General Terms and Conditions of Sale
All products, materials, components, goods, commodities, technology and any other items (the “Products”) and services offered for sale by Norquay ("Seller") are sold subject to these General Terms and Conditions of Sale (these “Terms and Conditions”). These Terms and Conditions shall apply to the sale of the Products and/or services described in the Seller’s Quotation, Sales Order, Invoice, or other contract documentation to which these Terms and Conditions are attached or incorporated by reference. Except as expressly agreed by an authorized representative of Seller in writing, no other terms and conditions, including any terms and conditions attached to, or contained within, Buyer's request for quotation, acknowledgment, purchase order or other contract documentation shall apply. Buyer's acceptance of the Products or services delivered by Seller shall constitute an affirmation by Buyer that these Terms and Conditions govern the purchase and sale of the Products or services. THESE TERMS AND CONDITIONS SHALL SUPERSEDE ANY ADDITIONAL, DIFFERENT OR CONFLICTING TERMS PROPOSED BY BUYER OR CONTAINED ON BUYER'S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
Prices and Payment
Product prices are as listed in the applicable Seller’s Quotation or Seller’s acknowledgement unless otherwise agreed in writing. Any tax, duty, custom or other fee of any nature imposed upon this transaction by any federal, state or local governmental authority shall be paid by Buyer in addition to the price quoted or invoiced. In the event Seller is required to prepay any such tax, Buyer will reimburse Seller. All payments are to be made in US Dollars. For domestic orders, payment is due within 30 days of receipt of invoice (upon credit approval) and for international orders, advance payment or letter of credit, unless otherwise specified. Seller may withhold shipments, payments, or other benefits, and/or assess late fees and interest on past due amounts until the account balance is current.
All shipments are made FCA Shipping Point (Incoterms), unless otherwise specified.
Warranties, Limited Liability and Claims
Seller warrants that the Product delivered will conform to the Seller’s applicable specifications at the time of shipment.
SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO PERFORMANCE WARRANTY. Any model or sample or any experimental products furnished to the Buyer “as-is” and without any warranty is merely illustrative of the general type and quality of goods and does not represent that the Products will conform to the model or sample. Buyer's sole and exclusive remedy under Seller's warranty shall be limited to repair or replacement of the Product or component thereof which failed to conform to Seller's warranty. Buyer shall be responsible for inspecting all Products shipped hereunder prior to acceptance, provided, that if, Buyer shall not have given Seller written notice of breach of warranty within 30 days following shipment to Buyer, the Products shall be deemed to have been accepted by Buyer and Buyer waives any right or claim with respect to breach of any warranty.
IN NO EVENT SHALL SELLER (INCLUDING ITS AFFILIATES AND SUBSIDIARIES) BE LIABLE FOR ANTICIPATED OR LOST PROFITS OR FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. SELLER'S TOTAL LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE TERMS AND CONDITIONS OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES OR UNITS THEREOF WHICH GIVES RISE TO THE CLAIM.
Products can be returned for credit ONLY with Seller’s written permission and according to the Seller’s return authorization instructions. All returns of Products are subject to a restocking charge. No returns will be authorized after 60 days following shipment to Buyer.
Seller shall not be held liable for any failure or delay in the performance of its obligations resulting from or caused by, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, compliance with any laws, regulations, requests, ordinances, demands, requirements or order of the relevant government or any sub-division, or authority; Act of God; war; fire; flood; accident; labor strike or shortage; interruption of or delay in transportation; shortage of raw materials; or inability to obtain any material used in or equipment needed for the production, consumption, or transportation of the Product(s), whether in any case such circumstance exists on the date of this contract or thereafter arises. To clarify, Seller shall be executed from the performance of its obligations or delivery in an event of any changes in the applicable laws or regulations thereby making it impermissible or noneconomical for Seller to provide the subject Products.
All invoices paid after due date will be assessed a late payment service charge of 18% per annum or the maximum allowed by applicable law, whichever is lower. If, in the Sellers judgment, the financial condition of the Buyer at the time Product is ready for shipment does not justify the terms specified, the Seller reserves the right to change these terms or to require full or partial payment in advance. Seller may, at any time, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. All sales are subject to the approval of Seller’s credit department.
Title and Risk of Loss
Title and risk of loss or damage to the Products shall pass to the Buyer upon delivery of the Products to the carrier at the point of shipment. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only.
The promised delivery date is the best estimate possible based upon current and anticipated manufacturing capabilities of when the product will be shipped. Seller assumes no liability for loss, damage or consequential damages due to delays.
Buyer shall defend, indemnify and hold Seller harmless from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury to or death of Buyer’s employees) arising from or connected with: (i) the possession, handling, processing or use of the Product by Buyer or others; (ii) any acts or omissions of Buyer; (iii) Buyer’s breach of any warranty; and/or (iv) Buyer’s non-compliance of any applicable laws, regulations, orders or other ordinances. Seller may participate in the defense of any such claim for the further protection of its own interests.
Resale or End-User
Buyer represents and warrants that: (i) Product purchased under these Terms and Conditions is for Buyer’s use and consumption; (ii) Product is selected, and will be used, in compliance with all applicable laws, and regulations (e.g., OSHA, DEA, and etc.), as well as all Product information, user instructions, warnings, and limitations; and (iii) Buyer will comply with the federal, state, and local laws applicable to the handling, transportation, storage, use, processing, disposal, distribution, sale, and resale of Products and to any of Buyer’s products that contain or are made by using Products and maintain all necessary licenses or permits.
Products that are sold for Buyer’s use or consumption may not be repackaged, resold, or redistributed in any manner without Seller’s prior written consent. Unless agreed upon in writing by Seller, the Buyer may not sell or offer for sale the Product. Should Buyer violate this clause, Seller may suspend deliveries or terminate this contract.
To the extent permitted by the applicable laws or regulations, if Buyer promotes, sells or otherwise uses the Products outside the agreed use or application; or relabels the Product in any manner; or subdivides, or repacks Products; Buyer bears sole responsibility for meeting all applicable requirements (including packaging and labeling requirements) and for any resulting claims, losses, and damages.
Buyer acknowledges that Products sold by Seller under these Terms and Conditions may be subject to U.S. export control laws and regulations, including without limitation, the Export Administration Regulations, 15 C.F.R. Parts 730 to 774; the International Traffic in Arms Regulations, 22 C.F.R. Parts 120 to 130; and the Foreign Assets Control Regulations codified at 31 C.F.R. Chapter V. Buyer agrees that it will not transfer, export or reexport the Products sold hereunder except in compliance with all applicable U.S. export laws and regulations. Each party shall obtain, at its own expense, licenses, export and import documents, and other approvals as are necessary for each party to fulfill its obligations under these Terms and Conditions. As appropriate, Seller may inform Buyer of applicable export license terms and conditions; Buyer agrees to abide by such terms and conditions. Seller may terminate, cancel or otherwise be excused from performing any obligations it may have under these Terms and Conditions without liability to Buyer if (1) an export license or other approval required to be obtained by Seller is not approved by the U.S. government, (2) an existing license or approval is revoked for any reason by the U.S. government, and/or (3) the U.S. government changes the applicable export control laws or regulations thereby making it impermissible for Seller to provide the subject Products.
Sale Conveys Limited License; No Reverse Engineering
Buyer acknowledges that the Products, components of the Products, and methods of making and using the Products are protected by intellectual property rights owned by Seller. Seller is and shall remain the sole and exclusive owner of any software and any intellectual property incorporated into or embodied in the Products at all times. The Products are offered for sale and sold by Seller hereunder expressly subject to the condition that such sale does not convey any license, expressly or by implication, estoppel or otherwise, under any intellectual property rights of Seller with respect to any invention of Seller or any third party, patented or not patented, embodied in the Products, processes, sales literature or manufacturing operations; except that Seller hereby grants to Buyer, under Seller’s intellectual property rights, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to use such Seller’s intellectual property solely as necessary to use the Products in Buyer’s business. Seller expressly reserves all of its rights under such intellectual property rights, and no manufacture to Buyer’s specifications grants any ownership by or conveyance to Buyer of or to any property right in any invention of Seller. Buyer shall not attempt to reverse engineer or otherwise discover Seller’s intellectual property, patentable, patented or non-patented inventions, trade secrets, secret processes or other confidential information embodied or contained in the Products.
Seller’s weights and/or measurements shall govern unless proven to be in error.
No waiver of any right will be effective against Seller unless supported by consideration and expressly stated in the writing signed by the Seller. The failure of Seller to enforce any right will not be construed as a waiver of Seller’s right to performance in the future. These Terms and Conditions contain the complete and exclusive statement of the agreement between the parties in connection with the subject Products and/or services and shall supersede any prior understandings, communications, commitments, or agreements, oral or written. Buyer warrants that it has not offered or given and will not offer or give to any employee, agent or representative of Seller any gratuity with a view toward influencing such person with respect to the terms, conditions or performance of these Terms and Conditions or any contracts with Seller. Seller and Buyer are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Any provision of these Terms and Conditions that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from these Terms and Conditions with respect to such party or circumstance without invalidating the remainder of these Terms and Conditions or the application of such provision to other persons or circumstances. The provisions of these Terms and Conditions which by their nature are required to survive the expiration or earlier termination of these Terms and Conditions shall survive such termination or earlier termination. The headings used in these Terms and Conditions are for convenience of reference only and shall not be conclusive as to their meaning.
Seller may, at Buyer's request, furnish technical assistance, advice and information with respect to the Products, if and to the extent that such advice, assistance and information is conveniently available. It is expressly agreed that there is no obligation to provide such information which is provided without charge at the Buyer's risk, and which is provided subject to the disclaimers set forth in the Warranties, Limited Liability and Claims paragraph above. The accuracy or completeness of such advice, assistance and information is not guaranteed. Buyer is solely responsible for evaluating and selecting Products and determining whether each Product is fit for a particular purpose and suitable for Buyer’s use and method of application.
Buyer may cancel an order for Products or services placed only with Seller’s prior written consent. In the event of an approved cancellation, Buyer shall be liable to Seller for all Products already manufactured at the time of notice of cancellation and all costs incurred by Seller as a result of such cancellation, including but not limited to, costs of related raw materials, packaging, cancellation costs to suppliers and unreimbursed advances on Products.
Buyer shall not assign its rights or its obligations under these Terms and Conditions without the written consent of Seller.
The validity, interpretation and performance of these Terms and Conditions shall be governed by the law of the Commonwealth of Pennsylvania. The parties agree that any and all disputes or controversies arising out of or in connection with these Terms and Conditions or the sale of the Products or services shall be brought exclusivity in state or federal courts that have jurisdiction over Montgomery County, Pennsylvania.