ENCLOSUREHUB COMPANY/SCOTT FETZER COMPANY
Terms and Conditions of Sale
1. Binding Effect. EnclosureHub/Adalet/Scott Fetzer Company ("Company”) shall not be bound by this invoice until buyer ("Buyer”) executes and returns to Company an acknowledgement of the invoice. Buyer shall be bound by this invoice and its terms and conditions when it executes and returns the acknowledgement copy, when it otherwise indicates its acceptance of this invoice, or when Company delivers any of the goods ordered herein. This invoice expressly rejects all prior and subsequent terms and conditions of Buyer, whether stated in Buyer’s own purchase order or otherwise, and expressly limits acceptance to the terms and conditions stated herein; any additional or different terms or modifications proposed by Buyer are rejected unless expressly assented to in writing by Company.
2. Terms of Payment. For approved credit account customers, payment terms are NET thirty (30) days from the date of invoice. Past due accounts are subject to a finance charge of 1-1/2% of the outstanding balance each month or part thereof, or the highest rate permitted by law, until paid. In addition, upon failure of Buyer to make payment as provided herein, Buyer agrees that Company shall have the right to enter the premises where the goods may then be located, with or without legal process, and to repossess and remove such goods for which such payment has not been made. If permitted under applicable law, Company may retain all payments previously made as compensation for use or reduction in value of the goods or Company may resell the goods. In the event of any resale, the proceeds shall be applied first to pay the expenses of retaking, repairing, holding, preparing for sale, selling and the like and, to the extent permitted under applicable law, attorney’s fees incurred in connection therewith, and second, to any balance owing to Company. Company may recover from Buyer any resulting deficiency after such application. The rights and remedies of Company hereunder are cumulative and not exclusive and are in addition to all other rights and remedies provided by law.
3. Shipping Terms. All goods are sold F.O.B. Factory, Cardington, Ohio, unless otherwise specified in writing by Company.
4. Title/Claims for Loss or Damage in Transit. Title and risk of loss shall pass to and be borne by Buyer upon delivery of the goods to the first carrier or shipper. Company shall not be responsible for any damage to goods which occurs during shipment, and no such damage shall relieve Buyer of any obligations to Company. Should Buyer have a claim based loss or damage occurring during transit, it is Buyer’s responsibility to file such claim with the transportation company.
5. Cartage. No charge will be allowed for any cartage at destination.
6. Prices. Seller’s published prices, terms of payment and transportation terms in effect at the time Buyer enters an order. Prices are subject to change without prior notice. All pricing is in U.S. Dollars.
7. Taxes. Liability for all taxes, licenses, or other fees imposed by any municipal, state or governmental authority upon the production, sale, shipment and/or use of goods covered by this order shall be the liability of Buyer and Buyer shall indemnify Company against any such liability. Applicable sales and/or use taxes will be billed by Company unless a suitable exemption certificate is furnished by Buyer at the time of placing the order.
8. Shipment. Company shall attempt to make shipment within the time specified after acceptance of Buyer’s order. Buyer agrees to furnish complete shipping instructions to Company within a reasonable period of time before the date such shipment is requested to be made. If no instructions are furnished, Company may ship using any method it selects, subject to the terms herein. In no event shall Company be responsible for any delay in or failure to manufacture or deliver goods arising out of acts of the public enemy, fire, flood, or any disaster, labor trouble, riot or disorder, delay in the supply of materials or any other cause, whether similar or dissimilar, beyond the control of Company. In the event it is necessary to revise the design, specifications, or conditions of sale, the shipping date shall automatically be extended by the period of the time required to achieve the mutually agreed upon adjustments.
9. Special Orders. On orders for special items, Company reserves the right to ship and invoice quantity variance of 5% above or below the specified quantity on the order. Orders for special items not listed in Company’s current catalog, catalog items modified to Buyer’s specifications and unusual quantities of standard catalog items made especially for an order are accepted on a NON-CANCELABLE, NON-RETURNABLE basis.
10. Cancellations and Returns. Orders may not be cancelled without the prior written consent of Company. Goods may not be returned without the prior written consent of Company. Non-warranty returns are subject to restocking charges. All inventory sold to distributors is held at distributor’s own risk and without return privileges.
11. Assignment. No rights or obligations arising under any contract between Company and Buyer may be assigned or transferred by Buyer without the prior written consent of Company.
12. Tender. In the event or failure or refusal of Buyer to accept delivery, no physical tender of the products by Company shall be necessary, but written notice of Company’s readiness and willingness to deliver any quantity of the goods at any time specified shall be equivalent to physical tender thereof.
13. Warranty and Remedies. Company’s products are warranted to be free from defects in material and workmanship at the date of shipment. NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL EXIST IN CONNECTION WITH THE SALE OR USE OF SUCH PRODUCTS. All claims under this warranty must be made in writing and delivered to Company prior to the expiration of one (1) year from the date of shipment from Company, or such claim shall be barred. Upon timely receipt of a claim, Company shall inspect the goods or parts claimed to be defective, and Company shall repair, or at its option, replace, free of charge, any goods or parts which it determines to have been defective at the time of shipment from Company; provided, however, that if circumstances are such as to preclude the remedying of warranted defects by repair or replacement, Company shall, upon return of the products, refund to Buyer any part of the purchase price of such products paid to Company. Freight for returning products to Company for inspection shall be paid by Buyer. The foregoing is the sole and exclusive remedy for any breach of warranty or for any other claim based on any defect in, or non-performance of, the products, whether based upon contract, warranty or negligence.
14. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT LOSSES OR DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO ANY OF THE PRODUCTS OR GOODS SOLD OR AGREED TO BE SOLD BY COMPANY TO BUYER.
15. Additions to Orders. ADDITIONS CANNOT BE MADE TO ORDERS ALREADY PROCESSED. THEY WILL BE ENTERED AS NEW ORDERS SUBJECT TO NEW ORDER FREIGHT TERMS.
16. Governing Law. The provisions of these terms and conditions and any other agreement between Company and Buyer shall be interpreted and construed in accordance with the laws of the State of Ohio, and the federal and state courts in Ohio shall have exclusive jurisdiction and venue over any disputes arising herefrom, and Buyer consents to the same.
17. Waiver. The failure or delay by Company in exercising any right, power or privilege hereunder shall not operate as a waiver thereof, preclude any other or further exercise thereof, nor preclude the exercise of any right, power or privilege hereunder.
18. Entire Agreement. These terms and conditions, and any invoice provided to Buyer by Company, constitutes the entire understanding between the parties with respect to the subject matter herein and may only be modified in a writing signed by a representative of each party.