1) The price stated herein shall be in United States currency. The price includes all taxes required by law to be paid by Seller and well as charges for boxing and crating unless otherwise specified, but does not include sales. Use, occupation, license, excise or other taxes or license fees, registration fees, or assessments to be paid by Buyer, which may now or hereafter be imposed upon ownership, possession, leasing, renting, operating, control, use, maintenance, delivery or return of said equipment. The pricing does not include charges for tooling or transportation, which shall be the obligation of the Buyer.
2) Payment is due and payable net on receipt of invoice. Time is of the essence. A FINANCE CHARGE OF UP TO ONE AND A HALF PERCENT (1½ %) PER MONTH, OR THE HIGHEST RATE ALLOWABLE BY LAW, IF LESS THAN ONE AND A HALF PERCENT (1 ½%) PER MONTH, WILL BE ADDED TO THE UNPAID BALANCE ON ALL ACCOUNTS NOT PAID IN FULL ON OR BEFORE THE DUE DATE. THE FINANCE CHARGE IS EQUIVALENT TO AN ANNUAL PERCENTAGE RATE OF EIGHTEEN PERCENT (18%).
3) Regardless of whether the seller or buyer selects the carrier, all shipments are F.O.B shipping points with freight prepaid or collected by Buyer, whichever is applicable. Buyer hereby acknowledges that title and risk of loss shall pass upon delivery of the goods to the carrier.
4) Seller shall have no liability for any cost whatsoever or damage or loss after delivery to the carrier, Buyer acknowledges that all claims therefore including those for the inconvenience, delay, or expense caused by the transportation company shall only be made against the carriers, and Buyer hereby agrees to indemnify and hold harmless Seller for the same. Under no circumstances shall Buyer deduct any amount for damage in transit from the amount due hereunder.
5) Stated shipping dates, dates of delivery, and dates for performing labor, if any, are approximate, and are not a guaranty of any particular date of shipment, delivery, or labor to be performed. Seller shall not be liable for any delay or failure in performance hereunder, or for any damages suffered by Buyer or anyone claiming under Buyer by any reason for such delay, if such delay in performance is due to causes beyond its control, such as acts of God, war, acts of government, fire, flood, strike, delay in transportation, or otherwise. In the event of such delays, Seller may, at its an option, cancel this agreement, or delay performance hereunder for any period reasonably necessary due to any of the foregoing causes during which time this agreement shall remain in full force and effect, and Seller shall have the further right to then allocate its available good between its own use and customers in such a manner as Seller may consider equitable, without liability for any failure of performance which may result therefrom. In the event of a delay or failure of performance not excused under the foregoing, Seller’s liability shall not exceed that portion of the invoice price represented by the quantity of material delayed or not supplied.
6) Seller warrants that the material to be supplied hereunder will conform to the description of the face hereof, subject to the Seller’s standard tolerances for variations and changes in specifications which may be made without notice.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL WARRANTIES, EXPRESSED OR IMPLIED. THERE ARE NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM ANY BREACH OF WARRANTY OR ANY DAMAGES FOR NEGLIGENCE. SELLER’S LIABILITY AND BUYER EXCLUSIVE REMEDY IS EXPRESSLY LIMITED TO THE REPAIR OR REPLACEMENT, WITHOUT COST TO THE BUYER, OF DEFECTIVE MATERIALS, OR THE REPAYMENTS OF THE PURCHASE PRICE UPON RETURN OF MATERIALS, OR THE GRANTING OF A REASONABLE ALLOWANCE ON ACCOUNT OF ANY DEFECTS, AS SELLER MAY SOLELY ELECT.
Seller shave has the right at all times to inspect the materials and otherwise investigate Buyer’s claims. Any claim on account of defective materials or for any other causes whatsoever shall be deemed waived by Buyer unless written notice thereof is given to Seller within thirty (30) days after the date of shipment.
7) If buyer (i) fails to perform any of the terms and conditions to be performed by Buyer , including , without limitation, payment of the purchase price when due, (ii) dissolves or is liquidated, or (iii) is the subject of a proceeding in bankruptcy, insolvency, receivership or assignment for the benefit of creditors, then Seller may , in its sole discretion, without notice (i) defer and shipments or stop materials shipped while in transit until payment in full is made, or until Seller is otherwise satisfied at the Buyers’ financial responsibility and Buyer has give adequate assurance of payment to Seller as requested by Seller (ii)cancel in whole, or in part, an and all orders then outstanding between Seller and Buyer, (iii) declare all sums owing hereunder and under any other agreement, document or instruments between Seller and Buyer, whether now or hereafter existing, to be immediately due and payable, and (iv) exercise any and all other rights and remedies available under applicable law, including, without limitation, the Uniform commerce code of New York . All attorneys’ fees and legal expenses incurred by Seller enforcing the same shall be borne by Buyer.
8) Return of defective products shall be made, TRANSPORTATION CHARGES PREPAID, only with the prior written consent of Seller and subject to such conditions as the seller shall specify. Title and risk of loss shall remain with Buyer until said products are returned F.O.BÂ sellers plant.
9) With respect to any item supplied in accordance with Buyers designs, specifications or instructions, Buyer shall indemnify, defend and hold harmless Seller and its assigns from and against all liability, loss, damage, and expense including reasonable attorney fees, resulting from any actual or claimed trademark, patent or copyright infringement, domestic or foreign, or any litigation based hereon, Such obligation shall survive acceptance of the goods and payment by Buyer hereunder.
10) Except as otherwise herein provided, and in the event, the items supplied hereunder are in accordance with Seller’s design or specifications, Seller shall defend at its expense any suit brought against Buyer based upon a claim that any item provided hereunder infringes and the United States Letters Patent, and shall pay costs and damages finally awarded in such suit, provided that (a) Seller is notified promptly in writing of the suit and is given assistance for the defense of the same (b) Seller shave have sole control of the defense of any suit and all negotiations for its settlement and compromise. In the event of a final non-appealable judicial determination is made that an item is furnished hereunder infringes upon a valid United States patent, Seller shall, at its option and expense, either procure the Buyer the right to continue using the item, replace the same with a non-infringing item, or refund the purchase price and transportation cost thereof.
THE FORGING STATES THE ENTIRE LIABILITY OF THE SELLER FOR PATENT INFRINGEMENT. THERE SHALL BE NO LIABILITY, CONSEQUENCE, OR OTHERWISE, FOR THE USE OF ANY ITEM COVERED BY ANY ADVERSELY HELD PATENT.
11) In connection with the manufacturing of the furnishing of materials hereunder, Seller has complied with federal, state, or local laws or regulations respecting manufacturing, assembly, purchase, or sale of goods
12) No claims for shortage in weight or count with being honored by Seller unless present within one (1) working day after receipt of the goods by Buyer.
13) Seller at the Buyers expense, shall provide, keep in good condition and replace when necessary all dies, tools, gauges, fixtures, and patterns necessary for the production of any goods or materials ordered. Buyer shall be charged for all such tools, or dies unless herein specified to the contrary. Title for all such tooling and dies shall remain the property of the Seller, notwithstanding any payment made by Buyer. Any tools die, and fixture not used in production for a period of two (2) years maybe be scrapped by Seller upon thirty (30) day written notice to Buyer and the proceeds derived therefrom shall be retained by the Seller.
14) Notwithstanding form language the contrary contain din any purchase order or acknowledgment by Buyer of this transaction, whether received by Seller before or after the date hereof, the failure by Buyer to object to the terms hereof in writing within five (5) day after the day herein or shipment of goods by Seller hereunder, shall unless otherwise mutually agreed to in writing, constitute acceptance by the Buyer of the terms hereof. Any additional or inconsistent terms or conditions in Buyer’s purchase order or acknowledgment are not binding on Seller unless agreed to in writing by Seller. No charge modifications or waiver of any other breach or of such provision. Seller’s failure to object to provisions contained in any communications from Buyer shall not be deemed an acceptance of such provisions or as a waiver of the provisions hereof.
15) This invoice supersedes all prior agreements, merges all prior, and constitutes the entire agreements between the parties with respect to the subject matter hereof. The terms and conditions hereof shall be binding upon Seller and Buyer, their respective successors and assigns.
16) Buyer agrees that upon acceptance of the goods or payment hereunder, that any action for breach hereunder shall be commenced within one (1) year.
17) This transaction shall be governed by the laws of the State of New York and any action with respect thereto shall be maintained in the State.
18) If the credit application is denied, 50% of the total invoice is due with a written purchase order. No order will be entered into the production schedule until the deposit has cleared the bank. The remaining 50% is due before delivery on all orders. No exceptions will be made. All materials ordered that are nonstandard or non-restockable parts from MAG LED and their respectable vendors are NC / NR (Non-cancelable and Non-returnable).
19) All sales are final. We accept returns for refund or exchange, only for items damaged in transit.
20) In any litigation, arbitration, or other proceedings by which one party either seeks to enforce a contract or presumed agreement (regardless of the nature of the claim) or seeks a declaration of any rights or obligations under a contract or presumed agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
Mag LED Inc.
7200 New Horizons Blvd – North Amityville, NY 11701
tel: 631.226.1000 fax: 631.226.4444
web:www.mag-led.com email: sales@magniflood.com
Effective 02/2010
