ESE CARBON COMPANY
GENERAL TERMS AND CONDITIONS OF SALE
Applicable Law and Jurisdiction. These general terms and conditions (“Terms and Conditions”) apply to all proposals and quotations submitted by ESE CARBON COMPANY (“Seller”), to all purchase orders received by Seller, and to all goods and services sold by Seller, whether online or by telephone, except as otherwise specifically provided in a document signed by Seller. This sale and any sale resulting herefrom consists only of these Terms and Conditions and those in other documents referenced herein or attached hereto or in a document subsequently signed by Seller and referencing this transaction (all of which constitute the “Agreement”). The Agreement shall be governed, construed and enforced under the laws of the State of Florida including the Uniform Commercial Code in force on the initial date of the Agreement (“UCC”), except as provided herein. The U.N. Convention on the International Sale of Goods shall not apply. Any services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of goods (as separate units), shall be considered ancillary to a sale of goods and the UCC shall apply to all goods and services to be provided hereunder (“Goods”). THE COURTS OF FLORIDA SHALL H AVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT. The parties stipulate to the convenience of Florida courts as to all litigation. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions.
Formation, Integration and Modification. This Agreement supersedes all previous quotations and agreements pertaining to the Goods. Delivery to Seller of Buyer’s acceptance of Seller’s quotation (according to its terms), Seller’s actions in reliance on Buyer’s oral acceptance of a written or oral quotation, or Buyer’s receipt of the Goods, will constitute a binding contract under the terms of the Agreement.
An order submitted by Buyer orally or in a purchase order online or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with these Terms and Conditions), may be accepted, approved or filled by Seller, but any resulting contract and the liabilities or obligations of Seller shall be determined solely by the Agreement, and (unless Seller otherwise advises Buyer in writing) notice is hereby given that Seller objects to any such terms or conditions in Buyer’s purchase order or other writing. Seller shall not be deemed to have enlarged or modified its liabilities or obligations under the Agreement by filling such order or by failing to further object to Buyer’s terms or conditions.
This Agreement is a final, complete and exclusive statement of the parties’ Agreement. No modifications, limitations, waivers or discharge of the Agreement or any of its terms shall bind Seller unless in writing and signed by Seller’s authorized employee. Seller may unilaterally correct any mathematical and typographical errors in the Agreement. Typed provisions of the Agreement take precedence over printed provisions. A course of performance, course of dealing, or customs in the trade shall not constitute a modification or waiver by Seller of any right by Seller.
The Agreement is only for the benefit of the parties, except all disclaimers and limitations applicable to Seller shall be for the benefit of Seller’s agents, employees, contractors, and suppliers. If any provisions are determined to apply to third parties, all other provisions shall also apply.
Prices and Risk of Loss. Prices contained in Seller’s published price lists, if any, are subject to change without notice. Prices contained in individual written quotations or proposals are firm only for a period of 30 days from the date of the quotation. Prices do not include taxes. Buyer shall pay all applicable sales or other taxes levied with respect to Goods (and replacements) and the Agreement, unless exempt therefrom. All prices are in United States dollars. Buyer shall pay all government fees levied on the installation and inspection of the Goods. Buyer shall pay upon receipt all invoices rendered by Seller for any such items Seller may pay and for the Goods.
This Agreement is for a shipment contract and the Goods shall be delivered F.O.B. Seller’s dock. Whether or not Seller prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier. Seller’s breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary.
Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, and manufacturing required by changes requested by Buyer after the date of any quotation.
Shipping and Delivery. All Goods purchased from Seller are shipped via ground service using reputable carriers (e.g., UPS, FedEx, etc.) and Buyer is responsible for all shipping costs associated therewith. All shipping dates are approximate and shall be computed from the date of entry of the order on Seller’s books.
Returns. In addition to valid warranty claims, the Goods may be returned to Seller within 14 days after delivery for a full refund, less a 20% restocking fee; provided that the Goods are in new and unused condition and returned in unopened packaging. Otherwise, all sales are FINAL.
Limited Warranty. The Goods are subject to the Seller’s Limited Warranty, which may be found on our website. A copy of the Seller’s Limited Warranty will also be provided to Buyer upon request.
Disclaimer and Limitation of Express Warranties. There are no express warranties other than those contained in the Agreement. Whether or not the Goods are to be used exclusively by Buyer, there shall be no third party beneficiaries to the express warranties contained herein. Seller does not warrant that it or the Goods are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement or required under applicable law.
Disclaimer of Implied Warranties. SELLER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTY OF NON-INFRINGEMENT.
Indemnification. Buyer shall indemnify and hold Seller harmless from and against any and all third party claims, damages, liabilities, losses and expenses (including reasonable attorneys’ fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale, or other disposition of the Goods and supplies or materials used in connection with the Goods if the action or inaction of Buyer or its agents were a material or proximate cause of injuries or damages giving rise to claims against Seller.
Consequential, Incidental, and Other Damages. BUYER AND THIRD PARTIES SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE. This limitation shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations. Any legal inability to limit or restrict the right of Buyer or a third party to such damages shall not affect the right of Seller to indemnification hereunder, and under no circumstance shall Buyer recover more than the purchase price of the Goods.