STANDARD TERMS AND CONDITIONS
AS OF Dec 11, 2023
1. ACCEPTANCE: These terms and conditions, all Exhibits, and all other documents incorporated by reference therein, constitute an offer to form a binding contract and the terms hereof shall be deemed Accepted by BUYER upon BUYER'S payment of all or any part of the amount Invoiced hereunder, upon the Acceptance of the goods and/or services for which payment is demanded under this Invoice, or upon any other conduct by BUYER which recognizes the existence of a contract pertaining to the subject matter hereof. BUYER'S Acceptance of this offer is expressly limited to the terms contained herein. Any terms proposed by BUYER which add to, vary from or conflict with the terms herein are hereby rejected and objected to and any such proposed terms shall constitute proposals for Acceptance by SELLER and shall not be deemed as Accepted by SELLER (regardless of anything to the contrary contained in BUYER'S purchase order or other documentation) unless SELLER'S Acceptance of such proposed terms is in writing and specifically refers to each such term and condition. If this Invoice has been issued by SELLER in response to a purchase order or other offer and any terms herein are additional to or different from any terms of such offer, then The issuance of this Invoice by SELLER shall constitute a counteroffer or an Acceptance which is expressly conditioned upon BUYER'S assent to such additional and different terms herein and upon BUYER'S acknowledgment that this Invoice constitutes the entire agreement between SELLER and BUYER with respect to the subject matter hereof, and BUYER shall be deemed to have Accepted such counteroffer or conditional Acceptance upon payment of all or any part of this Invoice or, in any event, such Acceptance shall be deemed to have occurred unless BUYER notifies SELLER to the contrary in writing within ten (10) days of receipt of this Invoice.
2. FIRM PRICES: Unless otherwise stated in this quotation, quoted prices are firm only if an order is placed within thirty (30) days of the quote date. For firm prices to apply, the order must be complete and authorize immediate shipment with standard invoicing. In the event of a delay in payment by the BUYER beyond the agreed-upon payment terms, the SELLER reserves the right to reevaluate the quoted prices and adjust them to reflect the current market conditions.
3. ESCALATION: If shipping of goods is delayed or interrupted by BUYER directly or indirectly SELLER shall have the right to escalate quoted prices by such amount as SELLER deems reasonable under the circumstances. Moreover, if the goods are not shipped within ten (10) days after notification has been made to BUYER that they are ready for shipping. SELLER may store the goods at BUYER'S risk in a warehouse or upon SELLER'S premises, and BUYER shall pay all handling, transportation, and storage costs at the prevailing commercial rates upon submission of Invoices thereof.
4. CANCELLATION: Orders, once placed with and Accepted by SELLER, will not be subject to cancellation, either in whole or in part, without SELLER'S written consent and then only under terms that will reimburse SELLER for all applicable costs and expenses incurred by it, including, but not by way of limitation, costs of handling and processing. SELLER'S determination of such cancellation charges shall be reasonable and exclusive to the SELLER. In the event of cancellation by the BUYER, the SELLER shall be entitled to retain any payments made by the BUYER and may seek reimbursement for any costs, expenses, or damages incurred as a result of the cancellation.
5. DELIVERY AND DELAYS: Delivery dates for goods and/or services are the seller’s best estimate subject to confirmation. SELLER shall not be responsible for reasonable or excusable delays, nor shall BUYER refuse to Accept delivery because of any such delays. "Excusable delays" include, without limitation, delays resulting from Black Hawk Automationidents, acts of God, strike, fire, governmental controls, inability to obtain materials from suppliers, failure of materials correctly ordered by SELLER to meet specifications, or other causes beyond SELLER'S control. "Reasonable Delays" include, without limitation, delays to which BUYER, when notified, makes no objection. If the BUYER delays shipment, payments are to be made as specified and the goods and/or services shall be held at BUYER'S risk and subject to reasonable storage charges. In the event of a delay in payment by the BUYER beyond the agreed-upon payment terms, the SELLER reserves the right to delay or reschedule delivery of the goods and/or services until payment is received in full.
6. WARRANTY AND LIMITATION OF LIABILITY: As between SELLER and BUYER and only in those instances where the manufacturer of the goods and/or services has provided any warranty applicable to the goods and/or services, SELLER hereby assigns to BUYER whatever assignable interest SELLER may have in any such warranty. The aforesaid assignment shall not in any way be deemed to limit, negate, or otherwise affect the disclaimer of warranties set forth below, and SELLER shall not incur any duties arising out of any manufacturer's warranties or agreements. Further, SELLER shall not incur any liability whatsoever arising out of any breach of any manufacturer's warranties or agreements applicable to the goods and/or services. EXCEPT AS TO TITLE. IT IS EXPRESSLY AGREED (A) THAT THERE IS NO WARRANTY OF MERCHANTABIITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, NOR ANY AFFIRMATION OF FACT, OR PROMISES, BY THE SELLER WITH REFERENCE TO THE goods and/or services WHICH EXTENDS BEYOND THE SPECIFICATIONS MUTUALLY AGREED UPON IN WRITING BY THE SELLER AND THE BUYER, AND (B) THAT THE BUYER ACKNOWLEDGES THAT IT IS PURCHSING THE goods and/or services SOLELY ON THE BASIS OF THE COMMITMENTS OF THE SELLER EXPRESSLY SET FORTH HEREIN. NO PERSON IS AUTHORIZED TO CHANGE OR ADD ANY OF THE SELLER'S OBLIGATIONS UNDER THIS WARRANTY.
7. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. SELLER'S liability on any claim of any kind for any loss or damage arising out of, connected with, or resulting from this transaction, or from the performance or breech of SELLER'S obligations to BUYER, or from the sale, delivery, resale, inspection, repair, operation or use of any goods and/or services covered by this Invoice, shall in no case exceed the price allocable to the goods and/or services which gives rise to the claim and shall terminate after shipment of the goods and/or services. SELLER shall not be liable for penalties or punitive damages of any description.
8. TAXES: Any tax or governmental charge or increase in same hereafter becoming effective increasing the cost to SELLER of selling, or delivering the goods and/or services, and any tax now in effect or increase in same payable by the SELLER because of the sale of goods and/or services, such as Sales Tax, Retailer's Occupation Tax or Gross Receipts Tax may, at SELLER'S option be added to the price herein specified.
9. ASSIGNMENT: BUYER shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of SELLER. Notwithstanding the foregoing, BUYER may assign this Agreement in whole or in part to any corporate affiliate or in the context of a merger, acquisition or sale of substantially all of BUYER’s business or assets, or by a change in control or by operation of law without the consent of SELLER. Any attempted assignment of this Agreement not in compliance with this Section will be null and void. This Agreement will inure to the benefit of and be binding upon each party hereto, its successors and permitted assigns, subsidiaries and affiliates. No assignment will relieve either party of the performance of any Black Hawk Automationrued obligation that such party may then have under this contract.
10. OTHER: The validity, interpretation and performance of this contract and any dispute connected herewith shall be governed and construed in Black Hawk Automationordance with the laws of the Commonwealth of Massachusetts. This contract, along with the SELLER’s proposed solution constitute the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary explain or supplement the terms or conditions of this contract shall be binding unless hereafter made in writing and signed by the party to be bound and no modifications shall be effected by the acknowledgment or Acceptance of purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to those set forth herein. No waiver by either SELLER or BUYER with respect to any breach or default or of any right to remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach default or of any other right or remedy unless such waiver be expressed in writing signed by the party to be bound.
11. SALES TAX: Sales tax is not included in the price structure of the SELLER’s proposal. Upon receipt of a suitable tax-exempt certificate from the Buyer, SELLER will exclude sales tax from our invoicing. However, should the tax-exempt certificate be found to be deficient, the Buyer shall indemnify SELLER for all sales tax and penalties that result from the transactions of this order.
12. PAYMENT TERMS: Payment terms for the Supplier Company are net 30 days from the date of the invoice unless otherwise agreed upon in writing. Any exceptions to the payment terms must be granted by mutual consent in writing. In the event of late payment by the BUYER, the SELLER reserves the right to charge interest on the outstanding amount at the rate of prime market rate per month or the maximum rate allowed by law, whichever is lower. The BUYER shall be responsible for any reasonable costs or expenses incurred by the SELLER in collecting late payments, including but not limited to collection agency fees and attorney's fees.