Allgemeine Geschäftsbedingungen - Terms and Conditions
1. ENTIRE AGREEMENT - Acceptance - Unless otherwise specifically agreed to in writing and signed by an authorized representative of NOBEL Service Supply, LLC , all orders received by NOBEL Service Supply, LLC are subject to the following Terms and Conditions of Sale. Offers to purchase can be accepted only by an authorized representative of NOBEL Service Supply, LLC and offers to purchase are not effective or binding until approved in writing by NOBEL Service Supply, LLC. The terms and conditions of sale contained herein supersede all prior purchase orders, agreements, discussions, negotiations, proposals, or communications between the parties and constitute the entire final contract between the parties which may not be varied except by express written modification signed by Sellerʼs duly authorized representative. Sellerʼs acceptance of Buyerʼs order is expressly conditioned upon Buyerʼs agreement to and acceptance of the terms and conditions of sale contained herein together with any special terms set forth on the face hereof by Seller. Seller shall not be bound by any terms and conditions contained in Buyerʼs forms which in any way alter the terms and conditions imposed in Sellerʼs forms. The receipt of these terms and conditions of sale by Buyer is notice to Buyer of objection by Seller to all other terms, warranties or conditions contained in Buyerʼs forms. Neither the failure by Seller to object to the purchase order or any other communication from Buyer, nor any research on, or development, manufacture, shipment or otherwise of, goods and/or services by Seller shall be deemed a waiver of the provisions hereof or an approval of any terms, warranties or conditions which are additional to, different from, or conflicting with the terms, warranties and conditions contained in these terms and conditions of sale. The Sellerʼs terms and conditions of sale included herein or stated on any of Sellerʼs forms or packages shall govern and control, regardless of whether Buyerʼs purchase order or any other forms precede or succeed this document and regardless of whether the Buyerʼs forms indicate that the terms and conditions therein Seller specifically rejects and Buyer disclaims any printed provisions in Buyer’s printed purchase orders including associated forms and/or documents.
2. ACKNOWLDEGEMENT - NOBEL Service Supply, LLC will issue an order acknowledgement form upon acceptance and authorization of an order. The acknowledgement constitutes the entire agreement between NOBEL Service Supply and the Buyer and supercedes any previous agreements. Prices and delivery dates stated on the order acknowledgement shall prevail in the event of a discrepancy between it and the Buyer's written order. Stock material is subject to prior sale.
3. CREDIT APPROVAL, INFORMATION AND ACCEPTANCE - All orders are subject to approval of Buyers credit and acceptance by Seller. As a condition of sale, Buyer grants Seller the right to investigate Buyers credit, to exchange credit information with others and to report to others about Buyerʼs account and relationship with Seller and Seller is released from any liability emanating therefore.
4. PRICES - Prices and charges per applicable quotation are stated in U.S. dollars unless otherwise noted and are subject to any price adjustment necessitated by NOBEL Service Supply’s compliance with any act of government, laws or regulations. Any prices quoted or charged to Buyer contemplate reasonable and normal production and delivery schedules, and standardized and uniform shipment lengths, and shall be valid for only 30 days from the date of quotation or the acknowledgment of order, whichever is earlier, and are subject to termination by notice within that period. In the event of a blanket order, or if Buyer requests expedited, staggered or delayed production or delivery dates, or non-standard or non-uniform shipment lengths. Seller retains the right to increase the price to compensate for additional production, transportation or other costs, which amount Buyer agrees to pay upon receipt of an invoice therefore. Price in Effect: All shipments will be invoiced at NOBEL Service Supply's price in effect on the date of shipment. Firm Except Metals, All shipments will be invoiced at the prices agreed to on the quotation and the order acknowledgement except for adjustments either upward or downward for the price of metals on date of shipment.
5. TERMS OF PAYMENT - All invoices are due upon presentment and shall be paid without deductions to set off in lawful money of the United States of America. Terms of payment are 1% discount on principal if paid within 5 days, net payment due in 10 days of date of invoice. No discount shall be allowed on transportation or insurance charges or taxes. Buyers shall not deduct credits without a credit memo first being issued by Seller. Seller shall have the right to retain a lien on all unshipped goods and goods recovered in transit until all Buyerʼs indebtedness has been paid.
6. SECURITY INTEREST - Until the total purchase price for the goods sold hereunder is paid by
Buyer, Seller shall be and is hereby granted by Buyer, a purchase money security interest in such as goods and all proceeds thereof. Buyer hereby appoints Seller as its Attorney-in-fact to execute such financing statements and other documents as Seller may reasonably require in order to perfect such security interest. With respect to the security interest, Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code and any other applicable law, which rights and remedies shall be cumulative and not exclusive.
7. BUYER TO PAY TAXES AND ADDITIONAL COSTS - In addition to the purchase price the Buyer shall be obligated to pay for all sales, excise, use, privilege, ad valorem, customs and any other taxes, assessments, tariffs or similar charges imposed, levied or increased by authority of any local, county, state, federal, international or any other countryʼs law, rule, ordinance or regulation concerning the goods for any parts, components or materials thereof, sold to Buyer including the importation, processing, manufacturing, distribution, sale or exportation of the raw materials, parts or manufactured goods. Additionally Buyer shall be liable for any additional costs incurred by Seller arising from any local, county, state, federal, international or any other countryʼs laws regulating the hours and costs of labor for producing the goods. In the event Seller shall be required to pay such taxes, assessments, duties, tariffs or similar charges or incurs such additional costs, the Buyer upon demand shall immediately reimburse Seller for such amounts. Buyer shall furnish to Seller upon demand any appropriate tax exemption certificates.
7. FREIGHT AND RISK OF LOSS - All shipments are F.O.B. Sellerʼs determined point of shipment. Seller reserves the right to route the freight. Buyer assumes all risk of loss, shortage, delay or damage in transit once the goods are delivered to the carrier. Buyer shall be responsible for all freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges and any charges for or increments thereof not set forth in the Quotation, Acknowledgment or Order or initial invoice to Buyer, shall be billed by Seller and immediately paid by Buyer.
8. DELIVERY - Any special delivery instructions must be given by Buyer prior to acceptance of the quoted price so that Seller has the opportunity to readjust its price and Buyer will assume any costs attributable to a variation in the delivery instructions or place of delivery. Shipment and delivery dates indicated on Quotations and Acknowledgments of Orders are estimated and are not guaranteed unless specified. Seller shall not be liable for failure to fill any order or deliver the goods or for delay in delivering the goods due to any causes whatsoever beyond the Sellerʼs control or in the event of the curtailment of production or delay in delivery. Seller reserves the right to deliver on a prorata basis the goods which it produces for all customers for whom it may have orders and Buyer agrees to pay for such partial deliveries when invoiced.
9. INSTALLMENT DELIVERIES - Seller reserves the right to make deliveries in installments. All installments will be separately invoiced and must be paid as billed without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept and pay for previous and remaining installments. Seller reserves the right to refuse to make further deliveries if Buyer fails to pay for any installments when due.
10. NO CANCELLATION - The Buyer may not cancel this order without written authorization from Seller. In the event Seller authorizes a cancellation, Buyer shall be liable for payment of a cancellation charge equal to twenty-five (25%) percent of the value of the order cancelled plus the costs of all materials ordered by Seller to complete Buyerʼs order and any production costs which amount Buyer agrees is a fair and reasonable liquidated damage and agrees to pay to Seller upon receipt of an invoice therefore.
11. RETURNS - Buyer may not return goods unless written authorization is received from Seller. Goods manufactured by order are not subject to return under any circumstances. In the event Seller authorizes a return, Buyer shall be liable for payment of a restocking charge equal to twenty-five (25%) percent of the value of the returned goods. Any returns accepted will be for credit only, transportation costs to be at Buyerʼs expense, and Seller retains the sole discretion to determine the value at which the returned goods will be credited. Seller reserves the right to dispose of any unauthorized returns to materials without affording credit. Any oral instructions must be confirmed in writing by Seller to be valid. All returns must be in the lengths originally shipped or no credit will be allowed by Seller.
12. SERVICE CHARGES, EXPENSES AND FEES OF COLLECTION - A service charge of 1 1/2% per month (18% per annum) will be charged on all invoices not paid within 30 days of date of invoice. In any jurisdiction where a service charge of 18% per annum is deemed usurious then the amount of the service charge shall be deemed decreased to the maximum allowable rate in such jurisdiction. In the event Seller is obliged to refer Buyerʼs account for collection or to retain counsel to enforce its right against Buyer, then whether or not suit is instituted, Buyer agrees to pay to Seller in addition to moneys due on invoices, service and cancellation charges, and all of Sellerʼs costs and expenses, including, but not by way of limitation, court costs and attorneyʼs fees in the amount of twenty-five (25%) percent of the total outstanding amount due which Buyer agrees is reasonable.
13. VARIATION ON QUANTITY SHIPPED - Seller reserves the right to ship and bill Buyer ten (10%) percent more or less than the exact quantity ordered and all documents shall be deemed modified to comport with such change without the necessity of further writing. Unless specific lengths are expressly made a part of this agreement, Seller shall have the right to vary the lengths of the merchandise shipped.
14. RIGHT TO SUBCONTRACT - Seller shall have the right to purchase from other sources or to subcontract the manufacturing of the goods being sold to Buyer.
15. RIGHT TO SUBSTITUTE - Seller reserves the right to substitute materials or goods of equal or better quality and specification than the goods ordered from Seller.
16. BUYERʼS REPRESENTATION AND ASSUMPTION OF RISK - Buyer represents to Seller that it is purchasing the goods for industrial or commercial use or resale for business purposes and not for personal or consumer purposes. Buyer further represents that it is knowledgeable with respect to the type of merchandise sold by Seller and that Buyer, based solely on its own expertise, has selected the merchandise purchased from Seller and has determined that same is suitable for Buyerʼs intended purposes. Buyer hereby assumes all responsibility and risk of loss and damage if the merchandise purchased from Seller fails to meet Buyerʼs intended uses.
17. WARRANTY – Makes no Express or implied warranty, statutory of otherwise, concerning any product, including without limitation any warranty of fitness for particular purpose, any warranty of merchantability , or any warranty as to quality or correspondence with a description or sample. Product may be covered, to the extent available, by warranties that are extended by the manufacturer of the product. Copies of applicable warranties are available upon request. Please contact your local NOBEL Service Supply sales representative for details. Buyer acknowledges that any applicable warranties are the warranties of the manufacturer of the product only, not warranties of NOBEL Service Supply, LLC, and that any claim brought by Buyer with respect to these warranties will be brought against such manufacturer.
18. SPECIAL ORDERS - If any goods shall be manufactured and/or sold by Seller to meet Buyerʼs particular specifications or requirements and is not part of Sellerʼs standard line offered by it to the trade generally in the usual course of Sellerʼs business, Buyer shall defend, protect and save harmless Seller against all suits at law or in equity and from all damages, claims and demands for actual or alleged infringement of any United States or foreign patent and shall defend any suit or actions which may be brought against Seller for any alleged infringement because of the manufacture and/or sale of the material covered thereby.
19. BUYERʼS DUTY TO INSPECT AND LIMITATION ON SELLERʼS RESPONSIBILITY - Buyer must examine the goods carefully and fully upon receipt and before using, cutting or reselling the same and any claim for defective or non-conforming goods must be immediately reported in detail to the Seller in writing. Buyerʼs failure to give such detailed written notice to seller within 5 days of Buyerʼs receipt of Sellerʼs special goods made to order or within 10 days of its receipt of Sellerʼs stock shall constitute an unqualified acceptance of the goods and a release and waiver of all claims. Seller, at its discretion, must be afforded
an opportunity to inspect any non-conforming or defective goods and to cure any problems and Seller shall have the right to require Buyer to assemble and return any defective or non-conforming goods before Seller incurs any liability to Buyer. Sellerʼs sole liability to Buyer and Buyerʼs sole recourse shall be expressly limited to Seller, at Sellerʼs sole options, either replacing any defective goods or reimbursing Buyer for the original price charged for said goods. In no event shall Sellerʼs liability exceed the original price charged for the goods.
21. BUYERʼS DEFAULT - In addition to any rights reserved to Seller under law or these terms of sale,if Buyer becomes insolvent, or if any insolvency petition is filed by or against Buyer, or if an assignment for the benefit of creditors is filed by Buyer, or if a trustee receiver, fiscal agent or other court officer is appointed for Buyer, or if Buyer makes fraudulent transfers or preferential payments, or if Buyer refuses to accept conforming goods or otherwise breaches its obligations to Seller, or repudiates any agreement with Seller, or if Seller in its sole discretion deems itself insecure or feels that Buyerʼs financial condition is impaired or does not justify continuance of production or shipment on the terms agreed upon herein, Seller reserves the right to cancel the order or to refuse to continue production and/or deliveries until it receives full payment in advance or satisfactory security and guarantee that payment will be made when due. In the event of nonpayment for any delivery made, installment or otherwise, Seller may suspend future deliveries due until full payment is made, or may cancel the agreement. Notwithstanding Sellerʼs actions, however, Buyer shall be liable for all costs and expenses incurred by Seller due to Buyerʼs default, including all cancellation charges, court costs and attorneyʼs fees.
22. NO WAIVER OF RIGHTS - Sellerʼs failure to exercise or enforce any of its rights under this agreement or under law shall not constitute a waiver of Sellerʼs rights.
23. NO ASSIGNMENT BY BUYER - Buyer shall not be allowed to assign its contract with Seller.
24. CORRECTION OF ERRORS - Seller shall have the right to correct any stenographic, clerical, typographical, or patent errors contained in this document or any of the documents relating to the transaction between the parties.
25. GOVERNING LAW AND JURISDICTION - This Agreement, the relative rights and obligations of the parties arising out of or relating to this Agreement and any other matter referred to in this Agreement, and the terms and provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without giving any effect to any choice or conflicts of law provision or rule that would result in the application of the laws of another jurisdiction.
26. CAPTIONS - The captions to the clauses contained herein are for identification only and shall only and shall not be construed as being a substantive part of the agreement nor as having any independent meaning.