute discretion, considers necessary.
In the event
that Buyer has a verified claim of shortage or of nonconformity of the goods to
the specifications of the order or the model, and if such claim has been
submitted within the required time limits as set forth above, Seller shall, at
its own expense, make up for the shortage of the goods, or replace or repair
the goods, as the case may be, but in no event shall Seller be or become liable
to Buyer or to any other person or persons for any loss or damage, direct or
indirect, arising out of or cause by such incidents, or for the loss of
profits, business or good will.
5. FORCE MAJEURE
The obligation of Seller hereunder shall be modified or excused as the case may
be, for reasons of Act of God, war, governmental law or regulations, strikes or
lockouts, fire, breakdown of machinery, whether in its own business enterprise,
or if for any other cause beyond Seller’s control, the goods cannot be
delivered or their delivery becomes delayed in whole or in part. In the above
instances, time for delivery shall be extended for the period of the delay
caused, with the proviso, however, that either party may cancel in writing the
undelivered portion of the order or contract if the delay exceeds six (6)
months from the delivery date originally confirmed by Seller. In no event shall
Seller become liable in the aforesaid instances to Buyer or any third party for
consequential damages or business loss.
6. SHIPMENT AS
UNITY
Each shipment by Seller shall be treated as a separate and distinct unit with
respect, but only with respect to forwarding, terms of payment, and the making
of claims by Buyer; however, Buyer defaults in the payment of any obligation to
Seller or any installments thereof, under any agreement between Buyer and
Seller, or if Buyer refuses to accept any goods when tendered for delivery
hereunder or under any other contract between buyer and Seller, the Seller may,
on fifteen (15) days written notice to buyer without prejudice to Seller’s
other lawful remedies, either defer further performance until the defaulted
payments are made in full, or make future deliveries for cash in advance only,
or treat the entire contract or contracts with Buyer as breached by Buyer and
pursue its remedies for breach.
7. REFUSAL OF
DELIVERY OR ORDER CANCELLATION
(a) If Buyer refuses to accept delivery of any goods tendered for delivery
hereunder, then Seller, without prejudice to Seller’s other lawful remedies,
may either store or cause such goods to be stored in a warehouse, for Buyer’s
account and at buyer’s cost, risk and expense, or sell such goods (without
notice) to any purchaser at public or private sale, and hold Buyer liable for
any difference between (a) the contract price for such goods stipulated herein
and (b) the price at which such goods are resold less the costs and expense of
such resale including brokerage commission.
(b) In the event of cancellation of an order, once entered, Seller will be
entitled to a cancellation charge not to exceed its cost plus anticipated
profit. If the goods ordered can be restocked or reasonably used for other
customers a restocking charge will apply.
8. GOODS IN
TRANSIT
If prior to delivery or while the merchandise is in transit, Buyer becomes
bankrupt or insolvent, or any petition in bankruptcy or for reorganization, or
for a state court receivership is filled against Buyer than Seller may
forthwith terminate this contract by giving written notice of such termination.
Such termination shall not prejudice Seller’s rights to any amounts then due
under the contract. If Buyer becomes bankrupt or insolvent or any petition in
bankruptcy or for reorganization or for a state court receivership is filed
against Buyer, then, at it option, Seller may take possession of any goods
theretofore sold to Buyer, in connection with which the full purchase price has
not been paid, analogous to the terms and provisions set forth in Paragraphs 9
and 10 hereinafter.
9. DELIVERY
Unless otherwise agreed, delivery of the goods to any carrier shall constitute
delivery to Buyer, and thereafter the risk of loss or damage to the goods shall
be upon Buyer.
10. PAYMENT OF
PURCHASE PRICE
Time of payment is of the essence under this contract. Upon default in any of
the terms of this contract, or failure to comply with any of the conditions
hereof, or upon seizure of the property under execution or other legal process,
or if Buyer becomes bankrupt or insolvent, or any petition for reorganization
or for a state court receivership is filed against Buyer, or if the Buyer make
any assignment for the benefit of his creditors or otherwise sells, encumbers
or disposes of the merchandise, or if for any other reason the Seller should
deem itself insecure, the full amount of the purchase price then remaining
unpaid shall at once become due and payable at the option of the Seller. Seller
reserves the right to charge interest of two (2%) percent over prime rate, as
shown in the Wall Street Journal at the end of the days trading on the
appropriate customer’s statement date.
11. BUYER’S
DEFAULT
Upon Buyer’s default, the Seller may make any disposition of the goods that it
deems fit and, if it desires to resell the same, may do so at private or public
sale, with or without notice, and with or without the property being at the
sale, subject, however, to applicable Federal and State Laws. The Seller or its
assigns shall have the right to bid at such sale and may become the purchaser
of the property. The proceeds of the sale shall first be applied to the
expenses incurred in retaking, repairing, storing and selling the merchandise,
reasonable attorney’s fees included, and then shall be applied to the payment
of the balance due under the contract. Any surplus remaining shall be paid to
Buyer. If a deficiency results after resale, the Buyer agrees to pay same
forthwith. In the event of default by
Buyer or failure of Buyer to pay any sums due, Seller shall be entitled to all
costs and expenses incurred in enforcing its rights, including without
limitation, reasonable attorney fees.
12. SECURITY
INTEREST & TITLE
In states and localities, which are governed by the Uniform Commercial Code,
this contract shall serve as the security agreement, reserving in Seller a
security interest until full payment of purchase price. The provisions of the
uniform Commercial Code regarding security interest shall have preference and apply
if inconsistent with other terms of the conditions of sale herein. In states
and localities where the Uniform Commercial Code does not apply, title to the
merchandise shall remain in the Seller or its assigns until full payment of the
purchase price. Buyer agrees to execute forthwith any and all documents in such
as Seller may require for filing or recording the security interest under the
Uniform Commercial Code with the proper registers or offices, or for filing or
recording the conditional sales contract.
13. VARIATIONS
IN DUTIES AND TAXES
Buyer shall bear any increases, after the date of this contract, in or any new
imposition of duties, levies or taxes relating to the product sold hereunder.
Buyer shall further bear any additional cost and expense to Seller due to
increases, subsequent to the date of this contract, in freight or insurance
rates pertaining to the product sold. The same shall apply to currency exchange
fluctuations.
14. SALES, USE,
AND SIMILAR TAXES
Unless otherwise specifically agreed, the amount of any sales, use, excise
taxes, or any similar taxes for which Seller is legally liable, either
initially or through failure of payment by Buyer, shall be added to the price
quoted or to the purchase price and Buyer agrees to pay the same to Seller
and/or to hold Seller harmless therefrom.
15.
MODIFICATIONS BY SELLER
Any contract and notice given hereunder may be assigned, transferred or
negotiated by Seller, or the time for the making of any payment due hereunder
by Buyer may be extended by Seller without derogation of any of the rights of
the Seller or its assigns. Waiver by any party of any default shall not be
deemed a waiver of any subsequent default.
16. LAW AND JURISDICTION
Any contracts herein are governed by the applicable laws of the
Commonwealth of Pennsylvania. Any
dispute arising under the contract herein shall be brought in the court of
Common Pleas of Delaware County or the Federal District Court for the Eastern
District of Pennsylvania. Buyer and
Seller agree to waive trial by jury in any action or other such proceedings
arising out of or relating to the goods or this contract.
17.
NON-ASSIGNMENT BY BUYER
Contract or contracts may not be assigned by Buyer without prior written
consent of Seller.
18.
MISCELLANEOUS PROVISIONS
(a) If for any reason a provision of the contract is legally invalid, then in
such event the rest of the contract shall remain in full force and effect.
(b) Any amendment to any contract or contracts shall require the consent in
writing of both parties.
(c) The terms and conditions contained herein shall govern in any instance
where they conflict with the provisions of any forms used by Buyer.
DISCLAIMER
The Purchaser is responsible for determining the
suitability of products for their different applications. The Purchaser must
insure that Seller’s. products are installed and utilized in accordance with
all local, state, federal and private governing bodies and meet all applicable
health and safety standards.
Seller has made
all reasonable efforts to accurately present the information in our catalog and
shall not be responsible for any incorrect information which may result from
unintentional oversights. Due to continuous product improvements, the product
specifications as stated in the catalog are subject to change at any time and
without notice. The Buyer is responsible for consulting a sales representative
of Seller. for detailed information and to determine any changes of information
in the catalog.
Should our
products be used in an application that is safety critical, the purchaser must
provide appropriate safety testing of the products along with providing
adequate safety devices, guarding, warning notices and provide machine specific
training to protect the operator from injury.
RETURN FOR CREDIT
POLICY
Your product has been made specifically to your design and
application. Therefore, Seller must bill a restocking fee and can only issue
company credit. Credit requests must be made within 30-days from date of
delivery. Seller company credit is good
for 1-year from issue date. Seller will
not be able to credit non-stock or special order items.
A restocking charge
of 20% minimum will apply. The actual
restocking figure will be determined at time of request.
Seller will not
pay or refund freight charges for the original shipment or when the goods are
returned. Return freight must be pre-paid. No COD returns will be accepted.
In order to
receive full credit goods must have an accompanying order number, must be
returned in new condition and never used. The customer is responsible for any
damage due to improper packing. All returns are subject to receipt and
inspection by Seller before credit can be given.
Seller reserves the right to exchange or replace any defective
material/product as per our standard Terms and Conditions of Sale.
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