Terms and Conditions
1. Applicable Terms. These terms govern the purchase and sale of the Equipment, Products and related services, if any (collectively, "Equipment"), referred to in Seller’s purchase order, quotation, proposal or acknowledgment, as the case may be ("Seller’s Documentation"). Whether these terms are included in an offer or an acceptance by Seller, such offer or acceptance is conditioned on Buyer’s assent to these terms. Seller rejects all additional or different terms in any of Buyer’s forms or documents.
2. Payment. Buyer shall pay Seller the full purchase price as set forth in all of the Seller’s Documentation. Unless Seller’s Documentation provides otherwise, freight, storage, insurance, all taxes, duties or other governmental charges relating to the Equipment/Supplied Products shall be paid by Buyer. If the Seller is required to pay such charges for any reason, the Buyer shall immediately reimburse Seller. All orders are subject to credit approval. See 2A-D for Seller’s Payment Options.
2A.) For established Customers (Buyers) set up with Net Terms after review of a supplied Credit Application, Buyer shall issue payment within the stated Net Terms. All late payments are subject to a late fee. Buyer shall be charged the lower of 1.5% interest per month or the maximum legal rate on all amounts not received by the due date and shall pay all of Seller’s reasonable costs (including attorneys’ fees) of collecting amounts due but unpaid. Pricing established on Seller’s Quotations are based on Established Net Terms to be paid via ACH or Check so all customers set up with Net Terms are required to pay via ACH or Check Payment. Credit Cards will not be accepted at Net Terms without approval by Seller. If a Credit Card Payment is accepted by Seller, the Buyer is subject to a 3.5% Credit Card Processing Fee.
2B.) For established Customers (Buyers) set up to pay via Credit Card, the Credit Card information is required at the time of placing an order. The Seller will put a hold on the Credit Card for the value of the order. The Credit Card will be Charged complete at the time of the Shipment including any Shipping, Pallet Charges, Tariffs, etc. If an order over $5,000.00 is paid via Credit Card, the Seller will charge an additional 3.5% Credit Card Fee. The additional Fee will be added to the Invoice as a separate line item.
2C.) If the Buyer has not previously established payment terms with the Seller, note all pricing listed in Seller’s Documentation is Quoted based on establishing Net 30 Day Terms or Payment in Advance via ACH or Check Payment. The Buyer can request the formal Credit Application to get approved with Terms. In this process, the Seller will reach out to supplied References. If approved with Net Terms, the Seller will contact the Buyer with established Terms and only then will the Order will be processed by the Seller.
If the Buyer does not elect Net Payment Terms, the Buyer can make a payment via Credit Card or Cash in Advance. If paying via Credit Card, the pricing listed on the Seller’s Documentation is subject to an increase to account for Credit Card Fees. Any increase in pricing will be provided to the Buyer for approval prior to the Order being processed. The Credit Card information is required at the time of placing an order. The Seller will put a hold on the Credit Card for the value of the order. The Credit Card will be Charged complete at the time of the Shipment including any Shipping, Pallet Charges, Tariffs, etc. For new customers with whom Seller has not previously conducted business, the 3.5% Credit Card processing Fee will be waived on initial orders up to $1,000.00. For initial orders exceeding $1,000.00, the 3.5% fee will be applied and will be listed as a separate line item on the invoice. For Cash In Advance Payments, the Buyer must remit payment via ACH or Check. Orders will not be processed until funds have been received and cleared in Seller’s Bank Account.
2D.) Special Terms called out on Seller’s Documentation will supersede any established Terms with Buyer (e.g. Payment in Advance, Down Payments, etc.). Payment for Special Terms must be made via ACH or Check Payment. Issuance of Purchase Order by the Buyer with Seller’s Stated Terms is acceptance of new Payment requirements by the Buyer.
3. Delivery. Delivery of the Equipment/Product shall be in material compliance with the schedule in Seller’s Documentation. Unless Seller’s Documentation provides otherwise, Delivery terms are F.O.B. Seller’s facility or Seller’s designated manufacturing facility. It is the responsibility of the Buyer (Receiver) to inspect all shipments and mark for any damage with the delivery driver at the time of delivery. Any damage received in shipment must be reported to the Seller up to 10 Days after receiving. See 3A-B for Seller’s Policy on Damaged Equipment/Products in Transit.
3A.) If the product is shipping via Best Way Prepay and Add, the Seller will be responsible for filing a claim with the Shipping Carrier. The Buyer (Receiver) must mark for any damage with the delivery driver at the time of delivery. Images of damage on the boxes and product as well as included documentation at time of shipment must be sent to Supplier at time of discovered damage. The Buyer is responsible to pay the full invoiced amount at the established Payment Date to the Seller even if a resolution to the issue in shipping has not been determined. Any Shipping Credit or Reimbursement, if applicable, will be provided to the Buyer on a separate Invoice/Credit.
3B.) If the product is shipping via the Buyer’s Collect Account number, it is the sole responsibility of the Buyer (Receiver) to file a claim with the utilized shipping carrier. We recommend that the Buyer mark for any damage with the delivery driver at the time of delivery and take images of any damage on the boxes and product. Carrier may require documentation that was included at time of shipment at the time of the claim. The Buyer is responsible to pay the full invoiced amount at the established Payment Date to the Seller even if a resolution to the issue in shipping has not been determined.
4. Ownership of Materials. All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by Seller, and all related intellectual property rights, shall remain Seller’s property. Seller grants Buyer a non-exclusive, nontransferable license to use any such material solely for Buyer’s use of the Equipment. Buyer shall not disclose any such material to third parties without Seller’s prior written consent.
5. Changes. Seller shall not implement any changes in the scope of work described in Seller’s Documentation unless Buyer and Seller agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. This includes any changes necessitated by a change in applicable law occurring after the effective date of any contract including these terms.
6. Warranty. Subject to the following sentence, Seller warrants to Buyer that the Equipment and Consumable Items shall materially conform to the description in Seller’s Documentation and shall be free from defects in material and workmanship. The foregoing warranties shall not apply to any Equipment or Consumables that are specified or otherwise demanded by Buyer and is not manufactured or selected by Seller, as to which (i) Seller hereby assigns to Buyer, to the extent assignable, any warranties made to Seller and (ii) Seller shall have no other liability to Buyer under warranty, tort or any other legal theory. If Buyer gives Seller prompt written notice of breach of this warranty within 18 months from delivery or 1 year from acceptance, whichever occurs first (the "Warranty Period"), Seller shall, at its sole option and as Buyer’s sole remedy, repair or replace the subject parts or refund the purchase price there for. If Seller determines that any claimed breach is not, in fact, covered by this warranty, Buyer shall pay Seller its then customary charges for any repair or replacement made by Seller. Seller’s warranty is conditioned on Buyer’s (a) operating and maintaining the Equipment and Consumables in accordance with Seller’s instructions, (b) not making any unauthorized repairs or alterations, and (c) not being in default of any payment obligation to Seller. Seller’s warranty does not cover damage caused by chemical action or abrasive material, misuse or improper installation. It is the Buyer's obligation to inform the Seller of the complete application and process prior to the Sale/Contract, including but not limited to all operating parameters such as, temperature limits, pH, Liquid Flow (GPM) or Airflow (CFM), Nature of Material that will come in contact with the Consumables and/or Equipment (including any Solvents or VOC's). THE WARRANTIES SET FORTH IN THIS SECTION ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO SECTION 10 BELOW. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
7. Indemnity. Seller shall indemnify, defend and hold Buyer harmless from any claim, cause of action or liability incurred by Buyer as a result of third party claims for personal injury, death or damage to tangible property, to the extent caused by Seller's negligence. Seller shall have the sole authority to direct the defense of and settle any indemnified claim. Seller’s indemnification is conditioned on Buyer (a) promptly, within the Warranty Period, notifying Seller of any claim, and (b) providing reasonable cooperation in the defense of any claim.
8. Force Majeure. Neither Seller nor Buyer shall have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party's reasonable control.
9. Cancellation. If the Buyer is interested in cancelling a submitted Purchase Order, it must be approved by the Seller. Not all Purchase Orders can be Cancelled. If Buyer cancels or suspends its order for any reason other than Seller’s breach, Buyer shall promptly pay Seller for work performed prior to cancellation or suspension, any required restocking fees, as well as any other direct costs incurred by Seller as a result of such cancellation or suspension.
10. Returns. No goods may be returned without prior authorization by the Seller. Return authorization is valid for 30 days only. Products shipped in error by the Seller will be accepted for return with full credit. Shipping discrepancies must be brought to the attention of the Seller within 10 days of receipt of shipment. See Section 3 for further clarification. Standard products may be returned for credit with proper authorization with a 25% restocking charge and with freight at the responsibility of the Buyer. Returned products must be in the original package and in new sellable condition. The Seller reserves the right to determine the acceptability of the returned goods for resale. Products made to order are not returnable. Custom made products or custom sized products are subject to return under the digression of the Seller.
11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, AND SELLER’S TOTAL LIABILITY ARISING AT ANY TIME FROM THE SALE OR USE OF THE EQUIPMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE EQUIPMENT. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY.
12. Miscellaneous. If these terms are issued in connection with a government contract, they shall be deemed to include those federal acquisition regulations that are required by law to be included. These terms, together with any quotation, purchase order or acknowledgement issued or signed by the Seller, comprise the complete and exclusive statement of the agreement between the parties (the “Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by Seller. No part of the Agreement may be changed or canceled except by a written document signed by Seller and Buyer. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify the Agreement. If any of these terms is unenforceable, such terms shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. Buyer may not assign or permit any other transfer of the Agreement without Seller’s prior written consent. The Agreement shall be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions.
13. Export Compliance. Buyer acknowledges that the Seller is required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal and usage of the Equipment and Services provided under the Contract, including any export license requirements. Buyer agrees that such Equipment and Services shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance by the Seller of its obligations hereunder that compliance with such export laws and regulations be maintained at all time. BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS
