Terms And Conditions of Sale
Glacier Peak
TERMS AND CONDITIONS OF SALE
GOVERNING PROVISIONS AND CANCELLATION. All sales by Glacier Peak (“Seller”) are subject to these terms and conditions, and are expressly conditioned upon assent to these Terms and Conditions of Sale. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing. Seller hereby objects to any such additional or different terms, and notifies buyer that seller is unwilling to sell on any terms other than these Terms and Conditions of Sale. No order may be cancelled or altered by buyer except upon terms and conditions acceptable to Seller, as evidenced by Seller’s written consent. In the event of such an approved cancellation by buyer, Seller shall be entitled to payment of the full price, less the amount of any expenses saved by Seller by reason of the cancellation.
PRICES AND PAYMENT. Terms of payment are Net 15 from date of invoice. Interest will be charged at the rate of 18% per year (but not more than the highest rate permitted by applicable law) on accounts more than 30 days past due.
TAXES AND OTHER CHARGES. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Seller and buyer shall be paid by buyer in addition to the prices quoted or invoiced unless the buyer has provided Seller a tax exemption certificate acceptable to the taxing authorities. In the event Seller is required to pay any such tax, fee, interest or charge, buyer shall reimburse Seller therefor.
DELIVERY, CLAIMS AND FORCE MAJEURE. Unless Seller expressly agrees otherwise, Seller reserves the right to make delivery in installments; all such installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve buyer of its obligations to accept remaining deliveries. All delivery terms and dates are subject to prior sale of products ordered. Claims for shortages or other errors (including damage) in delivery must be made in writing to Seller within 48 hours after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by buyer. All delivery dates are approximate. Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including, without limitation, any act of God, act of buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay the date of delivery shall be extended for a period equal to the time lost because of the delay. Buyer’s exclusive remedy for other delays and for Seller’s inability to deliver for any reason shall be rescission of the sales agreement.
STORAGE. If products are not shipped within 15 days after notification to buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including buyer’s failure to give shipping instructions, Seller may store such products at buyer’s risk in a warehouse or yard or upon Seller’s premises, and buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefor.
NO RETURNS. Except as otherwise agreed to in writing by Seller, no Products will be accepted for return.
WARRANTIES. Seller warrants products manufactured by it and supplied pursuant hereto to be free from defects in materials and workmanship upon delivery. Defective products shall be replaced; and such replacement shall be Seller’s sole obligation and buyer’s exclusive remedy pursuant hereto, and shall be conditioned upon Seller’s receiving written notice of any alleged defect within 10 days after its discovery and, at Seller’s option, return of the defective goods to Seller, F.O.B. Seller’s [insert location of factory or warehouse] factory. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE. Seller makes no warranties regarding deterioration of products. Any description of the products, whether in writing or made orally by Seller or Seller’s agents, specifications, samples, or similar materials used in connection with buyer’s order are for the sole purpose of identifying the products and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the products shall not be construed as an express warranty unless confirmed to be such in writing by Seller.
CONSEQUENTIAL DAMAGES AND OTHER LIABILITY; INDEMNITY. Seller’s liability with respect to the products sold shall be limited to the warranty provided in section 6 hereof, and, with respect to other performance of any contract, shall be limited to the contract price. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost of capital, cost of substitute products, facilities or services, down time, shut-down or slow-down costs, or for any other types of economic loss, or for claims of buyer’s customers or any third party for any such damages. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER.
Buyer shall indemnify Seller against any and all loses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) which Seller may incur as a result of any claim by buyer or others arising out of or in connection with the products sold pursuant hereto and based on product defects not proven to have been caused solely by Seller’s negligence.
CHANGES. Seller may at any time make such changes in design and construction of Products, components or parts as Seller deems appropriate, without notice to buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority, or nonavailability of materials from suppliers.
INTELLECTUAL PROPERTY. All intellectual property rights (including, without limitation, patents, trademarks, registered designs and any rights to apply for same, copyright, design rights, database rights, rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in Products or arising out of or relating to the design or manufacture of Products or the provision of services shall belong to and remain vested in Seller. Nothing in the Agreement grants to buyer any right, title or interest in or to Seller’s intellectual property.
GOVERNING PROVISIONS. THE CONTRACT OF SALE AND THESE TERMS AND CONDITIONS OF SALE SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER, AND SHALL BE GOVERNED BY AND SHALL BE CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. There are no conditions affecting this agreement which are not expressed herein.