INTRODUCTION
The terms and conditions of purchase and sale set out herein ("Terms and Conditions") shall apply to all contracts for the procurement and supply of goods ("Goods") from MERCHANTS FASTENER CORP. and its subsidiaries ("the Company" or “we” or “us”) to the Customer (“Customer” or “you”).
The Company and the Customer shall collectively be referred to as "the Parties" and "Party" shall refer to any one of them.
1. Scope of Applicability
1.1 These General Terms and Conditions of Sale (“GTCS”) apply to all sales of Goods by us notwithstanding any conflicting, contrary, or additional terms and conditions in any purchase order or other communication from you. No such conflicting, contrary, or additional terms and conditions shall be deemed accepted by us unless and until we expressly confirm our acceptance in writing.
1.2 We reserve the right to change these GTCS at any time.
2. Offers, Purchase Orders and Order Confirmations
2.1 All offers made by us are open for acceptance within thirty calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the Goods offered.
2.2 All purchase orders issued by you shall specify at a minimum the type and quantity of Goods requested, applicable unit prices and delivery place. No purchase order shall be binding on us unless and until confirmed by us in writing via email by order acknowledgement.
3. Prices and Terms of Payment
3.1 The prices for Goods shall be those set forth in our order confirmation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to sales, shipping, use, excise, value added and similar taxes or charges imposed by any government authority.
3.2 Unless expressly stated otherwise in our order confirmation, payment for Goods shall be made as provided for in our correspondence with you without offset or deduction.
3.3 We may in our sole discretion at any time change agreed payment terms without notice by requiring payment in advance, bank check, letter of credit or otherwise.
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3.4 If you fail to pay any invoice within thirty calendar days of the due date of payment, we may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to you within seven calendar days of the expiration of the grace period. Further, we may charge you interest from the due date to the date of payment at the rate of 1 ½ % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which we are or may be entitled at law or in equity.
3.5 Title to Goods delivered shall pass to you upon shipment of the purchase order terms.
4. Terms of Delivery and Late Delivery
4.1 Delivery or completion dates (if any) stated by Company are estimates only and the time of delivery or completion shall not be of the essence and cannot be made so, by any act or notice of Customer.
4.2. Company shall not be liable in any manner whatsoever to Customer for any non-delivery or completion or late delivery or completion, for whatever reason or for any loss (whether direct or indirect) including without limitation, any consequential loss or lost opportunity arising (whether directly or indirectly) from any non-delivery or completion or late delivery or completion of all or any part of the Goods by Company.
4.3. In the event of non-delivery of the Goods in accordance with the delivery or completion date (if any), Customer shall inform Company by notice in writing within fourteen (14) days of the later of the receipt of invoice or delivery or completion date.
4.4. Goods for all blanket Purchase Order’s must be delivered to Customer within twelve (12) calendar months from the date the Goods are available to be shipped.
4.5. Customer shall take delivery of ALL goods within one (1) year from the Purchase Order date.
4.6. Customer shall not be entitled to reject any delivery of Goods by reason of it being incorrect in quantity by an amount not exceeding 10% and Company shall not be liable in any manner for any variance in quantities delivered plus or minus 10% of the ordered goods. Company shall invoice and Customer shall pay for all goods delivered.
4.7. If Customer fails to accept delivery of the Goods, the Goods shall be deemed to have been delivered and the risk in the Goods shall pass to Customer. Company shall arrange for storage and insurance of the
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Goods until delivery is affected and reserves the right to charge Customer for all costs incurred in connection therewith.
5. Acceptance of goods
5.1 You must inspect Goods delivered upon receipt. You are deemed to have accepted Goods delivered unless written notice of rejection specifying the reasons for rejection is received by us within five calendar days after delivery of the goods.
6. Warranty
6.1 You agree that such Goods are provided on an "as is," "as available" basis. We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In the event that we provide you training or safety materials, you acknowledge and agree that you are solely
responsible for determining the accuracy of such materials and Company makes no representations as to the accuracy of such materials.
6.2 Customer acknowledges that it has the expertise and the knowledge in the intended use of any product(s), and shall establish, based on its own experience and knowledge, that such products are safe and suitable for use in its applications. Customer has the sole responsibility to ensure that the product is safe, lawful and technically suitable for the intended use and assume all risks and liabilities in connection therewith. Customer shall indemnify and hold Company harmless from and against, any and all losses, claims, damages, costs, charges, counsel fees and expenses, payments, expenses and liability arising out of or attributable to use of such product(s).
7. Limitation of Liability
7.1 We shall not be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, injury to reputation or loss of customers. Your recovery from us for any claim shall not exceed the lesser of the purchase price for the Goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
7.2 We shall not be liable for any claims based on our compliance with your designs, specifications or instructions or repair, modification or alteration of any goods by parties other than us or use in combination with other products.
8. Force Majeure
8.1 Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature including pandemics. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume.
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In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon thirty calendar days’ prior written notice to the other party.
9. Miscellaneous
9.1 No waiver of any provision of these GTCS shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these GTCS shall not constitute a waiver of such provision or any other provision(s) of these GTCS.
9.2 Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.
9.3 These GTCS and all contracts of sale entered into between us shall be governed by and construed in accordance with the laws of New York without giving effect to any choice of law or conflict of law provisions. Any suits, actions or proceedings that may be instituted by either of us against the other shall be instituted exclusively before the competent courts New York, however, without prejudice to our right to bring suits, actions or proceedings in any other court which would have jurisdiction if this provision had not been incorporated into these GTCS. In the event of any dispute between the parties the prevailing party shall be entitled to reasonable counsel fees.