Carling Technologies, Inc. ("Seller")
Terms and Conditions
1. Offer and Acceptance. Shipment by us ("Seller") is not an acceptance of any offer that you ("Buyer") may have made to us. Not withstanding any contrary terms and conditions proposed by Buyer, these Terms and Conditions shall constitute a part of any contract between Seller and Buyer and shall not be altered, modified, or added to unless specifically and expressly agreed to in writing by Seller; nor shall these Terms and Conditions be affected in any way by any course of dealing or performance, or by trade usage. Buyer's failure to immediately object to these Terms and Conditions including but not limited to any disclaimers herein, or Buyer's acceptance of the goods sold hereunder, shall constitute Buyer's acceptance of these Terms and Conditions. Seller at times reserves the right to alter or cancel these Terms and Conditions, including without limitation, the Terms and Conditions pertaining to payment in the event that Seller determines Buyer is a credit risk.
2. Price. The quoted prices are our current prices, but Buyer shall pay Seller's prices in effect at the time of shipment unless Seller shall otherwise specifically and expressly agree in writing. Buyer shall also pay federal, state and local taxes on the sale, use or shipment of the goods, as well as export and import duties and foreign collection charges now or hereafter in effect. Failure of Buyer to make any payment as provided herein or to accept delivery of materials in accordance with shipping schedules shall constitute a breach of this contract by the Buyer. Upon such breach, Seller may suspend deliveries until payment is made., At Seller's option, it may cancel the contract, and upon cancellation, Buyer shall be liable to Seller for all damages, including consequential damages sustained by Seller. In the case of materials specially fabricated for Buyer, Buyer shall be liable to Seller for the full purchase price, as well as all other damages, including consequential damages. If suit is brought to collect any account or accounts receivable under any contract, Seller shall be entitled to collect all reasonable costs of collection and expenses of suit, including, but not limited to, reasonable attorney's fees.
3. Quantity Variation. Buyer shall accept and pay for and have no right to reject shipments of goods which vary in quantity by more or less than ten percent (10%) of the quantity specified for electrical and electronic lighted and unlighted switches and five percent (5%) for circuit breakers.
A. Domestic Destination: All goods shall be shipped Free on Board (F.O.B.) shipping points.
B. International Destination: All goods shall be shipped Ex Works (EXW) from Seller's door.
5. Payment. Payment shall be thirty (30) days Net. Seller reserves the right to charge
interest at the rate of one and one half percent (1.5%) per month on invoices not paid within thirty (30) days.
6. Delivery. Quoted delivery dates are our best estimates, and we assume no liability for delays. Buyer's acceptance of delivery from shipper shall constitute a waiver of any claim against Seller for delay.
HEREUNDER SHALL BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP AS FOLLOWS: AS TO CIRCUIT BREAKERS, TWO (2) YEARS FROM DATE OF SHIPMENT. AS TO ELECTRICAL AND ELECTRONIC LIGHTED AND UNLIGHTED SWITCHES, TWO (2) YEARS FROM DATE OF SHIPMENT. IN THE EVENT OF SUCH DEFECTS, SELLER'S ONLY OBLIGATION SHALL BE THE REPLACEMENT OF THE DEFECTIVE GOODS, EXCLUSIVE OF ANY LABOR OR ANY OTHER CHARGES. THIS WARRANTY IS SELLER'S SOLE OBLIGATION AND EXCLUDES ALL OTHER REMEDIES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER FURTHER DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO BUYER OR TO ANY OTHER PERSON FOR INJURY TO PERSON OR DAMAGE TO, OR LOSS OF, ANY PROPERTY OR ITS VALUE CAUSED BY ANY PRODUCT OF SELLER WHICH HAS BEEN SUBJECTED TO MISUSE OR MISAPPLIED OR MODIFIED OR REPAIRED BY ANY PERSON OR ENTITY NOT AUTHORIZED BY SELLER OR WHICH HAS BEEN IMPROPERLY INSTALLED. FOR PURPOSES OF THIS PARAGRAPH AND OF THESE TERMS AND CONDITIONS GENERALLY, GOODS REFERS NOT ONLY TO GOODS MANUFACTURED BY SELLER, BUT ALSO TO GOODS MANUFACTURED BY THIRD PARTIES FOR THE SELLER PURSUANT TO PRIVATE LABEL AGREEMENTS OR OTHERWISE AND THEREAFTER SOLD BY SELLER TO BUYER.
8. Inspection. Buyer shall inspect the product promptly after receipt and shall notify Seller in writing of any claims, including claims of breach of warranty, no later than thirty (30) days after Buyer discovers or should have discovered the facts upon which the claim is based. Failure of Buyer to give written notice of a claim within the time period shall be deemed to be a waiver of such claim.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, LOSSES, OR EXPENSES ARISING FROM THIS CONTRACT OR ITS PERFORMANCE OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE, THE GOODS FOR ANY PURPOSE WHATSOEVER. IN NO CASE SHALL SELLER'S LIABILITY EXCEED THE PURCHASE PRICE OF THE GOODS THAT GAVE RISE TO THE CLAIM.
10. Limitation of Actions. No action of any kind arising out of any contract between us and you may be commenced more than one year after the cause of action has arisen, except an action for nonpayment.
11. Patents. Seller makes no warranty that the goods sold hereunder will be delivered free of the rightful claim of any third party by way of infringement or the like. If the goods are to be furnished to Buyer's specifications, Buyer agrees to indemnify Seller and its successors and assigns against all liabilities and expenses, including attorney's fees, resulting from any claim of infringement or any patent copyright or trademark in connection with the production, sale or use of such goods.
12. Packing. Any packing requirements other than Seller's standard packaging and commercial containers shall incur an extra charge which shall appear on Seller's invoice.
13. Collateral Promises. There are no representations, warranties or conditions express or implied, statutory or otherwise except those contained in these Terms and Conditions and no collateral agreement or waivers shall be binding on either Buyer or Seller unless in writing and signed by both Buyer and Seller.
14. Indemnification. If Buyer alters the goods sold hereunder or combines them with other component parts for resale , Buyer agrees to indemnify Seller and hold Seller harmless from all losses, costs, and expenses, including attorney's fees, resulting from claims that are based on such combination.
15. Changes by Buyer. It is understood that the prices herein are subject to adjustment by Seller in case of changes by Buyer in specifications, quantities, or delivery requirements after our acknowledgement of Buyer's order. It is further understood that all warranties, limitations of liability, disclaimers and indemnity agreements as contained in Paragraphs 7, 9 and 14 herein together with all other paragraphs hereof shall apply to all goods covered by any change by Buyer and that no modification or rescission of an such warranty, limitation or liability for damages, disclaimers, or indemnity agreements shall be binding on Seller unless Seller expressly agrees in writing.
A. As to contracts to design and develop a special product to meet a Buyer's requirements, Seller reserves the right, without any liability whatsoever, to terminate its obligations hereunder if, in Seller's bona fide judgment, the product to be developed or designed will not serve the purposes or requirements designated by Buyer.
B. Buyer may cancel this order, in whole or in part, upon written notice to Seller and upon payment of cancellation charges, which shall be the sum of (1) the specified price of the order of all goods that that have been delivered and not previously paid for, plus (2) the actual cost incurred by Seller that is properly allocable to the goods not delivered at the time of notice of cancellation, including, without limitation, the cost of special components and materials purchased for use in producing such goods, plus (3) the profit including reasonable overhead, that Seller would have made from full performance by Buyer, and (4) the costs of engineering and testing prototypes.
17. Interpretation. Rights and liabilities arising out of any contract with Seller, including these Terms and Conditions, shall be determined under the Uniform Commercial Code as enacted in Connecticut.
18. Delay or Non-delivery. Seller shall not be liable for any delay in delivery or failure to deliver hereunder when delivery has been made impracticable by fire, embargo, strike, difference with employees, accidents, force majeure, failure or inability to secure materials from usual sources of supply, or any other circumstances beyond the Seller's control.
19. Procedure Upon Impracticability. When Seller is excused from performance as set forth in Paragraph 18 or of the Uniform Commercial Code, Buyer shall have only those rights conferred by Sections 2-615 and 2-616 of the Uniform Commercial Code as incorporated by the Statutes of the State of Connecticut.
20. Assignment and Transfer. After acceptance, this proposal may not be assigned or transferred by Buyer without written approval of the Seller.
21. Arbitration. Seller, in its sole discretion, may demand that one or more issues arising under these Terms and Conditions that Seller specifically designates in writing be determined by arbitration conducted pursuant to the rules and regulations of the American Arbitration Association. The remedy of arbitration shall be in addition to, and not in derogation of other remedies available to Seller. Unless Seller otherwise designates in writing, the arbitration proceedings shall be conducted in Hartford County, Hartford, Connecticut.
22. Title and Risk of Loss. Title to materials sold shall remain with Seller until such materials are paid for in full. Buyer shall bear the risk of loss and damage from the time the materials are delivered to a carrier at the shipping point, whether or not the freight is prepaid.
REV: Effective May 1, 2010, for product shipment dates commencing May 1, 2010.
THE ABOVE TERMS AND CONDITIONS INCLUDING THE WARRANTY OR WARRANTIES ARE PRESENTLY IN FORCE. THEY DO NOT APPLY IN ALL CIRCUMSTANCES. FURTHERMORE, CARLING TECHNOLOGIES RESERVES THE RIGHT, WITHOUT NOTICE, TO REVISE, AMEND OR OTHERWISE CHANGE ALL OR PART OF ITS TERMS AND CONDITIONS, INCLUDING ITS WARRANTY POLICIES.