ALL TRANSACTIONS ARE GOVERNED BY TITAN INTERNATIONAL SALES, INC.’S (“SELLER”) TERMS AND CONDITIONS OF SALE. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM SELLER’S TERMS AND CONDITIONS OF SALE ARE HEREBY REJECTED. NOTWITHSTANDING THE FORGOING, ANY SUCH COUNTERPROPOSALS BY A BUYER SHALL NOT OPERATE AS A REJECTION OF THESE TERMS AND CONDITIONS OF SALE.
1. PURCHASE AND SALE OF PRODUCTS.
An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (the “Products”), and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller. Any automatic or computer-generated response to an order shall not be deemed an acceptance of an order. Seller’s acceptance is subject to these Terms and Conditions of Sale (these “Terms and Conditions”), and Seller hereby rejects any terms and conditions that purport to supplement, amend or otherwise modify these Terms and Conditions. Fulfillment of an order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to supplement, amend or modify these Terms and Conditions.
2. ACCEPTANCE OF TERMS AND CONDITIONS.
These Terms and Conditions along with your order that has been accepted by Seller shall constitute the agreement (the “Agreement”) between Seller and you (“Buyer”) with respect to the sale of products by Seller to Buyer. The acceptance of these terms and conditions is an essential prerequisite to any contract of sale made by Seller. Such terms and conditions are an integral part of any quotation made by Seller and of Seller’s formal acknowledgement of any order made by the Buyer. Receipt of Seller’s acknowledgment or order confirmation shall constitute Buyer’s acceptance of these terms and conditions. Unless specifically agreed to, no conditions stated by Buyer in its offer or purchase order shall be binding upon Seller if inconsistent with or in addition to Seller’s terms and conditions as stated herein or such additional terms as may be attached hereto in writing by Seller.
Seller reserves the right to require payment in advance or satisfactory security or guaranty that an invoice will be promptly paid when due if at any time Buyer’s financial responsibility becomes impaired or unsatisfactory to Seller, in its sole discretion, including but not limited to taking a secured interest in the goods and/or products purchased by Buyer.
Shipping dates are approximate and are based upon prompt receipt of all necessary information. Seller will exercise its reasonable efforts to meet the shipment dates specified in an accepted order. However, in no event will Seller be liable for its failure to make delivery, any delay in making delivery or any loss or damage when such failure to deliver, delay, loss or damage results from any cause beyond Seller’s reasonable control, including but not limited to fire, flood or other act of God, strike or labor difficulty or disagreement, accidents at Seller’s facilities, acts or requirements of government or civil authority, riot, war, embargo, truck or car shortage or other transportation delay or difficulty or Seller’s inability to obtain necessary labor, materials or manufacturing facilities because of any cause beyond Seller’s reasonable control in the event of such delay, the date of delivery shall be extended for a period equal to the time loss by reason of such delay.
In the event that any products are shipped or warehoused after Buyer has notified Seller that a sample of such products is acceptable and meets Buyer’s criteria for such products, Buyer will be deemed to have accepted and may not reject any products if the products are substantially similar in quality to the sample.
Unless otherwise stated by Seller, prices will be those set forth in the acknowledgement or order confirmation or in Seller’s published price list in effect at the time of shipment, whichever is greater. If goods are to be warehoused or otherwise stored at Seller’s facility, additional charges may apply. Any added expenses incurred by Seller as a result of the acts or omissions of Buyer will be chargeable to Buyer. Buyer shall pay, in addition to the quoted price, any and all customs duties and sales, use, value added, excise and/or other taxes payable by reason of the sale of Products, together with any interest and penalties thereon. Unless otherwise stated, Seller’s prices do not include sales, use, excise or similar taxes. Consequently, in addition to the prices specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale of products hereunder shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to taxing authorities. In the event that Seller shall pay such taxes prior to receipt of a tax exemption certificate, or in any event Buyer shall, upon demand, reimburse Seller for such amounts.
Payment terms will be as set forth in the quote for the Products delivered by Seller to Buyer. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to credit approval by Seller. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit provided to Buyer, and may require cash payments in advance. Seller reserves the right to cancel any sale if Seller determines, in its sole discretion, that Buyer is unable to pay for any Products.
Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior written consent. Unless otherwise stated by Seller, terms of payment are net cash within thirty (30) days from the date of invoice. Invoices may be submitted on warehoused/stored products or partial shipments. Failure to make timely payment of invoices covering final or partial shipments entitles Seller, at its option, to withhold delivery of products ordered without liability. A late charge of 1.5% per month, 18% per year will be applied to account balances not paid in accordance with our terms. In addition, Seller shall be entitled to reimbursement from Buyer for any attorney’s fees and court costs incurred by Seller in connection with any collection proceedings made necessary by Buyer’s non-payment of Buyer’s account balance.
8. DELIVERY; TITLE; RISK OF LOSS.
Unless otherwise stated by Seller, delivery hereunder shall be made f.o.b. point of shipment, with transportation expenses paid by Buyer. Title to the Products and risk of loss with respect hereto shall pass to Buyer at the time product is delivered to Seller’s warehouse or storage facilities or the carrier, even though selected by Seller, whichever is sooner. This provision shall apply even if the price is quoted f.o.b. destination, c.o.d., etc. Any Products held beyond scheduled shipment date at Buyer’s request are subject to reasonable storage and incidental charges.
9. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS.
Buyer shall inspect the Products within ten (10) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. If Buyer timely notifies Seller of any nonconforming Products, Seller shall (in addition to any other express terms of Sellers order acceptance documentation), replace such nonconforming Products with conforming Products.
EXCEPT AS MAY BE OTHERWISE PROVIDED IN WRITING BY SELLER, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS OF SELLER, SELLER EXPRESSLY EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE BEFORE PURCHASING. BUYER SHALL DETERMINE THE SUITABILITY OF THE PRODUCT FOR ITS INTENDED USE, AND BUYER ASSUMES ALL RISK AND LIABILITY THEREFORE. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE SOUGHT IN CONTRACT, IN TORT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE, AND SELLER’S LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS ON WHICH SUCH LIABILITY IS BASED. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (III) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
BUYER’S SOLE REMEDY, AND SELLER’S SOLE OBLIGATION, FOR ANY BREACH OF ANY WARRANTIES SET FORTH IN WRITING AND DELIVERED BY SELLER TO BUYER SHALL BE THE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SELLER’S LIABILITY IS LIMITED TO THE PRICE PAID FOR THE PRODUCTS WITH RESPECT TO WHICH LIABILITY IS CLAIMED. SELLER’S MAXIMUM LIABILITY FOR ANY BREACH OF THIS AGREEMENT, OR ANY OTHER CLAIM RELATED TO THE PRODUCTS, SHALL BE LIMITED TO THE FEES PAID FOR PRODUCTS DURING THE TRAILING TWELVE (12) MONTHS, SOLD TO BUYER UNDER BUYER’S ORDERS, OR GROUP OF ORDERS, FOR THE SPECIFIC PRODUCT, OR PRODUCTS, FOR WHICH A CLAIM IS BEING MADE.
12. CANCELLATION; SELLER’S RIGHTS.
Buyer may not cancel any order without Seller’s written consent. Seller will not grant consent unless Buyer agrees to pay to Seller reasonable cancellation charges, as determined by Seller. If Buyer fails in any manner to fulfill these Terms and Conditions, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to any and all other remedies available to Seller. If, for any reason, Seller is unable to provide the Products in the quantity ordered, Seller may allocate its available supply of Products in such manner as Seller deems proper in Seller’s sole discretion, without incurring any liability on account of the method of allocation or its implementation. No accepted purchase order may be modified, except with Seller’s written consent, nor may it be cancelled, except with Seller’s written consent and by payment to Seller of a sum equal to the total of out-of-pocket expenses incurred in connection with the purchase order, including but not limited to any changes made to Seller by suppliers for cancellation, plus reasonable sum for overhead expenses and lost profits, as determined by Seller (in addition to and not in limitation of any other cancellation charges set forth in Seller’s acceptance documentation).
13. RETURN OF PRODUCTS.
Any Products rightfully returned by Buyer to Seller will not be accepted by Seller and Buyer will not be entitled to a refund of the purchase price for said products (or, if Buyer has not yet paid Seller the purchase price, the Buyer shall pay Seller the purchase price for the Products according to the terms contained herein) if such Products are not suitable for resale by Seller. For the purposes of this section and by way of example and not limitation, a Product will not be suitable for resale if (i) there has been any decrease in value of such Product as a result of testing by Buyer; (ii) the packaging of such Product, whether tested or not, has been damaged or defaced in any manner; (iii) such Product has been mishandled in any manner causing damage to the packaging or Product, (iv) such Product has been used or (v) such Product was custom made for Buyer and there is no market or customer for such Product other than Buyer.
Buyer agrees to defend, indemnify and hold Seller harmless from any and all liability, loss, damage, cost and expense, including actual attorney’s fees and court costs, which Seller may suffer or incur arising from Buyer’s marketing, distribution, sale and/or delivery of the Products and Buyer’s labels, packaging, formulas or specifications, including but not limited to actual or alleged patent, trademark or copyright infringements.
Seller may terminate this Agreement if Buyer breaches or is in default of any obligation hereunder, which default is incapable of cure; or which, being capable of cure, has not been cured within ten (10) days after receipt of notice of such default; or such additional cure period as Seller may authorize. Seller may terminate this Agreement without notice and may regard Buyer as in default of this Agreement, if Buyer becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated its affairs. Buyer’s payment obligation shall survive termination. Upon termination for nonpayment, Seller shall be entitled to cease filling orders in addition to any other remedies to which it may be entitled.
16. RELATIONSHIP OF THE PARTIES.
Nothing contained herein shall be construed to create an association, joint venture, trust, or partnership, or impose a trust or partnership covenant, obligation, or liability on or with regard to the parties. Each party shall be individually responsible for its own covenants, obligations, and liabilities under this Agreement.
17. COMPLIANCE WITH LAW.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and Conditions. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance.
18. PATENTS AND TRADEMARKS.
The Products are offered and sold on the condition that such sale does not convey any license, expressly or by implication, estoppel, or otherwise, under any patent, trademark, copyright or know-how with respect to which Seller can grant licenses except as specifically set forth herein. Seller will not be liable for any claim of infringement unless due to infringement by Products manufactured by Seller in the form in which Seller has supplied such Products to Buyer and without regard to their use by Buyer. Without limiting the forgoing, Seller will not be liable for any claim of infringement to the extent arising from any modification of any Product or any combination of the Product with any other product. Additionally, Seller will not be liable for any claim of infringement to the extent arising from specifications provided by Buyer. Seller reserves the right to discontinue deliveries of any Products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any intellectual property rights for any third party.
19. GOVERNING LAW.
These Terms and Conditions and the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York without reference to the conflicts of law principles thereof. The contract between the parties hereto shall be deemed entered into at Seller’s place of business. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract. Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions (a “Proceeding”) shall be instituted in the United States District Court for the Western District of New York or the Supreme Court of the State of New York, County of Monroe, and each party irrevocably submits to the exclusive personal jurisdiction of such courts in any such suit, action or proceeding.
If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. FORCE MAJEURE.
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Buyer may not assign this contract without the prior written consent of Seller (which may be withheld, conditioned or delayed in Seller’s sole discretion), and any assignment of this agreement by Buyer without such consent shall be void. No assignment or delegation relieves Buyer of any of its obligations hereunder. These Terms and Conditions are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated hereby, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller. No waiver by Seller of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing and shall be deemed to have been properly given or served by (i) depositing in the United States Mail, postpaid and registered or certified return receipt requested, (ii) hand delivery; or (iii) reputable express courier providing written receipt of delivery, and addressed to the addresses of the parties set forth herein or on Buyer’s purchase order. All notices, demands and requests shall be effective upon the date of actual receipt of the notice, demand or request by the addressee thereof. Rejection, or other refusal to accept, or the inability to deliver because of changed address of which no notice was given, shall be deemed to be receipt of the notice, demand or request sent. By giving at least thirty (30) days written notice hereof, both parties shall have the right from time to time and at any time during the term of this Agreement to change their respective addresses. Paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms and Conditions. Any ambiguities or uncertainties in the wording of any provision of this Agreement shall not be construed or interpreted for or against any party because that party drafted or caused its legal representative to draft the provision. Unless expressly stated otherwise in this Agreement, words used in the singular include the plural, the plural includes the singular, and the neuter gender includes the masculine and the feminine.