Last Updated: 2/21/2006
Terms & Conditions subject to change at any time without notice.
1. DELIVERY - This order and deliveries hereunder are subject to all regulations and requirements of the United States government and any department thereof. Seller shall not be liable for failure to deliver or delays in delivery occasioned by causes beyond Seller’s control, including without limitation, strikes, lock-outs, fires, embargoes, war or other outbreak or hostilities, shortages of labor, fuel, power, or delays of carriers or suppliers, and governmental acts and regulations, or any other contingency beyond Seller’s control including inability to provide the materials as specified.
2. PAYMENT TERMS - Payment is to be made in U.S. Dollars for each shipment hereunder on the terms stated on the reverse side hereof.
3. FINANCIAL RESPONSIBILITY - Buyer agrees to furnish to Seller at any time, at Seller’s demand, security satisfactory to Seller for the performance of Buyer’s obligations hereunder. Reasonable doubt of financial responsibility shall entitle Seller to stop operation, decline shipment or stop any goods in transit without liability, until the goods shall have been paid for or Seller is satisfied of Buyer’s financial responsibility. In the event Seller exercises its rights under this provision, all unpaid invoices (or similar confirmation) upon which Buyer is liable shall immediately become due and payable.
4. SELLER’S RIGHT TO COMPLETE CONTRACT - In the event of total or partial suspension of any shipment or shipments to be made hereunder, for any of the reasons enumerated above, Seller shall have the right to make up the amount of material which it failed to deliver within a reasonable time after the expiration of the contingency.
5. DUTY OF BUYER TO PROVIDE SHIPMENT INSTRUCTIONS - Shipping promises are based on conditions for filing at the time of quotation and date of receipt by Seller of full manufacturing or delivery details. Every effort will be made to ship promptly as promised, but shipment within a reasonable time thereafter shall be construed as a compliance with the contract. Definite shipping instructions shall be furnished to Seller by Buyer in ample time to complete shipment in the time specified.
6. F.O.B. CONTRACT - For materials sold F.O.B. shipping point, all transportation and other charges in excel of the base price applicable as extras shall be for the account of Buyer. All such materials is at Buyer’s risk after delivery by Seller to carrier.
7. CANCELLATIONS OR MODIFICATIONS - Any cancellations, modification or variation of the terms of this sale must be approved by a writing signed by a duly authorized representative of the Seller.
8. PRICE CHANGE OF PARTIAL SHIPMENT - Prices are based on delivery of full quantity as specified. Where orders are cancelled in part pursuant to the terms and conditions, the delivered quantity may be priced proportionately higher by Seller.
9. NO WAIVER OF DEFAULT - Should Seller fail to exercise any right accruing to it as a result of any default of Buyer, such action shall not constitute a waiver of or impair any of Seller’s rights in case such default continues or in case of any subsequent default by Buyer.
10. LIMITS AND TOLERANCES - Material shipped under this order is to be within the limits of and the sizes normally utilized by Seller in its business, and the material is subject to standard manufacturing tolerances and variations, as quoted.
11. LIMITATION OF LIABILITY - (a) Seller shall not be liable for any incidental or consequential damages incurred by the Buyer, including, but not limited to loss of profits, loss of sales, personal injury or any commercial loss, or any other incidental or consequential loss; provided, however, that in the vent any of the goods sold under this invoice are deemed “consumer goods,” the limitation on consequential damages for injury to the personal shall not apply.
(b) The Buyer’s sole and exclusive remedy against the Seller for damaged or defective goods not in conformity with the Buyer’s specification, and the Seller’s liability therefore, should be limited to replacement of such damaged, defective, or non-conforming goods, or refund of the purchase price, as the Seller may elect, provided (i) the goods are proved to be damaged, defective or not in conformity with the specifications, (ii) Buyer has notified the Seller in writing of the damage, defect, or non-conformity within ten (10) days after delivery of the goods, (iii) the goods have been properly worked or used by Buyer, and (iv) Seller has been given a reasonable opportunity to inspect the goods. Goods should not be returned to Seller without Seller’s consent. After inspection or waiver of inspection, Seller will arrange for disposition or return of damaged, defective or non-conforming goods. Without limited the generality of the provisions contained herein, in no event shall any liability or responsibility of Seller which may arise in any circumstance whatsoever exceed the price to Buyer of the particular material in respect of which any claim is made.
12. CLAIMS FOR SHORTAGES - Buyer must make in writing any claim for shortages within ten (10) days after receipt of material. Claims for shortages must be accompanied by standard claim reports utilized by railroad or common carrier, whichever applies, or the carrier’s agent’s notation on original paid freight bill. Seller’s shipping weight shall govern. Claims for erroneous charges must be made within (15) days after the date of Seller’s invoice.
13. TAXES AND OTHER CHARGES - In addition to the price quoted for goods sold, the Buyer shall pay any tax imposed by any present or future law on the sale of goods covered by this order, and all other reasonable charges for ancillary services and costs.
In the event Seller retains the services of an attorney to enforce collection of sums due to Seller by Buyer, either by suit or otherwise, Buyer agrees to pay in addition to all sums then due the amount of Seller’s costs of collection, including all reasonable attorney’s fees.
Any and all amounts due hereunder, when not paid within thirty (30) days of the date hereof shall bear interest at the highest rate permitted by applicable law until paid.
14. FREIGHT CHARGES - (a) If the quoted price for the goods was based on freight being allowed to destination, any change in applicable freight rates, between the date of the quotation and the time of shipment will result in corresponding change in price. If the quotation included sufficient material for a carload or truckload shipment and Buyer has ordered shipments to be made in less than carload or truckload amounts, then Buyer must pay the difference between carload/truckload and less than carload or truckload freight. If price quote F.O.B. trucks, it shall mean on the nearest accessible road or street to the building operation, and not unloaded form the trucks.
(b) Except as otherwise provided herein, Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. If such charges are by the terms of sale included in the price, any increase in rates becoming effective after the quotation shall be charged to Buyer.
15. CLAIMS AGAINST COMMON CARRIER - Carriers are responsible for goods lost or damaged in transit. If Buyer discovers a shortage or if the goods have been damaged in transit, a notation to that effect must be made upon the receipt Buyer gives the carrier or its agent. Also, Buyer should request that similar notation be made on the freight bill. Damaged goods should not be unloaded until they have been inspected and noted in writing. When Buyer feels that there is sufficient justification for a claim, file promptly with the carrier. If the material was hipped F.O.B. destination, Buyer should take the above steps, notify Seller immediately and Seller will file the claim.
16. CURRENT PRICE AND INSTALLMENTS - Seller reserves the right to invoice at Seller’s price prevailing at time of shipment, unless otherwise expressly stated. Seller shall have the right to make delivery installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay for any installment when due shall excuse Seller from making further deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining installments.
17. TESTING - Unless specified by the Buyer on the order, material is not sold subject to rejection by ultrasonic or other nondestructive testing.
18. LIEN ON GOODS - Seller claims, and Buyer acknowledges, a lien on goods sold under this invoice, which lien exists in favor of Seller in an amount equal to all sums due hereunder, including charges for freight, interest, taxes and attorney’s fees. Seller shall have all rights, provided under the Uniform Commercial Code of Georgia, including, but not limited to, the rights to peaceably repossess the goods sold hereunder.
19. EXCLUSION OF WARRANTIES - SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED OF MERCHANTABILITY AND OF FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. GOODS SOLD PURSUANT TO THIS INVOICE ARE SOLD “AS IS” AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
20. ACCEPTANCE OF TERMS AND CONDITIONS - BUYER’S RECEIPT OF THIS INVOICE SHALL CONSTITUTE AN ACCEPTANCE BY BUYER OF THE TERMS AND CONDITIONS HEREOF, UNLESS PROMPT WRITTEN OBJECTION IS GIVEN TO SELLER. IF BUYER HAS SENT A PURCHASE ORDER OR OTHER WRITING TO SELLER SUCH THAT THIS INVOICE IS DEEMED TO BE AN ACCEPTANCE. ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL OON BUYER’S ASSENT TO THE TERMS HEREIN CONTAINED, NOTWITHSTANDING ANY TERMS OR CONDITIONS CONTAINED IN WRITINGS SENT BY BUYER.
21. ENTIRE CONTRACT: MISCELLANEOUS - Stenographic and clerical errors are subject to correction. This contract embodies the entire agreement of the parties and cannot be changed except by writing signed by both parties. Terms in the plural shall include the singular, and vice versa. If any clause or provision of this agreement is deemed to be unenforceable or void by a court or other arbitrator having jurisdiction, this agreement is expressly acknowledged to be severable, and such unenforceable or void clause or provision may be stricken from the agreement with all remaining clauses and provisions to continue in force.
22. ENFORCEMENT OF CONTRACT - Suit to enforce or set aside this agreement or suit over any of the rights and obligations arising from the work to be performed hereunder must be brought in a court having jurisdiction over the Seller in the State of Georgia.