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Terms and Conditions
Fumoto New York, Inc. Terms and Conditions of Sale
These Terms and Conditions May Change
Fumoto New York, Inc. reserves the right to update or modify these Terms and Conditions at any time without prior notice.
All products and services offered for sale by Fumoto New York, Inc. (“FNY”) are sold subject to the terms and conditions stated herein. These terms and conditions shall apply to the sale of the products and/or services described in the FNY 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 FNY 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 FNY shall constitute an affirmation by Buyer that the terms and conditions set forth herein govern the purchase and sale of the goods or services. THE TERMS OF THIS CONTRACT 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, Taxes and Payment
All prices are firm unless otherwise agreed to in writing. FNY reserves the right to change the prices and specifications of its products at any time without notice. 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 FNY is required to prepay any such tax, Buyer will reimburse FNY. Payment terms shall be net 30 days after shipment by FNY. An interest charge equal to 1 1/2% per month (18% per year) will be added to invoices outstanding beyond 30 days after shipment. In addition FNY reserves the right to require pre-paid payment terms from any Buyer whose account is overdue for a period of more than 60 days or who has an unsatisfactory credit or payment record. FNY may also refuse to sell to any person until overdue accounts are paid in full.
Delivery and Shipment
FNYwill make every effort to ship the products or provide the services hereunder in accordance with the requested delivery date, provided that FNY accepts no liability for any losses or for general, special or consequential damages arising out of delays in delivery. All shipment costs shall be paid by Buyer, and if prepaid by FNY, the amount thereof shall be reimbursed to FNY.
Title to the products shall remain with FNY until the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the products from the FNY facility; b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the products at the Port of Entry of the destination country.
Risk of Loss
The risk of loss or damage to the products shall be assumed by Buyer upon the occurrence of the following events: a) when the point of origin of the shipment is within the country of destination, upon the shipment of the products from the FNY facility; b) when the point of origin of the shipment is not within the country of destination, upon the arrival of the products at the Port of Entry of the destination country.
Buyer shall be responsible for inspecting all products shipped hereunder prior to acceptance, provided, that if, Buyer shall not have given FNY written notice of rejection within 30 days following shipment to Buyer, the products shall be deemed to have been accepted by Buyer.
Disclaimer of Express and Implied Warranties
The products shall be covered by the applicable FNY standard warranty. NO OTHER EXPRESS OR IMPLIED WARRANTY IS MADE WITH RESPECT TO THE PRODUCTS. FNY EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. Any model or sample furnished to the Buyer 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 remedies under FNY’ warranty shall be limited to repair or replacement of the product or component thereof which failed to conform to FNY’ warranty.
No products shipped under this Contract may be returned without the express prior authorization of FNY. All wholesale returns of products are subject to a 25% restocking charge. No returns will be authorized after 100 days following shipment to Buyer.
FNY 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 paragraph 7 above.
No agent, employee or other representative has the right to modify or expand FNY’ standard warranty applicable to the product(s) or to make any representations as to the product(s) other than those set forth in FNY’ product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not form a part of this Contract.
Buyer represents that it will not knowingly export, either directly or indirectly, any product or service to any country for which approval is required, without the prior written approval of the office of Export Administration of the U.S. Dept. of Commerce or any other applicable U.S. Government Agency.
Equal Employment Opportunity
FNY is an Equal Opportunity Employer. It does not discriminate in any phase of the employment process against any person because of race, color, creed, religion, national origin, sex, age, veteran or handicapped status.
Modifications, Waiver, Termination
This Contract may be modified, and any breach hereunder may be waived, only by a writing signed by the party against whom enforcement thereof is sought.
This Contract shall be governed by and construed in accordance with the laws (other than those relating to conflict of laws questions) of the State of California.
Limitation Of Liability
In no event shall FNY (including its affiliates and subsidiaries) be liable for anticipated or lost profits or for special, punitive, indirect, incidental, or consequential damages. FNY’ total liability on any claim of any kind for any loss or damage whatsoever arising out of or in connection with or resulting from this Contract 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.
Buyer shall not assign its rights or its obligations under this Contract without the written consent of FNY.
Cancellation Prior to Shipment
In the event Buyer requests that an order for products or services which it has placed with FNY be cancelled prior to shipment, and with which request FNY agrees, Buyer shall be liable to FNY for all costs incurred by FNY as a result of such cancellation, including but not limited to, cancellation costs to suppliers and unreimbursed advances on goods, if any, together with any specifically identifiable incidental and consequential expenses.
Unless otherwise agreed to in writing, FNY reserves the right to make design changes which FNY believes will improve its products. FNY may also satisfy customer purchase orders by shipping 90-105% of ordered quantities for nonstandard products depending on actual yield from such nonstandard product runs. FNY shall only charge Buyer for actual quantities shipped. FNY’ performance shall be excused in the event of strikes, accidents, fires, unavailability of materials and all other causes beyond the control of FNY.
All tools, dies, and patterns produced by or at the request of FNY, or otherwise utilized by FNY in the production of any products sold to Buyer, shall remain the exclusive property of FNY. FNY reserves the right to advertise and/or sell any of the foregoing items and any of its products produced therewith, unless otherwise specifically agreed to in writing by an authorized representative of FNY.
The failure of FNY to enforce at any time any of the provisions of this Contract, to exercise any election or option provided herein, or to require at any time performance by Buyer of any of the provisions herewith shall in no way be construed to be a waiver of any such provisions, or the right of FNY thereafter to enforce each and every such provision. This Contract contains the complete and exclusive statement of the agreement between the parties in connection with the subject products and/or services and supercedes any previous 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 FNY any gratuity with a view toward influencing such person with respect to the terms, conditions or performance of this Contract or any contracts with FNY. FNY 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 this Contract that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from this Contract with respect to such party or circumstance without invalidating the remainder of this Contract or the application of such provision to other persons or circumstances. The headings used in this Contract have no legal effect.