WEIMA America Inc. - General Conditions of Sale
(1) CONTRACT AND ACCEPTANCE
The terms and conditions of sale set forth herein, and the descriptions on the facing page hereof constitute the entire agreement between Weima America, Inc. (Seller) and Buyer. SELLER’S ACCEPTANCE OF THIS ORDER IS EXPRESSLY CONDITIONED BY BUYER’S ASSENT TO THE TERMS CONTAINED HEREIN.
(2) PRICES AND ACCEPTANCE
All prices are F.O.B. Seller’s plant or shipping point and do not include crating. Payment is payable in cash at Seller’s place without any deductions. Charges for other forms of payment are payable by the Buyer:Initial business relations, repairs, etc, will be C.O.D.
Major deliveries are payable in accordance with terms on facing page hereof. Payments due will be charged with an interest of 1.5% per month. No deduction shall be made in the payment by the Buyer without the Seller’s written acceptance hereof. If termination of the contract is agreed upon, full payment is due at the date of termination with deduction only of parts which have not yet been purchased and produced. In the event of any action on part of Seller to collect past due money from buyer, any cost of collection, including reasonable attorney’s fees, will be charged to the buyer.
(3) SHIPPING SCHEDULE AND DELIVERY
Seller will establish shipping schedules as closely as practicable in accordance with Buyer’s requested delivery date. However, Seller will not be responsible for deviations in meeting shipping schedules nor for any losses or damages to Buyer (or any third person) occasioned by deviations in the performance or the nonperformance of any of Seller’s obligations under this contract or by loss of or damage to the product when caused directly or indirectly by or in any manner arising from any casualty, riots, acts of Buyer, strikes or other labor difficulties, shortage of labor, supplies, and transportation facility or any other similar or different cause or causes beyond SELLER’S control or the control of its suppliers or subcontractors. Seller reserves the right to ship in advance of any Buyer request dates. Seller reserves the right to make delivery in lots. Upon delivery of each lot, Seller shall have the right to immediately invoice an appropriate portion of the total selling price. Should shipment be held beyond the scheduled delivery date for the convenience of the Buyer, the Seller reserves the right to bill immediately for the goods and to charge Buyer for warehousing insurance, trucking charges and all other expenses incident to such delay.
(4) CLAIMS FOR SHORTAGES
Any claim for loss, breakage (obvious or concealed) are Buyer’s responsibility and should be made to the carrier immediately. Seller will render Buyer reasonable assistance in securing satisfactory adjustments of such claims. Any notice of shortages or other errors must be made to Seller via phone and with fax notification within 24 hours after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all claims by Buyer. Risk of loss for damages to the products sold hereunder passes to Buyer upon delivery to the carrier regardless of which party pays shipping costs.
(5) TRANSPORTATION CHARGES AND ALLOWANCES
No freight is allowed unless stated in Seller’s proposal (if any). If Seller’s proposal states that freight (if any) is allowed; all prices are F.O.B. Seller’s shipping point with most economical surface transportation allowed. If the quoted price includes transportation, Seller reserves the right to designate the common carrier and to ship in the manner it deems most economical. Added costs due to special routing requested by the Buyer are chargeable to the Buyer. Under no circumstances is any freight allowance which is absorbed by Seller to be deducted from the selling price. If the quoted prices includes transportation, no reduction will be made in lieu thereof whether Buyer accepts shipment in factory, warehouse, freight station, or otherwise supplies its own transportation.
Seller’s prices do not include any applicable sales, excise or similar taxes and duty. If under any law or governmental regulation now or hereafter in effect, the Seller is required to pay or collect any tax upon the products included in this order or predicated upon, measured by or arising from the sale, transportation, delivery, use or consumption of said products whether directly or indirectly, the prices to be paid by the Buyer hereunder shall be increased by the amount of such tax. Buyer agrees to pay such tax as part of the purchase price. Buyer also agrees that such payment for taxes shall be made even if Seller learns of taxes due subsequent to the delivery and receipt of final payment.
(7) PRODUCT INSTALLATION
Any application and/or permits required for erection and installation of SELLER’S products shall be the sole responsibility of the Buyer and shall be obtained by the Buyer. Any alteration or modification necessary to the building/foundation upon which our products are erected is the sole responsibility of the Buyer. If Seller has agreed to install the product, Seller warrants that such installation will be performed in a workmanlike manner. Buyer shall pay all costs of installation including the cost of any modifications to the Buyer’s plant and equipment which is necessary to accommodate the Seller’s product. Seller specifically does not warrant that such modifications will not be necessary.
The Seller warrants that the products sold hereunder conform to the descriptions on the facing page hereof and will be free from any defects in material and workmanship which become apparent under normal use, and of which Buyer gives written notice to Seller within a period of 6 months from the date of installation. If, within that period, the Seller receives from Buyer written notice of any alleged defect in or nonconformance of any product and if, in Seller’s sole judgment, the product does not conform or is found to be defective in material or workmanship; then Buyer shall, at Seller’s request, return the part or product F.O.B. Seller’s shipping point and Seller, at its sole option and expense, shall repair or replace the defective or nonconforming part. Dismounting and reinstallation of defective or nonconforming parts is done at Buyer’s expense. Warranty for delivery of spare parts or replacement of nonconforming parts expires when warranty for original equipment expires. Seller’s sole responsibility and Buyer’s exclusive remedy hereunder shall be limited to such repair or replacement.
THIS WARRANTY IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, USE OR APPLICATION, AND THERE IS NO AFFIRMATION OF FACT OR REPRESENTATION WHICH EXTENDS BEYOND THE DESCRIPTIONS ON THE FACE HEREOF.
The warranty of Seller does not cover and Seller makes no warranty with respect to:
- failures not reported to Seller within the warranty period specified above;
- failure or damage due to misapplication, abuse, improper installation or abnormal conditions of temperature, dirt, or corrosive matter;
- failure due to operation either intentional or otherwise, above rate capacities or in an otherwise improper manner;
- products which have been any way tampered with or altered by anyone other than an authorized representative of Seller;
- product damaged in shipment or otherwise without fault of Seller;
- expenses incurred by Buyer in an attempt to repair or rework any alleged defective product; and
- defects in material and workmanship which are attributable to drawings and specifications provided by Buyer.
(9) PATENT ISSUES
If any suit or demand alleging infringement of any patent relating to the structure of the apparatus or any part thereof furnished by Seller hereunder occurs, Seller shall be notified promptly in writing by Buyer of such suit or demand and given adequate authority, information and assistance for the defense of same. Seller shall have no obligation to assume defense of any such claim, but in the event that it does exercise such right, Seller at its own option and expense shall have the right to settle such suit or demand by procuring for the Buyer the right to continue using the apparatus or part thereof furnished by Seller. Alternatively, Seller may at its expense replace the apparatus or part thereof with non-infringing apparatus, or may modify same so that it becomes noninfringing, or may remove the alleged infringing apparatus and refund the purchase price. On any apparatus or part thereof made to the Buyer’s design or the design of which has been modified by the Buyer, this indemnification clause shall not apply. Seller’s sole responsibility and the Buyer’s exclusive remedy for any such suit or demand shall be set forth in this paragraph, and in no event shall Seller’s liability under this paragraph exceed the purchase price paid by Buyer for the products.
(10) SELLER’S RIGHT TO MANUFACTURE
Seller in its sole discretion shall have the right to manufacture the product provided hereunder as far in advance of its estimated shipping schedule as it deems appropriate.
(11) LIMITATION ON LIABILITY
Seller’s sole responsibility and Buyer’s sole and exclusive remedy with respect to any breach of warranty under this agreement shall be limited to repair or replacement at Seller’s sole option. Seller’s total responsibility and liability for any and all claims, damages of any nature, losses, liability or costs of corrective efforts, including but not limited to those relating to any warranty arising out of or related to performance of this agreement or the products covered hereunder or the performance thereof shall not exceed the purchase price. In no event shall Seller be liable for any special, indirect, incidental or consequential damages of any character; including but not limited to, loss of use of productive facility or equipment, lost profits, property damage, expense incurred in reliance on Seller’s performance hereunder, or lost production, whether suffered by Buyer or any third party. Buyer agrees that Seller shall have no liability for any and all costs, claims, demands, either direct or indirect, incident to any property damage arising out of any cause of action based on strict liability.
(12) MODIFICATION, RESCISSION AND WAIVER
This contract may not be modified or rescinded nor any of its provisions waived unless such modifications, rescissions or waiver is in writing and signed by an authorized employee of Seller at its office.
(13) SECURITY INTEREST
Buyer hereby grants to Seller a security interest in the products being purchased hereunder and any proceeds therefrom, as security for payment of the full purchase price. Buyer agrees to execute financing statements and such other documents as the Seller may request to perfect this security interest. Buyer agrees not to remove the products from the jurisdiction in which they are initially installed without Seller’s prior written consent, for so long as any portion of the purchase price remains unpaid.
Seller and Buyer recognize that due to the uniqueness of the product(s) ordered hereunder, the calculation of damages which would result from cancellation would be difficult. Therefore, if Buyer cancels any order or causes Seller to stop performance under any order by failure to meet the payment terms of this Agreement, Buyer agrees to pay the following specific cancellation charges based on the number of days prior to scheduled delivery that written notice of cancellation is received from Buyer or that Seller notified Buyer that it is stopping performance, whichever event occurs earlier:
DAYS PRIOR TO SCHEDULED DELIVERY PERCENTAGE OF LIST PRICE PAYABLE BY BUYER
30 or less 100%
Any delay in scheduled delivery specified by Buyer will be treated as cancellation unless specifically agreed to in writing by Seller.
(15) COSTS AND EXPENSES
Buyer agrees to pay Seller all costs and expenses, including reasonable attorney’s fees (including those on appeal) incurred by Seller in exercising any of its rights and remedies hereunder, including specifically the collection of any outstanding balance owed to Seller by Buyer.
(16) APPLICABLE LAW; DISPUTES; JURISDICTION; FEES:
The performance and construction of this Agreement shall be governed by the internal laws of the State of South Carolina, excluding conflict of laws rules. Buyer agrees that any claim it may have relating to its purchase hereunder shall be resolved by binding arbitration conducted under and governed by the commercial arbitration rules of the American Arbitration Association (the “AAA”) , such arbitration to take place in York County, South Carolina. A hearing shall begin within 90 days of demand for arbitration and all hearings shall conclude within 120 days of demand for arbitration. These time limitations may not be extended unless a party shows cause for extension and then for no more than a total of 60 days. Arbitrators shall be licensed attorneys selected from the appropriate arbitration panel of the AAA. Seller may, at its option, bring any suit, action or proceeding against Buyer either by way of the AAA process described above or by bringing any such suit, action or proceeding in any court of competent jurisdiction located in York County, South Carolina. Seller shall be entitled to payment by Buyer of its attorney fees in the event it is the prevailing party following arbitration or other judicial proceedings, as the case may be.
The parties do not waive applicable Federal or state substantive law except as provided herein.
Seller reserves the right to furnish substitutes for material which cannot be reasonably obtained because of any restrictions, voluntarily or compulsorily established by or in connection with any governmental authority or program. Seller may during any periods of shortage due to causes beyond the control of Seller or its suppliers, prorate its supply of products among all of its Buyers in such manner as may be deemed equitable in the sole judgment of Seller. Seller shall not incur any liability to Buyer because of any proration hereunder. All orders must be accepted by an authorized employee of Seller at its office. Failure of Seller to insist in any one or more instances upon the performance of any of the terms and conditions of this contracts or the failure of Seller to
exercise any of its rights hereunder shall not be construed as a waiver or relinquishment of any such terms, conditions, or right hereunder and shall not affect Seller’s right to insist upon strict performance and compliance with regard to any unexecuted portions of this contract or future performance of these terms and conditions.