BUFFALO LIFTING & TESTING, INC. TERMS AND CONDITIONS OF SALE
1. Seller’s Terms and Conditions to Control: No Material Alterations Permitted. The following terms and conditions of sale are hereby made a part of all quotations, contacts, or sales made by BUFFALO LIFTING & TESTING, INC. or its duly authorized representatives (Seller’). Any proposal for additional or different terms by buyer or any attempt by buyer to vary in any degree, any of terms and conditions set forth herein shall not operate as a rejection of these terms and conditions, but shall be deemed an attempted material alteration thereof, and these terms and conditions of Seller shall be deemed accepted by buyer without said additional or different terms. These terms and conditions constitute the terms and conditions upon which Seller offers to sell. If these terms and conditions should be construed as an acceptance of a prior offer by buyer to purchase, such acceptance of Seller is expressly conditional on buyer’s assent to the terms and conditions set forth herein.
2. Prices. Prices do not include any sales, use, excise, occupational, or other similar federal, state, or local taxes which may apply to the sale. Any such taxes are buyer’s responsibility. All prices are F.O.B. Seller’s factory, or other point of manufacture, unless specifically stated otherwise. Risk of loss shall pass to buyer as soon as the items are deposited with the carrier for shipment. Stenographic and clerical errors are subject to correction by Seller.
3. No Modification. No terms, conditions, or warranties other than those stated herein and no agreement or understanding, oral or written, in any way modifying these terms or conditions, whether contained in buyer’s purchase order or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by one of its executive officers.
4. Delivery. Time is not of the essence of this contract. Shipment commitments are based upon the best expectation of Seller’s ability to fulfill the contract or order, but Seller is not responsible for damages or losses caused by delays in delivery due to any cause.
5. Terms of Payment. Terms of payment are as specified on the order acknowledgment. If terms of payment are not specifically stated to be otherwise, they are to be Net 30 days. A late charge of 1.5% per month will be added to all accounts 30 days past due. If the terms of payment are not met within reason, the account could enter default and the limited warranty voided.
6. Title. In the event buyer fails to pay for the items as agreed, Seller shall have the right to immediate possession of the items purchased, and to enter upon the premises where such property may be located and remove same. In the event of such repossession, buyer will pay to Seller Seller’s reasonable costs and expenses of repossession and removal.
7. Cancellation. Buyer agrees that the items ordered by it hereunder constitute special order items. This order may not be canceled by buyer.
8. Limited Warranty: Exclusions. Seller warrants only to the original end user of the items that the items manufactured by Seller will be free from significant defects in material and workmanship for a period of one year from the date of shipment to buyer. Seller will repair or replace at its option any items manufactured by it or parts thereof which prove to be defective because of inferior material or workmanship for a period of one year from the date of shipment to buyer. Malfunction or damage resulting from buyer’s improper installation, misuse, negligence, alteration, or from buyer’s failure to perform periodic inspections and maintenance, or otherwise comply with all applicable standards for usage and maintenance of the items, is excluded from this Warranty. Seller makes no other warranties, express or implied, applicable to any items. Any such warranties including without limitation of the warranties of merchantability or fitness for a particular purpose, are hereby disclaimed by Seller. Items manufactured, sold, or installed by others carry only the manufacturer’s or installer’s warranty (if any).
9. Exclusion or Limitation of Liability. SELLER SHALL HAVE NO LIABILITY FOR INDEMNITY OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR INJURY TO THE PERSON OR PROPERTY OF BUYER. WHETHER THE ASSERTED LIABILITY ARISES FROM BRANCH OF WARRANTY, NEGLIGENCE OF SELLER, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING LIMITATION, SELLER SHALL NOT BE LIABLE FOR DAMAGES TO PROPERTY, DAMAGES OR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS, OF INCOME, OR CONTINGENT CLAIMS OF ANY KIND ARISING FROM LOSS OF PRODUCTION OF GOODS IN STORAGE FOR ANY CAUSE, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
10. Attorneys’ Fees. Buyer agrees to pay Seller’s reasonable attorneys’ fees in the event buyer is in default of payment for the items purchased.
11. Governing Law. Buyer and Seller agree to be bound by the laws of the State of New York. Buyer and Seller agree that any suit, action or proceeding arising from the purchase from Seller by buyer shall be subject to the jurisdiction of the Supreme Court, State of New York, County of Chautauqua.