Terms and Conditions
01. APPLICABLE CONDITIONS
he terms and conditions on the face hereof and as set forth below shall constitute the entire contract between BRADY PARTS, INC (“Seller”) and the parties purchasing goods and/or services from Seller (“Buyer”) and shall exclusively govern the sale of goods covered hereby. These terms and conditions shall supersede any provisions, terms and conditions contained on any purchase order or other writing the Buyer may heretofore or hereafter issue; and Buyer is hereby notified of Seller’s objection to any terms inconsistent herewith and to any additional terms proposed by Buyer in its purchase. Order or any other writing. Any dispute or controversy arising between Seller and Buyer with respect to the goods and/or services provided by Buyer hereunder shall be resolved pursuant to the terms and conditions set forth herein. If Seller of Buyer have heretofore entered into a formal written contract for a specified term governing the sale of the goods hereunder, them, notwithstanding, the foregoing, the terms and conditions of such formal written terms contract shall govern.
02. Price
The price of the goods and/or services sold hereunder shall be as specified on the face hereof, or, if no price is specified, the price shall be at Seller’s price in effect at date of shipment. In the event of Government action, order, or request, which, prior to delivery, prevents Seller from adjusting or continuing in effect the price herein quoted, Seller shall have the right to cancel this contract.
03. Taxes
Any taxes, excises, or other charges imposed on Seller by law on or incident to the production, sale, transportation, or use of goods shall be paid by the Buyer, or in lieu thereof the Buyer shall provide Seller upon demand with a tax exemption certificate acceptable to the taxing authorities.
04. Transportation
Transportation charges do not constitute a part of the price and all prices are F.O.B. Seller’s plant, Greensboro, North Carolina unless otherwise noted on the price hereof. To the extent the Seller is to handle the shipment of goods (even though F.O.B. Seller), method and route of shipment are at Seller’s discretion, unless the Buyer supplies explicit instructions.
05. TERM OF PAYMENT
If Seller has reason to doubt Buyer’s financial ability to pay, Seller may decline to make further deliveries, unless Buyer pays cash with order or furnishes security satisfactory to Seller. Seller may cancel this contract if Buyer fails to make any payment due to Seller promptly when due.
06. GRANT OF SECURITY INTEREST
To secure the payment of any and all sums due hereunder, Buyer hereby grants Seller a continuing security interest in the goods sold hereunder, such security interest to continue until the satisfaction, in full, of Buyer’s obligations arising hereunder any other obligations Buyer may have to the Seller. Seller shall have all rights of a secured party under the Uniform Commercial Code or similar statue of the State in which the goods are located. Buyer, by acceptance of the goods sold hereunder, hereby appoints the officers of Seller as Buyer’s Attorney in Fact to execute Uniform Commercial Code financing statements on behalf of Buyer.
07. DEFAULT BY BUYER
In the event Buyer shall fail to make payments for the goods and/or services sold hereunder as and when due in accordance with the terms and conditions hereof, in such event, Buyer shall pay Seller, in addition to the sum due hereunder, all of Seller’s cost of collection from Buyer’s including, but not limited to, attorney’s fees.
08. RISK OF LOSS
Risk of loss and responsibility for containers and all goods sold hereunder shall pass to Buyer upon Seller’s delivery, to carrier whether or not Seller pays all or part of the freight and regardless of any F.O.B. designation in the contract or herein.
09. WARRANTY – LIABILITY
Any warranty with respect to the goods sold hereunder shall be limited to the manufacturer’s warranty (if any) for the goods. In no event shall Seller be liable for any breach of the manufacturer’s warranty or any consequential or special damages or for transportation or other expenses, which may arise in connection with any defective goods. Seller’s warranty for service shall be limited to its service warranty policy in effect at the time the service is performed. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXRESS OR IMPLIED INCLUDING THE WARRIES OF MERCHANTABILITY AND FITNESS.
10. CLAIMS
Any action for breach of this contract by Seller must be commenced within one year after the cause of action has accrued.
11. TECHNICAL SUPPORT
The advice of the technical staff of the Seller is available to Buyer, but the Seller does not warrant or guarantee such advice.
12. APPLICABLE LAW – AMENDMENT
The construction, performance and completion of this contract shall be governed by the law of the State of North Carolina without regard to any provisions regarding conflicts of law. No modification or release shall be effective unless in writing, signed by both parties and specifically stating it is such a modification or release.
13. EXCUSES FOR NONPERFORMANCE
Deliveries shall be subject to, and contingent upon, strikes, labor difficulties, riot, civil unrest, war fire, delay or defaults of common carriers, failure or curtailment in the Seller’s usual sources of supply, governmental decrees or orders, or without limiting the foregoing, any other delays beyond the Seller’s reasonable control, and the Seller shall not be liable for any loss or damage arising therefrom. The Seller shall have the additional right, in the event of the happening of any of the above contingencies, at its option, to cancel this contract or any part thereof without any resulting liability. Any delivery or service not in dispute shall be paid for by Buyer regardless of other controversies relating to other delivered or undelivered goods.
14. DEFAULT – WAIVER
If Buyer is in breach with respect to any of the terms of this contract or any prior contract, Seller may defer shipments until such breach is cured, or may treat such failure as final refusal to accept further shipments and may cancel this contract without any liability whatsoever. Seller may terminate all or any unfilled part of this contract without any liability whatsoever in the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the Buyer, the inability of the Buyer to meet its debts as they become due, in the event of the appointment, with or without the Buyer’s consent, of an assignee for the benefit of creditors or of a receiver, or in the event Seller has reasonable grounds to believe Buyer will not meet its obligations hereunder. Either party’s waiver of any breach or failure to enforce any of the terms and conditions of this contract at any time shall not be in any affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of the contract.
15. LIMITATION OF LIABILITY
Buyer’s exclusive remedy and Seller’s exclusive liability under this contract or otherwise (including negligence) shall be for damages which shall in no event exceed so much of the purchase price as is applicable to that portion of the particular shipment or services with respect to which damages are claimed. In no event shall Seller be liable to Buyer for any incidental or consequential damages arising in connection with this contract or the product or services sold hereunder. Buyer assumes all risks and liability, and Seller assumes no liability, with respect to unloading storage, handling, sale and use of the product (including its use alone or in combination with other substance or in the operation of any equipment or process), and the compliance or non-compliance with all federal, state and local laws and regulations applicable to the product.
16. CAPTIONS
The titles contained in this contract are for reference purposes only and shall not affect in any way the meaning or interpretation of this contract.
17. SEVERABILITY
In any provision of this contract shall be prohibited or invalid, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision and the remaining provisions of this contract.
18. AMENDMENT
This contract is intended as the final expression of the parties’ agreement and is the complete and exclusive statement of the terms hereof; and neither party shall claim any amendments, modifications or release from any provision hereof by reason of (a) a course of action or mutual agreement unless such agreement is in writing signed by the other party and specifically stating it as an amendment to this contract, (b) course of performance, or (c) usage of trade. No modification or addition to this contract shall be effected by the acknowledgement or acceptance by Seller of any purchase order, acknowledgement, release or other forms submitted by Buyer containing other or different terms or conditions.