TERMS & CONDITIONS

THE ESTABROOK CORPORATION TERMS AND CONDITIONS OF SALE:

1.    Applicability. All shipments, services, sales and quotations between The Estabrook Corporation, an Ohio corporation (“Seller”), and Buyer are subject to these general terms and conditions of sale (these “Terms”).

2.    Variance in Buyer’s Acceptance. Seller objects to and rejects any attempt by Buyer to vary in any degree any of these Terms. Any additional or different terms proposed at any time or from time to time by Buyer are not binding upon Seller, unless expressly agreed upon in writing by Seller. The mere acceptance of a purchase order containing such additional or different terms shall not bind Seller to the same.

3.    Acceptance of Purchase Orders. Seller will indicate its acceptance of a purchase order in writing to Buyer. In the absence of any written acceptance by Seller of the purchase order, Seller’s shipment of the goods ordered shall be deemed acceptance by Seller of such purchase order.

4.    Payment. Unless otherwise agreed to in writing by Seller, payment of the total purchase order is due and payable within thirty (30) calendar days from the date of shipment. Time is of the essence with respect to all of Buyer’s payment obligations under these Terms. Seller reserves the right to change any credit terms offered to Buyer at any time when, in Seller’s sole opinion, Buyer’s financial condition or prior payment record so warrants. Buyer grants Seller a continuing security interest in the goods purchased by Buyer from Seller. Such security interest secures all obligations of Buyer to Seller with respect to goods bought and sold from Seller. Buyer agrees from time to time to execute such documents as Seller deems necessary to perfect Seller’s security interest.

5.    Taxes. Unless otherwise required by law, Buyer shall pay for any and all taxes in connection with Buyer’s purchase of goods from Seller, including any and all sales, use, excise or similar taxes.

6.    Interest. Buyer acknowledges that Seller will not ship goods to Buyer if Buyer has an outstanding invoice from Seller that is over ten (10) days past due. Seller may charge Buyer interest at 1% per month on any past due payments from the due date until paid or collected, together with all costs and expenses of collection including attorneys’ fees.

7.    Delivery and Performance Dates. Seller will use commercially reasonable efforts to meet specified delivery or performance dates. However, all delivery and performance dates are estimates only and are not binding, unless Seller otherwise expressly agrees in advance in writing. Delays in delivery or performance do not entitle Buyer to cancel any purchase order, reject any items, or claim damages.

8.    Delay Caused by Force Majeure. If Seller’s delivery of goods, or performance of any obligations, is prevented, restricted or interfered with by reason of earthquake, fire, flood or other casualty or due to strikes, storms, explosions, acts of God, war, riots, terrorism, or a similar occurrence or condition beyond the reasonable control of Seller, Seller shall, upon giving prompt notice to Buyer, be excused from such delivery or performance during such prevention, restriction or interference, and any failure or delay resulting therefrom shall not be considered a breach of contract.

9.    Title and Risk of Loss. Title and all risks of loss and liability for damages to the goods shall pass to Buyer upon delivery of the goods by Seller to a common carrier at the F.O.B. point (Seller’s loading dock).

10.    Insurance During Transit; Release. Buyer, at its sole cost, shall purchase insurance to cover any and all loss or damage of the goods for the full value of the goods during their transit from the F.O.B. point. Buyer hereby waives any and all rights of subrogation against Seller, its affiliates, officers, directors, employees, and agents, and the insurance policy purchased by Buyer pursuant to this paragraph 10 shall contain a waiver of subrogation against Seller, its affiliates, officers, directors, employees, and agents. Buyer hereby waives and releases Seller, its affiliates, officers, directors, employees, and agents of and from any and all suits, claims, liabilities, losses, damages, demands, costs and expenses (including reasonable attorneys’ fees) arising out of, relating to, in connection with or by reason of any and all loss or damage of the goods while in transit regardless of cause or origin, including the negligence of Seller, its affiliates, officers, directors, employees, and agents. Buyer hereby acknowledges that the foregoing waiver and release is intended to result in any and all loss or damage of the goods while in transit to be borne by the insurance carrier of Buyer or by Buyer if Buyer fails to obtain and maintain the insurance coverage required under this paragraph 10.

11.    Returned Goods. Seller shall not be required to accept goods for return. If Buyer desires to return any goods to Seller, Buyer shall seek the prior written consent of Seller for such return. Buyer shall bear all freight costs and other charges for the return of the goods.

12.    Defective or Nonconforming Goods. If Buyer does not notify Seller in writing of any defects or nonconformities in the goods within thirty (30) days of the date of delivery of the goods to Buyer (the “Inspection Period”), the goods shall be deemed accepted by Buyer, and Buyer shall be deemed to have waived any claim relating to defects or nonconformities in the goods. If any goods are determined by Buyer during the Inspection Period to be defective or otherwise not in conformity with the requirements of the purchase order, Buyer shall promptly notify Seller in writing of such defects or nonconformities and return the goods to Seller. In such event, Seller shall, at its sole option, either (i) refund the purchase price of the defective or nonconforming goods; or (ii) replace the defective or nonconforming goods with conforming goods without defects. The foregoing shall be the sole and exclusive remedy of Buyer for defective or nonconforming goods. In no event is Buyer entitled to retain payments due Seller, except upon the prior written consent of Seller. 

13.    Limited Warranty. Seller warrants that the goods delivered to Buyer are of Seller’s standard quality at the time of delivery. Seller’s liability for a claim that such warranty has been breached shall be limited, at Seller’s sole option, to either (i) Seller’s replacement of the goods allegedly failing to comply with such warranty, or (ii) Seller’s refund to Buyer of the total purchase price for the goods allegedly failing to comply with such warranty. The foregoing shall be the sole and exclusive remedy of Buyer for breach of warranty by Seller. IN NO EVENT SHALL THE LIABILITY OF SELLER TO BUYER, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE GOODS, AND IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM BUYER’S PURCHASE OF GOODS FROM SELLER. Buyer acknowledges that the remedies provided under these Terms are exclusive and in lieu of any and all other remedies available to Buyer at law or in equity. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE DISCLAIMED. Determination of the suitability of the goods for the uses and applications contemplated by Buyer shall be the sole responsibility of Buyer. Buyer assumes all risks and liabilities for the results obtained by the use of the goods, whether used alone or in combination with other material. Seller makes no warranty or guaranty with respect to the results obtained by the use of the goods.

14.    Assignment. Buyer may not assign these Terms without the prior written consent of Seller. These Terms shall be binding and inure to the benefit of Seller and its successors and assigns. 

 

15.   Entire Agreement. These Terms contain the complete and final agreement between Seller and Buyer with respect to the subject matter of these Terms and supersede all prior agreements and communications between Seller and Buyer, whether oral or written.

 

16.   Indemnity. Buyer hereby agrees to defend and indemnify and to save and hold Seller, its affiliates, officers, directors, employees, and agents harmless from and against any and all suits, claims, liabilities, losses, damages, demands, costs and expenses (including reasonable attorneys’ fees) arising out of, relating to, in connection with or by reason of (i) any noncompliance with or breach of these Terms by Buyer, its affiliates, officers, directors, employees, or agents or (ii) any actual or alleged infringement of any applicable patent, copyright or trademark rights by Buyer, its affiliates, officers, directors, employees, or agents.

17.    Remedies Cumulative; No Waiver. The remedies for Seller set forth in these Terms are cumulative and additional to any other or further remedies provided by law. No failure by Seller to exercise any of its rights under these Terms and no partial or single exercise of any such rights shall constitute a waiver thereof.

18.    Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to the conflict of laws provisions thereof. The parties hereby exclude application of the U.N. Convention on Contracts for the International Sale of Goods from these Terms and any transaction between them related thereto.

19.    Arbitration. Buyer and Seller hereby agree to submit any and all claims, demands, disputes, controversies, differences or misunderstandings arising out of or relating to the parties’ relationship or termination thereof (including without limitation any claims that any provision of these Terms or any specification, standard or operating procedure is illegal or unenforceable or voidable under law) to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, except where those rules conflict with this provision, in which case this provision controls. Any such arbitration shall be held at the offices of Seller in Berea, Ohio. Each party consents and submits to the personal jurisdiction and venue of the state or local trial courts located in Cleveland, Ohio and also to the personal jurisdiction and venue of the United States District Court for the Northern District of Ohio for purposes of enforcing this provision.

20.    Compliance with Law. Buyer shall comply with all applicable federal, state and local laws, rules and regulations.

21.    Severability. If any provision of these Terms is found to be void or unenforceable to any extent for any reason, it is the agreed upon intent of the parties hereto that all remaining provisions of these Terms shall remain in full force and effect to the maximum extent permitted and that these Terms shall be enforceable as if such void or unenforceable provision or term had never been a part hereof.

ESTABROOK  |  700 W. BAGLEY ROAD, BEREA, OH 44017  |  800-959-9161

 

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