All quotations and sales by First Wave Products Group, LLC are subject to the following terms and conditions
FREIGHT, DUTY AND TAXES. Prices of Products do not include any taxes, freight, handling or any other similar charges. Buyer shall bear all Taxes (including, without limitation, any Superfund Tax) that are levied on or in connection with the purchase or sale of the Product or the storage, transportation, handling, use and/or consumption of the Product at or after the time that title to the Product has passed to Buyer.
PAYMENT Unless otherwise specified herein, payment in required from Buyer prior to shipment. An interest charge of 1.5% per month will be added to all invoices not paid on time.
CANCELLATION OF ORDERS Orders may be cancelled at no cost prior to shipment.
DELIVERY, SHIPMENT AND RISK OF LOSS. The Seller shall make every effort to complete orders within the time promised but delivery dates are estimates. The date of shipment shown on Seller’s quotation or otherwise promised are subject to changing conditions which may be beyond the Seller’s reasonable control. Under no circumstances will the Seller assume responsibility or liability for any damage or claims resulting from delays in delivery schedule. Unless otherwise specified, shipments are FOB (US) or ExWorks (International) Seller’s facility. Responsibility for any loss or damage ends, and title passes to the Buyer when Product is delivered to the carrier. With respect to reusable packaging containers provided by Seller, if such reusable containers arrive at destination in damaged condition, Buyer shall promptly notify (orally and in writing) the carrier and Seller about that condition. Buyer shall be responsible for all such reusable packaging containers while they are within Buyer’s possession or jurisdiction. Such containers shall be returned to Seller at Buyer’s cost and expense within thirty (30) days of delivery of the Product packaged in the reusable container.
ACCEPTANCE AND REJECTION. Buyer will be responsible to inspect the Product and all packaging within seven (7) business days after delivery for any shortages, damage or non-conforming Product. Failure to inspect and report shortages or damage or reject non-conforming Product will be deemed acceptance by Buyer with full responsibility for payment of invoice. All Product rejected by Buyer must receive approval from Seller prior to return. Product returned to Seller will be replaced or Buyer’s account credited at Seller’s option. For any unused product return to Seller after 30 days, Buyer will be charged a restocking fee of $75.00 per item. Returns of used products are not allowed.
SELLER’SWARRANTY Seller warrants that (a) the Product shall be in good condition and free from defects in materials and workmanship, provided the Product is properly used and is not abused, misused or altered in any way, (b) the Product was produced in material compliance with all applicable laws, and (c) Seller has good title to the Product. Any appliance or device claimed by Buyer to be defective must be retuned to Seller, freight charges prepaid, within 12 months of the original shipment date by Seller, unless mutually agreed upon by Seller and Buyer in writing. If Seller determines that the goods are defective in materials or workmanship, Seller shall, at its sole option, repair or replace the defective Product free of charge. If Seller determines that the claimed defect or failure is the result of any abuse, misuse, alteration or other improper treatment, Seller will not repair or replace such Product free of charge, but will, upon the written request of Buyer, repair or replace the Product at Buyer’s sole expense. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
LIMITATIONS ON LIABILITY. SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INCIDENTAL AND/OR SPECIAL DAMAGES. SELLER’S MAXIMUM LIABILITY TO BUYER FOR A CLAIM, SHALL NOT EXCEED THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT IN RESPECT OF WHICH THAT CLAIM IS MADE. (By “CLAIM” or “Claim,” we mean, singly or collectively, all claims, damages, losses, costs and expenses, whether based on this Contract, tort, strict liability, product liability or otherwise, that result from, or arise out of, the manufacture, delivery, non-delivery, transportation, storage, handling or use of the Product.)
INTELLECTUAL PROPERTY Seller reserves the right to discontinue deliveries of any Product if, in Seller’s reasonable opinion, the sale, manufacture or use of the Product by Seller or Buyer would infringe intellectual property rights of third parties.
MEASUREMENT Seller’s determination of the quantity and quality of a shipment shall govern except when proven erroneous.
ENVIRONMENT AND SAFETY Seller shall furnish Buyer with operating and safety information for the Products “Instructions”. Buyer shall familiarize itself and its employees with the contents of the Instructions. Buyer shall disseminate all the information in the Instructions to persons whom Buyer reasonably foresees utilizing the Product. Buyer shall handle, store, transport and dispose of the Product in compliance with all applicable laws and governmental regulations, orders, decrees and requests and the Instructions.
FORCE MAJEURE Performance of any obligation under this Contract (other than to make a payment when due) may be suspended by either party without liability to the other party, to the extent that: an Act of God; war; riot; fire; explosion; accident; flood; sabotage; mechanical breakdown; cancellation of any permit or license; labor dispute; shortages; plant shutdown; governmental laws, regulations or orders; or any other cause beyond the reasonable control of such party that delays, prevents, restricts, limits, or renders commercially infeasible or impractical, the performance of this Contract ( “Force Majeure Event”). The affected party shall invoke this provision by promptly giving written notice to the other party of the nature and estimated duration and effect of the Force Majeure Event. The total Contract quantity hereunder shall be reduced by the quantity not delivered because of the Force Majeure Event, and the Contract shall otherwise remain unaffected; provided, however, that this Contract shall automatically terminate if such reduction continues for 180 consecutive days. A party shall not be required to remove or cure any Force Majeure Event if that removal or cure would involve additional expense or departure from its normal practices.
ACCEPTANCE All orders and sales contracts are subject to written approval and acceptance by the Seller or actual shipment of Product by Seller. Any terms or conditions which are in conflict with these terms and conditions shall not be binding upon the Seller unless accepted in writing by the Seller. In case of conflict not expressly accepted by the Seller, the terms and conditions of sale herein shall be considered as superseding terms stated in the Buyer’s purchase order or contract.
ENTIRE AGREEMENT This agreement contains the entire understanding of the parties and is intended as a final expression of their agreement and a complete statement of the terms thereof and shall not be modified except in writing signed by the parties hereto. No waiver by either party of any default shall be deemed a waiver of any subsequent default.
GOVERNING LAW This Contract shall be governed by, and interpreted according to, the internal laws of the State of New York without giving effect to any conflict of laws principles.
DISPUTES Any controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, or regarding a breach hereof (hereinafter, a “Dispute”) shall be submitted to arbitration before a single arbitrator to be selected by the Parties. Said arbitration shall be conducted in Buffalo, New York under and in accordance with the arbitration rules of the American Arbitration Association then in effect.
This Product is exported from the United States in accordance with US Export Administration Regulations. Diversion contrary to US law is prohibited.