Terms and Conditions of Sale
These terms and conditions govern the sale of products (“Products”) and the provision of services (“Services”) by Antunes & Co. and its divisions, subsidiaries and affiliates (“Sellers”) as well as by third party vendors and/or service providers of Seller. These terms and conditions (“Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby govern. Acceptance by Buyer is limited to and conditioned upon Buyer’s assent to these terms and conditions. Neither Seller’s commencement of performance or delivery shall be deemed or constituted as acceptance of Buyer’s supplemental or conflicting terms and conditions.
Buyer’s acceptance of the Products and/or Services from Seller shall he deemed to constitute acceptance of the terms and conditions contained herein.
THESE TERMS AND CONDITIONS MAY ONLY BE WAVED OR MODIFIED IN A WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must include delivery dates, quantities, approved vendors and complete description of Products being purchased. Seller may designate certain Products as non-cancellable, non-returnable or custoner specific. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.
The prices of the Products are those specified on the front of Seller’s invoice. Price quotations, unless otherwise stated, shall automatically expire thirty (30) calendar days from date issued and may be canceled or amended within that period upon notice to Buyer. Unless otherwise agreed to in writing by the Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state and local taxes, value added, goods and services taces and any other taxes.
Payment in full is due at time of order. Transportation and all applicable taxes and fees from Seller’s facility to Buyer’s location shall be paid by Buyer to Seller, in addition to the purchase price of the Product, unless otherwise agreed to by Seller. Seller will select the carrier in the absence of specific instructions by Buyer.
Delivery and Title
All deliveries will be made EXW (Ex Works as defined incoterms 2000) Seller’s facility or FOB place origin. Subject to Seller’s right of stoppage in transit, delivery of Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer.
Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery of for failure to perform due to delay causes beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. In the event of delay caused by such event the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty. If the Products perished while in the custody of the carrier, the Seller shall be deemed to have performed its obligations in full.
Delivery of a quantity, which varies from the quantity specified, shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall shall not entitle Buyer to cancel other installments.
Acceptance / Returns
Shipments will be deemed to have been accepts by Buyer upon delivery to the said shipment to Buyer unless rejected upon receipt. Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than fifteen (15) days after delivery, after which time Buyer will be deemed to have irrevocably accepted the Products.
Any discrepancy in shipment quantity must be reported within fifteen (15) working days of the receipt of the Products. In the event of an over shipment, Buyer may have the option to return the Products to Seller at Seller’s expense or alternatively, Buyer may elect to retain the Products (subject to adjustment of the invoice and adjustment or the issuance of another invoice and payment to account for such additional items).
Any Product returns shall be subject to compliance with Seller’s return policies and procedures, which are available upon request, as well as a restocking charge equivalent to 15% of the value of such Products as specified in Seller’s invoice to Buyer. Returned Products must be in the original manufacturers sealed packaging and confirm to minimum package quantity requirements. Products not eligible for returns shall be returned to Buyer freight collect.
Limited Warranty and Limitation of Liability
Except as otherwise expressly provided in Seller’s limited warranty policy, Products manufactured by Seller are warranted to be free of electoral and mechanical defects for a period of one (1) year from date of purchase under normal use and service, and when installed in accordance with manufacturer’s recommendation. To ensure continued operation of the Products, follow the maintenance procedures outlined in the Owner’s manual. The warranty for all other parts or components is described in the Seller’s limited warranty policy. It is Buyer’s obligation to request copies of the Seller”s limited warranty policy and shall be deemed to have accepted such warranties upon acceptance of the Products and/or Services.
This warranty does not cover the cost of installation, defects caused by improper storage or handling prior to the placing of the Product.
Seller reserves the right to make changes in design or add any improvements on any Product. The right is always reserved to modify equipment because of factors beyond Seller’s control and government regulations. Changes to update equipment do not constitute a warranty charge.
If any Product is damaged in transit, the Buyer should make a claim directly upon the carrier. Careful inspection should be made of the shipment as soon as it arrives and visible damage should be noted upon the carrier’s receipt. damage should be reported to the carrier and is not covered under the warranty.
Warranty charges do not include freight or foreign, excise, municipal or other sales or use taxes. All such freight and taxes are the responsibility of Buyer.
With respect to any third party manufacturer of component parts, Seller will transfer to Buyer any transferable warranties or indemnities the manufacturer of such component parts or third party vendor/service provider provides to Seller. EXCEPT AS OTHERWISE SET FORTH HERWIN, SELLER SHALL HAVE NO LIABILITY TOWARDS BUYER BEYOND THE EXPRESS TERMS OF SUCH THIRD PARTY WARRANTIES. SELLER ASSUMES NO LIABILITY FOR THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDOR/SERVICE PROVIDERS/ IT IS BUYER’S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE THIRD PARTY WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES.
Seller’s exclusive obligations with respect to non-confirming Product or Service shall be, at Seller’s option, to repair or replace the Product if it is determined to be defective, or to reperform the Service, or to refund to Buyer the purchase price paid for the Product or Service. Notwithstanding anything herein to the contrary, the liability of Seller under this section for all claims shall not exceed the sum of Buyer’s payments for the Products and Services which are the subject of the dispute and the foregoing is the Buyer’s sole and exclusive remedy for all claims under this section.
Replacement Products shall be warranted as set forth in this section above. Any Products repaired or service by the Seller shall be warranted as provided in this section for the remainder of the applicable warranty period.
No warranty shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated to current instructions relating to installation, maintenance or operation, or contrary to industry standards.
Seller disclaims, and shall have no liability for any trademark, trade dress, trade secret, copyright, design or patent infringement or any other intellectual property right, which may occur as a result of the sale of Products to Buyer. The only remedy or recourse for trademark, trade dress, trade secret, copyright, design or patent infringement or any other intellectual property right shall be against the manufacturer of the Products which is explicitly subject to the limited warranty of the manufacturer of the Product. There shall be no remedy or recourse against the Seller or manufacturer to the extent infringement arises from or is otherwise based upon (i) the manufacturer’s compliance with the particular requirements of the Buyers that differ from the manufacturer’s standard specifications for the Product; (ii) modifications or alterations of the product other than by the manufacturer or; (iii) a combination of the Product with other items not furnished or manufactured by the manufacturer.
THE FORGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS, EACH OF WHICH IS HEREBY EXPRESSLY DISCLAIMED BY BUYER. THE REMEDIES DESCRIBED HEREIN ARE EXCLUSIVE AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OR DELAY IN PERFORMANCE OF THIS WARRANTY.
Buyer acknowledges that this Agreement was entered into on an arm’s length basis and it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waves any claim with respect thereto.
If any Product includes software or other intellectual property, such as software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the licensing agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant rights or license to use any software or any other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that Seller is not liable to Buyer or any third party for any copyright, design or patent issue, right or claim that may arise in relation to any component parts provided by any third party vendor/service provider.
Export Control / Use of Products
Buyer certifies that it will be the recipient of Products delivered by Seller. Buyer acknowledges that the Products are subject to export and/or import control laws and regulations of the U.S. and other countries. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that is shall not directly or indirectly export any Products for use in any such export or transmission is restricted or prohibited. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) agrees that Seller and any vendor supplying component parts for the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
Technical Assistance or Advise
Any technical assistance or advise offered by Seller in regard to the use of any Product or provided in connection with Buyer’s purchases is provided free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advise nor that any statement made by any of Seller’s representatives in connections with the Products or Services constitute a representation or warranty, express or implied.
Subject to any of the limitations expressed above (Limited Warranty and Limitation of Liability), no action by Buyer may be brought at any time for any reason against Seller or the manufacturer more than twelve (12) months after the facts occurred upon which the cause of action arose.
The parties agree that any and all disputes, claims or controversies arising out of or related to the validity, Interpretation or performance of this Agreement for all Products and all Services shall be resolved pursuant to this section and that the validity, interpretation and performance of this Agreement for all Products delivered, and all Services performed hereto, shall be governed by, and inserted in accordance with, the internal law of Illinois without giving effect to conflict of laws principals. Both parties agree that any action, demand, claim or counterclaim relating to the validity, interpretation and performance of this Agreement or any other matter between the parties, shall be resolved by a judge alone in Illinois, and both parties hereby waive and forever renounce the right to trail before a civil jury.
Seller shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond Seller’s reasonable control including, but not limited to, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, material or Products through its regular sources, which shall be considered an event of force majeure excusing Seller from performance and baring remedies or nonperformance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.
No course of dealing or failure of either party to strictly enforce any team, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall Seller’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.
This agreement (together with any agreements, policies or terms incorporated by reference) shall constitute the complete, final and exclusive statement of the terms of the Agreement between the parties with respect to the subject matter of this agreement and the transactions between the parties and shall not be modified or rescinded except by a writing signed by Seller and Buyer. The provision of this agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and conditions, which shall remain in full force and effect.
As used herein, terms appearing in the singular shall include the plural and terms appearing on the plural shall include the singular. No rights, duties, agreements or obligations hereunder may be assigned or transferred by Buyer, by operation law, merger or otherwise, without prior written consent of Seller. Any attempted or purported assignment shall be void. Seller’s obligations under these terms and conditions may be performded by divisions, subsidiaries or affiliations or Seller. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their respective successors and assigns. the waiver of any provision hereof or of any breach or default thereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or attracting the validity or enforceability of such provision in any other jurisdiction.