Terms of Sale
1. Exclusive Terms
All orders shall be governed by the following terms
and conditions. These terms and conditions shall constitute the complete
Agreement between the purchaser of the goods (herein called 'Buyer') and Häfele
America Co. (herein called 'Seller') and shall supersede all prior and
contemporaneous oral and written statements of any kind whatsoever made by the
parties and their representatives.
2. Acceptance
Buyers’ orders shall not constitute contracts of
sale unless accepted by an authorized agent of Seller at its home office in
Archdale, North Carolina. Seller's
acceptance of any order is expressly conditioned upon Buyer's assent to the
terms and conditions contained in this Agreement. Any added, varied, or
conflicting terms in Buyer's Purchase Order, or elsewhere in any correspondence
from Buyer, are hereby objected to and shall not bind Seller, unless expressly
agreed to in writing signed at Seller's home office in Archdale, North
Carolina, by a duly authorized officer of Seller in a document making specific reference
to this Agreement and specifically stating that it 'amends' this Agreement.
Buyer shall notify Seller in writing, as soon as practicable after receipt of
Sellers acceptance of Buyer's order, of any objection to the terms of this
Agreement. Buyer's failure to notify Seller of any objection shall conclusively
indicate Buyer's assent to and acceptance of all terms and conditions herein.
Buyer expressly accepts the terms and conditions herein at the exact moment
Seller commences performance on any purchase order requiring or providing for
Seller to commence performance prior to Buyer's receipt of Seller's written
acknowledgment.
3. Prices
Seller has the right to change, without notice, any
prices and/or specifications contained in its catalogs, website or any other communications
that does not expressly prohibit such change. Buyer
agrees to pay for all samples priced in excess of $10 on the date of shipment.
4. Taxes
Any applicable federal, state, local, government or
other regulatory taxes or charges on the sale or shipment of the goods covered
by this Agreement shall be added to the amounts invoiced by the Seller and subsequently
paid by Buyer. Buyer agrees to hold Seller harmless from any and all applicable
governmental and regulatory taxes or charges, whether or not invoiced by Seller
to Buyer, including interest and penalties thereon, and any costs and expenses
in connection thereupon.
5. Shipment, Freight and Delivery
Except as otherwise
provided, all prices are F.O.B. Seller's shipping location. The decision as to
place of shipment shall be solely that of Seller.
6. Terms
Payment terms, except as otherwise provided, are net
thirty (30) days from date of Seller's invoice.
A late payment charge of one and one half percent (1.5%) per month (but
not in excess of the legal maximum) may be added to all past due balances.
Buyer is responsible for reasonable attorney's fees, costs and expenses
incurred in connection with the collection of past due balances. Buyer shall
have no right of set-off. Buyer's cancellation of orders is subject to a
service charge to cover the costs of initial processing and/or production of
the order and may be charged to Buyer. Certain ordered items, at the sole
discretion of the Seller and communicated to Buyer prior to submission of the
order for such items, are not subject to cancellation by Buyer. Orders totaling
an amount of less than $100, excluding applicable federal, state, local, government
or other regulatory taxes or charges, are subject to a service charge of $20
that may be charged to the Buyer at the discretion of the Seller.
7. Financial Responsibility
Shipments and deliveries of all items shall at all
times be subject to approval of Seller's Credit Department in Archdale, North
Carolina. Seller at any time may require
payment in advance or satisfactory security or guarantee that invoices will be
promptly paid when due. Prior to credit approval orders will only be shipped on
the basis of payment in advance. Buyer should submit a completed credit
application with its initial order to expedite credit approval. In addition to
and without limiting Seller's existing rights and remedies, Seller reserves the
right to withhold further deliveries and/or terminate this or any other
contract with Buyer if Buyer fails to comply with the terms of this or any
other Agreement with Seller. Upon Seller's termination of this Agreement, all
unpaid amounts Buyer owes Seller shall become immediately due and payable.
8. Buyer's Agreement to Defend
Buyer agrees to defend, protect, and save Seller
harmless against all suits at law or in equity and from all costs of such suits,
reasonable legal fees, expenses, damages, claims, and demands arising out of or
awarded in connection with any goods: (a) sold or supplied to Buyer by Seller
that are not maintained and operated in accordance with Seller’s recommended
procedures, or (b) sold or supplied to Buyer by Seller to meet Buyer’s
specifications, requirements, or instructions.
9. Notice of Accident or Malfunction
Buyer shall notify Seller promptly and in any event
within thirty (30) days of any accident or alleged malfunction involving goods
manufactured or sold by Seller. Buyer agrees to protect, defend, and save
Seller harmless (as provided in paragraph 8), in the event that Buyer fails to
give such notice to Seller and to so cooperate.
Buyer agrees to provide reasonable support and cooperation to the Seller
in the investigation of any accident or alleged malfunction of involving goods
manufactured or sold by Seller.
10. Warranty
Except as otherwise provided by written agreement, Seller
warrants for a period of one (1) year from the date of shipment that the goods
supplied to Buyer shall be of good materials and workmanship. Seller further
warrants for a period of one (1) year that the goods purchased by Buyer, when
properly installed, used, and maintained, will be free from defects in
workmanship and materials and will conform to the published specifications
supplied by Seller. Seller makes no warranty with respect to the following: (a)
materials not manufactured by Seller, the use of which is suggested by Seller’s
general recommendations, application or installation procedures, or otherwise;
(b) goods sold by Seller to Buyer for other than resale; and (c) all display
items sold by Seller to Buyer. THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND IN
LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING
BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, OR WARRANTIES ARISING OUT OF COURSE OF DEALING OR CUSTOM OR
TRADE. SELLER DOES NOT ASSUME, NOR AUTHORIZE ANY REPRESENTATIVE OR OTHER PERSON
TO ASSUME FOR IT, ANY OBLIGATION OR LIABILITY OTHER THAN AS EXPRESSLY SET FORTH
HEREIN.
11. Limitation of Remedies
Seller's obligations under the above warranties
(contained in Section 10) are conditioned upon Seller actually receiving notice
from Buyer of the alleged defect within one (1) year from date of shipment by
Seller and the allegedly defective goods revealing an actual defect upon
examination by Seller. Seller shall not be liable for any labor or other
expenses incurred by Buyer in the removal, repair, or replacement of the goods
or any component part claimed to be defective, nor shall Seller be liable for
any expenses incurred by the Buyer in order to remedy any defect. Seller shall
not be liable for any consequential, special, or contingent damages or
expenses, arising directly or indirectly from any defect in the goods, or from
Buyers use or inability to use such goods. The discharge of Seller's warranty
obligation hereunder shall constitute fulfillment of all liabilities of Seller
to Buyer, whether based on contract, negligence, or otherwise. The remedies set
forth herein shall be the exclusive remedies available to the Buyer and in lieu
of all other remedies, and the liability of Seller, whether in contract, in
tort, warranty or otherwise, shall not exceed the price of the goods sold,
supplied, or furnished by Seller. Any suit or action arising out of or relating
to this Agreement or the breach thereof must be commenced within one (1) year
after the cause of action has accrued. The foregoing shall not limit the time
within which any suit or action must be brought to collect an amount agreed to
be paid by Buyer or to enforce a judgment or to collect any amount awarded to
Seller. The sole purpose of the stipulated exclusive remedy shall be to provide
Buyer with a credit or replacement for, or repair of, defective parts in the
manner provided herein. This exclusive remedy shall not be deemed to have
failed of its essential purpose so long as Seller is willing to credit Buyers
account, repair, or replace the defective part(s) in the manner prescribed
herein.
12. Shortages
Buyer
must make claim for credit due to shortage within ten (10) days of the date of
the shipment by Seller. Any shortage claim not made within this period is
conclusively deemed waived by Buyer.
13. Returns
Buyer must receive, at the Seller’s sole discretion,
a Returned Materials Authorization (RMA) prior to returning any goods to Seller.
Buyer
must request an RMA within thirty (30) days of the date of the shipment by
Seller in order to be considered. Seller will not issue an RMA for special
order, non-stock, obsolete or made-to-measure goods. All goods returned to
Seller must be in the original packaging and in resalable condition and must
pass inspection before any credit is issued by Seller.
14. Handling Charges for Returns
Buyer is subject to a handling charge of no less
than twenty dollars ($20.00) and no more than twenty percent (20%) of the sales
price of the returned goods. Defective goods returned by Buyer to Seller, as
verified by inspection, are not subject to a return handling charge.
15. Damages
Seller is not liable for any damages to goods
sustained during shipment. Buyer is responsible for filing any damage claims
with freight carriers and is subject to the rules of the freight carriers
regarding the timing and processing of claims.
IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS, COSTS OF DELAY,
ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA
OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES, ARISING FROM ANY SOURCE,
REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS
LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO
WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN
INEFFECTIVE.
16. Defaults or Delays
Seller shall not be liable for any default or delay
in the production or delivery of all or any goods resulting either directly or
indirectly from (a) accidents to, breakdowns, or mechanical failure of Seller's
plant, machinery, or equipment; strikes or other labor troubles; labor
shortages; fire; flood; wars; acts of the public enemy, acts of God; delays of
suppliers; delays in transportation or lack of transportation facilities;
embargos; shortages of, or reductions in energy sources; priorities,
allocations, limitations, restrictions, or other acts required or requested by
Federal, state, or local governments, or any subdivision, bureau or agency
thereof; or (b) any cause beyond the control of Seller.
17. Governing Law
Both Buyer and Seller execute all orders with
reference to the laws of the State of North Carolina and the rights of all
parties and the construction and effort of every provision of this Agreement shall
be subject to and construed according to the laws of the State of North
Carolina, without giving effect to any conflicts of laws principles that would
obtain a different result.
18. Binding Effect
The provisions of any order shall bind and inure to
the benefits of Seller and Buyer and their respective successors and permitted
assigns. However, neither this Agreement, nor any part thereof or right
thereunder, may be assigned by Buyer without the prior written consent of
Seller.
19. Waiver
The right of either party to require strict
performance by the other party of any or all terms and conditions of this
Agreement shall in no way be affected or impaired by prior waiver, forbearance,
or course of dealing.
20. Interpretation
Whenever possible,
each provision of this Agreement will be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of the Agreement
should be prohibited or invalid under appropriate law, that provision will be
deemed deleted and the remaining provisions of the Agreement will remain in
full force and effect. The subject headings of the sections of this Agreement
are included for the purpose of convenience only and will not affect
construction or interpretation of any of its provisions.