STANDARD TERMS AND CONDITIONS OF SALE
Russell Finex Inc.
These terms and conditions of sale (the “Terms and Conditions”) shall govern the sale of the products or services from Russell Finex Inc. (hereinafter referred to as “Seller”) to Buyer.
Unless otherwise indicated on the quote, written quotations by Seller shall expire automatically thirty (30) days after the date appearing on the quotation unless Seller receives and accepts Buyer’s order within that period. Prior to the expiration date any quotation is subject to change by Seller at any time upon verbal or written notice to Buyer.
ACCEPTANCE OF PURCHASE ORDERS
All sales by Seller are made subject to these Terms and Conditions. The price, quantity, delivery date and payment terms set forth in Seller’s written acceptance of Buyer’s written purchase order and these Terms and Conditions shall constitute the entire agreement between Seller and Buyer with respect to the products specified therein (the “Contract”). Notwithstanding any contrary language in Buyer’s purchase order, each purchase order shall be subject to acceptance by an authorised employee of Seller and each transaction shall be governed exclusively by these Terms and Conditions.
Such acceptance is expressly limited to these Terms and Conditions, and any additional or different terms proposed by Seller are automatically rejected unless expressly assented to in writing by Buyer. No contract shall exist except as hereinabove provided. Seller expressly rejects any different or additional terms or conditions contained in any documents submitted by Buyer.
Prices are subject to any changes to the prices in effect at the time of delivery. Seller reserves the right to make any corrections to prices quoted due to the clerical errors or errors of omission by providing notice thereof to Buyer.
Lead times are for reference only and are subject to change. Design and/or specification changes are subject to review for possible adjustments to delivery. Order quantities subject to scheduled delivery dates must be mutually agreed upon. Delivery dates are approximate. Buyer may pick up the products at Seller’s facility provided Buyer does so within ten (10) days after the date Buyer is notified of the availability of the products. Buyer shall indemnify and hold harmless Seller from and against any claims, damages or liabilities suffered by Seller resulting from any acts or omissions of carrier.
Any Federal or State Excise or Sales Tax for which Seller may be liable on any sale will be charged to and paid by the Buyer. Buyer is responsible for furnishing tax exempt or resale certificate, if applicable.
- Unless otherwise specified in Seller’s written acceptance, payment for the products by the Buyer shall be made to the Seller within thirty (30) days of the applicable invoice date (the “Time for Payment”). A duly dated invoice addressed to the Buyer’s address as supplied shall be conclusive evidence that the invoice was sent out to the Buyer on the date given thereon.
- Time for Payment shall be of the essence in any Contract between the Seller and the Buyer.
- The Buyer shall not be entitled to make any deduction from the sum due as stated on the invoice in respect of any set-off or counterclaim against the Seller.
- The Seller shall be entitled to cancel any Contract with the Buyer if the Buyer shall fail to pay to the Seller any sum due under any Contract from the Buyer or from any individual firm or seller with which the Buyer is affiliated within the applicable Time for Payment.
- If any sums due to the Seller are not paid within the Time for Payment, the Seller shall be entitled to charge interest on any such unpaid sums at the rate of 12 per cent per annum or the highest rate allowed by law (whichever is less). The Seller shall have the right to employ an attorney to collect the balance due, and the Buyer agrees to pay all collection costs incurred by the Seller, including its reasonable attorneys’ fees.
- If, in Seller’s opinion, Buyer becomes credit impaired, Seller may suspend performance until such time as Seller has received full payment for any goods already delivered or in process and is satisfied (in its sole discretion) as to Buyer’s credit for future deliveries. Shipment of the finished product will not be made until any required pre-payments have been received by Seller.
The cost of standard packaging for shipment in the United States and Canada is included in Seller’s price. Additional charges may be imposed for special domestic packaging, overseas packaging, or special marking performed at Buyer’s request and agreed to by Seller. The Buyer agrees to any such additional charges necessitated by special packaging or marking.
Unless Seller agrees otherwise, all shipments shall be EXW (Incoterms 2010) Seller’s Pineville, North Carolina facility. Seller shall also be entitled to impose additional charges for the completion, at Buyer’s request, of forms with respect to shipping. If Buyer agrees to “freight prepay and add” Seller will use a carrier Seller believes best able to serve Buyer. Buyer will not receive an individual invoice for freight.
TITLE AND RISK OF LOSS
Risk of loss or damage shall be borne entirely by Buyer at all times after the products are delivered and claims shall be made directly with carrier. However, the title to the products shall remain with Seller until payment in full has been received by Seller.
Seller shall have no liability to Buyer for Seller’s delay or default in delivery due to strikes, secondary boycotts, riots, wars, accidents, fires, floods, explosions, vandalism, government embargoes, Priorities or regulations, transportation delays, acts of God, acts of Buyer or shortages of labor, fuel, materials, supplies, power transportation facilities or tooling capacity or other similar or dissimilar causes beyond Seller’s reasonable control. Acceptance of products upon delivery shall constitute a waiver by Buyer of any claim for damages on account of non-shipment or delays in delivery or performance.
LIMITATION OF LIABILITY
Under no circumstances shall Seller have any liability for special, incidental, punitive or consequential damages of any kind, including, but not limited to, loss of profits, downtime, loss of use, cartage, labor, or contingent liabilities relating to Seller’s performance of and obligations under this Contract. Seller’s maximum liability shall not in any event exceed the Contract price for the products in question.
INTELLECTUAL PROPERTY INFRINGEMENT
With respect to all products manufactured or services rendered to Buyer’s specifications, Buyer shall indemnify and hold Seller harmless from and against any and all loss, cost, expense, claims, demands, suits and judgements arising from actual or alleged infringement of any third party intellectual property right. With respect to all other products sold or services rendered by Seller, Seller shall defend any suit or proceeding brought against Buyer on a claim that such a product, service or any part thereof, directly infringes any third party intellectual property right, provided that Buyer notifies Seller of such a claim in writing within ten (10) days of becoming aware of such claim and gives Seller all necessary information, assistance and authority to defend same. If Buyer complies with the foregoing sentence, Seller shall pay all damages and costs awarded against the Buyer as a result thereof. If as the result of such direct infringement, the court enjoins the use of any products, service, or part thereof, in the manner intended by Seller, Seller shall at its sole expense and option:
(a) procure for Buyer the right to continue using said product, service, or part, (b) replace such product, service, or part with a non-infringing product, service or part (c) modify said product, service, or part so that it becomes non-infringing or (d) remove said product or part and refund its purchase price and transportation costs. Seller shall have no further liability for actual or alleged intellectual property infringement except as provided herein.
CONFIDENTIAL DESIGN AND TECHNICAL INFORMATION
Seller claims proprietary rights in the items, products, services, and Confidential Information associated with this Contract. Information including but not limited to drawings, engineering information, specifications, and technical information, whether oral, visual, or written, is considered confidential information (“Confidential Information”) and is disclosed only for the limited purposes required by this Contract, the related engineering information, and mutual assistance. All such Confidential Information may not be disseminated to a third party, reproduced or used by Buyer without Seller’s prior written consent, and shall be returned when its purpose has been served or upon Seller’s request.
All products manufactured by Seller are warranted against defects in material and workmanship under normal use and service for which such products were designed for a period equal to the lesser of: (i) twelve (12) months of first use; or (ii) two (2) years after the date after shipment from Seller’s factory. Seller’s sole obligation under this warranty is to repair or replace, at Seller’s option, any product or any part or parts thereof found to be defective. SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
All orders are subject to written acceptance by Seller and when so accepted shall result in a binding contract between the parties on the terms set forth in the Seller’s written acceptance and herein. Such terms may not be modified or cancelled by either party without the written consent of the other except as otherwise specifically provided herein. Seller’s acceptance of Buyer’s request for cancellation shall not relieve Buyer of the obligation to pay appropriate cancellation charges and shall be subject to Buyer’s payment of such charges. Cancelled orders will be subject to a charge of 25% plus all non-recoverable costs.
No equipment may be returned for credit without Seller’s written consent. Equipment built to order is not returnable for credit under any circumstances. All returns accepted by Seller for credit are subject to a minimum service charge of 25% of the amount of such credit plus transportation charges or other expenses related to the return paid or incurred by Seller, including, but not limited to any cost or expense required to put the returned equipment in proper operating condition so as to be merchantable and fit for the purpose for which the equipment is intended. No credit will be given for returned equipment when the net amount thereof is less than $50.00.
Minimum order amount is $50.00 NET. No minimum applies for E-commerce orders.
Any lawsuits or legal claim for breach of this Contract must be brought within one (1) year after the breach occurs.
Unless otherwise indicated on the invoice, all payments are to be made in United States currency.
This Contract shall be construed according to the laws of the state of North Carolina. Buyer hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts of North Carolina for any litigation which may arise out of or be related to this Contract. Buyer waives any objection based on forum non conveniens or any objection to venue of any such action.