BUYER, in consideration of obtaining purchases on credit from Archmills ('Seller"), hereby agrees to the following terms and conditions NOTWITHSTANDING ANY PRIOR COURSE OF DEALING, CUSTOM OR USAGE OF TRADE, COURSE OF PERFORMANCE, PRIOR INVOICE TERMS AND CONDITIONS, PURCHASE ORDERS, CONTRACTS, OR AGREEMENTS. SELLER AND BUYER HEREBY AGREE TO THE FOLLOWING whether made pursuant to oral or written orders to its representatives, outside sales reps, or the office(s) in Bloomfield, Connecticut or Ringwood, New Jersey.
TERMS & CONDITIONS
Terms and Conditions to Govern - Acceptance of orders, whether oral or written, is based on the express condition that Buyer agrees to all of the terms and conditions expressed herein. These terms and conditions will govern unless Buyer notifies Seller of their unacceptability within five (5) days of receipt of this document, or immediately upon acceptance of delivery by Buyer will constitute Buyer’s assent to said terms and conditions. These terms and conditions represent the final and complete agreement of the parties, and no terms or conditions in any way modifying or changing the provisions stated herein shall be binding upon Seller unless made in writing and signed and approved by an officer or authorized person representing the seller. No modification of any of these terms shall be affected by Seller’s shipment of goods following receipt of Buyer’s purchase order, shipping request, or similar forms containing printed terms and conditions additional to or different from the terms herein. If the Buyer and Seller enter into any future contracts after execution of these terms and conditions, these terms and conditions shall prevail if there is any conflict between these terms and conditions and any future subsequent contracts. Seller will not be liable for the delivered condition of loose pieces of material requested by the Buyer. Our policy is to ship crates or cartons. Any measuring or drawing takeoffs are done as a courtesy to the customer and Archmills makes no representation as to quantities or sizes. Quantities and sizes ordered is the sole responsibility of the purchaser. The Seller will make every reasonable effort to conform with buyer’s project schedule however seller does not guarantee timed deliveries, and is not liable for “time of the essence” performance. Buyer agrees to all manufacture’s terms and conditions of which are available upon request. Sales of custom or special-order goods are final.
Approval of Orders - Orders are subject to acceptance by Seller's office. Any alterations to, or deviations from, the Customer Approved Drawings may require a Change Order and additional charges for added materials and or engineering costs. Production begins once; (a) Production Drawings and submittals have been returned to seller approved, (b) all RFI's clarified, (c) Production Payment received per applicable terms, (d) acceptance by the customer of any changes in costs related to adds or deducts to final set of drawings, (e) seller receives final schedules and any required templates and approved mockups or samples, and (f) any required site measurements have been verified by the buyer or buyer’s representative.
Payment Terms - Unless specific payment Terms as defined on Quotation an initial (50%) Fifty Precent payment is required on acceptance of order prior to production release, with final balance paid pre-shipment of goods. If a customer has open approved credit account in good standing 25% is to be paid pre-shipment of goods and the final 25% may be paid in 30-day terms. Payments to be made in the form of Bank check, or by wire transfer, and in some cases Credit Card prior to shipment to the Customer. Approved Credit card transactions are subject to a 3.5% processing fee, payable to Seller by Buyer. Seller, at its sole discretion, may not accept credit card charges in excess of $500. Credit card sales are final. Some projects may require Progress Payments. Initial payments and Progress Payments are for services rendered such as, but not limited to, drafting, design development, jobsite visits, and other intellectual investments into the project, and are non-refundable. As the seller ensures receivables with Euler Hermes credit insurance “Pay when paid” terms are only acceptable to the extent that payment is made within the term period provided by the seller. In no event shall the buyers open invoices exceed 30 days of which time invoice is fully due irrespective of whether the buyer has received payment from the owner.
Taxes - All Taxes and excises of any nature whatsoever now or hereafter levied by governmental authority, whether federal, state or local, upon the sale, use or transportation of any goods covered hereby, shall be paid and borne by Buyer. If the Buyer claims a sale is exempt from all State Sales Tax it must provide a Certificate of Exemption and/ or resale number to obtain deletion of said taxes from any invoice. Should the Seller ever be assessed sales taxes on sales claimed to be tax exempt by the Buyer, the Buyer agrees that it shall, upon due notification from the Seller, indemnify and hold harmless the Seller from any and all liability including interest and penalties to the appropriate taxing authorities.
Designation of Carrier - For all sales made on a delivered price basis, Seller reserves the right to designate the carrier. (1) If the delivery of these goods requires obtaining (a) permit (s) of the services of (an) engineer (s) of other specialized personnel and /or results in the issuance of a summons to the Seller, all expenses resulting there from shall be borne by the Buyer. (a) Separate invoice (s) shall be provided to the Buyer for such additional expense which shall be due and payable subject to the same terms and conditions as apply to the sale to subject goods.
Title to Goods – Risk of Loss - Seller retains right, until full payment is received by Seller to file a lien against property for which the goods were used. In New Jersey this order also serves as a notice to file a lien if full payment is not made to Seller. Title of the goods shall pass to Buyer: (a). Upon delivery and acceptance to the Buyer’s job site or premises are evidenced by a receipt signed by the Buyer’s duly authorized agent or employee. (b). Upon receipt of the goods by the Buyer’s duly authorized agent or employee in connection with pick-up(s) at the Seller’s warehouse. (c). Upon delivery to a carrier when the goods are transported by any means other than Seller’s vehicles. In the event title to the goods shall pass to the Buyer upon delivery thereof to the carrier. Delivery to carrier shall constitute delivery to Buyer, and thereafter the goods shall be at Buyer’s risk. Any claim by Buyer against Seller for shortage or damaged occurring prior to such delivery must be made within (24) hours after receipt of the goods and accompanied by original transportation bills signed by carrier noting that carrier received the goods from Seller in condition claimed.
Overdue Accounts - Interest will be assessed against the Buyer at a rate of 2.5% monthly on all balances unpaid beyond payment terms and will appear on all statements sent by Seller to the Buyer. The failure of the Buyer to accept in writing to any written statement of account sent to it by the Seller within thirty (30) days from date shall be deemed to constitute an account stated insofar as all items and charges in said statement (s) is (are) concerned. In the event the Seller retains counsel to collect overdue accounts the Buyer and or the individual shall be responsible for the Seller’s expenses, including all costs of collection, and reasonable attorney’s fees of 25% of the open balance if paid before the institution of suit and 50% if institution of suit is necessary to collect said unpaid balance. Should the cost of suit exceed 50% of the unpaid balance the buyer shall be liable to the seller for such difference.
Force Majeure - If Seller performance is prevented or delayed by strikes, riots, lockouts, war, embargoes, or exceptional impediments to transportation, earthquake, fire, action by Federal, State, or local government or authorities, action by foreign powers, acts of God, reduction of sources or supply, or any cause or circumstance, not limited to the above, which is beyond the reasonable control of Seller, Seller shall not be held liable for the consequences thereof and the obligation to make delivery or perform warranty service shall be suspended while the causes are in effect until the resumption of work after termination of the causes. The foregoing shall apply even though one or more of the causes exist at the time of the order or occur after Seller performance of its obligations are delayed for other causes.
Governing Law - This agreement shall be construed and governed by the laws of the State of New Jersey and the United State of America. If any provision of this agreement is invalid, then all valid parts severable from the invalid part remain in effect. Buyer hereby irrevocably submits to the jurisdiction of any state or federal court within the County of Passaic, New Jersey. Buyer agrees to the venue of said courts and that any dispute or legal action arising from this agreement shall solely be entertained in such courts. Buyer further agrees to: (1) service of process by certified or registered mail, or by any messenger permitted by law; and (2) irrevocably waive the defense of inconvenient forum.
Waver of Jury Trial - The Buyer agrees to waive trial by jury in any action, proceeding or counter claim brought by either party hereto of any matter arising out of, or in any way hereto, of any matter arising out of, or in any way connected with, or pertaining to this sale or the installation, use, or other disposition of the merchandise sold herein, or any claim for injury or damages arising therefrom.
Hold Harmless - To the fullest extent permitted by law, Buyer will defend, indemnify, and hold harmless the seller and sellers manufactures and owner, their officers, directors, agents and employees, and those other entities designated by Seller (“Indemnitees”) from and against any and all claims, liens, judgements, damages, losses and expenses including reasonable attorneys’ fees and legal costs, arising in whole or in part and in any manner from the act, failure to act, omission, breach or default by Buyer and/or its officers, directors, agents, employees, Sub-subcontractors and owners in connection with the performance of this Agreement.
Freight Charges - Unless otherwise noted all quoted freight charges are an estimate and are considered an allowance. Seller reserves the right to pass thru additional freight and handling cost should cost exceed that which has been estimated on the quotation. If additional charges are to be assessed the seller will provide the buyer invoices evidencing this additional freight and or handling cost upon request.
Quoted Prices - Quoted prices for this project have been calculated based on the current costs for the component building materials, as noted in this quotation. However, the market for the building materials is considered to be volatile, and sudden price increases could occur. Seller agrees to use its best efforts to obtain the lowest possible prices from available building material suppliers, but should there be an increase in the prices of these materials between the time this contract is signed to the date Seller’s work commences, Buyer agrees to pay the cost increase to Seller. Any claim by the Seller for payment of a cost increase, as provided above, shall require written notice delivered to Buyer stating the increased cost, the building material or materials in question, and the source of supply, supported by invoices or bills of sale. Buyer shall then be required to pay the increase cost to be incurred by Seller. However, should there be a rise in the cost of any specified building material or materials, exclusive of any other price changes, that would cause the total contract price to increase by more than Ten percent (10%), the Seller shall, before making any additional purchases of specified material or materials, provide the Buyer with a written statement expressing the percentage increase of the contract price, the building material or materials in question, and the dollar amount of the price increase to be incurred. The Buyer may then, at its option, terminate the contract by providing within three (3) business days written notice of termination to the Seller. In such an event, Buyer shall be required to pay the Seller for all costs it expended in the performance of the contract to the date of termination, plus payment of a prorated percentage of the Seller’s profits based on the percent of completion at the time of termination. If Buyer does not provide said notice to terminate after receiving the written statement, as stated above, then Seller may purchase the specified material or materials at the increased price, and the Buyer shall be required to pay the increased cost incurred.
Warranty - All goods manufactured by Seller are warranted to Buyer to be free from defects in material and workmanship for One (1) year from date of delivery. THE FOREGOING WARRANTY IS NON-ASSIGNABLE AND IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS. Our responsibility for merchandise manufactured by OTHERS is limited to the warranties of the manufacturers who produce it. WE OFFER NO ADDITIONAL WARANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY RELEVANT TO ITS SUITABILITY FOR ANY PARTICULAR PURPOSE. Copies of these warranties are available upon request. Seller shall not be liable for incidental or consequential losses, damages, or expenses, directly or indirectly rising from the sale, handling, or use of the goods, or from any other cause relating hereto, and Seller’s liability in any case is expressly limited to the replacement (in the form originally shipped) of goods not complying with this agreement or at Seller’s election, to the repayment of or crediting buying with an amount equal to the purchase price of such goods, whether such claims are for breach of warranty or negligence. Any claimed defect in material or workmanship shall be deeded waived by Buyer unless submitted to Seller in writing thirty (30) days from the date it was, or reasonable inspection, should have been, discovered by Buyer. Seller shall not be liable under the foregoing warranty if any loss or damage is caused by improper application or use of the goods, or use of the goods, or if the goods are not applied and used according to Seller’s current printed directions and specifications. The Seller cannot guarantee dye lots on all merchandise. In the event of deficiency or product defect of which is accepted by the seller and or seller’s manufacturer, the seller maintains the exclusive “right to cure” and will make every reasonable effort to cure, self-preformed in a timely manner at its own expense. Seller will in no way be liable to buyer for any back charge unless accepted in writing by the seller in advance of remedial work. In no event shall the Seller be liable to the Buyer for any amount in excess of one-half of the monies paid by Buyer.
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