If this writing differs in any way from the terms and conditions of Buyer’s order or if the writing is construed as an acceptance or as a confirmation acting as an acceptance, then Seller’s acceptance is EXPRESSLY MADE CONDITIONAL ON BUYERS ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM AND ARE ADDITIONAL TO THOSE CONTAINED IN BUYER’S WRITING. Further this writing shall be deemed notice of objection to such terms and conditions of Buyer. If the writing is construed as the offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Buyers acceptance of the goods shall manifest Buyers assent to Sellers terms and conditions. No addition to or modification of these terms will be effective unless set forth in writing and agreed to by Seller.
2. CONDITIONS OF SALES
A. Minimum Billing is $100.00 Net.
B. Price Changes: Prices are subject to change with or without notice and are based upon prices in effect at time of shipment.
C. Returned Goods: No returns are to be made to USD without first obtaining a Return Materials Authorization (RMA) number and a freight classification code number from the Company. Returns may be subject to a 25% restocking charge, plus any transportation charges incurred.
D. Damaged Product: Any claim for damaged or lost products (s) must be made within five (5) days of receipt of order.
E. Shipments: All shipments are FOB shipping point. Freight will be charged as a line item on invoice unless the buyer has provided USD with a shipping account number to bill. This information must be included in the buyer’s purchase order. USD reserves the right to ship twenty percent (20%) above purchase order quantities of non-catalog listed items built to customer’s specifications.
F. Terms: Net 30 Days, unless otherwise stated. Interest on accounts overdue more than (30) days will be charged 1% per month or the highest rate permitted by law, whichever is lower. Buyer shall be liable for any collection costs or attorney’s fees incurred as a result of Buyer’s failure to comply with this agreement.
3. WARRANTY AND REMEDIES
A. LIMITED WARRANTY. Products manufactured for USD are made to conform to all applicable codes and standards in the United States and Canada. USD’s products will be repaired or replaced at our option within ONE (1) year of the date of its installation into service. There is no warranty for products that have been reused, have been attached to an appliance that has been moved to a different location or where original fittings supplied by USD have been changed or removed. There will be no responsibility or liability accepted for any failures caused by the use of chemical products or cleaners containing chlorine and/ or ammonia. USD will not be liable for incidental, consequential, indirect damages or for special circumstances caused by the failure of our products even if it has been advised of the possibility of such damages. No other warranty, expressed or implied, is made with regard to products of USD.
B. LIMITATION OF REMEDIES. Buyer’s sole and exclusive remedy against Seller will be limited, at Seller’s option, to the repair or replacement by seller of any nonconforming product for which a claim is made by Buyer or to the issuance of a credit for such nonconforming product in accordance with these terms and conditions provided Buyer obtains a Return Material Authorization (RMA) number from seller and Seller is given a reasonable opportunity to inspect the product and confirm such nonconformity. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing and able to repair or replace the nonconforming product and, in any event, Seller’s liability for any damages due Buyer shall be limited to the purchase price of the nonconforming products. THIS PARAGRAPH DETAILS BUYERS SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
C. LIMITATIONS ON ACTIONS AND LIABILITY. The statute of limitations applicable to all claims arising under this agreement shall be one year from the date the claim accrues. SELLER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM DELAY IN DELIVERY OF THE PRODUCTS OR FOR ANY FAILURE TO PERFORM WHICH IS DUE TO CIRCUMSTANCES BEYOND ITS CONTROL. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FORM SELLERS BREACH OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT WITH RESPECT TO THE PRODUCTS, OR ANY SERVICES IN CONNECTION WITH THE PRODUCTS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PRICE OF THE PRODUCTS. IN NO OTHER EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVE-NUES AND PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS BUYERS EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILLS OF ITS ESSENTIAL PURPOSE.
4. CREDIT APPROVAL
Shipment and delivery of goods and performance of work shall at all times be subject to the approval of Sellers credit department and Seller may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or upon terms and conditions or security satisfactory to Seller.
Orders may only be cancelled with Sellers written approval. In the event of cancellation of an order, or any part hereof, incorporating special material, parts, components, etc., Buyer shall pay: (a) the contract price of all completed items; (b) that portion of the contract price that is equal to the degree of completion of products in process, effective on the date notice of cancellation is received; (c) the cost of any materials and supplies which, Seller shall have to perform and which cannot be readily resold or used for other similar purposes; and (d) charges for cancellation of tool orders or tool removal charges.
6. CREDIT APPLICATION
The information provided by the applicant must be accurate and may be relied upon in making credit decisions, including increasing, decreasing or terminating any credit availability at any time within USD Products’ sole discretion. The applicant authorizes the bank and trade companies to furnish USD Products any information necessary to complete the evaluation of the applicant’s credit history. The information will be held in strict confidence.