1. Exclusive Terms.
All orders shall be governed by the following terms and conditions. These terms and conditions shall constitute the complete Agreement between the purchaser of the goods (herein called 'Buyer') and Asphalt Anchors Corp. (herein called 'Seller') and shall supersede all prior and contemporaneous oral and written statements of any kind whatsoever made by the parties and their representatives.
Buyer orders shall not constitute contracts of sale unless accepted in writing by an authorized agent of Seller at its home office in West Orange, New Jersey. Seller's acceptance of any order is expressly conditioned upon Buyer's assent to the terms and conditions contained in this Agreement. Any added, varied, or conflicting terms in Buyer's Purchase Order or elsewhere are hereby objected to and shall not bind Seller, unless expressly agreed to in writing signed by a duly authorized officer of Seller in a document making specific reference to this Agreement and specifically stating that it 'amends' this Agreement. Buyer shall notify Seller in writing, as soon as practicable after receipt of Seller’s acceptance of Buyer's order, of any objection to the terms of this Agreement. Buyer's failure to notify Seller of any objection shall conclusively indicate Buyer's assent to and acceptance of all terms and conditions herein.
Seller has the right to change, without notice, any prices and/or specifications contained in its publications or any other writing that does not expressly prohibit such change.
Any applicable federal, state, local or other government tax or charge on the sale or shipment of the goods covered by this Agreement shall be added to the price and paid by Buyer. Buyer agrees to hold harmless and indemnify Seller from all such taxes, including interest and penalties thereon, and any costs and expenses in connection therewith.
5. Shipment, Freight and Delivery.
Except as otherwise provided, all prices are ExWorks Seller's warehouses depending on the location from which the goods are shipped. The decision as to the place of shipment shall be solely that of Seller.
Payment terms shall be specified in Seller's invoice. Export shipments shall be solely on a prepaid basis. Statements are issued monthly and a late payment charge of one and one half percent (1.5%) per month (but not in excess of the legal maximum) will be added to all past due balances. Buyer shall have no right of set-off. Buyer's cancellation of orders for any standard items is subject to a service charge to cover the costs of initial processing and/or production of the order. Orders for custom items are not cancelable by Buyer.
7. Financial Responsibility
Shipments and deliveries of all items shall at all times be subject to approval of Seller's Credit Department. International shipments require payment in advance. For US shipments, Seller at any time may require payment in advance or satisfactory security or guarantee that invoices will be promptly paid when due. Prior to credit approval, orders will only be shipped on the basis of payment in advance. Buyer should submit a completed credit application with its initial order to expedite credit approval. In addition to and without limiting Seller's existing rights and remedies, Seller reserves the right to withhold further deliveries and/or terminate this or any other contract with Buyer, if Buyer fails to comply with the terms of this or any other Agreement. Upon Seller's termination of this Agreement, all unpaid amounts Buyer owes Seller shall become immediately due and payable.
8. Buyer's Agreement to Defend.
Buyer agrees to defend, protect, indemnify and hold Seller harmless against all suits at law or in equity and from all costs of suit, legal fees and expenses, damages, claims and demands arising out of or awarded in connection with any goods: (a) sold or supplied to Buyer by Seller that are not installed, maintained or operated in accordance with recommended procedures, or (b) sold or supplied to Buyer by Seller and are resold to others, or (c) sold or supplied to Buyer by Seller to meet Buyer’s specifications, requirements or instructions.
9. Notice of Accident or Malfunction.
Buyer shall in writing notify Seller promptly and in any event within thirty (30) days of any accident or malfunction involving goods manufactured or sold by Seller. Buyer agrees to protect, indemnify, defend and save Seller harmless (as provided in paragraph 8), in the event that Buyer fails to give such notice to Seller and to so cooperate.
Except as otherwise provided, Seller warrants for a period of twelve (12) months from the date of shipment that the goods supplied to Buyer shall be of good materials and workmanship. Seller makes no warranty with respect to the following: (a) materials not manufactured by Seller, the use of which is suggested by Seller’s general recommendations, application or installation procedures, or otherwise; (b) goods sold by Seller to Buyer for other than resale; (c) goods which have been subject to abuse, accident, alteration, misuse, negligence or alterations; and (d) all display items sold by Seller to Buyer.
THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, USE, OR INFRINGMENT.SELLER DOES NOT ASSUME, NOR AUTHORIZE ANY REPRESENTATIVE OR OTHER PERSON TO ASSUME FOR IT, ANY OBLIGATION OR LIABILITY OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
11. Limitation of Remedies.
Seller's obligations under the above warranties (contained in Section 10) are conditioned upon Seller actually receiving notice from Buyer of the alleged defect within the warranty period and the existence of an actual defect in the goods as revealed upon examination by Seller. The sole liability of the Seller for breach of such warranties shall be to provide Buyer with replacement for, or repair of, defective parts in the manner provided herein. This exclusive remedy shall not be deemed to have failed of its essential purposes so long as Seller is willing to repair or replace the defective part(s) in the manner prescribed herein.
Seller shall not be liable for any labor or other expenses incurred by Buyer in the removal, repair or replacement of the goods or any component part claimed to be defective, nor shall Seller be liable for any expenses incurred by the Buyer in order to remedy any defect. Seller’s acceptance of returned goods shall not be deemed an admission that such goods are nonconforming under the above warranties. If the Seller finds that any goods are not defective, such goods will be reshipped to Buyer at its expense and Buyer will be charged for shipping charges incurred by Seller.
Under no circumstances and in no event will the Seller be liable for any personal injury or property damage, loss of profits or revenue, loss of business, consequential, incentive, punitive, special or contingent damages or expenses of any kind incurred by Buyer or any third party, based upon warranty, contract, strict liability, negligence or any other cause of action arising under this Agreement or in connection with the product or services provided hereunder even if the other party or any other person has been advised of the possibility of such damages The discharge of Seller's warranty obligation hereunder shall constitute fulfillment of all liabilities of Seller to Buyer, whether based on contract, negligence or otherwise. The remedies set forth herein shall be the exclusive remedies available to the Buyer and in lieu of all other remedies, and the liability of Seller, whether in contract, in tort, warranty or otherwise, shall not exceed the price of the goods sold, supplied or furnished by Seller which give rise to the claim.
Any suit or action arising out of or relating to this Agreement or the breach thereof, must be commenced within one (1) year after the date of shipment of the goods to the Buyer. The foregoing shall not limit the time within which any suit or action must be brought to collect an amount agreed to be paid by Buyer or to enforce a judgment in favor of Seller or to collect any amount awarded to Seller.
12. Shortages and Returns.
Any claim for shortage must be made by Buyer within five (5) days from the date of receipt of shipment. Any shortage claim not made within said period shall be conclusively deemed waived by Buyer. Goods shall only be returned to Seller if requested by Buyer in writing and if a valid Return Material Authorization (RMA) number has been issued by the Seller.
The return of other than defective goods will subject Buyer to a restocking charge of twenty percent (20%) of the price of the returned goods in addition to the cost of prepaid freight that may have been paid by Seller on FOB shipments. Buyer shall ship goods back to Seller at their expense. Seller shall reject returned materials that are not new and/or in their original packaging.
Seller shall not be liable for any damage or loss of goods during shipment. The Buyer shall make any claim for damages due to shipment directly to the carrier.
13. Defaults or Delays.
Seller shall not be liable for any default or delay in the production or delivery of all or any goods resulting either directly or indirectly from (a) accidents to, or breakdowns or mechanical failure of Seller's plant, machinery or equipment; strikes or other labor troubles; labor shortages; fire; flood; wars; terrorism, acts of the public enemy, acts of God; delays of suppliers; delays in transportation or lack of transportation facilities; embargos; shortages of, or reductions in, energy sources; priorities, allocations, limitations, restrictions or other acts required or requested by Federal, state or local governments, or any subdivision, bureau or agency thereof; or (b) any cause beyond the control of Seller. Buyer accepts that delivery dates provided by Seller are at best an approximation, and that delays of up to 4 weeks from the promised delivery to the actual one is accepted by the Buyer. In no event shall Seller be liable for any consequential, special or contingent damages arising out of Seller's default or delay in filling Buyer's order.
14. Governing Law.
All orders are executed by both Buyer and Seller with reference to the laws of the State of New Jersey and the rights of all parties and the construction and effort of every provision of this Agreement shall be subject to and construed according to the laws of the State of New Jersey.
15. Binding Effect.
The provisions of any order shall bind and inure to the benefits of Seller and Buyer and their respective successors and permitted assigns. However, neither this Agreement, nor any part thereof or right thereunder, may be assigned by Buyer without the prior written consent of Seller.
The right of either party to require strict performance by the other party of any or all terms and conditions of this Agreement shall in no way be affected or impaired by prior waiver, forbearance, or course of dealing.
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of the Agreement should be prohibited or invalid under appropriate law, that provision will be deemed deleted and the remaining provisions of the Agreement will remain in full force and effect. The subject headings of the sections of this Agreement are included for the purpose of convenience only and will not affect construction or interpretation of any of its provisions.