TFP Inc. - CONDITIONS OF SALE
The following standard conditions of sale (“these Conditions”) shall govern all transactions between the Seller and the Buyer except as otherwise specifically agreed in writing by the Seller and the Buyer.
1 - DEFINITIONS
1.1 - In these Conditions the following words shall have the following meanings:-
“Buyer” means the person named as the Buyer in any Quotation, Order or Contract
“Contract” means the agreement for the purchase and sale of the Goods subject to these Conditions
“Goods” means the goods and/or services (including any installments or parts) which the Seller is to supply
“Official Order Acceptance” means the Seller’s acceptance of the Buyer’s order subject to these Conditions and on the Seller’s standard form
“Quotation” means the non-binding terms which the Seller has quoted to the Buyer which may or may not at the sole direction of the Seller form the basis of an Order
“Seller” means Technical Fibre Products Inc.
“Third Party Material” means material or other property supplied to the Seller or on behalf of or at the request of the Buyer to be held for the purpose of completing the Contract.
1.2 - The headings in these Conditions do not form part of these Conditions and shall not affect their interpretation.
2 - QUOTATIONS AND PRICES
2.1 - A Quotation is for information only and is binding on the Seller subject to Condition 2.2 only if and to the extent that it is incorporated in an Official Order Acceptance. No order whether orally or in writing submitted by the Buyer shall be or shall be deemed to be accepted by the Seller unless and until confirmed and accepted in writing by an Official Order Acceptance issued by an authorised representative of the Seller.
2.2 - The Seller reserves the right to revise Quotations and prices quoted on Official Order Acceptances and charge the list price in effect at the date of despatch of the Goods. Buyer hereby expressly agrees to any such revised Quotations and prices.
2.3 - The price for the Goods on any Quotation, Contract or Official Order Acceptance shall be exclusive of any value added tax or other tax or duty which may lawfully be levied at the time of despatch or the date of invoice.
3 - PAYMENT
3.1 - Goods invoiced up to and including the last day of a calendar month shall be paid for by cleared funds not later than the last business day of the following month, except where stated to the contrary on the Official Order Acceptance and/or invoice. The Seller reserves the right to charge interest at 2% above the base rate of Chase Manhattan Bank, New York, New York from time to time on any overdue account. Interest shall accrue on a daily basis both before and after judgment and shall be compounded monthly. Time of payment shall be of the essence of the Contract. Receipts for payment will only be issued upon request.
3.2 - If any monies due to the Seller are not paid as required by paragraph 3.1 of these Conditions or if the Buyer being an individual should enter into any composition or arrangement with or for the benefit of his creditors or have a receiving order in bankruptcy made against him, or being a body corporate should enter into liquidation, or if a meeting is convened for the winding up of the Buyer, or a petition is presented for the winding up of the Buyer, or if an administrative receiver or receiver is appointed over any or all of the property or assets of the Buyer, or if the Buyer is the subject of an administration order, or if the Buyer ceases or threatens to cease to carry on the whole or substantially the whole of its business, or in the occurrence of any event analogous to the foregoing in any jurisdiction to which the Buyer is subject, or if the Seller reasonably apprehends that any of the foregoing events is about to occur in relation to the Buyer, the Seller shall be entitled, without prejudice to any other right it may have against the Buyer, to suspend performance of any Contract and upon giving notice in writing to treat any such Contract as at an end.
3.3 - If at any time the financial responsibility of the Buyer becomes impaired or unsatisfactory to Seller for any reason, including but not limited to those stated in paragraph 3.2 of these Conditions, or if Buyer fails to make any payments in accordance with these Conditions, Seller shall have the immediate right to demand assurance from the Buyer that payment in full for the Goods will be made, and Seller may at its option require cash or satisfactory security before making shipments or deliveries under any order. The foregoing shall not be construed as limiting in any way any of the rights or remedies available to Seller because of any default by Buyer under the Uniform Commercial Code as enacted and in force in the State of New York on the date of the Contract.
4 - DELIVERY
4.1 - Time of delivery of any Goods is not of the essence. The Seller shall endeavor to maintain quoted delivery and shipment dates, but such dates are not to be treated as terms of the Contract and the Seller will not be responsible for any loss or damage which may result from late delivery. The Goods may be delivered by the Seller in advance of any quoted delivery date upon giving reasonable notice to the Buyer.
4.2 - Any complaint of short delivery or damage to Goods in transit must be notified to the Seller otherwise than upon a consignment/delivery note within 72 hours of receipt of any of the Goods. Any complaint of failure to deliver Goods invoiced must be notified within 14 days of the date of the invoice.
4.3 - If any Goods are ready for delivery and the Buyer fails to take delivery at the time set out in the Contract the Seller shall be entitled to:-
4.3.1 - Invoice such Goods forthwith and charge for handling and storage from the date of invoice to the date when the Buyer takes delivery or the Seller disposes of the Goods; and
4.3.2 - If the Buyer fails to take delivery within thirty (30) days from the date of the invoice, treat the Contract as at an end and without prejudice to any other right it may have against the Buyer resell the Goods and (after deducting all reasonable storage and selling expenses) account to the Buyer for any excess above or recover from the Buyer any shortfall below the amount due to the Seller under the Contract and any other Contract.
4.4 - If the Contract provides for delivery by installments, each installment shall be deemed to be the subject matter of a separate Contract and non-delivery or delay of any installment shall not affect any other part of the Contract nor entitle the Buyer to repudiate or rescind the Contract or reject any other installment.
5 - ACCEPTANCE OF GOODS
5.1 - Any claim by the Buyer which is based on any defect in quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within thirty (30) days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. Where any valid claim based on such defect or failure is notified to the Seller in accordance with these Conditions the liability of the Seller shall be limited to the refund of monies (or a proportional part thereof) paid for the Goods or to the replacement of the Goods (or the part in question) at Seller’s option. If the Buyer does not so notify the Seller, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
5.2 - The Buyer shall not be entitled to reject part only of the Goods delivered in accordance with these Conditions.
6 - MANUFACTURING
6.1 - The Seller will use reasonable endeavors to produce and deliver the quantity and quality of Goods ordered, and every Contract and delivery is subject to the margins and tolerances (whether over or under the quantity or quality estimated to a maximum of plus or minus 10%) customary in the trade of the Seller.
6.2 - No responsibility for loss or damage to Third Party Material will be accepted by the Seller, and the Seller undertakes no liability and gives no warranty in relation to defects in Third Party Material and the Seller shall have no such liability regarding fitness for purpose, quality or merchantability of Third Party Material whether express or implied by statute, common law, trade usage or otherwise howsoever.
6.3 - If the Goods in whole or in part are to be manufactured or any process is to be applied to the Goods by the Seller in any way in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, registered or unregistered design right, trade mark, service mark or other industrial or intellectual property rights of any other person which results from or arises in connection with the Seller’s use of the Buyer’s specification.
7 - WARRANTIES LIABILITY
7.1 - All Goods sold hereunder are warranted free from defects in material and workmanship at the time of delivery to Buyer. Upon prompt notice by Buyer of any claimed nonconformity or defect, as provided in paragraph 5.1 of these Conditions. Buyer’s sole and exclusive remedy shall be limited to refund, or replacement, as stated above in paragraph 5.1 of these Conditions. This express warranty is the only warranty applicable to the sale of Goods pursuant to these Conditions express or implied. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE, NOR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER FOR PERFORMANCE, USE QUALITY OR OTHERWISE AND ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. Seller reserves the right to change any specification of the Goods at any time and without Buyer’s consent or notice to Buyer.
7.2 - Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other terms, or any duty at common law, or under the express terms of the Contract, for any special incidental or consequential loss or damage (which expression shall include all loss of profit, income, use, production time, contracts and goodwill whatsoever, whether foreseeable or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arises out of or in connection with the supply of the Goods or their use or resale by the Buyer. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 - The Seller does not give or accept any warranty or condition that the Goods are suitable for any purpose or conditions notwithstanding that such purpose or conditions may be known to the Seller, and in ordering the Goods the Buyer shall be deemed to be relying entirely on its own skill and judgement and not that of the Seller or any agent or representative of the Seller.
7.4 - The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations if the delay or failure was due to any cause beyond the Seller’s reasonable control (“force majeure circumstances”) including but not limited to Acts of God, explosion, flood, tempest, war, sabotage, insurrection, civil disturbance, requisition, lock-outs or other industrial action or trade dispute (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery. In force majeure circumstances the Seller may at its sole discretion terminate any Contract or cancel or suspend any delivery. In force majeure circumstances the Seller may apportion available stocks between its customers (including the Buyer) at its sole discretion.
8 - PROPERTY AND RISK
8.1 - All risks in the Goods shall pass to the Buyer:
8.1.1 - In the case of Goods to be delivered free of cost in the United States the risk of loss shall pass when the Goods are ready for off loading from the Seller’s vehicle at the place of delivery named in the Contract;
8.1.2 - In the case of Goods for export abroad the risk of loss shall pass at the place of delivery named in the Contract, or if not so named, at Seller’s address; or
8.1.3 - Where the Buyer undertakes to collect Goods the risk of loss shall pass when the Goods are loaded on to the Buyer’s vehicle or other transport at the address of the Seller.
8.2 - The Goods shall remain the property of the Seller and no property in or title to the Goods shall pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be supplied by the Seller to the Buyer. Until that time the whole right, title and interest in and to the Goods shall remain in the Seller.
8.3 - Until the time when the Seller has received payment in full for the Goods the Buyer shall hold the Goods as bailee for the Seller.
8.4 - So long as the Buyer remains bailee of any of the Goods the Buyer shall keep those Goods separate from any goods the property of the Buyer or any third party in such a manner that clearly distinguishes them as the property of the Seller.
8.5 - Without prejudice to any other rights the Seller may have, the Seller may at any time before the title in the Goods has passed to the Buyer recover or resell the Goods or any of them so as to discharge any sums owed by the Buyer to the Seller which are wholly or partly overdue, and the Seller, its servants or agents may, so as to verify the Buyer’s compliance with the obligations set out in Condition 8.4 and to exercise its rights under this Condition, enter with or without vehicles upon the premises where the Goods are situated for the purposes of such recovery, resale or examination of the Goods.
8.6 - If the Goods are resold to any sub-buyer before property in the Goods has passed to the Buyer, then the Seller acquires ownership either of the proceeds of sale or of the right to sue the sub-buyer for the proceeds of sale.
8.7 - The Buyer shall ensure that the Goods are not incorporated in or mixed with or used as part of other goods (“New Goods”) before payment for the Goods has been made to the Seller although if such incorporation or mixing shall take place the property in those Goods which remain identifiable and/or severable from such New Goods shall be and remain with the Seller until payment has been made or the New Goods have been sold as aforesaid and all the Seller’s rights hereunder in the Goods shall extend to such identifiable or severable parts of the New Goods.
8.8 - Each of the foregoing paragraphs of these Conditions shall so far as the context permits be read and construed independently of the other paragraphs so that if one or more should be held to be invalid for any reason then the remaining paragraphs shall be valid to the extent that they are not held to be so invalid.
9 - LIEN
The Seller shall be entitled to a general lien over all property owned by the Buyer in the Seller’s possession including any Third Party Material (including any Goods for which the Buyer may have paid in full) until all sums due or owing from the Buyer on any account shall have been satisfied in full. In any of the events set out in paragraph 3.2 of these Conditions the Seller shall be entitled to sell all or part of such property and (after deducting all reasonable expenses including the expenses of sale) shall account to the Buyer for any excess of the proceeds of sale above or recover from the Buyer any shortfall of the proceeds of sale below the amount due to the Seller on any account. The Buyer hereby grants to the Seller a security interest under Article 9 of the Uniform Commercial Code (to the extent adopted by any one of the United States whose law is applicable) and other applicable law in any Goods sold by the Seller to the Buyer and described on an invoice or purchase order relating thereto. Buyer agrees to furnish to Seller all information Seller may request in connection with the creation, perfection, preservation and enforcement of Seller’s security interest. Upon any default by Buyer hereunder, Seller shall have all of the rights, remedies and privileges according to Seller, as a secured party, under applicable sections of the Uniform Commercial Code and other applicable law, and Buyer shall pay Seller’s reasonable costs and expenses, including, without limitation, attorneys fees and court costs, for enforcing Seller’s rights hereunder.
10 - CANCELLATION
No order which has been accepted by the Seller or Contract may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used or acquired for the purposes of completing the Contract), damages, charges and expenses incurred by the Seller in pursuance of the Order or as a result of the cancellation.
11 - INDEMNITIES
11.1 - The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller towards a third party arising out of or in connection with the Goods supplied by the Seller or their operation or use and whether arising by reason of the negligence of the Seller or otherwise (save for death or personal injury arising as a result of the Seller’s negligence).
11.2 - The Buyer warrants that no Third Party Material shall cause damage to the Seller’s manufacturing equipment and premises and agrees to indemnify the Seller against any damages, losses, costs, claims or expenses arising from or in connection with the use of such Third Party Material, including any loss of profit arising from the Seller’s inability to use the manufacturing equipment or premises as a result of such use.
12 - EXPORT TERMS
12.1 - In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
12.2 - Where the Goods are supplied for export from the United States, the provisions of this Condition 12 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
12.3 - The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
12.4 - The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or in respect of any damage during transit.
13 - OTHER CONDITIONS OF SALE
13.1 - By ordering any Goods from the Seller the Buyer will be deemed to agree that these Conditions take precedence over any other conditions contained in any letter, order or the like received by the Seller in connection with the Goods so ordered. Seller’s issuance of any Quotation or Official Acceptance is expressly made conditional upon Buyer’s agreement to and acceptance of the terms and conditions of sale, delivery, and service enumerated in these Conditions, and such acceptance by Buyer shall be deemed to have been given unless written notice of objection to any of these Conditions shall have been given by Buyer to Seller within ten (10) days from Buyer’s receipt of these Conditions. Seller’s acceptance of Buyer’s order shall not constitute an acceptance of printed provisions on Buyer’s order form, if any, or any other form or document supplied by Buyer, which are different from or additional to these Conditions, unless specifically accepted in writing by an authorized agent of Seller. Mere tender of Buyer’s form containing different or additional terms shall not be deemed a specific objection to any of these Conditions.
13.2 - No forbearance by the Seller granted to the Buyer whether in respect of these Conditions or otherwise shall in any way affect or prejudice the rights of the Seller against the Buyer or be regarded as a waiver of any of these Conditions.
13.3 - Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.4 - The interpretation of these Conditions and of any Contract will be governed by the laws of the State of New York without reference to the conflicts of laws principles thereof, and the parties submit to the jurisdiction of the State and Federal Courts sitting in the State of New York, City of New York for adjudication of any disputes arising out of the Contract.