Purkay Laboratories, Inc.
Products Standard Terms & Conditions of Sales
ACCEPTANCE. Unless otherwise stated in a writing signed by a duly authorized agent of Purkay Laboratories, Inc. (“Seller”) all quotations covering Seller's products are made and all contracts or orders for said products are accepted and all shipments are made on the condition that these Standard Terms & Conditions of Sale shall be applicable. Any term in Buyer's purchase order or acceptance in addition to or not identical with these Standard Terms & Conditions of Sale is objected to and these Standard Terms & Conditions of Sale shall not be varied, qualified, modified, amended or interpreted by any prior course of dealing between the product purchaser (“Buyer”) and Seller or by any usage or trade or in any manner other than by subsequent writing signed by Seller's duly authorized agent. All orders or contracts must be approved and accepted by a duly authorized agent of Seller. These Standard Terms & Conditions of Sale shall be applicable whether or not they are attached to or enclosed with the products to be sold hereunder.
PRICES. Prices are subject to change without notice, and Seller's price in effect at the time of shipment will apply.
CANCELLATION. An order once placed with and accepted by Seller can be cancelled only with Seller's consent and upon payment to Seller of reasonable cancellation charges which shall take into account expenses already incurred, commitments made, and Seller's anticipated profit.
TAXES. The amount of any present or future sales, revenue, excise or other tax applicable to the products covered by this order, or the manufacture or sale thereof, shall be added to the purchase price and shall be paid by the Buyer or, in lieu thereof, Buyer shall provide Seller with an appropriate tax exemption certificate.
DELIVERY. All sales are F.O.B. Shipping Point / FCA Shipping Point. All claims for damages during or resulting from delivery must be filed with the carrier. Shipping dates are approximate and are based upon prompt receipt from Buyer of all necessary information. In no event will Seller be liable for damages of any kind arising out of delay or non-delivery, due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil or military authority, war, riots, fire, explosion, flood, strike, lockout, injunction, accident, breakage of machinery or apparatus, or inability to obtain fuel, power, raw materials, labor, containers or transportation facilities. In the event of any such delay, the date of delivery shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay. Buyer agrees to check all products for damage and verify contents upon receipt. Obvious damage to the carton or packaging should be immediately brought to the attention of the carrier delivering the shipment and noted on the delivery receipt. If concealed damage is discovered when merchandise in unpacked, Buyer should save the packaging and notify Seller and the carrier for inspection. Claims with the carrier for damaged materials should be filed promptly with the carrier. Products cease to be the responsibility of Seller upon deposit with the carrier at the shipping point.
PAYMENT. (a) Unless otherwise specified on the invoice, all accounts are due and payable thirty (30) days from the date of invoice. Accounts extending beyond the terms will be subject to a service charge of the lesser of 1-1/2% per month (18% per annum) or the maximum amount then authorized by applicable law. Discounts for prompt payment do not apply to labor and shipping charges, and no discounts other than those noted on the invoice are authorized. Shipments, deliveries and performance of work shall at all times be subject to the approval of Seller's credit department, and the Seller may at any time decline to make any shipments or deliveries or perform any work, except upon receipt of payment or upon terms and conditions of security satisfactory to such department. All lien rights are reserved until full payment of the invoice has been made. (b) If, in Seller's judgment, the financial condition of the Buyer at any time does not justify continuation of production or shipment on the terms of payment originally specified, the Seller may require full or partial payments in advance and in the event of the bankruptcy or insolvency of the Buyer or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, the Seller shall be entitled to cancel any order then outstanding and shall receive reimbursement for its cancellation charges. (c) Should Seller initiate any legal action or proceeding to collect on any unpaid invoice or to enforce any of the terms hereof, Seller shall be entitled to recover from Buyer all costs and expenses incurred in connection therewith, including court costs and reasonable attorney's fees.
CLAIMS AND RETURNS. (a) Claims for shipping damages shall be made against the carrier on all products shipped F.O.B. shipping point. On products shipped F.O.B. destination (if any), Buyer shall notify Seller of shipping damages within ten (10) days from date of receipt and afford Seller a reasonable opportunity to inspect the products. No products shall be returned without Seller's consent. (b) Claims for shortage or inaccurate filling of orders shall be submitted to Seller within ten (10) days after Buyer's receipt, accompanied by a copy of the invoice or shipper on which the products were purchased. Buyer will then receive from Seller a Returned Goods (RG) authorization number. Products returned without the RG authorization number will be refused. If Seller in good faith determines that any error was not Seller's, a minimum 15% restocking charge will be made to Buyer on any products returned for credit or exchange. (c) Claims or notices asserting a defective product must be given to Seller immediately upon discovery of such defect, but in any event no more than one year after date of shipment by Seller, and must include a copy of the invoice or shipper on which the products were purchased, evidence that such products were inspected within ten (10) days after Buyer's receipt, and the details of the defect(s) claimed, and afford the Seller a reasonable opportunity to inspect the products.
LIMITATION ON DAMAGES. In no event shall any liability of Seller arising in connection with any product exceed the purchase price of the product, and to the maximum extent permitted by applicable law, Seller hereby disclaims, and shall not be liable for incidental, special, indirect or consequential damages with respect to the sale or use of the product, including without limitation, labor charges, lost profits, expenses of repair, other costs incident to replacement, or transportation costs incurred in shipping products to or from Seller or its facilities.
INFORMATION. Except for warranties expressly set forth herein, Seller hereby expressly disclaims, Buyer hereby expressly waives, and Seller does not, by any advice or information it may provide regarding the use of any product by Buyer, make any warranty, express or implied, with respect to any product, including but not limited to implied warranties of merchantability or fitness for a particular purpose; and Seller hereby expressly disclaims and does not assume any liability for such advice or information given, orally or in print, or for the results obtained by Buyer. Buyer assumes all risk and liability which may result from the use of any products, whether singly or in combination with other products. No suggestion for product use shall be construed as a recommendation for use in infringement on any existing patent or other intellectual property right.
LIMITED WARRANTY ON PRODUCTS MANUFACTURED BY SELLER. The Seller warrants to the original purchaser that products of its own manufacture to be delivered hereunder will be free from defects in materials or workmanship under normal use and service for a period of one year from date of shipment. Seller's sole obligation (and Buyer’s exclusive recourse) under this Warranty is limited to replacing or repairing or giving credit for, at Seller’s option and at any of its facilities, any of said products which shall, within one year after shipment, be returned to Seller's plant of origin in accordance with the terms hereof, transportation charges prepaid, and which are, after products examination, disclosed to the Seller's satisfaction to be thus defective. This Warranty does not apply to defects caused by shipping damages, or to any products manufactured by Seller which have been subject to improper installation, misuse, neglect, accident, ordinary wear and tear, or Buyer's attempts to use any product beyond its mechanical, thermal or electrical capacity or for a purpose prohibited hereunder. The aforementioned provisions do not extend the original Warranty period of any product that has either been repaired or replaced by Seller.
THE FOREGOING LIMITED WARRANTY OF SELLER, SUBJECT TO THE LIMITATION ON DAMAGES, IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED BEYOND THE WARRANTIES EXPRESSLY SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER LIABILITIES OR OBLIGATIONS ON THE SELLER'S PART, AND SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF THE SAID PRODUCTS. THIS LIMITED WARRANTY MAY NOT BE VERBALLY CHANGED OR MODIFIED BY ANY REPRESENTATIVE OF SELLER.
Seller is under no obligation to take back material for credit or exchange except as expressly provided herein and when the reason for the return was anything other than the Seller's error. At Seller's sole discretion, should a return of this nature be authorized, the items returned must be of current manufacture, in its original packaging with all original manuals and/or documentation, and be in resalable condition. A minimum 15% restocking charge will apply as well as any additional charges necessary to restore items to a resalable condition.
Products sold by Seller are not intended for use, and under no circumstances shall Buyer use any product sold by Seller: 1) as a “Basic Component” under 10 CFR21(NRC), used in or with any nuclear installation or activity; or 2) in medical applications or used on humans; or 3) in any onboard aviation activity, application; or 4) in environments beyond the recommended operating temperature limits. Should such products be used in any of the above applications or activities, Buyer will indemnify, defend and hold harmless Seller from any and all loss, damage, liability, claim, demand, cost, or suit of any nature whatsoever, including but not limited to property damage, personal injury or death, product liability, regulatory claim or otherwise, arising out of, in connection with or incidental to such application, activity, or use. This indemnity shall include, without limitation, costs, expenses and attorneys’ fees occasioned by said loss, damage, liability, claims, demands or suits, as well as the full amount of any judgment rendered or compromise settlement made, plus interest, if applicable.
APPLICABLE LAW. These Standard Terms & Conditions of Sale shall be construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A., without giving effect to conflict of laws provisions thereof. The U.N. convention on Contracts for the International Sale of Goods shall not apply to these Standard Terms & Conditions of Sale. Any dispute, claim or controversy arising out of, or related to, any product sold by Seller, the use thereof, or these Standard Terms & Conditions of Sale shall have exclusive venue in the state and/or Federal courts located in the Commonwealth of Massachusetts. Buyer hereby irrevocably consents to the personal jurisdiction of those courts for such purposes.