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CONFIRMATION OF SALE
No order shall be deemed accepted
unless duly confirmed in writing by Just Normlicht, Inc., herein-after
designated as Seller, at its principal office at 2010 Cabot Blvd. West, Suite
E, Langhorne, PA 19047, PA; upon such confirmation the order shall become a
contract. No oral agreement, representation or warranty shall bind Seller.
This agreement may not be changed or terminated orally and no change,
termination or waiver of any of its provisions shall be valid unless in
writing and is signed by both parties.
- LIMITED WARRANTY
Seller warrants the goods to be free from defects
in material and workmanship under normal use and service and not arising from
misuse, negligence, accident or disregard of Seller's instructions, in
connection with the use, installation, and transportation of the goods by
Buyer, its agents, servants, employees, or by carriers. Seller's obligations
under this warranty are limited to remedying any deficiencies in the goods at
such place or places in the United States of America as may be designated by
Seller. This warranty shall pertain to any part or parts of any goods as to
which Buyer has, within twelve (12) months following delivery of such goods to
Buyer or its nominees, given written notice of claimed defects to Seller.
Buyer shall be required to furnish Seller with details of such defects, and
this warranty shall be effective as to such goods which Seller's examination
shall disclose to its satisfaction as being defective and which at Seller's
option shall promtly thereafter be returned to Seller or its nominees.
Seller's liability is limited to furnishing or repairing, at Seller's option,
part or components determined by Seller to be defective. This warranty is
expressly in lieu of all other warranties expressed or implied. In no event
shall the Seller be liable to the Buyer or to any other person for any loss or
damage, direct or indirect, arising out of or caused by the use or operation
of the goods, or for the loss of profits, business or good will. Seller shall
in no event be liable to any person or firm (including any assignee of Buyer)
except Buyer and its successors.
Further excluded from the warranty herein
are:
- Defects in parts or components not manufactured directly by Seller,
these are subject to warranty conditions, if any, issued by Seller's
suppliers.
- Wear and tear and defects resulting from any corrosive or abrasive
materials used in production.
- SHORTAGE AND NON-CONFORMITY
Any claim of shortage or
that the goods do not conform with the specifications of the order or model
must be made in writing within ten (10) days after delivery of the goods
(as to which such claim is made) to Seller or its nominees, but in no event
shall the claim be later than within the time limit provided by the carrier or
insurance company, otherwise such claim shall be deemed waived. The samples,
measurements, dimensions and weights contained in the Seller's catalogues,
sales manuals, photographs and drawings, constitute only an approximate guide.
The Seller reserves the right to make any changes which the Seller, in its
absolute discretion considers necessary.
In the event that Buyer has
verified claim of shortage or of non-conformity of the goods to the
specifications of the order or the model, and if such claim has been submitted
within the required time limits as set forth above. Seller shall, at its own
expense, make up for the shortage of the goods, or replace or repair the
goods, but in no event shall Seller be or become liable to Buyer or to any
other person or persons for any loss or damage, direct or indirect, arising
out of or caused by such incidents or for the loss of profits, business or
good will.
- FORCE MAJEURE
The obligation of Seller shall be modified or excused
for reasons of Acts of God, war, governmental law or regulations, strikes or
lockouts, fire, breakdown of machinery, whether in its own business enterprise
or that of any of its suppliers, or if for any other cause beyond Seller's
control, the goods cannot be delivered or their delivery becomes delayed in
whole or in part. In the above instances time for delivery shall be extended
for the period of the delay caused, with the proviso, however, that either
party may cancel in writing the undelivered portion of the order or contract
if the delay exceeds six (6) months from the delivery date originally
confirmed by Seller. In no event shall Seller become liable in the aforesaid
instances to Buyer or any third party for consequential damages or business
loss.
- LIMITATION OF LIABILITY
The remedies provided herein are the sole
and exclusive remedies of Buyer. In no event shall Seller's liability exceed
the amount or amounts actually paid by Buyer, nor shall Seller be or become
liable for any consequential, special or incidental damages. In the event that
some states may not allow the exclusion or limitation - in part or in whole -
of such claims of damages, this provision shall be subject to such state
laws.
- SHIPMENT AS UNITY
Each shipment by Seller shall be treated as a
separate and distinct unit, but only with respect to forwarding, terms of
payment and the making of claims by Buyer; provided, however, that if Buyer
defaults in the payment of any obligation to Seller or any installments
thereof, under any agreement between Buyer and Seller, or if Buyer refuses to
accept any goods under any other contact between Buyer and Seller, the Seller
may on thirty (30) days written notice to Buyer, without prejudice to Seller's
other lawful remedies, either defer further performance until the defaulted
payments are made in full, or make future deliveries for cash in advance only,
or treat the entire contract or contracts with Buyer as breached by Buyer and
pursue its remedies for breach.
- BUYER'S REFUSAL OF DELIVERY
If Buyer refuses to accept delivery of
any goods, then Seller, without prejudice to Seller's other lawful remedies,
may store the goods in a warehouse for Buyer's account and at Buyer's cost
risk and expense, or sell such goods (without notice) to any purchaser and
hold Buyer liable for any difference in price between (a) the contract price,
and (b) the price at which such goods are resold less the cost and expense of
such release including brokerage commission, subject, however, to applicable
Federal and State laws.
- GOODS IN TRANSIT
If prior to delivery or while the merchandise is
in transit, Buyer becomes bankrupt or insolvent, or any petition in bankruptcy
or for reorganization, or for a state court receivership is filed against
Buyer, the Seller may forthwith terminate this contract by giving written
notice of such termination. Such termination shall not prejudice Seller's
rights to any amounts then due under the contract. If Buyer becomes bankrupt
or insolvent or any petition in bankruptcy or for reorganization or for a
state court receivership if filed against Buyer, then at its option. Seller
may take possession of any goods theretofore sold to Buyer in connection with
which the full purchase price has not been paid, analogous to the terms and
provisions set forth in Paragraphs 10 and 11 hereinafter.
- DELIVERY
Unless otherwise agreed, delivery of the goods to any
carrier shall constitute delivery to Buyer, and thereafter the risk of loss or
damage to the goods shall be upon Buyer.
If Buyer does not give
delivery instructions to Seller at least four (4) weeks prior to the delivery
date ex factory confirmed by Seller, Seller may deliver the goods to a carrier
of its own choosing, at Buyer's cost and risk, or at Seller's option, may
store the goods on the pier or in any warehouse at Buyer's cost and risk. The
purchase price in such event shall become due and payable within ten (10) days
of such storage.
- TERMS OF PAYMENT
Payment terms are 30 days net. Seller
reserves the right, in case of Buyer's default, to charge interest of two
percent (2%) over prime rate charge by the Chase Manhattan Bank of New York to
its best customers, on all outstanding balance. Time of payment is of the
essence under this contract. Upon default in any of the terms of this contract
or failure to comply with any of the conditions hereof, or upon seizure of the
property under execution or other legal process, or if Buyer becomes bankrupt
or insolvent, or any petition for reorganization or for a state court
receivership is filed against Buyer, or if the Buyer makes any assignment for
the benefit of his creditors or otherwise sells, encumbers or disposes of the
merchandise, or if for any other reason the Seller should deem itself
insecure, the full amount of the purchase price then remaining unpaid shall at
once become due and payable at the option of the Seller.
- BUYER'S DEFAULT
Upon Buyer's default, Seller may make any
disposition of the merchandise that it deems fit and, if it desires to resell
the same, may do so at private or public sale, with or without notice and with
or without the property being at the place of sale, subject, however, to
applicable Federal and State laws. The Seller or its assigns shall have the
right to bid at such sale and may become the purchaser of the property. The
proceeds of the sale shall first be applied to the expenses incurred in
retaking, repairing, storing and selling the merchandise, reasonable
attorneys' fees included, and then shall be applied to the payment of the
balance due under the contract. Any surplus remaining shall be paid to Buyer.
If a deficiency results after resale, the Buyer agrees to pay same forthwith,
together with reasonable attorneys' fees for the recovery thereof incurred by
Seller. If upon Buyer's default, the Seller elects not to resell any
merchandise which it may repossess, then the cost of reprossession, including
reasonable attorneys' fees, shall forthwith be due and payable from Buyer to
Seller.
- SECURITY INTEREST AND TITLE
In states and localities which are
governed by the Uniform Commercial Code, this contract shall serve as the
security agreement, reserving in Seller a security interest until full payment
of purchase price. The provisions of the Uniform Commercial Code regarding
security interest shall have preference and apply if inconsistent with other
terms of the conditions of sale herein. In states and localities where the
Uniform Commercial Code does not apply, title to the merchandise shall remain
the Seller or its assigns until full payment of the purchase price. Buyer
agrees to execute forthwith any and all documents in such form as Seller may
require for filing or recording the security interest under the Uniform
Commercial Code with the proper registers or office, or for filing or
recording the conditional sales contract.
- VARIATIONS IN DUTIES AND TAXES
Buyer shall bear any increases,
after the date of this contract, in - or any new imposition of - duties,
levies or taxes relating to the product sold hereunder. Buyer shall further
bear any additional cost and expense to Seller due to increases, subsequent to
the date of this contract, in freight or insurance rates pertaining to the
product sold. The same shall apply to currency exchange fluctuations.
- SALES, USE, AND SIMILAR TAXES
Unless otherwise specifically agreed,
the amount of any sale, use, excise taxes, or any similar taxes for which
Seller is legally liable, either initially or through failure of payment by
Buyer, shall be added to the price quoted or to the purchase price and Buyer
agrees to pay the same to Seller and/or to hold Seller harmless therefrom.
- INSURANCE
Buyer shall keep the merchandise insured against damage
by fire, water or other casualty, with loss payable to Seller for the total
amount until Seller is fully paid.
- BUYER'S RESPONSIBILITY AS TO MAINTENANCE
Buyer shall use, and shall
require its employees and agents to use, all safety devices and guards and
shall maintain same in proper working order. Warning signs on equipment shall
be kept in place and explained to operators. Buyer shall use, and require its
employees and agents to use, safe operating procedures in the operation of the
equipment, its maintenance and changeover, and shall obey and have its
employees and agents obey, safety instructions given by Seller, and follow
safety and operating instructions proved in manual. If Buyer fails to meet the
obligations herein, Buyer agrees to indemnify and save Seller harmless from
any liability or obligations with regard to any personal injuries or property
damages directly or indirectly connected with the operation of the equipment.
Buyer further agrees to notify Seller promptly and in any event not later than
ten (10) days after notice or knowledge, of any accident or malfunction
involving Seller's equipment which has caused personal injury or property
damages and to co-operate fully with Seller in investigating and determining
the causes of such accident and malfunction. In the event that Buyer fails to
give such notice to Seller or to co-operate with Seller, Buyer shall be
obligated to indemnify and save Seller harmless from any claims arising from
such accident.
- CANCELLATION
Once the order has been accepted by Seller, Buyer
cannot cancel without the prior written consent of Seller. In the event that
Seller consents to cancellation, Buyer shall be obligated to pay cancellation
charges according to the state of the design and manufacturing, but in no
event less than fifteen percent (15%) of purchase price. Any deposit under the
contact may be applied by Seller towards cancellation charge.
- INSTALLATION AND OPERATING INSTRUCTIONS
Upon request Seller will
make available factory-trained personnel at Seller's current rates, per
separate agreement. Buyer is to prepare at its expense all service connections
necessary for installation and operation and bring the equipment to its
location prior to calling Just Normlicht personnel.
- NON-ASSIGNMENT BY BUYER
Contract or contracts may not be assigned
by Buyer without prior written consent of Seller.
- COMPLIANCE WITH OCCUPATION SAFETY AND HEALTH ACT (OSHA)
Due to
variations in OSHA standards at various locations, Seller does not warrant
that its goods meet all the requirements of the Act. If and where possible,
Seller will modify its equipment at Buyer's specific request and cost, at
Seller's prices then in effect.
- MODIFICATIONS BY SELLER
Any contract and notice given hereunder
may be assigned, transferred or negotiated by Seller, or the time for the
making of any payment due hereunder by Buyer may be extended by Seller without
derogation of any of the rights of the Seller or its assigns. Waiver by any
party of any default shall not be deemed a waiver of any subsequent default.
- JURISDICTION
Any dispute arising under this contract will be
resolved according to the laws of the Commonwealth of Pennsylvania. The
parties hereto specifically consent to jurisdiction in the Court of Common
Pleas of Bucks County, Pennsylvania. Buyer and Seller agree to waive trial by
jury in any action or other such proceedings arising out of or relating to
this contract.
- APPLICABLE LAW
This contract shall be governed by the laws of the
Commonwealth of Pennsylvania. |
