TERMS OF ACCEPTANCE: Acceptance by ECORE INTERNATIONAL, INC. (“Seller”) of Buyer’s order is expressly conditioned upon Buyer’s agreement to the terms contained herein. Buyer shall indicate agreement by any one of the following three (3) ways: (a) failing to notify Seller herein the five (5) days of receipt of these terms of any objections to the terms contained herein, (b) accepting the goods delivered hereunder (“Products”), or (c) returning an initialed copy of this form to Seller. These terms constitute the entire agreement between Buyer and Seller, superseding any other oral or written agreements, including all standard terms and conditions of Buyer’s purchase order. Buyer expressly accepts all terms and conditions contained on Seller’s acknowledgement and invoice, regardless of contrary expressions by Buyer. Seller may reserve the right to accept such an order without such acceptance being construed as acceptance of terms or conditions contained in Buyer’s orders which are contrary or in addition to the terms and conditions provided by Seller, all of which are hereby objected to and rejected by Seller. No change or modification of the terms and conditions stated herein shall be made without Seller’s written consent, signed by an authorized representative of Seller.
TERMS OF PRICING AND PAYMENT: All prices are based on Seller’s price in effect at the time of shipment. Assurance of Buyer’s ability to pay may be requested and must be furnished to Seller if requested. All Products are sold, and risk of loss shall pass, FOB at Ecore’s shipping locations in Lancaster or York, Pennsylvania or at Ecore’s authorized distributor warehouse, whichever fills the order. All invoices are due net 30 days from invoice date, without deduction or offset. Overdue payments will be subject to a finance charge of 1.5% per month until paid.
WARRANTIES: EXCEPT FOR ANY EXPRESS WARRANTY THAT MAY BE PROVIDED BY SELLER IN A WRITTEN DOCUMENT SIGNED BY AN AUTHORIZED OFFICER, SELLER NEITHER MAKES NOR AUTHORIZES ANY PERSON TO MAKE OR ASSUME FOR SELLER ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR THE USE OF THE PRODUCTS OR THE PERFORMANCE OF THE PRODUCTS. SELLER MAKES NO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OF MERCHANTABILITY.
SELLER’S LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, DIRECT OR SPECIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY IN RESPECT OF THE PRODUCTS, THEIR SALE, SHIPMENT, DELIVERY, INSTALLATION, USE OR MISUSE OR THE FAILURE THEREOF, WHETHER BASED ON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, IN TORT OR OTHERWISE. BUYER’S SOLE REMEDY FOR ANY LOSS RELATING TO THE PRODUCTS SHALL BE A REFUND OF THE SELLING PRICE WHICH REFUND AT SELLER’S SOLE DISCRETION, MAY BE EFFECTED BY A REPLACEMENT OF THE PRODUCTS, A CREDIT WITH SELLER OR A CASH REFUND. THE PRICE OF THE PRODUCTS IS CONSIDERATION FOR LIMITING THE SELLER’S LIABILITY.
FORCE MAJEURE: Seller shall not be liable for delay in performance or non-performance for any cause beyond Seller’s control. In such event, Seller may fill such other parts of the order as it is capable of filling on schedule and in the event the Buyer places any other part of the order elsewhere, Seller shall be entitled to fill the unplaced portion. In case of any shortage of Products Seller may allocate its production among its customers in Sellers’ discretion, including customers not having open orders at the time of the shortage.
TECHNICAL ADVICE: Unless otherwise specifically agreed in writing, neither Seller nor any representative of Seller is responsible for application or supervision of application of the Products. Any supervision or technical advice or assistance, furnished other than pursuant to such written agreement is furnished gratis and Seller assumes no obligation or liability for any supervision, advice or assistance given or results obtained.
CLAIMS: Buyer shall inspect and test the Products promptly after receipt and before use and within sixty (60) days following receipt shall give Seller detailed written notice of all claims of any kind in respect to the Products. Failure to give such notice shall constitute irrevocable acceptance of Products. All Products claimed as nonconforming for whatever reason shall be properly protected and held intact by Buyer until settlement is made.
INDEMNIFICATION: Buyer agrees to indemnify, hold harmless and defend Seller and its subsidiaries and affiliates and their respective shareholders, directors, officers and agents from and against all claims, causes of action, demands, suits, damages, judgments, liabilities and expenses based upon bodily injury, property damage or economic loss, arising directly or indirectly from or in connection with (a) any breach by Buyer of any representations warranties or other terms of any Agreement with Seller; (b) any warranty, representation or other statement made by Buyer or Buyer’s representatives with respect to the Products without express authorization by Seller; (c) any defective or improper installation or service of the Products by Buyer or any contractor engaged by Buyer, (d) the resale of the Products by Buyer for an inappropriate application or under conditions not approved by Seller; and (e) any negligence, willful misconduct, or violation of laws or regulations by Buyer or Buyer’s representatives.
DELIVERY: Shipments made hereunder may be made in installments, or in a single lot. All Products shall be delivered in accordance with the shipping terms set forth on Seller’s acknowledgement and invoice. All claims of Buyer for loss or damage in transit must be filed against the carrier by Buyer. Specific shipping dates when shown are deemed to be approximate. Except as otherwise stated on Seller’s invoice, Buyer shall pay all freight, transportation, demurrage and insurance charges with respect to the Products and any increases of the same shall be for Buyer’s account.
TAXES: Buyer shall pay all state, territorial and municipal sales, use or similar taxes and federal levies applicable to the Products or the sale, installation or use thereof. All such taxes and charges are payable at the same time as the purchase price.
INSURANCE: Buyer shall maintain property, casualty, and public and product liability insurance with such insurers, against such risks, and in such amounts as may be reasonably acceptable to Seller, at Buyer’s sole cost and expense. Buyer shall see that Seller is named as an additional insured with respect to such liability insurance and that such policies provide Seller with at least thirty (30) days prior written notice of the termination, or material modification of coverage. Upon request, Buyer shall promptly submit to Seller a copy of the policy or policies, together with all endorsements thereto, evidencing the coverage required by hereby.
COLLECTION; CREDIT: Buyer shall make payments without deduction or other expense to Seller and shall pay any reasonable attorney’s fees and other costs of collection incurred by Seller. If Buyer fails with respect to this or any other agreement with Seller to pay an invoice when due or accept any shipment as scheduled, or should Seller have cause to believe that Buyer is, or will be, unable to discharge Buyer’s obligations, Seller may without prejudice to other remedies recall, countermand or divert any shipment to Buyer and revest title in Seller, defer further shipments, demand cash in advance, and/or terminate this Agreement. Seller retains a security interest in all Products sold, and may file such financing statements without Buyer’s signature as may be necessary to perfect Seller’s rights.
SUCCESSORS AND ASSIGNS: This Agreement shall bind and inure to the benefit of their successors and assigns of the parties hereto. This Agreement is not assignable or transferable by Buyer in whole or in part except upon the prior written consent of Seller.
LIMITATION OF ACTIONS: No action or suit to enforce Buyer’s rights or remedies arising from this sale shall be commenced later than one year from the date hereof.
INVALIDITY; REFORMATION: If any of these terms or conditions is determined by a court of competent jurisdiction to be void or unenforceable in whole or in part, such determination shall not impair any other term or condition herein.
CHOICE OF LAW AND JURISDICTION: All contracts for the sale of Products shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any proceeding relating to such contracts or the Products shall at Seller’s option be brought only in the Courts of Common Pleas of Lancaster County, Pennsylvania or the United States District Court for the Middle District of Pennsylvania in Harrisburg, Pennsylvania. Buyer irrevocably consents and submits to the jurisdiction and venue of such courts and irrevocably waives any objection which it may now or hereafter have to the laying of the venue of any suit, action or proceeding brought in such courts and any claim that such suit, action or proceeding brought in such courts has been brought in an inconvenient forum or that such courts lack jurisdiction.
MISCELLANEOUS: The enumeration herein of certain rights does not exclude Seller from asserting other rights which are available at law or equity.