Terms and Conditions
ADVANTECH INDUSTRIES, INC.
STANDARD TERMS AND CONDITIONS TO OUR CUSTOMERS
1. Acceptance of Terms and Conditions
The acceptance of the terms and conditions herein and/or attached hereto is an essential prerequisite to any contract of sale made by Seller. Such terms and conditions are an integral part of any quotation made by Seller, and of Seller’s formal acknowledgement of any order made by Buyer. Acceptance of any goods manufactured and delivered hereunder shall constitute Buyer’s acceptance of said terms and conditions. Unless specifically agreed to, no conditions stated by Buyer in its offer or acceptance shall be binding upon Seller if inconsistent with or in addition to Sellers’ terms and conditions as stated herein or attached hereto in writing by an officer of Seller.
2. Warranty, Disclaimer, and Limitation of Remedies
Seller warrants each item manufactured by it will, when delivered, materially comply with drawings and written specifications supplied by Buyer. Such warranty is made in favor of Buyer and may not be relied upon by others, Seller makes no expressed or implied warranties. SELLER HEREBY DISCLAIMS All EXPRESSED OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL SELLER BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, COST OR REPAIRS OF INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION, INSTALLATION, USE OR REPAIR OF THE PRODUCTS SOLD BY SELLER. Buyer hereby acknowledges and agrees that under no circumstances, and in no event shall Seller’s liability, if any, exceed the net sales price of the defective product(s); no additional allowance shall be made for the labor or expense of repairing or replacing defective products or workmanship or damage resulting from the same except as expressly set forth in this paragraph, all products and or services provided by Seller and its employees and agents are provided “as is”, “where is” and “with all faults”. Seller’s liability arising under the foregoing warranty shall not, in any case, exceed amounts paid by Buyer for products which are the subject of a claim. Under no circumstances shall Buyer be entitled to incidental or consequential damages or loss of profits. Warranty of the products the Seller buys is that warranty of the products manufacturer passed on to the Buyer.
3. Limited Warranty for Design & Build
We warranty the equipment purchased to be free from defects in material and workmanship under normal use and service for a period of one (1) year after delivery, except for purchased components in which case the original manufacturer’s warranty is automatically extended to you. The warranties shall not apply to and we shall not be responsible for any equipment or part which has been repaired or altered in any way that, in our judgment, effects its stability or its reliability, nor which has been Subject to misuse, negligence or accident. It Is the Buyer’s responsibility to remove defective parts and return them to Advantech, freight prepaid for repair or replacement as Advantech so decides. The foregoing is in lieu of any and all warranties expressed or implied.
4. No Warranty to Consumers
Advantech Industries Inc. makes no warrants to those defined as “consumers” in the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act. “Consumers” see Manufacturers Warranties below.
5. Limitation of Liability
Advantech Industries Inc. expressly disclaims any liability for consequential and or incidental damages for lost profits, lost sales, injury to person or property, or another incidental or consequential loss. Advantech’s liability is limited to, and shall not exceed, the purchase price.
6. Warranty Disclaimer
Advantech Industries Inc. does not express or implies any warranty or affirmation of fact other than that in the limited warranty statement made above. Accordingly, Advantech Industries lnc. does not warrant or represent that merchandise sold complies with any law, including, but not limited to, OSHA, the Walsh-Healey Public Contracts Act, and/or regulations promulgated thereunder.
Many of the products incorporated in our designs are warranted to “Consumers” by their manufacturer. Copies of such manufacturer’s warranties are often supplied with the product or are available from the manufacturer. Advantech Industries Inc. may also supply manufacturers’ sales literature to customers. Advantech Industries Inc., HOWEVER, ASSUMES NO LIABILITY FOR THE CONTENT OF SUCH MANUFACTURERS’ WARRANTIES OR LITERATURE.
Advantech Industries Inc. assumes no obligation or assistance given or results obtained in connection with any goods sold. All such advice or assistance is given and accepted at Purchaser’s risk. Any decision as to the use or installation of goods sold hereunder is that of the Purchaser.
Shipping dates are approximate and are based upon prompt receipt of all necessary information. Time is not of the essence. Seller shall have no liability for delay of delivery or failure to manufacture due to causes beyond its reasonable control, or due to acts of God, acts of Buyer, acts of governmental authority, priorities, fires, work slowdowns, strikes, floods, epidemics, quarantine or restrictions, war, riots, delays in transportation, shortages, and/or inability due to causes beyond its reasonable control to obtain necessary labor, materials, or manufacturing facilities. In the event of such delay, the date of delivery shall be extended for a period equal to the time loss by reason of such delay. If Buyer refuses to accept a delivery within 30 days after a Scheduled delivery date and provided Seller has tendered delivery, Seller may cancel Buyer’s order and Buyer agrees to pay Seller as liquidated damages, the excess of the contract price for such order over amounts (if any) actually received by Seller upon sale of goods covered by such order. In addition, Buyer agrees to pay Seller a reasonable storage charge (as determined by Seller) for any goods not accepted for delivery by Buyer. Delivery is subject to prior sales and capacity at time of order placement. Under no circumstances will Seller be liable for liquidated damages.
Prices are subject to change, due to cost changes of purchased materials or services. Unless otherwise stated by Seller, prices will be those set forth herein. All prices are valid as a package only. Prices quoted are good for 30 days.
Unless otherwise stated, Seller’s prices do not include sales, use, excise or similar taxes. Consequentially, in addition to the prices specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale of products hereunder shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to taxing authorities. In the event that Seller shall pay such taxes prior to a receipt of a tax exemption certificate, or in any event Buyer shall, upon demand, reimburse Seller for such amounts.
12. Risk of Loss
Risk of loss shall pass to Buyer at the time of delivery to the carrier even though selected by Seller. This provision shall apply even If the price is quoted F.O.B., destination, C.O.D., etc.
Unless otherwise stated by Seller, delivery hereunder shall be made Ex-works/F.O.B. Advantech Industries Inc., Rochester, N.Y. with transportation expense paid by Buyer.
A credit will be extended based on credit application approval. Terms of payment for first-time orders will be determined after a credit application review.
Terms of payment for shipments are net cash within thirty (30) days from the date of invoice. Invoices may be submitted on partial shipments. Terms of payment on partial shipments are also net cash within thirty (30) days, and failure to make timely payment of invoices covering final or partial shipments entitles Seller at its option to withhold delivery of products ordered without liability. If shipments are delayed by Buyer, payment shall become due on that date when Seller is prepared to make shipment. If the work covered by contract is delayed by Buyer, payment shall be made based upon the purchase price and percentage of completion. Products held forBuyer shall be at the risk and expense of Buyer. Amounts not paid after 60 days shall accrue interest at a rate equal to one and one half (1 1/2%) percent per month from the date of the invoice. Buyer agrees to pay seller all costs incurred (including reasonable attorney’s fees) in collecting any amounts owed by Buyer to Seller.
No accepted purchase order may be modified except with seller’s prior written consent, nor may it be cancelled except with Seller’s prior written consent and by prior payment to Seller of a sum equal to the total of out-of-pocket expenses incurred in connection with the purchase order, including but not limited to any charges made to Seller by suppliers for cancellation, plus reasonable sum for overhead expenses and lost profits, as determined by Seller.
Seller reserves the right to require payment In advance or satisfactory security or guaranty that an invoice will be promptly paid when due if at any time Buyer’s financial responsibility becomes impaired or unsatisfactory to Seller.
Buyer shall hold Seller harmless against any expense or loss (including reasonable attorneys’ fees) resulting from infringement of patents or trademarks arising from compliance with Buyer’s designs, specifications or instructions.
19. Rights and Reservations
All drawings, designs, information, tools, patterns, equipment and other items of Seller or supplied by Buyer shall remain or become, as the case may be, the property of the seller.
20. Compliance with Laws
Buyer warrants that it shall comply with all Federal, State and local laws, regulations, and ordinances affecting Seller. Seller makes no warranties with respect to compliance with laws.
21. Jurisdiction in New York
The contract between the parties hereto shall be governed by and construed in accordance with the laws of the State of New York and shall be deemed entered into at Seller’s place of business. The parties agree that any controversy arising under the contract herein shall be determined by the Courts of the State of New York, located in Monroe County, and both parties, hereby submit and consent to the jurisdiction and venue of said Courts.
22. Effect of Invalidity
The invalidity in whole or of part to any provision hereof shall not affect the validity of any other provision.
No waiver by Seller of any breach of contract shall be deemed to be waiver or any other or subsequent breach. All rights and remedies available to Seller shall be cumulative and in addition to any other rights and remedies provided herein or by law.
Title and Security Interest to the merchandise shall remain in Seller until payment to Seller of full purchase price by Buyer. Seller retains the right to repossess and any other remedies provided by law.
25. Returns, Shortages & Nonconformity
Any claim of shortage that the Goods do not confirm 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, 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 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 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. Items returned must be assigned an RGA number per Advantech’s Returned Goods Authorization Policy.
The Buyer shall, at its own expense, apply for and obtain any permits and inspections required for installation and/or use of the products. Seller makes no promise or representation that the products or services will conform to any Federal, State or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by Seller. The Seller’s products are not for use in or with any nuclear facility unless specifically so stated by Seller in writing. Seller shall not be responsible for any loss or damages sustained by the Buyer or any other person as a result of improper installation or misapplication of the products. Buyer shall defend, indemnify and hold harmless Seller and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorneys’ fees) arising out of or in connection with any injury, disease, or death of persons (including, without limitation, Buyer’s employees and agents) or damage to or loss of any property or the environment or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use or repair of the products by Buyer or of the information designs, services, or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees, or suppliers. The obligations, indemnities, and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
27. Inspection & Acceptance
Buyer shall have seven (7) days from the date Buyer receives any products to inspect such products and services and notify Seller, in writing, of any defects, nonconformance or rejection of such products. After such seven (7) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance, Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any product or service previously ordered by Buyer, or its representatives, or cancels any order without Seller’s written consent and payment to Seller of all charges, expenses, commissions and reasonable profits owed to or incurred by Seller.
28. Recommendations by Seller
Buyer acknowledges that Seller does not make (and specifically negates, renounces and disclaims) any representations, warranties and/or guarantees of any kind or character, expressed or implied, with respect to (i) the products sold, their use, design, application of operation, their merchantability, their physical condition or their fitness for a particular purpose, (ii) the maintenance or other expenses to be incurred in connection with the products, (iii) the engineering, design, fabrication, work or any other work or service (whether gratuitous or for payment) supplied by Seller and/or its agents, suppliers and employees or (iv) the accuracy or reliability of any information designs, or documents furnished to Buyer. Seller neither assumes nor authorizes any person to assume for it, any other obligation in connection with the sale of its products and/or rendering of its services. Any recommendations made by Seller concerning use, design, application or operation of the products shall not be construed as representations or warranties, expressed or implied. Failure by Seller to make recommendations or give advice to Buyer shall not impose any liability upon Seller.
29. 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 for 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.
30. Customer Supplied Material
Advantech Industries Inc. will not accept responsibility for Customer supplied materials that become scrap during machining or alteration. We will take every precaution to eliminate possibilities of such an occurrence. If Customer supplied materials are found to be defective during machining, the Customer will be expected to pay for all work performed and cost incurred to the point of determination that the material will be unusable.
31. Entire Agreement
No agent, employee or representative of the Seller has any authority to bind the Seller to any affirmation, representation or warranty concerning the goods sold under this contract, unless such affirmation, representation or warranty is specifically included within this Agreement. No modification or alteration of the foregoing disclaimer of warranty and limitation of remedies provisions shall be valid or enforceable unless set forth in a separate document issued and executed by the Seller.