Binding Contract; Controlling Terms. THE PARTIES HERETO EXPRESSLY AGREE THAT THE TERMS AND CONDITIONS OF THIS INVOICE, WHETHER IT OPERATES AS AN OFFER OR AN ACCEPTANCE, SHALL EXCLUSIVELY CONTROL THE SALE OF THE GOODS REGARDLESS OF ANY CONTRARY OR ADDITIONAL TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER WRITING ISSUED BY PURCHASER. Any invoice or writing issued by Purchaser relating to this invoice shall be for Purchaser’s administrative purposes only and shall be of no force or effect with respect to the subject matter hereof.
Modification: Entire Agreement. Any modification or revision of the terms and conditions of this Invoice must be made in writing and signed by Seller. The entire contract between the parties relating to the sale of the goods is embodied in this Invoice. This Invoice constitutes the final expression of the parties’ agreement, and it is a complete and exclusive statement of the terms thereof.
Warranties; Disclaimer. Seller warrants that the goods conform to the description thereof on the face of this Invoice. EXCEPT WITH RESPECT TO ANY EXPRESS WARRANTY SPECIFICALLY IDENTIFIED AS SUCH IN ANY OWNER’S MANUAL RELATING TO GOODS DELIVERED BY SELLER TO PURCHASER IN CONNECTION WITH THE SALE OF SUCH GOODS. THE WARRANTY DESCRIBED IN THIS PARAGRAPH 3 SHALL BE IN LIEU OF ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Remedy. The parties agree that Purchaser’s sole and exclusive remedy against Seller for breach of the warranty described in paragraph 3 or in any owner’s manual shall be for the repair or replacement of defective goods. Purchaser agrees that no other remedy (including without limitation, incidental or consequential damages for lost profits, lost sales, injury to person or property, or any other incidental or consequential loss) shall be available.
Payment Terms; Applicable Taxes. Unless otherwise provided on the face hereof, payment for goods shipped within the United States or to Canada is due thirty (30) days after the date hereof, and payment for goods shipped elsewhere shall be made by the posting of an irrevocable letter of credit on a United States bank acceptable to Seller. All payments hereunder shall be made in U.S. dollars. Purchaser has 30 days to notify Seller of any price discrepancies. Purchaser may be subject to interest at the rate of one and one-half percent (1 and ½%) per month on the unpaid balance on past due accounts. Applicable taxes, assessments and other charges are separately itemized and set forth on the reverse side hereof. Purchaser agrees to pay for any and all such taxes, assessments or charges that the Seller is required by law to pay or collect with respect to the sale of the goods.
Shipments and Tender of Delivery. Unless otherwise agreed, the goods shall be shipped to Purchaser f.o.b. Seller’s plant. Delivery by Seller of the goods to a carrier at Seller’s plant shall constitute delivery to Purchaser. At the time of delivery, Seller shall provide the carrier with all appropriate documents to enable Purchaser to obtain possession of the goods. In the absence of specific instructions from Purchaser for routing of the goods, Seller shall determine the routing of the goods to Purchaser. Neither Purchaser nor any consignee shall divert or reconsign any shipment of goods to any destination other than specified in the bill of lading without Seller’s permission.
Titles; Risk of Loss. Title to the goods passes to Purchaser upon Seller’s delivery of the goods to a carrier at Seller’s plant, or if delivery is made at a place other than Seller’s plant, then title shall pass to Purchaser at such other place of delivery. Title to the goods shall revest in Seller if Purchaser either rejects or refuses to accept the goods. Risk of loss shall pass to Purchaser at the point of delivery.
Rejection of Goods. A rejection of nonconforming goods by Purchaser shall not be effective unless it is made in writing and notice thereof is given to Seller within ten (10) days after Purchaser receives the goods from the carrier. Purchaser shall follow Seller’s instructions with respect to such rejected goods. If Seller fails to give Purchaser instructions within fifteen (15) days after Seller’s receipt of notice of rejection, Purchaser shall either: (1) ship the goods to Seller’s plant in Salt lake City, Utah, or (2) store the goods for Seller’s account. In either case, Purchaser shall provide Seller with written notice of its action concerning the rejected goods. If Purchaser ships the rejected goods to Seller after Seller’s failure to provide instructions, Seller shall reimburse Purchaser for reasonable shipping costs.
Acceptance of Goods. Purchaser’s use of the goods, without giving written notice of rejection as required hereby, shall be deemed and construed as an acceptance of the goods and as conclusive evidence that the goods comply with the exclusive warranty provided herein. Purchaser’s acceptance of the goods shall prevent Purchaser from subsequently rejecting the goods for any reason and from revoking acceptance of nonconforming goods, unless Purchaser’s acceptance of nonconforming goods was given on the basis of an assurance by Seller or on reasonable cure of nonconformity.
Delays. Seller will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of the goods, or for any damages suffered by Purchaser by reason of such delay, when such delay is directly or indirectly caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortages of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond its control.
Technical Advice. Seller shall not be responsible for the results of any technical advice in connection with the design, installation or other use of the goods.
Assurance of Performance. If Seller, for reasonable cause, deems itself insecure with respect to Purchaser’s ability to pay for the goods or otherwise perform its obligations hereunder, and makes a demand for adequate assurance of performance, Purchaser shall provide such assurance within fifteen (15) days of Seller’s demand. Purchaser’s failure to provide adequate assurance of performance shall entitle Seller to pursue its remedies set forth below as if Purchaser had defaulted hereunder.
Termination. This Invoice cannot be cancelled or terminated by Purchaser for any reason without Seller’s consent, and then only upon condition that purchaser and Seller enter into an equitable settlement to protect Seller against loss. Such an agreement shall include terms for (1) payment to Seller for all conforming goods delivered to Purchaser; (2) payment to Seller for goods in production; (3) an appropriate restocking fee; (4) payment of transportation costs for any goods returned to Seller; and (5) payment to Seller for all costs incurred, including costs for settling claims arising from cancelled orders.
Nonwaiver. Failure or forbearance by Seller to enforce any right hereunder or to insist upon strict performance of any of the terms and conditions hereunder shall not release Purchaser from any of its obligations, nor shall it affect, impair or be deemed a waiver of any of Seller’s rights arising hereunder.
Governing Law. This Invoice shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to the choice of law rules thereof.
Expenses. If Seller is required to engage in any proceedings, legal or otherwise, to enforce its rights against Purchaser, Seller shall be entitled to recover from Purchaser, in addition to any other sums due, the reasonable attorneys’ fees, costs and other expenses of such proceedings.
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