Down River Terms and Conditions of Sale
ORDER AND INVOICE ARE ACCEPTED ON THE FOLLOWING TERMS AND CONDITIONS UNLESS AGREED OTHERWISE IN WRITING:
- TERMS OF PAYMENT: Terms of payment shall be in accordance with Seller’s invoice and shall be subject to change by Seller in the same manner as changes in price.
- TITLE, RISK OF LOSS, TAXES: For export sales, carriage and risk shall be governed by designated INCOTERMS; and title shall generally pass when risk of loss passes, except title shall pass upon arrival at the foreign border for goods delivered INCOTERMS. All duties, taxes (including value added taxes), and other official charges due upon importation are Buyer’s responsibility, unless expressly set forth on the Invoice. For all other sales, except as may be expressly set forth on the front of this Invoice, all goods are sold FOB DOWN RIVER’s place of manufacture and all duties, taxes, are Buyer’s responsibility.
- ADDITIONAL CHARGES: To the prices provided for in this invoice are to be added the amount of any tax or other charge imposed by any Governmental authority with respect to the manufacture, sale, transportation, delivery and/or use of the goods.
- EXCUSE OF PERFORMANCE: No liability shall result from delay in performance caused by circumstances beyond the control of the party affected, including but not limited to, act of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation. Quantities so affected may be eliminated from the amount ordered at the discretion of the party affected without liability and Seller may allocate its available supply among its purchasers, including its divisions, but the order shall remain otherwise unaffected.
- FINANCIAL RESPONSIBILITY: If at any time and for any reason the financial responsibility of Buyer shall become unsatisfactory to Seller, Seller may require cash or satisfactory security on subsequent shipments or deliveries without impairing the obligation of Buyer to take and pay for the quantity of goods ordered.
- LIABILITY: Buyer shall examine the goods for nonconformity promptly upon receipt. All claims of whatever nature shall be deemed waived unless all defects ascertainable at the time of giving notice are stated with particularity in writing and received by Seller, promptly upon discovery, and in any event within thirty (30) days of Buyer’s receipt of shipment. Any action for breach of this transaction based in whole or in part on the nonconformity of the goods must be commenced within one (1) year after the cause of action has accrued.
Seller shall in no event be liable for any incidental or consequential damages. Seller’s liability and Buyer’s exclusive remedy for any cause of action arising out of this transaction and its performance, including negligence, is expressly limited to replacement of nonconforming goods or payment in an amount not to exceed the purchase price of the specific goods for which damages are claimed at Seller’s option.
Buyer shall not be entitled to deduct from the price invoiced to it the amount of any claim asserted against Seller without Seller’s written consent. Buyer’s failure to accept delivery of any installment of shipment of goods in the quantities and on the terms specified by the Invoice or to fulfill any other provision of the Invoice shall constitute a material breach of the entire transaction, in response to which, in addition to any other remedies hereunder or at law, Seller may in its discretion by written notice to Buyer at least five (5) days prior to the start of the succeeding month (1) declare the entire transaction terminated as of the date of the breach, or (2) reduce the installments during the remainder of the term hereof to that quantity last ordered by Buyer.
- WARRANTIES: SELLER MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, BY FACT OR BY LAW, OTHER THAN ITS OBLIGATION TO DELIVER GOODS OF SELLER’S STANDARD QUALITY. SELLER MAKES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
- WAIVER: The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of the Invoice or to take advantage of any of its rights shall not operate as a continuing waiver of such rights.
- ASSIGNMENT: This order, its rights or obligations, is not assignable or transferable by Buyer, in whole or in part, except with the written consent of Seller.
- NOTICES, GOVERNING LAW: This transaction shall be governed by the laws of the States in which the seller conducts manufacturing, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods. All notices required by the Invoice shall be sufficiently given if sent by U.S. mail addressed to the part at the place of business referred to on the front of the Invoice.
- MODIFICATION, MERGER: The Terms and Conditions of this sale may be modified or revised only by a writing signed by authorized agents of the parties. Unless the goods covered by the Invoice are the subject of a written contract between the parties, the Invoice and these Terms shall constitute the entire agreement between the parties and there are no understandings, agreements or representations, express or implied, not specified herein.