GENERAL TERMS AND CONDITIONS OF SALE
These terms and conditions shall supersede any provisions, terms and conditions contained on any purchase order, quotations, price book, or other writing the Purchaser may give or receive, and the right of the parties shall be governed exclusively by the provisions, terms and conditions hereof except as otherwise specifically stated in writing and assented to in writing by an authorized representative of Pelican Wire Company Incorporated (“Seller”).
(a) Unless credit terms are stated herein, terms are, at Seller’s option, cash in advance of shipment to be made without expense to Seller.
(b) If credit is extended, all invoices must be paid within thirty (30) days from date of invoice. Credit terms may be changed or withdrawn by Seller at any time. Amounts not paid when due will bear interest from the invoice date at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less.
(c) Except where a price adjustment clause is specified, prices are subject to change without notice, and orders calling for delivery at a specified future date will be billed according to price in effect at time of shipment.
(d) Payments are due when shipments are made and invoices rendered. If shipments are delayed by the Purchaser, payments shall become due when the Seller is prepared to make shipment. Purchaser shall also pay charges for storage, handling, taxes, and insurance from such date of the rate of $1.50 per month for every $100.00 of invoice value of the products whose shipments are so delayed. Products so held for the Purchaser shall be at the risk and expense of the Purchaser.
2. FREIGHT/SHIPPING POLICY All shipments will be FOB Shipping Location. Freight charges will be collect unless specified otherwise in quotation. Seller will ship via conventional methods unless otherwise specified. If Purchaser specifies special routing or means of transportation, actual cost of transportation will be at Purchaser’s expense. Packaging will be in accordance with standard commercial practice for domestic shipment; any other packaging will be at Purchaser’s expense. Customer is responsible for material identification, footage count and visual inspection for damage upon receipt of shipment. Claims for shortage must be made in writing to Seller at 3650 Shaw Blvd, Naples, FL 34117 USA, within ten (10) days after date of delivery.
3. TAXES Prices are exclusive of all Sales, Use, Excise or similar taxes. Wherever applicable, such tax or taxes will be added to the invoice as a separate charge to be paid by the Purchaser; or in lieu thereof, the Purchaser shall provide the Seller with a tax exemption certificate acceptable to taxing authorities. In addition, if product is to be delivered to points outside of the United States, all export duties, licenses, customs, duties and fees will be paid by the Purchaser.
4. PLANS, DRAWINGS AND SPECIFICATIONS All drawings, specifications and technical drawings delivered by either of the parties to the other party remain the property of the delivering party, and the receiving party may not improperly use, reproduce, or otherwise disclose such materials to third parties. Tooling, setup, drawing, design information and partial preparation charges when invoiced to Buyer, cover only part of the cost thereof of Seller. Buyer does not acquire any right, title or interest in any tooling, setup, drawings, design information, or invention resulting therefrom. All drawings, techniques, inventions or improvements (whether or not patentable) made or conceived in the course of fulfilling any order, including any intellectual property rights pertaining thereto, shall be the sole property of Seller.
5. LIMITED WARRANTY SELLER WARRANTS THAT THE CABLE SOLD WILL CONFORM TO THE SPECIFICATIONS FURNISHED BY THE PURCHASER (EXCEPT AS THE SAME MAY BE MODIFIED IN ACCORDANCE WITH THE WRITTEN AGREEMENT OF THE PARTIES) AND WILL BE FREE FROM DEFECTS IN MATERIALS, AND WORKMANSHIP. THE FOLLOWING WARRANTIES AND REMEDIES SET FORTH HEREIN ARE CONDITIONED UPON PROPER STORAGE, INSTALLATION, USE AND MAINTENANCE, CONFORMANCE WITH ANY APPLICABLE RECOMMENDATIONS OF THE SELLER AND CONFORMANCE WITH APPLICABLE ANSI, ASTM AND OSHA STANDARDS.
SELLER’S EXCLUSIVE OBLIGATION UNDER THIS WARRANTY SHALL BE TO REPAIR, OR AT ITS OPTION, TO DELIVER TO PURCHASER A SUFFICIENT QUANTITY OF CABLE TO REPLACE ANY CABLE WHICH PROVES DEFECTIVE WITHIN ONE YEAR FROM THE DATE OF BEING PLACED IN SERVICE, BUT NOT TO EXCEED 12 MONTHS AFTER THE DATE OF SHIPMENT OF SAID CABLE, PROVIDED THAT THE PURCHASER GIVES SELLER PROMPT WRITTEN NOTICE AND SATISFACTORY PROOF OF SUCH DEFECT AND, AT SELLER’S OPTION AFFORDS REPRESENTATIVE OF SELLER THE OPPORTUNITY TO EXAMINE AND INSPECT THE CABLE AT THE JOBSITE AND TO REMOVE REPRESENTATIVE SAMPLES FOR TESTING.
THE WARRANTY COVERING THE PORTION OF THE CABLE REPAIRED OR REPLACED BY SELLER UNDER THE ABOVE CONDITIONS SHALL BE REINSTATED FOR A PERIOD OF TWELVE MONTHS FROM AND AFTER THE DATE OF REPAIR OR REPLACEMENT.
THE QUANTITY OF CABLE WHICH SELLER IS OBLIGATED TO REPLACE SHALL IN NO EVENT EXCEED THE PRODUCTION RUN IN WHICH THE CABLE TO BE REPLACED WAS PRODUCED.
THE FOREGOING OBLIGATIONS ARE IN LIEU OF ALL OTHER OBLIGATIONS AND LIABILITIES INCLUDING NEGLIGENCE. ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, EXPRESS OR IMPLIED IN FACT OR BY LAW ARE DISCLAIMED BY SELLER AND EXCLUDED. THE FOREGOING WARRANTY SETS FORTH SELLER’S ENTIRE AND EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM FOR DAMAGES IN CONNECTION WITH THE SALE OR FURNISHING OF GOODS OR PARTS, THEIR DESIGN, SUITABILITY FOR USE, INSTALLATION OR OPERATION.
6. LIMITATION OF LIABILITY SELLER WILL IN NO EVENT BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE OF PURCHASER’S FACILITIES, LOSS OF REVENUE, LOSS OF PROFITS AND CLAIMS OF ANY CUSTOMERS OF PURCHASER, AND SELLERS LIABILITY UNDER NO CIRCUMSTANCES WILL EXCEED THE CONTRACT PRICE FOR THE GOODS FOR WHICH LIABILITY IS CLAIMED.
7. DELAYS Delivery promises may be subject to delay in the event of strikes, labor difficulties, riot, war, fire, flood or delay or default of common carrier, failure or curtailment in the Seller’s usual source of supply, governmental decrees or orders, or, without limiting the foregoing, any other delays beyond the reasonable control of Seller, and Seller shall not be liable for any loss or damage arising there from.
Where shipping dates are specified, such dates are estimated predicated upon Seller’s manufacturing schedules in effect upon date of quotation and may change when order is received and assumes prompt issuance of necessary approvals and releases for manufacture. Shipment dates stated on the order acknowledgment shall prevail in the event of a discrepancy between it and the customer’s written order. In the event of delay by Purchaser in issuing such approvals, releases, or other necessary information, or clarifications, estimated shipping dates will be adjusted to conform with Seller’s current manufacturing schedules. Purchaser’s delay in making tests or inspection shall extend shipping dates by period of delay.
8. PATENTS The Seller shall defend any suit or proceeding brought against the Purchaser so far as based on a claim that any product, or any part thereof, furnished hereunder constitutes an infringement of any patent of the United States, if notified promptly in writing and given authority, information and assistance (at the Seller’s expense) for the defense of same, and the Seller shall pay all damages and costs awarded therein against the Purchaser. In case said product, or any part thereof, is in such suit held to constitute infringement and the use of said product or part is enjoined, the Seller shall, at its own expense, either procure for the Purchaser the right to continue using said product or part; or replace same with a non-infringing product or part; or modify it so it becomes non-infringing; or remove said product or part and refund the purchase price and the transportation cost thereof. The foregoing states the entire liability of the Seller for patent infringement by said product or any part thereof. The Purchaser shall hold the Seller harmless from any expense or loss resulting from infringement of patents or trademarks arising from compliance with the Purchaser’s designs or specifications.
9. QUANTITIES AND VARIATION Order quantity shall be as stated on the Purchase Order and the order acknowledgement. If the purchaser requests quantities in excess of the amount specified in the Purchase Order the cost of additional quantities shall be subject to negotiation at Seller’s option, regardless of whether or not there is a price adjustment clause in effect for specified quantities. Orders will be considered complete upon shipment of a quantity within the tolerance levels indicated at the Seller’s option, over or under the amount specified in the order, when it is impractical to produce the exact quantity ordered. All products furnished by Seller shall be subject to Seller’s standard manufacturing variations and practices within the limits and sizes that Seller produces, and all products purchased are subject to customary quality variations and tolerances recognized within the trade.
SHIPPING TOLERANCE IN OVERALL QUANTITY AND LENGTHS ARE PLUS OR MINUS 10% PER LINE ITEM UNLESS STATED OTHERWISE.
10. DEFAULT The Seller shall have the right, in addition to all others it may possess, under the Uniform Commercial Code or other applicable law, at any time, for credit reasons or because of Purchaser’s default or defaults, to cancel the unfilled portion of this order and of any and all other orders from Purchaser, to withhold shipments and suspend further manufacture of items ordered, in whole or in part, and to recall goods in transit and retake the same. Seller shall also be entitled to receive reimbursement for its reasonable and proper cancellation charges when such action is taken.
11. ARBITRATION Any controversy or claim arising out of or relating to this order shall be settled by arbitration in the City of Naples, Florida, in accordance with the rules of the American Arbitration Association then in effect, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
12. JURISDICTION This order shall be governed as to all matters affecting its validity, construction or performance by the laws of the State of Florida.
13 INSPECTIONS AND ACCEPTANCE All orders are accepted upon the basis of inspection and acceptance of the products at the Seller’s factory. In the event Purchaser requires tests or inspection not regularly provided by the Seller or at points or by laboratories outside of the Seller’s factory, the Purchaser shall pay for the Seller’s then current charges for such tests or inspections.
14. CANCELLATION The Purchaser may cancel his order only upon written notice and upon payment to the Seller of reasonable and proper cancellation charges. Any delays requested by Purchaser in completing work on products already in production at the time of the request shall, at the option of the Seller, operate as a cancellation of the order by the Purchaser with respect to such products, within the meaning of this paragraph.
15. RETURNS The Seller’s permission must be obtained in writing before any products are returned by Purchaser for any reason whatsoever. If products are returned without such permission, Purchaser authorizes the Seller, in addition to such other remedies as it may have, to hold the returned products at Purchaser’s sale risk and expense.
16. ASSIGNMENT Purchaser’s assignment of this order or any interest therein or of any rights hereunder, without the written consent of the Seller, shall be void.
17. ACCEPTANCE All prices are valid for 30 days unless noted otherwise on Seller’s quotation. Quotations are subject to change during that time upon written notice by Pelican Wire Company Incorporated.
-Pelican Wire Company