Terms and Conditions
1. The terms set forth on the invoice/contract, together with these general sales terms, shall constitute the entire Agreement between parties. The terms and conditions stated herein shall not be altered or amended by oral or written conditions or stipulations of the customer pertaining to such order, the oral representations or statements of the agents of Seller, or otherwise, unless, and to the extent, such conditions or stipulations are included on Seller’s invoice or otherwise accepted by Seller in writing.
2. All orders placed with Seller by Buyer are subject to approval shall constitute acceptance of these terms and conditions by Seller. Seller may require payment to be made in advance of shipment or Seller may require Buyer to complete a credit application. An order placed by Buyer may be rejected by Seller for any reason without incurring any liability to Buyer. By placing an order, Buyer represents that Buyer is not insolvent, as that term is defined in the Uniform Commercial Code. Acceptance of any delivery shall also constitute a representation and warranty of solvency on the delivery date. If (a) the Buyer us or becomes insolvent or (b) the Seller determines, in sole discretion, that the terms of payment offered to Buyer are unsatisfactory considering Buyer’s financial condition or (c) if the Buyer fails to tender any payment when due or otherwise breaches any of the provisions hereof, Seller may terminate this Agreement with respect to any product not yet delivered, declare the whole sum owing by Buyer due and payable at once, and/or require Buyer to pay cash in advance of any shipment remaining on this Agreement. Buyer grants Seller a security interest in all products purchased by Buyer from Seller for which the purchase price has not been paid in full.
3. All invoiced amounts are due in full on the date specified on such invoice, unless other terms of payment are confirmed in writing by Seller’s credit department. Any such alternate credit terms may be altered or revoked by Seller at any time. If payment is not timely, Seller, in addition to all other legal right: (a) shall be entitled to interest on any unpaid balance, in addition to any interest accruing pursuant to credit terms offered in writing by Seller, at a rate equal to the highest non-usurious interest rate chargeable to Buyer until paid; and (b) may, with or without process of law and without notice or demand, take possession of and remove products in which Seller has a security interest, and for that purpose, Seller may enter upon the premises where the products are located and may sell the products at public or private sale, or elect to forfeit’s Buyer’s interest in the products are provided by law.
4. Regardless of price basis, risk of loss shall pass to Buyer upon pickup by Buyer or delivery of the product to a common carrier or sooner if agreed in writing by the parties and allowed by law.
5. On sales made on a delivered basis, Seller will make no allowances for shortage or damage unless Buyer furnishes within 48 hours of shipment acknowledgment from the carrier that the same occurred in transit. On all sales made F.O.B. Seller’s plant or warehouse, Buyer will, in the event of loss or damage in transit, file its own claim with the carrier.
6. Any price quotes for shipping made by Seller or stated on Seller’s invoice are based on freight rates and surcharges in effect at the time of the quote and any advance by Seller of such freight rates and surcharges shall be for the Buyer’s account regardless of price basis. All demurrage or detention charges shall be for the Buyer’s account.
7. All shipment and/or delivery rates are subject to availability. Seller will make every reasonable effort to meet any quote delivery date; however, Seller will not be liable for its failure to meet any quoted delivery date. Further, if Seller is delayed or prevented from performance for any reason that was unforeseen of beyond the control of Seller, including but not limited to strike, lockout, riot, war, fire, acts of God, accident, failure or breakdown of parts necessary for production, supplier or Buyer caused delays, labor disputes, power outage, and compliance with laws, then performance will be excused for the period of the delay.
8. No product may be returned for credit or repair or replacement without written authorization by Seller. No product is eligible for return after the product has been installed unless the product is covered by the warranty described below. Credit will be issued only for items that are found by Seller to be of standard manufacture and in saleable condition. Buyer must prepay freight and will incur up to a 30% restocking charge when no manufacturing defects or errors are involved. Proof of purchase must be given.
9. Seller reserves the right to discontinue, alter, modify, or redesign products at any time, without notice, and without liability to Buyer for inventory obsolescence.
10. The minimum order amount to be charged by Seller for any single order by the Buyer shall be $35.00. The list price for Seller’s products may be changed at Seller’s discretion from time-to-time. Unless Buyer has a written price agreement with Seller providing otherwise, the price to be charged by Seller for its products shall be a product’s list price on the date of shipment.
11. Orders for modified, special order or custom products, as well as products not listed in Seller’s current price list books, may not be canceled or returned. Orders for all other products may be canceled prior to shipment.
12. All products sold by FIXFAST USA carry only the original manufacturer’s warranty, if any.
13. All tax, duty or assessment imposed or assessed by any government/state authority upon the production, processing, sale, shipment or use of the goods which are subject of this Agreement, or the raw materials from which said goods are processed, shall be for the account of the Buyer.
14. Nothing contained herein shall be construed to limit seller’s remedies, and Seller may pursue any other remedy available to it under the Uniform Commercial Code or other applicable law or equitable doctrine.
15. If Seller finds it necessary to engage an attorney to enforce its rights hereunder, including, but not limited to, the collection of invoiced amounts, Buyer shall reimburse Seller for all attorneys’ fees and costs related thereto, whether or not litigation is commenced.
16. Without limiting the Seller’s pursuit of any and all other rights and remedies available to it, it is expressly agreed that this Agreement is subject to the Seller’s right to set off its obligations hereunder against any debts, claims or obligations owed by the Buyer under or in connection with this Agreement, or any other contracts between parties.
17. Acceptance of any payment by Seller after the breach of the terms and conditions of this Contract by Buyer shall not waive any rights or remedies accruing to Seller as a result of such prior breach; and acceptance of any partial payment by Seller shall not waive any right of Seller to collection remaining amounts due.
18. This contract shall be binding upon and inure to the benefits of the parties hereto and their respective heirs, administrators, executors and permitted successors and assigns.
19. Seller warrants that the product ordered herein will have been produced in compliance with the Fair Labor Standards Act of 1938 as amended.
20. This contract shall be governed by and construed under the laws of the State of Indiana.