Terms & Conditions
(a) These terms and conditions and those in that may be included in our Quotation or on the face hereof contain the entire agreement between the parties in connection with the products sold to Buyer (the “Products”).
(b) Acceptance of our quotation and issuance of a purchase order, or delivery of or payment for Products shall be conclusive evidence of Buyer’s agreement to these terms and conditions (the “Contract”).
(c) References to Products, where applicable, include their packaging
(d) No prior or subsequent document, purchase order, or conduct of or from Buyer shall modify the Contract, except for any agreement reduced to writing and properly signed by authorized representatives of the parties. In the event that such written agreement expires, these terms and conditions replace any other agreement and/or terms and conditions.
Unless otherwise agreed upon in writing by Seller:
(a) Shipping and delivery dates are given in good faith, but are not guaranteed.
(b) Buyer is responsible for all costs relating to failure to accept Product delivery.
(c) Delivery will be made F.O.B. point of shipping.
(d) All risk of loss shall pass to Buyer upon delivery of the Products by Seller to a carrier.
(e) Method of transportation will be selected by Seller.
(f) Seller reserves the right to ship collect.
(g) Seller’s receipt from the carrier shall be conclusive evidence of delivery,
(h) any special packaging requirements will incur an additional charge.
(i) Weight or quantity stated on Seller’s carrier’s receipt shall be conclusive evidence of the amount delivered.
(j) Except as provided in Sections 3(b) and 7(a), each delivery shall be a separate contract.
(k) Partial deliveries are permitted.
(l) Failure to make any particular delivery shall not affect remaining deliveries
(m) Buyer shall promptly supply all information and assistance required for Seller to execute Buyer’s order.
(n) Seller is not responsible for goods shipped but damaged or not delivered by carrier. Seller will assist with freight claim filing, where appropriate, but buyer accepts responsibility for product once loaded at seller’s place of business. In the event that a freight claim will be successful and proceeds of such claim are made payable to seller, seller will turn over proceeds to buyer but buyer will be responsible for original invoice at original price and quantity. In the event the buyer does not want to accept this risk, insurance may be purchased by chosen carrier to cover this loss for either collect shipments or prepay and add, as directed by the buyer.
3. PRICE AND PAYMENT.
(a) Due to volatile commodity price fluctuations pricing is only guaranteed to be firm for 30 days after quote date. All accounts are payable in full Net 30 days from date of invoice in U.S. funds, free of exchange, and without any collection or other charges, discounts, set–off, or abatement. Where price for Products includes delivery costs, any increase in such delivery costs shall be for Buyer’s account. Buyer agrees to pay Seller such increases.
(b) Any taxes, duties, levies or other charges now or hereafter imposed directly or indirectly on Seller or required to be collected directly or indirectly by Seller by any taxing authority in connection with the sale, delivery, use or consumption of the Products; including without limitation, any sale, documentary, use, excise, purchase, turnover and import taxes, consular fees and customs duties shall be for the account of Buyer, and Buyer shall on demand forthwith pay to Seller any such tax, duty, levy or charge.
(c) Credit terms, if any, both as to time and amount, may be limited, revoked, or modified by Seller at any time without prior notice. In circumstances described in Section 8(a), all unpaid balances owing to Seller from Buyer shall become immediately due and payable, irrespective of whether title to the products has passed to Buyer.
(d) Time of payment is of the essence.
(e) Seller may assess interest on amounts not paid in accordance with invoiced terms at a rate of one and one–half percent (1-1/2%) per month or such lesser rate permissible by law.
(F) Pricing includes only specifications known to seller at the original quote date. Other requirements that are added after the price is quoted, to include but not limited to NAFTA certification, conflict materials reporting, special handling or documentation, packaging, etc., will be added to our pricing as they are requested.
4. MAKE TO ORDER PRODUCTS.
5. SELLER’S WARRANTY.
(a) Seller warrants that Products shall conform to buyers’ specifications in effect at time of purchase and/or as revised and agreed to by Seller (“Seller’s Warranty”). SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AND HEREBY DISCLAIMS ANY OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR CUSTOM OR USAGE OF TRADE.
(b) Buyer shall notify Seller of any Product that does not conform to Seller’s Warranty within thirty (30) days after delivery of such Products. Failure to notify Seller of such non–conformance shall constitute a waiver by Buyer of any claims with respect to such nonconforming Products.
(c) Return of Product for any reason whatsoever shall require prior written approval of Seller and the issuance of a return authorization by our quality department.
6. SELLER’S LIMITIATION OF LIABILITY.
Seller’s liability to Buyer with respect to Products, whether based on contract, warranty, tort (including but not limited to negligence and strict liability) or otherwise, and Buyer’s sole and exclusive remedy with respect thereto shall be limited, at Seller’s sole option, solely to
the replacement by Seller of any non-conforming Product, individually or the entire lot at the discretion of seller, for which claim is made by Buyer in accordance with Section 4 (b) above, or to the refund of the purchase price paid by Buyer attributable to the non- conforming product. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF INCOME, LOSS OF BUISNESS OPPORTUNITY AND OTHER RELATED LOSSES OR EXPENSES.
7. FORCE MAJEURE
(a) Seller shall not be liable for any failure to ship Products or to otherwise comply with the Contract as a result of any circumstances whatsoever (whether or not involving Seller’s negligence) which are beyond Seller’s reasonable control and which prevent or restrict Seller from complying with the Contract. Without limiting the generality of the foregoing, Seller may without liability suspend or terminate (in whole or in part) its obligations under the Contract if Seller’s ability to manufacture, supply, deliver or acquire materials for the production of the Products by Seller’s normal means is materially impaired.
8. TERMINATION AND SUSPENSION.
(a) Seller may (without prejudice to its other rights or remedies) terminate or suspend Seller’s performance of the whole or any outstanding part of the Contract under any of the following circumstances:
(i) Buyer fails to take delivery of or to pay for the Products as required herein
(ii) Buyer breaches any other term of the Contract
(iii) Buyer becomes bankrupt or insolvent or a receiver takes possession of any material part of Buyer’s assets, or suffers any foreign equivalent of the foregoing; or
(iv) Reasonable grounds for insecurity arise with respect to Buyer’s performance under the Contract, and Seller so notifies Buyer (b) Termination of the Contract will not affect Sections 3,4, 5, 6,8, and 9 herein, which shall survive any such termination.
9. ADVICE OR ASSISTANCE
(a) Use of or reliance upon Seller’s recommendations or advice as to use of Products shall be at Buyer’s risk. SELLER’S SOLE LIABILITY WITH RESPECT TO USE OF THE PRODUCTS BY BUYER IS SET FORTH IN SECTION 5 HEREOF.
(a) Quote assumes per ASME Y14.5-2009 that all customer supplied dimensions are before any finishes unless otherwise specified.
11. CANCELLATION OF PURCHASE ORDER.
Seller may, at their discretion, allow buyer to cancel a purchase order and pay costs incurred to date as well as any disposal costs.
What Our Clients Say!
Smyth Co. Machine
Flexible and delivered with very short lead times. Excellent service. Keeps me informed.
Customer Service is great and super responsive! CMS has always come through for us, thank you!
You guys are great, appreciate you!
The staff is very accommodating. Response is very prompt.
Best quality products, above and beyond service, very competitive.
Quality issues are taken care of, orders are on time, pricing is best with few exceptions, takes care of shipping emergency needs.
Very satisfied with CMS/ERM. Communication is great and quality is superb.