- “Buyer” means the individual or entity identified as such on the purchase order or, if different, on Seller’s quotation or order acknowledgement.
- “Seller” means The Universal Group Corporation, a Delaware corporation.
- “Product” means (i) any product designed or manufactured by or on behalf of Seller, or (ii) any third-party manufacturer’s product Seller offers for sale.
3. Entire Agreement; Amendments. These Terms and Conditions, and Seller’s quotation or order acknowledgement, constitute the entire agreement and supersedes all other written or oral agreements between the parties. These Terms and Conditions, and the associated quotation or order acknowledgement, may be modified only by an express written agreement signed by both parties.
4. Quotations and Prices. Except as otherwise specifically provided in Seller’s quotation or order acknowledgement, the Products’ prices will be Seller’s published list prices in effect at the time of Seller’s quotation or order acknowledgement of Buyer’s purchase order. Seller may correct errors or omissions in published or quoted prices or change its published list prices at any time without notice.
5. Taxes. Prices do not include any applicable federal, state, or local taxes in effect and Buyer will pay any such amounts arising from the sale of the Products. In lieu of payment, Buyer may, prior to delivery of the Products, provide Seller with a tax exemption certificate acceptable to the appropriate taxing authority.
6. Terms of Payment. Unless Seller otherwise agrees to in writing, Buyer will pay the purchase price to Seller thirty (30) days from the date of purchase. Buyer will pay interest on any past due invoices at a rate of 1.5% per month on the unpaid balance or, if lower, the maximum rate permitted under applicable law. Buyer will pay all costs, including reasonable attorneys’ fees, court costs and collection agency fees, which Seller incurs in the enforcement of this agreement against Buyer. Seller may withhold the shipment of orders or cancel orders if Buyer’s account is in arrears. Buyer acknowledges that Seller retains a security interest in all Products until Buyer renders payment in full and hereby authorizes Seller to file any documents necessary to perfect Seller’s security interest.
7. Shipping and Risk of Loss. Seller will package Products in accordance with its standard practices. Unless Seller otherwise agrees in writing, all Products will be shipped EXW Seller’s facility or other Seller designated location. Seller may make partial shipments and submit invoices for such partial shipments in accordance with the payment terms set forth in Section 6 above. Seller may ship overages or underages of weight, length, size and/or quantity in accordance with Seller’s standard practices. At the time Seller makes the Products available for pick up at Seller’s facility or designated location, title and the risk of loss or damage to Products will pass to Buyer.
8. Delivery. Seller will only fulfill orders when products are in stock and Seller does not maintain backorders. Seller does not and will not guarantee any shipping or delivery date, and no person is authorized to commit to a delivery date except in a writing signed by Seller’s authorized officer. Seller will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages arising from a delay in shipment.
9. Force Majeure. Seller will not be liable for any delay caused by circumstances beyond its reasonable control, including but not limited to any act of God, fire, flood, explosion, war, any order of any government or agency, shortage of labor, material, or transportation, strike or other labor dispute. If there is such a delay, Seller will have a reasonable extension of time to complete performance.
10. Inspection and Acceptance. Buyer will inspect and accept or reject the Products immediately upon receipt. Unless Seller states otherwise, Buyer will file any claims of shipment shortages within seven (7) days and any claims of a damaged Product within fourteen (14) days of receipt of the shipment. Buyer will identify the grounds for rejecting the shipment and comply with Seller’s returned merchandise policy. Buyer will pay a 15% restocking fee for all returned items, except for those returned under Section 11.
11. Warranties. Products purchased from Seller are warranted against defects in material and workmanship for a period expiring one (1) year after purchase from Seller by the original Buyer. In the event of a breach of this warranty, Seller may, at its option, either replace the defective merchandise or refund in full, without interest or abatement, the purchase price actually paid by Buyer to Seller. Buyer must return the defective merchandise at its own cost and expense to Seller, and Seller shall be entitled to make its own inspection to determine whether the warranty claim is valid. Seller shall have no responsibility unless a notice of such claim is made within the one (1) year period aforesaid; nor shall Seller be responsible for labor charges involved in the replacement of any merchandise. Seller shall not be liable in the event of alteration, misuse, overload, negligence or damage caused by others or if the merchandise shall have been damaged by flood, fire, or other events not within its control.
12. Limitations on Liability. THE WARRANTIES IN SECTION 11 ARE EXCLUSIVE AND ARE MADE ONLY TO BUYER. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OR PERFORMANCE. No person is authorized to give any additional warranties on Seller’s behalf or to assume for Seller any other liability, except in a writing signed by an authorized officer of Seller. SELLER’S TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS WILL BE LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR LOSS OF ACTUAL OR ANTICIPATED REVENUES OR PROFITS. The limitations on liability in these Terms and Conditions will apply regardless of the form of action, whether in contract, tort, strict liability or otherwise, and whether damages were foreseeable. The limitations of liability in this Section 12 will survive failure of any exclusive remedies provided in these Terms and Conditions or in Seller’s Limited Warranty.
13. Remedies. The rights and remedies for Seller provided herein are cumulative and in addition to any other remedies provide by law or equity. All remedies may be exercised concurrently or separately, and the exercise of one remedy shall not be deemed an election of such remedy to the exclusion of any other remedy.
14. Waiver. Seller’s waiver of any breach of any provision hereof will not waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these Terms and Conditions shall not be deemed a waiver of such rights.
15. Specifications. Seller may change its Product specifications and manufacturing practices at any time without notice to Buyer; provided that such changes do not materially impair the performance of the Products. Seller will exclusively own all materials and information provided by Seller to Buyer.
16. Changes; Cancellation. Buyer may cancel a Purchase Order only with Seller’s express written consent. If Seller determines that a change order is required, Seller may request that Buyer provide a revised Purchase Order. Any other change order must be in writing and signed by duly authorized representatives of Seller and Buyer. Change orders will specify any resulting adjustments in delivery schedule or price.
17. Compliance with Laws. Buyer will comply with all applicable laws affecting the purchase and use of the Products and will maintain all required licenses, permits and registrations with governmental agencies or other offices.
18. Confidential Information. Buyer will not disclose any confidential or proprietary information of Seller, including, without limitation, any information regarding pricing of the Products or the other terms and conditions of sale of the Products to Buyer. In addition, Buyer acknowledges that Seller owns, and Buyer shall not use or disclose, any of Seller’s trade marks, service marks, trade names, copyrights, trade secrets or proprietary rights.
19. No Partnership or Joint Venture. The parties agree that nothing in these Terms and Conditions will create any agency, partnership, joint venture or fiduciary relationship between Buyer and Seller.
20. Assignment. Buyer may not assign any portion of its rights or obligations hereunder without the prior written consent of Seller. Seller may assign, delegate or subcontract a purchase order, in whole or in part, without Buyer’s consent.
21. Governing Law; Venue; Limitation of Actions. This agreement will be governed by the internal laws of the State of New Jersey, including the Uniform Commercial Code as adopted in the State of New Jersey, without regard to conflict of laws principles. All shipping and delivery terms specified herein are defined by the Incoterms 2011 published by the International Chamber of Commerce. BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN CAMDEN COUNTY, NEW JERSEY OR ANY FEDERAL COURT LOCATED IN THE CAMDEN DISTRICT OF NEW JERSEY AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER. NOTHING IN THIS AGREEMENT AFFECTS THE SELLER’S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.