TERMS AND CONDITION APPLICABLE TO THIS SALE:
The sale of any Products ordered by Buyer is subject to these Terms and Conditions. Any additional or different terms and conditions set forth in the Buyer’s purchase order or similar communication are objected to and will not be binding upon BUDNICK (herein called “SELLER”) unless specifically assented to in writing by SELLER's authorized representative. Authorization by the Buyer, whether written or oral, to accept Services and/or Products constitutes acceptance of these Terms and Conditions.
AGREEMENT FOR FIXED PRICE SALE:
SELLERhereby agrees to provide and Buyer agrees to pay for, at the agreed upon price, Products as describedin the QUOTE OR FINAL AGREEMENT.
PAYMENT AND SHIPMENT TERMS:
Unless otherwise agreed in writing the following payment and shipment terms apply: Invoicing will be done the day of shipment and invoices shall be due 30 days from the date thereof. Delinquent amounts (i.e. amounts not paid within 30 days of the invoice date) shall be subject to a service fee of 1.5% for each calendar month or fraction thereof during which such amounts remain unpaid. Invoiced amounts shall be defined by one of the following methods: (1) SELLER shall be entitled to payment of all charges associated with all materials procured by SELLER for on or behalf of the Buyer Products as they are received by SELLER; or (2) SELLER shall be entitled to payment on a Milestone basis as agreed to by Buyer. All delivery of Products will be made F.O.B. at the point of shipment to the Buyer. Title, risk of loss, and any obligation to insure the Products supplied to Buyer shall pass to the Buyer when the Products are placed in the hands of a carrier at the point of shipment. Products held or stored by SELLER for Buyer shall be insured by and be at the risk and expense of Buyer. SELLER shall in no event have any liability for delays, damage or loss to Products incurred in shipping or in storage. SELLER reserves the right to deliver Product subject to the quantity tolerance of +/- 10% of Buyer’s purchase order quantity. SELLER may also suspend or cancel deliveries of ordered product if Buyer fails to pay any amount owed when due. SELLER also reserves the right to require from Buyer, at any time, satisfactory assurance of performance of Buyer’s payment obligations to SELLER and refusal or failure to promptly furnish such assurance will entitle SELLER to suspend or cancel further deliveries of the Product. If the account is placed for collection, Buyer agrees to pay all costs and expenses related to the collection process, including but not limited to attorney’s fees and expenses.
Unless otherwise agreed in writing between SELLER and Buyer, in any transaction in which Buyer is not domiciled in the United States of America, or as otherwise required by SELLER to provide adequate assurance of payment, Buyer shall establish an irrevocable, unconditional, sight letter of credit allowing for pro-rata payments for partial deliveries and/or performance, storage, export shipment, price adjustments, cancellation or termination, and all other amounts due from Buyer to SELLER. The letter of credit shall be (a) confirmed by a bank that is acceptable to SELLER, (b) payable at the counters of the confirming bank, (c) opened sixty (60) days prior to the earliest scheduled performance or shipment, (d) remain in effect until ninety (90) days after the latest scheduled performance or shipment and (e) otherwise be in form and substance satisfactory to SELLER. Buyer shall pay all charges in connection with such letter of credit. SELLER will not begin performance until the letter of credit becomes operative. Buyer will increase the amounts and/or extend the validity period(s) and make appropriate modifications to any letter of credit within five (5) business days of SELLER’s notification to Buyer that such increase or extension is necessary to provide for payments to become due to SELLER. If at any time SELLER reasonably determines that Buyer’s financial condition does not justify the continuation of SELLER’s performance, SELLER may require full or partial payment in advance or shall be entitled to suspend performance or terminate its agreement with Buyer. The foregoing is in addition to and does not limit any other rights or remedies SELLER may have under contract or law.
Prices quoted do not include applicable sales, use, VAT, excise or similar taxes (“Taxes”), which SELLER may be required to collect. Buyer represents to SELLER that the sale of Services and/or Products by SELLER to Buyer, as contemplated herein, is not subject to Taxes by reason of an applicable exemption (and Buyer shall provide to SELLER such exemption certificates or other documentation that SELLER may request to confirm the existence of such exemption). Any applicable Taxes which are not collected by SELLER from the Buyer shall be paid by the Buyer directly to the appropriate taxing authority. SELLER shall determine the best method of shipment, prepay shipping charges and invoice Buyer. SELLER shall in no event be liable to Buyer for delays in delivery of products to Buyer or for any damage or loss to Products.
Unless SELLER expressly agrees otherwise in writing, any items or Products not manufactured by SELLER (including incidental materials and consumables) shall carry only the warranty that the original manufacturer provides, and SELLER gives no warranty on behalf of the manufacturers of such items. To the extent possible, any warranty provided with respect to Products by a manufacturer other than SELLER shall be passed on to the Buyer. The warranty for the Product is subject to proper storing of Product. Product must be stored out of direct sunlight at 70 degrees/50% humidity and rotated on a first in first out basis. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, GIVEN BY SELLER WITH RESPECT TO ANY PRODUCTS SOLD OR SERVICES PROVIDED BY SELLER TO BUYER.
LIMITATIONS ON SELLER’S LIABILTY:
SELLER’S liability with respect to any claim of any kind including, but not limited to, claims asserting negligence, breach of contract, or breach of warranty, resulting from, arising out of, or connected with this Agreement, the performance or breach thereof, or the manufacture, sale, delivery, resale, repair or use of any Products or Services covered by or furnished under this Agreement shall in no event exceed an amount equal to the gross compensation received by SELLER under this Agreement, and in no event shall such liability exceed the liability limit of any insurance policy in place to cover such claim. Further, SELLER shall not be liable to Buyer for losses, damages, or claims which are discovered by Buyer after the expiration of the applicable warranty period or for losses, damages or claims with respect to which the Buyer fails to give SELLER notice within 30 days from the date of discovery thereof within said warranty period. SELLER shall not be liable TO BUYER for ANY loss of profit or revenues, interruption of business, cost of capital, cost of cover, downtime costs, increased operating costs, claims of bUYER’S customers for such damages, or for any special, consequential, incidental, indirect, punitive or exemplary damages.
SELLERshall not be liable for delays in delivery or performance of Products due to (1) a cause beyond its reasonable control, (2) any act of Buyer or end-user Customer, prerequisite work by others, or a delay caused by Force Majeure, or (3) inability on account of a cause beyond the reasonable control of SELLER to obtain necessary materials, components, services or facilities. SELLER will notify Buyer promptly of any delay excused by this paragraph and will specify the revised delivery date as soon as practicable. In the event of any such delay, there will be no contract termination and the date of delivery or of performance shall be extended for a period equal to the time lost by reason of the delay. In the event SELLER is delayed by acts of the Buyer, or end-user Customer, or by prerequisite work of other contractors or suppliers of the Buyer or end-user Customer, SELLER shall be entitled to an equitable price adjustment in addition to an extension of the time of performance.As herein used, the term “Force Majeure” means war, mobilization, revolution, civil commotion, riots, strikes, lockouts, floods, hurricanes, similar storms or other actions of the elements, acts of God or the public enemy, restrictions or restraints imposed by law or by rule, acts or regulations or orders of governmental authorities, whether national, state or local, and whether civil or military, interruption of transportation facilities, and any other cause which is beyond the reasonable control of SELLER and which, by the exercise of reasonable diligence, SELLER is unable to prevent or relieve.
Each party may at any time propose changes in the schedule or scope of Products or Services in the form of a draft change order. Some changes requested by Buyer may require analytical or investigative work to evaluate the change, and this evaluation work may be charged to Buyer at SELLER’s then prevailing rates. The parties may mutually agree on the length of time within which a decision shall be made regarding the proposed change. If mutually agreed, the changes will be documented in writing and signed by authorized representatives of each party, along with any equitable adjustment in the contract price or schedule. SELLER is not obligated to proceed with the changed schedule or scope until both parties agree in writing. Changes in applicable laws, rules and regulations shall be treated as a change within the meaning and subject to the requirements described above in this paragraph.
Buyer cannot cancel, assign or modify this Agreement or Buyer’s order for Products and/or Services, or holdup release, except with SELLER's express written consent. If the Agreement or Buyer’s order (or any portion thereof) is cancelled by Buyer for any reason, Buyer shall pay SELLER for all Products, including raw materials, purchased or completed or partially completed and services performed before the effective date of cancellation, plus a cancellation charge equal to 15% of the contract price allocable to the undelivered Products and unperformed Services.
This Agreement and matters connected with the performance thereof shall be construed, interpreted, applied and governed in all respects by the internal laws of the State of Illinois without reference to its conflicts of laws principles. Except with respect to matters governed by the Dispute Resolution section of these Terms and Conditions, the Circuit Court of Monroe County, Illinois, or the United States District Court for the Southern District of Illinois, shall have the exclusive jurisdiction of any litigation betweenSELLER and Buyer.
Negotiation Between Executives: Not less than forty five (45) days prior to the commencement of Arbitration as set forth in Section (ii) below, the parties shall attempt in good faith to resolve any claim or dispute arising out of or relating to this Contract or breach, termination or validity thereof (hereinafter referred to as "Dispute") promptly through negotiation between representatives of the parties who have authority to settle the controversy. The party asserting a claim must notify the other party of such claim in writing. Within thirty (30) days after delivery by one party to the other party of a written notice of Dispute, the receiving party shall send a written response to the originating party. Both the notice and the response shall include (a) a statement of the party's position and a summary of arguments supporting that position; and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within thirty (30) days after delivery of the originating party's notice, the designated executives of the parties shall meet at a mutually acceptable time and place and, thereafter, as often as they deem necessary to attempt to resolve the Dispute. All reasonable requests for information made by one party to the other will be honored.
If the Dispute has not been resolved within thirty (30) days of the originating party's notice or, if the parties fail to meet within thirty (30) days, either party may initiate arbitration of the Dispute as provided below.
All negotiations pursuant to this clause shall toll the time period specified herein for commencement of an arbitration proceeding and shall be confidential and treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and state rules of evidence.
Arbitration. In the event that the Parties have been unable to arrange and complete a conference between senior officers or officials, within the time period described above, or have been unable to resolve the Dispute, then on request of either Party, the Dispute shall be submitted to binding arbitration by one (1) qualified arbitrator who has not been previously employed by either Party or its affiliates, and does not have a direct or indirect interest in either Party or the subject matter of the arbitration. Such arbitrator shall either be mutually selected by the Parties within thirty (30) days after written notice from either Party requesting arbitration, or failing agreement, shall be selected following the expedited rules of the American Arbitration Association (“AAA”). Such arbitration shall be held in any mutually agreed location or in the location of SELLER’S home office. Subject to the paragraph above, either Party may initiate arbitration by written notice to the other Party. The arbitration shall be conducted according to the following:
Limited Discovery. Discovery shall be limited as follows: Each Party shall be limited to no more than 20 interrogatories; 20 requests for production of documents or things; and three depositions.
Pre-Filed Testimony. On a schedule set by agreement or by the Arbitrator, the Parties shall simultaneously submit written direct testimony. The Parties shall likewise simultaneously serve written rebuttal testimony. Surrebuttal written testimony may be permitted by agreement or at the discretion of the Arbitrator.
Hearing. (a) the hearing shall be conducted on a confidential basis without continuance or adjournment and shall consist of the cross-examination of witnesses submitting written pre-filed testimony, (b) Parties shall divide equally the cost of the arbitrator and the hearing, (c) in the discretion of the Arbitrator, the prevailing party may be awarded reasonable attorney’s fees and costs not to exceed 25% of any award, (d) evidence concerning the financial position or organizational make up of the Parties, any offer made or the details of any negotiation prior to arbitration, and the cost to the Parties of their representatives and counsel shall not be permissible. The arbitrated award shall not include any consequential or punitive damages.
EACH PARTY UNDERSTANDS THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE. After signing this Agreement, each Party understands that it shall not be able to bring a lawsuit concerning any dispute that may arise that is covered by this arbitration provision. Any award by the arbitrator may be enforced by either Party in any court of competent jurisdiction.
This Agreement, together with the terms and conditions of any other written agreement executed by the parties in connection herewith, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof. No terms or conditions in any way adding to, modifying or otherwise changing the provisions stated herein or therein, including by custom, usage of trade, or course of dealing or performance, shall be binding upon SELLER unless made and agreed to in writing by an authorized representative SELLER. The terms and conditions set forth herein will not be modified by SELLER’s performance of Services or delivery of Products following receipt of Buyer’s purchase order, shipping request or similar form containing terms and conditions conflicting or inconsistent with the terms and conditions stated herein.
If any term, covenant or provision of this Agreement or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, the remaining provisions or portions of this Agreement or the application of such term, covenant or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each term, covenant and provision set forth in this Agreement shall be valid and be enforced to the fullest extent permitted by law.
BY SIGNING BELOW, BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD AND AGREES TO THE FOREGOING TERMS AND CONDITIONS OF SALE.
[Name of Buyer]