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TERMS AND CONDITIONS OF SALE 

SELLER’S ACCEPTANCE OF ANY OFFER OR PURCHASE ORDER FROM CUSTOMER IS EXPRESSLY CONDITIONED ON APPROVAL OF SUCH OFFER BY SELLER’S CREDIT DEPARTMENT AND BUYER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS, WHICH TERMS AND CONDITIONS CANNOT BE ALTERED OR AMENDED WITHOUT SELLER’S EXPRESS WRITTEN CONSENT.  SELLER OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY BUYER IN ANY PURCHASE ORDER OR OTHER DOCUMENTS.  ANY ACT BY SELLER IN MANUFACTURING OR DELIVERING ANY GOODS/ITEMS FOR OR TO BUYER SHALL NOT CONSTITUTE AN ACCEPTANCE OF ADDITIONAL OR DIFFERENT TERMS IN BUYER’S PURCHASE ORDER OR ANY OTHER DOCUMENT AND ANY SUCH ADDITONAL OR DIFFERENT TERMS SHALL BE NULL AND VOID AGAINST SELLER.  IF A CONTRACT IS NOT EARLIER FORMED BY MUTUAL AGREEMENT IN WRITING, ACCEPTANCE OF ANY GOODS/ITEMS FURNISHED HEREUNDER SHALL BE DEEMED TO BE ASSENT TO AND ACCEPTANCE OF ALL THE TERMS AND CONDITIONS STATED HEREIN.  ACCEPTANCE OF THE FOLLOING TERMS AND CONDITIONS SHALL BE BINDING UPON BUYER AND BUYER’S PERMITTED SUCCESSOR AND ASSIGNS. 

1. PRICES:  Seller’s prices specified in the Quotation to Customer are subject to the following: 

  • Prices quoted are based on the cost of labor and materials as of the date of the Quotation and on the volume indicated.  Seller shall have the right to adjust prices to reflect (i) any subsequent change(s) in cost of labor and/or materials affecting production costs of the goods/items sold hereunder and (ii) smaller volumes than otherwise indicated. 

  • Unless otherwise stated in writing by Seller and agreed to by Buyer, regardless of destination, all prices quoted are in U.S. dollars and are based on packing for domestic shipment.  Packing for international shipment may incur additional costs. 

  • Unless otherwise stated in writing by Seller and agreed to by Buyer, all prices quoted shall be exclusive of transportation from the F.O.B. point, insurance, taxes (including without limitation any sales, use or similar tax, and any tax levied on or assessed to Seller after delivery by reason of Seller’s security interest in the goods/items), license fees, customs fees, duties and other charges related hereto.  If Seller pays any such shipping charges, premiums, taxes, fees, duties or other charges, Buyer will promptly reimburse Seller therefore.  Buyer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto, and shall hold Seller harmless there from. 

  • Typographical and clerical errors are subject to correction. 

  • Prices quoted are for the goods/items specified only and do not include technical data or proprietary rights of any kind. 

  • Unless otherwise stated in writing by Seller, prices do not include any special inspections which may be required and for which Buyer hereby agrees to pay Seller. 

2. TERMS OF PAYMENT:  Unless otherwise expressly stated by Seller in writing, terms of payment shall be as follows:  

  • With regard to manufactured goods, terms are net cash 30 days from the date of invoice. 

  • With regard to gauges, molds, tools, jigs, and similar items, payment terms are 1/3 upon order date, 1/3 upon notice from Seller of receipt of the items by Seller, and 1/3 upon approval by Buyer of the items and the sample goods manufactured therewith. 

  • With regard to services, terms are ½ with order and balance upon completion, approved by BUYER. 

  • Past due balances will be subject to a service charge of 1 ½ per month (18% per annum), but not more than the amounts allowed by law.  Partial shipments will be billed as made and payments therefore are subject to the above terms. 

3. DELIVERY:  Transportation will normally follow Buyer’s shipping instructions, but Seller reserves the right to select the means of transportation and routing when Buyer’s instructions are not communicated or have been deemed unsuitable.  Unless notified to the contrary by Buyer, Seller may insure the full value of the goods or declare full value thereof to the transportation company at the time of delivery and all such freight and insurance costs shall be for Buyer’s account.  All shipments are F.O.B. Seller’s factory at which the goods are manufactured.  Risk of damage or loss is Buyer’s responsibility after delivery by Seller to a carrier for shipment.  Estimates of shipping dates are approximate, representing Seller’s best judgment when made.  Seller shall make all reasonable efforts to meet dates indicated for delivery or other performance, but Seller shall not be liable for any delays in shipping or in the time in which shipments reach Buyer.

 

4. ACCEPTANCE OF GOODS:  Samples and finished goods shall be deemed approved and accepted by Buyer if written notice of rejection is not received by Seller within 10 days after date of delivery.  Before any rejected goods are returned to Seller, Seller’s prior written authorization and Seller’s instructions regarding how and where goods should be returned must be obtained.  No credit or replacement will be issued on any goods which have been altered or defaced in any way, or upon which an additional process has been performed. 

5. FINANCIAL RESPONSIBILITY:  Whenever Seller, in its sole discretion, determines that Buyer is not financially responsible, Seller shall have the right to (a) require reasonable progress payments for work in process or in the absence of such progress payments, to terminate its obligations, without affecting the obligation of Buyer to pay for goods/items delivered and work in process as of such termination and/or (b) to decline to make deliveries except for cash; and, in either case, Seller shall have no liability to Buyer therefore. 

6. SECURITY INTEREST:  Seller reserves and Buyer grants a purchase money security interest in all goods/items which are the subject of this Quotation or any contract of sale entered into pursuant hereto (and proceeds thereof) as security for the payment by Buyer of the full purchase price for such goods/items.  Buyer agrees to execute such documents as Seller requests to perfect its security interest. 

7. PATENTS, TRADEMARKS AND OTHER INTELLECTUAL PROPERTY:  Seller assumes no obligation or liability with respect to infringements of patents, copyrights, trademarks or other proprietary rights arising out of goods/items sold hereunder.  With regard to any goods/items made specifically for Buyer, Buyer agrees to indemnity and hold Seller harmless against any claims resulting from perceived infringement on intellectual property. 

 

8. LIMITATION OF LIABILITY AND WARRANTIES:  SELLER WARRANTS THAT (A) TITLE SHALL BE GOOD, MERCHANTABLE, RIGHTFUL AND MATERIALS FREE OF ANY SECURITY INTEREST, LIEN OR ENCUMBRANCE; AND (B) MATERIAL WILL BE NEW, FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, BE OF QUALITY, SIZE, DESCRIPTION AND DIMENSION REQUIRED BY BUYER AND COMMUNICATED TO BUYER IN A SATISFACTORLY MANNER.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR ELSEWHERE AND SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, SELLER’S RESPONSIBILITY FOR LOSSES OR LIABILITIES ARISING OUT OF OR RELATED TO THE GOODS/ITEMS COVERED HEREUNDER AND ANY GOODS/ITEMS SHALL BE LIMITED TO REPLACEMENT OF SUCH GOOD/ITEM OR ISSUANCE OF A CREDIT THEREFORE.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, WHETHER SUFFERED BY BUYER OR A THIRD PARTY.  EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN WRITING FROM SELLER TO BUYER.  SELLER MAKES NO WARRANTIES WITH RESPECT TO THE GOODS/ITEMS COVERED HEREUNDER AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND OF FITNESS FOR ANY PARTICULAR PURPOSE. 

 

9. CANCELLATION:  Buyer shall have no right to cancel all or any portion of its order unless it pays Seller for all costs already incurred by Seller, including the price of any goods/items or services required to fill the order already committed to by Seller, including any reasonable allowance for overhead and profit.  Buyer also agrees to indemnify Seller for any expense for molding design and fabrication, including any unamortized cost of such molding which was paid for by the Seller on behalf of the Buyer related to the cancellation of any purchase order(s). 

 

10. TOLERANCES:  Acceptable tolerances on molded goods shall be plus or minus .015 inches.  Unless otherwise expressly stated by Seller in writing, (a) Seller shall not be responsible for color variations in manufactured goods and (b) finish includes only such polish as is obtained from the manufacturing process. 

 

11. INSERTS, SUPPLEMENTAL PARTS:  Inserts or any other supplemental parts supplied by Buyer shall be delivered prepaid, F.O.B. Seller’s factory.  Such inserts or parts are subject to Seller’s design approval, and must be uniform, accurate, and free from burrs.  SELLER SHALL NOT BE LIABLE FOR DAMAGES TO MOLDS, TOOLS, JIGS OR SIMILAR ITEMS CAUSED BY DEFECTIVE INSERTS OR SUPPLEMENTAL PARTS, NOR FOR MANUFACTURED PARTS WHICH ARE MADE WITH INSERTS FURNISHED BY BUYER AND LATER FOUND DEFECTIVE.  Buyer must also approve all design drawings and/or specifications for any inserts, supplemental parts, labels, or any components Seller will be purchasing and incorporating into the end-product on Buyer’s behalf.   

 

12. MAKE WHOLE PROVISION:  Buyer acknowledges that Seller may invest from time to time in certain inserts, supplemental parts, labels or other such components being used in the manufacturing or fabrication of certain end-products that will ultimately be purchased by the Buyer.  Seller will spend money and inventory such products on behalf of the Buyer.  Should Buyer decide to discontinue their relationship with the Seller or discontinue purchasing a particular end-product from the Seller, Buyer agrees to make the Seller “whole” by purchasing all unused materials specifically sourced on behalf of the Buyer at the carrying cost of the Seller.  NOTE: Seller agrees that inventory volumes will remain reasonable to satisfy Buyer’s current demand for the end-products being sourced from the Seller. 

13. MOLDS, TOOLING, ETC.:  Unless otherwise stipulated by written agreement, any and all special gauges, molds, tools, jigs or similar items that are required to produce Buyer’s products will either be furnished to Seller by the Buyer or be purchased from the Seller under a mutually agreed upon price and payment term.  Seller will not insure Buyer’s gauges, molds, tools, jigs or similar items in Seller’s possession; therefore, Buyer agrees to carry adequate insurance to cover such items.  Seller will communicate anticipated costs to maintain all molds and/or other equipment built for the Buyer; Buyer agrees to pay for and maintain all of these communicated costs for molds built by Seller on Buyer’s behalf.  Seller agrees to keep all molds in operating condition for the shorter of (a) their ordinary life or (b) one year after completion of the most recent production order.  Buyer shall maintain all molds furnished or altered by it.  Upon completion of the manufacturing process, and receipt by Seller of payment in full of all amounts owed by Buyer to Seller, such items will be delivered to Buyer at any time upon Buyer’s request and payment of all corresponding delivery charges. 

 

14. ASSIGNMENT:  This Quotation is issued only to the Buyer named on the face hereof.  Any assignment by Buyer of this Quotation or any contract entered into pursuant hereto is void without the prior written consent of Seller, such consent shall not be unreasonably withheld. 

 

15. SPECIFIC LIABILITY EXCLUSION:  Seller shall not be liable for loss or damage of any kind resulting from delays or inability to deliver on account of acts of God, fire, labor troubles, accidents, acts of civil or military authorities, fuel, labor or materials shortages, or any other conditions beyond Seller’s control.  Performance shall be deemed suspended and extended by the Seller during any time in which such circumstances may cause unforeseen delays in the completion of Buyer’s Purchase Order(s). 

 

16. SEVERABILITY.  Any provision herein which is prohibited by the laws of any state or other jurisdiction applicable hereto shall be ineffective to the extent of such prohibition, without invalidating the remaining provisions of the contract between the parties. 

 

17. SURVIVAL:  The following provisions of the Quotation shall survive any termination of any contract of sales entered into pursuant hereto: Paragraphs 7, 8, 11, 12 and 13 and all other provisions, rights and obligations that by their sense and context are intended to survive until performance thereof. 

18. CONFIDENTIALITY:  Seller agrees not to reveal to any other person or use for any other purpose other than the fulfillment of Buyer’s order any information that is considered proprietary by Buyer, unless such has been expressly agreed to in writing by Buyer. 

 

19. CHOICE OF LAW:  This Agreement between Buyer and Seller shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of Georgia, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 

 

20. DISPUTE RESOLUTION:  Any dispute, controversy, or claim arising out of or related in any way to purchase orders submitted to the Seller, these Terms and Conditions of Purchase, and/or any related contract, including but not limited to the validity, scope, and enforceability of this clause, which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before one arbitrator sitting in Cobb County, Georgia. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Georgia. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement. 

 

21. QUALITY MANAGEMENT SYSTEM:  The Seller has implemented and will maintain an industry-recognized Quality Management System. Buyer reserves the right to review the Seller’s Quality Management System at any time. 

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