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1. Acceptance. Any order is subject to acceptance by Q-railing USA Co. ("Seller"). Acceptance is subject to buyer's agreement to these Terms and Conditions of Sale ("Terms and Conditions"). Seller objects to any terms or conditions which differ from, or are additional to, these Terms and Conditions. These Terms and Conditions may only be modified by a writing signed by Seller. Notwithstanding the above, if these Terms and Conditions are construed as an acceptance, or as a confirmation acting as an acceptance, of buyer's order, then Seller's acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER'S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN BUYER'S WRITING. In any event, buyer's acceptance of the goods constitutes buyer’s agreement with these Terms and Conditions.
2. Delivery. Dates or periods for delivery stated in the order are only approximate and not essential terms. Seller will use reasonable efforts to fill the order in accordance with the estimated shipping date, but will not be responsible for any delays in filling the order, nor be liable for any losses, costs, damages, expenses or liabilities resulting from such delays, and the order will not be subject to cancellation for such delays. Seller may, at the request of the buyer, agree to the cancelation of the delivery of goods upon any such delay, provided that all costs and expenses incurred by the Seller up to the time of cancelation are first reimbursed by buyer. Seller shall have no liability to buyer in the event of any such cancelation.
Notwithstanding the above, either party may cancel the order or any deliveries thereunder upon written notice to the other party if delivery of any goods is be delayed more than ninety (90) days by reason of such Force Majeure Event. .
Seller reserves the right to supply the goods from any of its facilities or any subcontractor or supplier of its choice. Delivery of the goods shall take place at the delivery points specified in the order. If the order provides for the buyer to collect the goods, delivery shall take place at the facility from which the goods are to be collected and the buyer shall collect them without delay. If the goods are not collected by buyer within three (3) days of being so notified, Seller may deliver the goods itself by such means of transport as Seller may choose at buyer’s expense and risk, or store them at the expense and risk of buyer. Where the order provides for delivery of the goods elsewhere than at Seller’s facility, Seller will entertain a claim by buyer with respect to loss or damage in transit only if the buyer: (i) provides written notice to Seller within twenty-one (21) days of the shipment of the goods in the case of non-delivery or within seven (7) days of delivery of the goods in any other case; and (ii) where the goods are transported by an independent freight carrier, complies in all respects with the freight carrier’s conditions of carriage for notifying claims for loss or damage in transit. Seller reserves the right to charge to buyer any costs, charges, or expenses incurred by Seller as the result of any transportation delay caused by any act or omission by the buyer, its servants or agents, or as a result of special requirements or stipulations of the buyer not otherwise agreed upon by Seller. Delivery to buyer of a quantity of goods less than that which Seller has agreed to sell shall under no circumstances entitle buyer to reject the goods delivered. Any marine insurance required in connection with the order shall, unless otherwise agreed in writing, be 10% over the invoice price and shall cover the interest from the commencement of transit to the destination named in the order. Except as otherwise agreed in writing by the parties, the delivery terms shall be CIF Germany.
Risk of loss and title to the goods shall pass to the Buyer when the goods are delivered to buyer in accordance with the applicable delivery terms. If buyer wrongfully rejects any such goods, title revests with Seller, but risk of loss remains with buyer. Notwithstanding any such delivery, Seller and buyer expressly agree that until Seller has been paid in full for the goods under this or any other sale or order between it and buyer, or until all other monies due from buyer to Seller on any account have been paid in full, then: (i) Seller shall maintain a security interest in the goods; (ii) Seller may at any time recover those goods in buyer’s possession, if the amount outstanding from buyer with respect to the goods supplied or any other amounts owed shall remain unpaid after the date for payment has passed (with an exclusive requirement of these Terms and Conditions that buyer keep the goods separately and readily identifiable as the property of Seller) and for that purpose Seller, its servants and agents may enter upon any land or building upon which the goods are situated; (iii) buyer has the right to dispose of the goods (as between it and its customer only) as principal in the ordinary course of its business for the account of Seller (but any warranties, conditions or representations given or made by buyer or any third-party shall not be binding on Seller, who shall be indemnified by buyer with respect thereto), with such right being terminable upon written notice by Seller to buyer at any time and being automatically terminated without notice upon any insolvency or liquidation of buyer (as defined by California Corporations Code) or it having a receiver or other similar officer appointed, or calling a meeting of its creditors, or any execution or distress being levied on the goods in its possession; (iv) in the event of such disposal, buyer has a fiduciary duty to Seller for the proceeds, but may retain therefrom any excess of such proceeds over the amount outstanding under this or any other order between them, and Seller has the additional right to recover buyer’s price directly from buyer’s customer to the extent unpaid. If Seller avails itself of such right, Seller will account to buyer for any such excess less any expenses incurred by Seller with respect to such recovery; (v) if buyer incorporates the goods into other products (with the addition of its goods or those of others) or uses the goods as material for other products (with or without addition) the property in those other products is upon such incorporation or use transferred to Seller, and buyer (as bailee for Seller) will store the same for Seller in a proper manner and without charge to Seller, and in the event of such incorporation or use as is envisioned by this sub-section, the provisions of sub-sections (ii)-(iv) above shall apply to those other products in place of the goods. For the purpose of this sub-section, de-coiling, cutting, processing/further processing or re-bundling of goods shall not constitute incorporation or use as material for other products
3. Force Majeure Event. Seller will not be liable for delays or failure in the performance of any of its obligations caused by accidents, labor disputes, shortages of labor, materials, fuel or power, fires, floods or other acts of God, acts or omissions of buyer, restrictions imposed by federal, provincial or state legislation or regulations thereunder, price increases in raw materials that affect Sellers ability to perform, or any cause, whether similar or dissimilar to those enumerated herein, which is beyond the reasonable control of Seller (a "Force Majeure Event"). In such event, Seller may, at its option, be excused from performance or allocate deliveries as Seller, in its sole discretion, deems appropriate.
4. Warranty; Disclaimer of Warranty. Seller warrants to buyer that the goods produced and sold under this order will, at the time of shipment, conform to the specifications provided in the order documentation as accepted by Seller, or where none are specified, to the specifications published by Seller, and be free from defects in material and workmanship. In the event that goods purchased hereunder do not conform to the foregoing warranties, buyer's sole remedy and Seller's sole obligation shall be, at Seller's sole discretion, the repair or replacement of the non-conforming goods or the return of the purchase price for such non-conforming goods to buyer. The foregoing warranty applies only to the extent warranty claims arise from the goods supplied by Seller, and not to the extent arising from conformance with specifications provided by buyer, or modifications, alterations or additions later made to such goods by buyer or its customers. Seller’s warranty obligations shall remain in effect for a period of one (1) year from the shipment of the goods to buyer. Such repair, replacement or repayment will be made only upon return of the nonconforming goods, which may be returned at Seller's cost only after Seller's authorization and buyer's receipt from Seller of definite shipping instructions. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, GUARANTEES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, REGARDING THE GOODS, WHETHER ARISING UNDER ANY STATUTE, OTHER LAW, OR OTHERWISE INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. .
Where the order provides for testing or inspection of the goods by or on behalf of buyer before delivery, whether at Seller’s facility other locations or elsewhere, then upon Seller giving notice of the availability of the goods for inspection/testing to buyer, buyer shall inspect and/or test the goods within seven (7) days of such notice. If buyer does not inspect or test the goods within the time specified, or if within fourteen (14) days of such testing or inspection buyer does not notify Seller in writing that the goods are not in accordance with the order, specifying the alleged nonconformance, then buyer shall conclusively be deemed to have accepted the goods as being in accordance with the order and these Terms and Conditions, and shall not thereafter be entitled to reject the goods on the grounds of anything which such testing or inspection has or would have revealed.
(a) Where the Contract states that the goods are sold as “other than prime,” “non-prime,” “no warranty” or by any such similar description, or where goods are accepted by the Buyer pursuant to Section 4 and the Company and the Buyer agree that such goods are sold as “other than prime,” “non-prime,” and/or “no warranty,” or by any such similar description, then in all cases, such goods are sold in their actual state without warranty and with all fault, whether or not the goods have been inspected by the Buyer prior to delivery. Any statement, specification, description or other information provided by the Company with respect to such goods is given in good faith but the Company can accept no responsibility for its accuracy. Under no circumstances will the Company be under an obligation to replace or repair such goods or entertain any claim whatsoever with respect thereof.(b) If the Buyer re-sells such goods, the Buyer shall ensure that the provisions that are set out in Section 4 are incorporated in the resale agreement, unless prior to resale of the goods the Buyer has caused the goods or such part of the goods resold by Buyer to comply with a recognized specification or standard.
5. Limitation of Liability. Notwithstanding any other provision hereof or applicable law (i) in no event will Seller be liable to buyer or any third party for any incidental, consequential, indirect, special, contingent, or punitive damages in connection with these Terms and Conditions or any order, whether based on theories of breach of warranty, breach of contract, tort, strict liability or otherwise, including but not limited to loss of profits or business interruption, which for this purpose shall be considered to be indirect damages, loss of use of the goods, or loss of goodwill even if Seller has been advised of the possibility of such damages; and (ii) notwithstanding whether any remedies specified herein are deemed to fail of their essential purpose, Seller’s liability to buyer will not exceed the purchase price paid by buyer for the goods on which such liability is based.
6. Termination; Suspension of Order. Seller shall be entitled without prejudice to its other rights and remedies to terminate in whole or in part any and every order between itself and buyer or to suspend any further delivery under any or every order in any of the following events: (a) if any debt is due and payable by buyer to Seller but is unpaid; (b) if buyer has failed to provide any letter of credit, bill of exchange, or any other security required by the order, provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular order under which buyer has so failed; (c) if buyer has failed to take delivery of the goods under any order between it and Seller in a way that is not in accordance with these Terms and Conditions or the order; (d) if buyer becomes insolvent or enters into any composition or arrangement (including a voluntary arrangement with its creditors) or, if a corporation, enters into a voluntary winding up (except where solely for the purpose of reconstruction) or if a receiver (including an administrative receiver) or administrator has been appointed or if any such order of appointment has been made, or if being an individual or partnership, buyer suspends payment of its debt in whole or in part or if an application has been made for an interim order or a petition has been presented for a bankruptcy order or stay or if any such order has been made or if buyer (whether or not a corporation) shall carry out or be subject to any other similar act or proceeding under foreign law, Seller shall be entitled to exercise its aforementioned rights of termination or suspension at any time during the event (or default giving rise thereto) has not ceased or been remedied. In the event of any such event, Seller shall be entitled as a condition of resuming delivery under any order between it buyer to require pre-payment of (or such security as it may require for the payment of) the price of any further or future delivery.
Buyer shall not be entitled to withhold payment of any amount payable under an order because of any disputed claim of buyer with respect to defective goods or any other alleged breach of the order or these Terms and Conditions, and buyer shall not be entitled to a set-off against any amount payable under an order any monies which are then not presently payable by Seller or for which Seller disputes liability.
7. Payment. Unless otherwise agreed upon in writing by the parties, the price payable by Buyer for each delivery of goods shall be Seller’s price as published in its price list current at the date of shipment, to which shall be added any Value Added Tax and any other tax or duty relating to the sale or delivery of goods chargeable to Seller and (where appropriate) the applicable freight and other charges as specified in the relevant carriage tariff current at the date of shipment. Payment terms are as set forth on the quote. Seller shall have the right to assess a late fee on any overdue amounts of 1.5% per month (18% per annum) or the highest rate permitted by applicable law, whichever is less. Buyer hereby grants to Seller a security interest in all goods shipped hereunder, and in all proceeds thereof until the complete purchase price and all additional costs and charges are paid by Buyer. At the request of Seller, Buyer hereby agrees to execute such documents reasonably required to perfect Seller's security interest in such goods. Whenever reasonable grounds for insecurity arise with respect to due payment by Buyer, Seller may demand different terms of payment, and may demand assurance of Buyer’s payment. Any such demand may be oral or written and Seller may, upon the mailing of such demand, stop production and suspend shipments hereunder. If, within the period stated in such demand, Buyer fails or refuses to agree to such different terms of payment or fails or refuses to give adequate assurance of due payment, Seller may, at its option, treat such failure or refusal as a repudiation of the portion of the order which has not been fully performed, or may resume production and may make shipment under reservation of possession or of a security interest and may demand payment against tender of documents of title.
8. No waiver. No provision hereof and no breach of any provision hereof will be deemed waived by reason of any previous waiver of such provision or of any breach thereof or failure of Seller to enforce any such terms or exercise any right hereunder.. Any variation or modification in these Terms and Conditions must be agreed in writing between the parties.
9. Indemnification. Buyer agrees to indemnify, defend and hold Seller harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees) regardless of the theory of liability, incurred by or threatened to Seller in connection with (i) any modifications to the goods by Buyer, (ii) the incorporation of goods into any product, (iii) the extension of any warranties beyond those provided herein, (iv) third party claims for intellectual property infringement, (v) any other acts or omissions of Buyer related to the sale or distribution of the goods or (vi) the design of goods supplied hereunder or the design of the packages or containers in which they are shipped if such goods, packages or containers are made in compliance with Buyer’s design or specification.
10. Confidentiality. Buyer acknowledges and agrees that the terms of this order, including without limitation any pricing information for the order, are confidential ("Confidential Terms"). Buyer agrees (i) not to disclose, directly or indirectly, to any third party any portion of the Confidential Terms without the prior written consent of Seller; (ii) to take all reasonably necessary precautions to protect the confidentiality of the Confidential Terms; and (iii) to promptly advise Seller in writing upon learning of any unauthorized use or disclosure of the Confidential Terms.
11. Severability. In the event that, for any reason, any provision or provisions in these Terms and Conditions or any part thereof is or is held to be void, unenforceable, or otherwise invalid, all other conditions herein, including the remainder of any condition where the effect of some part thereof is avoided shall remain fully effective.
12. Governing Law and Jurisdiction. These Terms and Conditions and all orders hereunder shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws provisions. Buyer hereby submits to the jurisdiction of the state and federal courts in Orange County, California, unless Seller, in its sole discretion, brings an action against buyer in another court of competent jurisdiction. The parties expressly exclude and waive the application of the United Nations Convention on Contracts for the International Sale of Goods (1980) (Vienna Sales Convention) as the same may be amended or replaced from time to time.
13. Assignment. This order may be performed, and all rights hereunder may be enforced against buyer, by Seller or by any subsidiary or affiliate of Seller. This order may also be assigned by Seller to any subsidiary, affiliate or related company of Seller, without buyer’s consent. This order may not be assigned by buyer without the prior written consent of Seller.
14. Survival. The terms contained in Sections 3-13 shall survive any termination or expiration of this order.