Inspection & Acceptance:
Returns: Claims for damage, shortage or errors in shipping must be reported within five (5) business days following delivery to Buyer. Buyer must submit a request for return form and receive authorization to obtain credit for returned Products. All returned Products must be in saleable condition, in their original packaging, and returned to Seller shipper Freight prepaid with risk of loss on the Buyer until received by Seller. A 15% restocking fee and any freight paid by Seller will be deducted from the purchase price. Items which were special ordered or have been obsolete may not be returned.
Shipment; Delivery; Risk of Loss:
The method of packing and shipment of the Products sold hereunder shall be at the discretion of the Seller. Seller will make a good faith effort to complete delivery of the Products as indicated by Seller in writing, but Seller assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver whether or not such a loss or damage was made known to Seller, including, but not limited to, delay caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of the Seller. Under no circumstances shall Seller be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay. If a delivery is delayed as a result of any action or inaction of Buyer, Seller may invoice Buyer for the Products as of the scheduled delivery date and may charge Buyer for warehousing and other expenses incurred because of the delay. All products are shipped F.O.B., point of shipment, unless otherwise so specified in the Seller’s pricing. Risk of loss shall transfer to the Buyer upon first tender of goods to Buyer, Buyer’s representative, or common carrier. The cost of any special packaging or special handling caused by Buyer’s requirements or requests shall be added to the amount of the order. Claims for Products damaged or lost in transit should be made by Buyer to the carrier, as Seller’s responsibility ceases upon tender of goods to Buyer, Buyer’s representative, or common carrier.
Prices – Adjustments:
All prices quoted or agreed to by Seller apply only to Products scheduled for shipment no more than 30 days from date of receipt of Buyer’s order by Seller. Seller reserve the right to increase its prices for later releases and shipments. All cost of shipping the Products to Buyer, including without limitation, freight, Insurance (either for Buyer’s or Seller’s benefit) and special packaging or handling, shall be in addition to the stated prices and shall be paid by Buyer. Payment of all sums invoiced to Buyer shall be in U.S. currency. Seller shall be entitled to interest on all unpaid sums from the due date at the rate of 1 ½% per month or the maximum rate permitted by law, whichever is higher.
In additional to the stated prices, Buyer shall pay Seller the amount of any excise, sales, use or other taxes incident to the sale of Products hereunder for which Seller may be liable or which Seller is required by law to collect unless Buyer provides a proper tax exemption certificate at the time of the sale.
Seller’s Manufacturer warranty on the Products is limited to the express written warranties contained in Seller’s “Limited General Products Warranty” or “Limited Extended Warranty – Engine Parts.” Seller nor the manufacturers do not warrant any Product which has been subject to abuse, misuse, neglect or accident, any Product which has been repaired or altered by other than Seller.
Buyer does indemnify, defend and hold harmless Seller, its officers, agents and employees against any expense, loss attorney’s fees, costs, damage or liability arising out of all claims or actions for infringement of patents or copyrights, misappropriation of trade secrets or wrongful use of designs, trademarks, or trade names based on Product designs or specifications supplied by the Buyer.
Seller may, at its option, cancel Buyer’s order if (a) Buyer’s Payments are in default or Buyer breaches any material provisions hereof, (b) any cause specified in the Paragraph captioned “Excusable Delay” makes it commercially impractical in Sellers judgment to deliver the Products within a reasonable time or, (c) Buyer becomes insolvent or the subject of a proceeding under any bankruptcy law. Such cancellation shall not prejudice Seller’s right to any amounts then due to affect any other rights Seller may have under applicable provisions of controlling law. Buyer may cancel the remaining unfulfilled portion of its order upon written notice to Seller and upon payments of reason cancellation charges invoiced by Seller which may include the profit to be made on the canceled portion of the order and shall take into account the Products already produced or in process, the expenses already incurred and the commitments already made as a consequence of the order. In no events will the cancellation charges exceed the purchase price of a canceled product.
Buyer does indemnify and hold harmless Seller its officers, agents, and employees against all expense, loss, attorneys fees, damage or liability arising from any claim or action for Product defect where the alleged defect relates to design, labeling or manufacturing specifications supplied by Buyer. At the request of Seller, Buyer shall defend at its own expense all such claims or actions, provided that Seller shall be entitled at its election, to participate in such defense.
Limitation of Liability:
Seller’s liability for defective or non-conforming products, whether based on breach of warranty, negligent manufacturer or Product liability, is limited to repair or replacement, as Seller’s election, of such products. Seller assumes no risk and shall be subject to no liability for any damages or loss resulting from the specific use or application made of the Products. Seller’s liability for any other claim, whether based on breach of contract, negligence, product liability or otherwise, relating to the Products shall not exceed the price paid by Buyer for such Products. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, LOSS OF PROFIT AND CLAIMS OF THIRD PARTIES) HOWEVER CAUSED, WEATHER BY THE NEGLIGENCE OF SELLER OR OTHERWISE.
Waiver; Assignments; Notices:
Failure by Seller to insist upon strict performance of any provisions hereof by Buyer shall not be deemed to be a waiver by Seller of its rights or remedies, or a waiver by it of any subsequent default to Buyer. Buyer shall not assign any of its rights or obligations hereunder without the prior written consent of Seller. Any notices and other communications required or permitted to be given hereunder she’ll be in writing and shall be effective when delivered personally, the next business day after being sent by email (later confirmed in writing), or upon receipt of mailed.
Severability; Entire Agreement
In the event that one or more provisions hereof should be held to be unenforceable in any respect, this document shall be construed as if such unenforceable provision(s) had not been contained herein. These terms and conditions supersede all other representations, warranties undertaking of the parties with respect to the subject hereof and may not be modified except by a writing signed by an officer of Seller. If Buyer and Seller have executed an overriding agreement covering the sale of Products to which this document relates, the terms of said overriding agreemen