The products sold by KOSTER American Corporation are the Products.
The terms and conditions of this contract shall apply to sales hereunder whether or not expressly referred to in each purchase order, invoice or other document of purchase or delivery issued by Seller or Buyer. Except as otherwise provided in this contract, no condition, understanding or agreement purporting to modify or vary the term of this contract shall be binding unless hereafter made in writing and signed by the party to be bound. No modification shall be effected by the acknowledgement or acceptance of purchase orders, invoices or shipping, instruction or other forms containing terms or conditions at variance with or in addition to those set forth herein. Any provisions contained in Buyer’s purchase orders which are not consistent with these Standard Terms and Conditions are not accepted by Seller. Unless Buyer notifies Seller in writing to the contrary as soon as practical after receipt of this document by Buyer, the Buyer’s acceptance of the Products or payment therefore shall be equivalent to Buyer’s assent to the terms and conditions hereof.
Buyer shall allow for adequate lead time and shall specify by purchase order or otherwise in writing to Seller the quantity and delivery dates desired for deliveries of the product during such period. Seller will endeavor to comply with the Buyer’s wishes as so expressed; however, Seller shall not be liable for delay or short shipment caused by reasons beyond Seller’s control. The customer assumes all risk of delay. Products are sold F.O.B. Virginia Beach, Virginia freight for the account of Buyer.
Customer shall inspect all purchases immediately upon their arrival and shall, within five days thereafter, give written notice of any claims for any defects in the products.
Customer’s order of the products is not subject to cancellation by Customer after acceptance by the Company. Under special circumstances on a case by case basis, agreements can be made for returns with a restocking fee. Invoices 0-30 days will pay a fee of 25%; 31-45 days will pay a fee of 30% of the returned products plus all freight costs. There will be no returns after 46 days from the invoice date. All material(s) will be inspected for resalable condition, any items not deemed resalable will not be credited to the customer account and may result in additional disposal fees.
Upon the acceptance by Buyer’s carrier, Buyer assumes all responsibility and liability for loss and damage to the product or resulting from the handling, storage or use of the Product, whether used singly or in combination with other products. Seller’s liability with respect to the Product and under this contract shall be limited to the purchase price of the product supplied hereunder in respect of which damages are claimed. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES FROM ANY SOURCE WHATSOEVER.
All specifications of the Products are subject to change without prior notice to the Customer.
In the event of failure by the Company to manufacture, supply or ship any of the Products herein by reason of any fire, explosion, riot, strike, walk out, labor controversy, flood, shortage of water, power, labor, transportation facilities or necessary materials or supplies, default or failure of carriers, or any other cause beyond the reasonable control of the Company, then the Company shall not be liable to the Customer during the period and to the extent of such inability or failure. Deliveries omitted in whole or in part while such inability remains in effect shall be cancelled.
If, due to any of the events specified in paragraph 8, Seller is unable to supply Buyer’s total demands of Product specified in the contract, Seller may allocate its available supply among its customers and its own requirements on a pro rata basis if practical, but in any event in its sole discretion.
All Accounts that are not paid within their payment terms are subject to a 1.5% per month late fee (18% annually) to be invoiced monthly. In the event of nonpayment the buyer shall be liable for all reasonable and necessary fees associated with collections.
If a Customer makes a payment by check and that check is not honored by the Customer’s financial institution, then the Company will charge the Customer the amount which the Customer’s financial institution charged the Company plus an additional $50 returned check fee.
Customer agrees to accept all terms set forth in these Terms and Conditions, and should the Customer not agree with any of the Terms and Conditions, Buyer shall give written notice to the Company within five days of receipt of Terms and Conditions and Shall Immediately return all Products to the Company.
This agreement shall be governed by and construed in Accordance with the laws of the Commonwealth of Virginia and all parties consent to jurisdictions in the courts located in the Cities of Norfolk and Virginia Beach, Virginia and agrees that no other courts shall be appropriate venue for any disputes arising out of the relationship between the customer and the Company.
THE PRODUCTS ARE SOLD WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT FOR THE SPECIFIC WRITTEN WARRANTY PROVIDED BY THE MANUFACTURER AND LISTED IN WRITING ON THE COMPANY’S PRINTED LITERATURE. FURTHER, CUSTOMER SHALL NOT BE ENTITLED TO RECOVER FROM THE SELLER ANY CONSEQUENTIAL DAMAGES, DAMAGES TO PROPERTY, AND DAMAGES FOR LOSS OF USE, LOSS PROFITS, OR ANY OTHER INCIDENTAL DAMAGE OTHER THAN AS EXPRESSLY SET FORTH UNDER THE WRITTEN WARRANTY FROM THE MANUFACTURER.