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1. Buyer’s Assent to Terms & Conditions
(a) Seller hereby objects to and rejects any and all different or additional terms or conditions contained in any order submitted to Seller by or on behalf of Buyer unless specifically agreed to in writing signed by an officer of Seller. Under no other circumstances are any such different or additional terms to be considered a part of this Agreement.
(b) No representative or agent of the Seller has any authority to make any different or additional representations or warranties on behalf of the Seller.
2. Prices & Payment Terms
If no price is set forth on the face hereof, prices for the goods described herein (the ‘Goods’) shall be as in effect at the time of shipment. The price is payable (net thirty (30) days). Interest shall be paid on demand on past due amounts at the rate of (two percent (2%) per month) or the highest lawful rate, whichever is less. All prices are subject to change without notice.
3. Delivery and Risk of Loss
(a) All sales are F.O.B. Seller’s Plant (‘Seller’s Plant’). The price for the Goods does not include charges for freight, duties, packaging, insurance, or federal, state or municipal taxes, all of which are the responsibility of Buyer. Prices are based on shipping the entire order at one time.
(b) All shipping dates are estimates and do not guarantee a particular date of shipment. Seller shall not be liable for any losses or damages (whether incidental, consequential or otherwise) resulting from any delays in shipping or damage occurring during shipping.
(c) Seller may ship the goods to Buyer’s address as shown on the face hereof (the ‘Shipping Address’) by any commercially reasonable means and may select the carrier and route. Delivery of the Goods by the Seller to a carrier at Seller’s Plant shall constitute tender of delivery to Buyer or all purposes. All risk of loss with respect to the Goods shall pass to Buyer upon tender of delivery. Seller does not insure Goods against loss or damage in transit.
4. Shortage and Non-Conformity
Any claim of shortage or that the Goods do not conform with the specifications of the order or model must be made in writing within ten (10) days after the delivery of the Goods (as to which such claim is made) to Seller or its nominees, but in no event shall the claim be later than within the time limit provided by the carrier or insurance company, otherwise such claim shall be deemed waived. The samples, measurements, dimensions and weights contained in the Seller’s catalogs, sales manuals, photographs and drawings constitute only an approximate guide. The Seller reserves the right to make any changes which the Seller, in its absolute discretion, considers necessary.
Goods may not be returned and will not be accepted without the prior written approval of Seller. In the event that the Buyer has verified claim of shortage or of nonconformity of the Goods to the specifications of the order or the model, and if such claim has been submitted within the required time limits as set forth above, Seller shall, at its own expense, make up for the shortage of the Goods, or replace or repair the Goods, as the case may be, but in no event shall Seller be or become liable to Buyer or to any other person or persons for any loss or damage, direct or indirect, arising out of or caused by such incidents, or for the loss of profits, business or good will.
5. Shipments as Unity
Each shipment by Seller shall be treated as a separate and distinct unit with respect, but only with respect to forwarding, terms of payment, and the making of claims by Buyer, however, that if Buyer defaults in the payment of any obligation to Seller or any installments thereof, under any Agreement between Buyer and Seller, or if Buyer refuses to accept any Goods when tendered for delivery hereunder or under any other contract between Buyer and Seller, the Seller may, on fifteen (15) days written notice to Buyer without prejudice to Seller’s other lawful remedies, either defer further performance on pending or future order until the defaulted payments are made in full, or make future deliveries for cash in advance only, and credit any payments to the oldest invoices that are in arrears or treat the entire contract or contracts with the Buyer as breached by the Buyer and pursue its remedies for breach.
6. Evaluation Samples; Specifications; Dies, Molds and Tools
Seller is not required to supply Buyer with models, pre-production or evaluation samples or test data of any kind. In any case where Seller does not provide Buyer with models, pre-production or evaluation samples, whether or not pursuant to designs or specifications provided by Buyer, Buyer shall examine the models and samples fully. Without limiting any other provision of the Agreement, Buyer shall be solely responsible for establishing that models, samples and Goods are suitable for Buyer’s projected use and any other use, commercial or otherwise, to which the models, samples and Goods may be applied. Such model and samples shall not be offered for sale, sold or provided to, or incorporated into, attached to or closed within any device, material, product or thing, that is subsequently offered for sale to or consumption or use by any third parties or the general public. All specifications are approximate. All dies, molds and tools used to manufacture the Goods remain the property of the Seller.
7. Force Majeure; Adjustments
If the performance by Seller is delayed or made impracticable or burdensome by any cause beyond Seller’s control, including without limitation acts of God, fire flood, explosion, vandalism, sabotage, riot, insurrection, severe weather, curtailment or termination of Seller’s regular sources of supplies, inability to obtain or delay in obtaining licenses, permits, materials or equipment, acts of omissions of Buyer, its agents or representatives, shipping delays, strikes or other disputes involving Seller or its subcontractors or suppliers or any existing or future laws or acts of any government or regulatory body, then (i) Seller shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause, and (ii) Seller may adjust the price of the Goods.
8. Cancellations, Returns and Stop Work
(a) Orders, for non-stocked products, are non-cancelable and Buyer shall not be relieved from any obligation under this Agreement without prior written consent of Seller.
(b) In the event of cancellation of an order, once entered, Seller will be entitled to a cancellation charge not to exceed its cost plus anticipated profit. If the equipment ordered can be restocked or reasonably used for other customers, a restocking charge will apply.
(c) In the event of Buyer’s default hereunder, Seller has the right to immediately cancel this Agreement, stop work, refuse to ship or stop delivery of any Goods, recover any losses or damages incurred by Seller as a result thereof, as well as seek any other remedy provided by law. Buyer’s default means (i) Buyer’s insolvency or the filing or institution of a proceeding under any bankruptcy, reorganization or similar law, by or against Buyer, (ii) an assignment for the benefit of creditors by Buyer, (iii) the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer, and (iv) Buyer’s otherwise being in default of any obligation to Seller hereunder or otherwise. By submitting an order to Seller, Buyer warrants, represents and covenants that it is solvent now and will be solvent at shipment and agrees to notify Seller immediately in writing upon the occurrence of any of the events set forth in the foregoing Section 8 (c).
9. Limited Warranty
Seller warrants the Goods to be free from defects in material manufacturing by Seller and in Seller’s workmanship for a period of one (1) year after tender of delivery (the ‘Warranty Period’). This limited warranty
(a) is in lieu of, and seller disclaims and excludes, all other warranties, statutory, expressed or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose, or of conformity to models or samples;
(b) does not apply to any Goods which have been (i) repaired, altered or improperly installed; (ii) subjected to improper use or storage; (iii) used or incorporated with other material or equipment, after Buyer or anyone using the Goods has, or reasonable should have, knowledge of any defect or non-conformance of the Goods; or (iv) manufactured, fabricated or assembled by anyone other than Seller;
(c) shall not be effective unless Buyer notifies Seller in writing of any purported defect or non-conformance; and
(d) shall only extend to Buyer and not to any subsequent buyers or users of the Goods. Buyer shall provide Seller access to the Goods as to which Buyer claims a purported defect or non-conformance. Upon request by Seller shall, at its own risk and expense, promptly return the Goods in questions to Seller’s Plant.
10. Buyer’s Remedies
Seller’s liability for any breach of this limited warranty is limited to either (i) repair or replacement of any non-conforming components of the Goods or (ii) upon return of non-conforming Goods, return of the amount paid therefor, whichever Seller shall elect. Seller’s liability shall in no event be greater than the price of the item and shall not include any labor, shipping or other costs incurred in connection with any such repair, replacement, reinstallation or reshipment. Any non-conforming Goods returned to Seller must be accompanied by proof of purchase and the transportation of the Goods must be prepaid. Any Goods that are repaired or replaced by Seller shall be redelivered to Buyer F.O.B. Seller’s Plant and shall be warranted, subject to the terms hereof, until the expiration of the original Warranty Period. Notwithstanding the foregoing, Seller shall have no warranty obligation unless and until Buyer performs all its obligations hereunder, including payment in full of the purchase price. The remedy set forth in this paragraph shall be Buyer’s sole and exclusive remedy against Seller and Buyer waives all other remedies against Seller.
11. Indemnification
Buyer shall defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessor, successors and assigns, from and against any and all claims, actions, causes of action liabilities, liens, losses and costs (including, without limitation, the costs of litigation and attorney’s fees), relating to the Goods or any device, material or thing to which the Goods are made a part or within which the Goods are made a part or within which the Goods are enclosed, regardless of whether Seller may be wholly, concurrently, partly, jointly or solely negligent or otherwise at fault.
12. Limitation of Liability In General
Except as provided herein, in no event whatsoever shall Seller or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, for any loss or damages of any kind, whether direct, incidental, consequential, exemplary, special or otherwise relating in any way to the Agreement or acts of omissions in connection herewith (including, without limitation, the performance or non-performance of this Agreement and the use of or the loss of use of any of the Goods or other property), regardless of whether Seller and/or others may be wholly, concurrently partially, jointly or solely negligent or otherwise at fault.
13. Governing Law; Consent to Jurisdiction
This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of the State of New York, without regard to any choice of law rules or principles. Buyer hereby submits to the jurisdiction of the State and Federal courts for the state of New York, County of Nassau, and said courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner to this Agreement. Buyer hereby designates to the Secretary of State New York as an authorized agent to accept service of process for Buyer in the State of New York.
14. Severability
If any provisions of this Agreement is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or deleted, but only to the extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable.
15. No Assignment
Buyer may not assign any rights or obligations under this Agreement without prior written consent of Seller.
16. Security Interest; Costs of Collection
To secure all of Buyer’s obligations to Seller, Buyer grants Seller a security interest in all Goods purchased from Seller, together with all proceeds and products thereof (the ‘Collateral’). Buyer agrees not to permit any liens to attach to or dispose of (other than in the ordinary course of business), any of the Collateral prior to satisfaction of all its obligations to Seller and Buyer agrees not to permit anything to be done that may impair the value of any of the Collateral or the security intended to be afforded by this Agreement. Buyer shall upon request of Seller, and Seller is irrevocably appointed (which appointment is coupled with interest) Buyer’s attorney in fact to do all acts and things, including the execution and filing of financing statements, or the filing of this Agreement as a financial statement, that Seller may deem necessary to perfect the security interest created by this Agreement and to protect the Collateral. Buyer will pay as part of the debt hereby secured, all amounts, including reasonable attorneys’ fees, incurred by Seller to (i) maintain, repair and otherwise protect the value of the Collateral, and (ii) in taking possession of, disposing of or preserving the Collateral after any default of any of Buyer’s obligations to Seller #.
17. Shipments
Will be shipped F.O.B. East Rockaway, N.Y. via UPS unless specified at time of order. Freight and Handling charges will be added separately.
18. Special Parts
Quotations for modified catalog parts and special custom made parts are available on request. Send sketches and/or prints.
19. Catalogs
There is no charge for catalogs. Simply make your needs known to the Berg telephone Sales Department. If desired, Berg will mail your catalogs for you.
20. Scheduled Deliveries
Berg will accept orders for merchandise with delivery split over a pre-specified schedule. Depending on the total time span of the schedule, the quantity discounts will vary. Cancellation charges may be applied for up to a 3 month quantity.
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