Vanderveer Industrial Plastics Terms & Conditions
STANDARD TERMS AND CONDITIONS OF SALE
All quotations and sales by Vanderveer Industrial Plastics LLC (“Seller”) to the Buyer identified on the order form, invoice or sales acknowledgement form to which these Terms and Conditions of Sale are referenced (the “Buyer”) are subject to these terms and conditions and the terms set forth on the front of the order form, invoice or sales acknowledgment form to which these Terms and Conditions of Sale are referenced.
1. Orders; Payment; Shipment.
No offer to purchase (“order”) shall be binding upon Seller until the order has been accepted by Seller in a formal order acknowledgment. Upon acceptance by Seller, the offer shall be deemed an “Agreement.” Acknowledgment of receipt shall not be deemed acceptance of the order. All orders must be consistent with established lead times. Terms of payment are net thirty (30) days from invoice date; prices are FCA (Incoterms 2010) Seller’s shipping facility; and prices do not include any taxes, freight, handling, duty or other similar charges that will also be charged to Buyer. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. Seller reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Buyer’s creditworthiness or should Buyer fail to fulfill any obligation when due.
2. Title and Risk of Loss; Storage Charges.
In the absence of prior agreement as to shipping, Seller will select a carrier. Seller’s responsibility for any loss or damage ends when products are delivered to the carrier for delivery to Buyer or to Buyer’s agent. Buyer will pay for storage charges if Seller holds products at Buyer’s request pending instructions or rescheduled delivery. All product purchases shall be deemed irrevocably accepted upon delivery. Title will pass to Buyer upon delivery to the carrier for delivery to Buyer or Buyer’s agent.
3. Cancellations and Charges.
No order may be canceled, rescheduled or reconfigured without Seller’s prior written authorizations and in such event, Buyer will be liable to Seller for any additional costs and expenses incurred by Seller.
4. Price Changes.
Prices are subject to change by Seller upon Buyer rescheduling or reconfiguration of orders. Prices are also subject to change in response to Buyer canceling any undelivered portion of any affected order, even with Seller’s prior written authorization.
5. Limited Warranty.
(a) Performance Warranty. Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment, the Seller’s products will be free from defects in materials and workmanship. The Buyer has a period of ninety (90) days from the date of shipment to inform Seller if the Seller products as delivered do not conform in all material respects to the product specifications in effect at the time of shipment. Buyer will notify Seller in writing of any material nonconformance during the warranty period. Seller reserves the right to examine any allegedly non-conforming product and perform a failure analysis to determine if the alleged non-conformance is a result of defective materials or workmanship (in which case the remedies set forth in this Section 5 shall apply), or does not exist or was caused by improper use or installation or damage in transit or while in the control of Buyer (in which case Buyer shall have no right to any remedies hereunder). If Seller determines that the non-conformance was due to defective materials or workmanship, Seller will issue a return authorization (“RMA”) for the nonconforming products, and Buyer will return the nonconforming unit(s) to the Seller in accordance with the instructions set forth in the RMA. Seller shall, at its option, either (i) repair or replace nonconforming products, at Seller’s cost, and return the conforming products to Buyer, or (ii) credit Buyer for any non-conforming products. Any such repair or replacement provided to Buyer will not extend the original warranty period for the products in question. Products which are out of warranty and repaired by Seller shall have a ninety (90) day warranty from the date of shipment on the workmanship performed. The foregoing sets forth Seller’s sale and exclusive obligation and Buyer’s sole and exclusive remedy for any breach of the foregoing warranty. Buyer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or a breach of warranty is discovered by Seller upon receipt of any returned item, the item will be returned to Buyer at Buyer’s expense and Buyer will reimburse Seller for the transportation charges, labor, and associated charges incurred in testing the allegedly defective item.
(b) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 5(a) ABOVE, SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Delays in Performance.
Seller will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by Buyer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, act of terror, governmental interference or embargo, strike, shortage of labor, fuel, power, materials or supplies, delay in delivery by Seller’s suppliers, or any other cause or causes beyond Seller’s reasonable control. Seller reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than thirty (30) days by reason of any such cause. Seller reserves the right to allocate products in its sole discretion among Buyers or potential Buyers, or defer or delay the shipment of any product, which is in short supply due to any such cause.
7. Governing Law.
The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended; rather, these rights and obligations shall be governed in all respects by the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California.
8. Order of Precedence.
All quotations and sales are made only upon these terms and conditions and those on the front of this document or the ordering or acknowledgment document to which these terms and conditions are referenced. These documents and not any purchase order or other Buyer document (which if construed to be an offer is hereby rejected), will be deemed an offer or counter-offer and is a rejection of any other terms or conditions. Buyer, by accepting any products, making any payments, or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions, notwithstanding any terms contained in any prior or later communication from Buyer and whether or not Seller will specifically or expressly object to any of Buyer’s terms. Seller’s failure to object to any document, communication or act of Buyer will not be deemed a waiver of any of these terms and conditions. A duly authorized officer of Seller must specifically agree in writing to any addition or change to these terms and conditions before such changes may become binding on Seller.
9. Government Contracts.
If Buyer’s order is placed under a contract with the United States Government, Seller agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which Buyer has, at the time of order placement, placed Seller on notice. All rights in technical data and software owned or licensed by Seller are hereby reserved and deemed restricted or limited. No provision of Buyer’s contract with the government will be binding on Seller except as expressly set forth in this paragraph.
10. Unintended Applications.
Unless specifically otherwise agreed in writing by Seller, Buyer acknowledges that products sold by Seller are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where product failure could lead to loss of life or catastrophic property damage. Buyer will indemnify and hold Seller harmless from any loss, cost or damage resulting from Buyer’s breach of the provisions of this paragraph.
Any or all products may be subject to export or resale restriction or regulation, and Buyer acknowledges that it will comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to Seller by its suppliers and is, where applicable, located on the products themselves or the supplier’s innermost packaging thereof.
12. Limited Liability.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER, OR TO ANY ENTITY CLAIMING THROUGH OR UNDER BUYER, FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER ARISING, WHETHER IN CONNECTION WITH THE FURNISHING OF PRODUCTS, PARTS, OR SERVICE HEREUNDER, OR THE PERFORMANCE , USE OF, OR INABILITY TO USE ANY PRODUCTS, PARTS, OR SERVICE, OR OTHERWISE, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
Buyer agrees to indemnify and hold Seller harmless from and in respect of any damages, losses or expenses which Seller may suffer or incur (including reasonable attorneys’ fees) arising out of , relating to or concerning any claim, action or allegation that any of the designs or documents provided by the Buyer to the Seller (or the use of same in an intended manner) infringes any patent or intellectual property rights claimed by any third party; provided that Seller shall notify Buyer in writing of any such claim, act or allegation promptly after learning of the same and shall assist and cooperate in the defense or settlement thereof. Such defense or settlement shall be at Buyer’s sole expense, and Buyer shall pay all damages and costs finally awarded against Seller as a result of any such proceeding.
(a) For the duration of this Agreement, Seller shall secure and maintain in effect, at its own expense by insurance companies rated A- or better by A.M. Best, at least the following insurance coverage that will fully protect both Seller and Buyer: commercial general liability (including product liability and completed operations liability) in a sum no less than $1 million per occurrence, automobile liability with a minimum combined single limit of $1 million per occurrence, worker’s compensation in an amount no less than the applicable statutory minimum requirement and employer’s liability in an amount no less than $1 million per occurrence.
(b) Prior to delivery of any Materials, and upon request from the Buyer, Seller will provide to Buyer certificate(s) of insurance evidencing that Seller maintains insurance in accordance with the foregoing requirements. The insurance coverage and amounts to be maintained are not intended to and shall not in any manner limit or qualify the liabilities and obligations of Seller.
Any required notices shall be given in writing at the address of each party set forth in this quotation, or to such other address as each party may substitute by written notice to the other and shall be deemed given upon personal delivery or three days following deposit in the mail. Seller’s failure to or delay in exercising any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Buyer’s relationship to Seller is that of an independent contractor, and neither party is an agent or partner of the other. If any provision of this Agreement is unenforceable, such provision will be changed to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer may not assign or delegate this Agreement or its rights or duties hereunder (by operation of law or otherwise) without the prior written consent of Seller. Any assignment not in conformity with the foregoing will be null and void. These terms and conditions and the invoice, purchase order, or sales acknowledgment form to which it is attached constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This agreement may be amended only by a written document signed by both parties that specifically references these terms and conditions and this agreement.