Goods and services sold by ACS Industries, Inc. (ACS) are expressly subject to the terms and conditions set forth below. Any different or additional terms and conditions in Buyer’s purchase order or similar communication shall not be binding on ACS unless expressly agreed to in writing by ACS. Buyer’s acceptance of shipment or performance and/or payment for the goods or services constitutes acceptance of ACS terms and conditions.
1. GOVERNING PROVISIONS: This offer of sale or quotation, except for price, shall be deemed open for acceptance for a period of 30 days. Cancellations, modifications and waivers of this order or any of the underlying rights or obligations shall not be effective without the written consent of ACS. These terms and conditions shall not be modified by any course of dealing or trade customs and usage.
2. PRICES: Published and quoted prices are subject to change without notice. All orders are accepted with the understanding that ACS reserves the right to adjust prices to its prices prevailing at time of shipment. All sales, excise, and other taxes payable or accruing by reason of sales to Buyer shall be added to the total purchase price.
3. PAYMENT: Unless other terms are agreed in writing, full payment is due 30 days after date of invoicing. Interest will be charged on past-due accounts at a monthly rate of 1.5% or the highest rate permitted by applicable law, whichever is lower, on the unpaid balance until paid in full. Buyer shall pay ACS all costs incurred by it in collecting any past-due account from Buyer, including all court costs and attorneys’ fees.
4. DELIVERY TERMS: RISK OF LOSS: Delivery dates are based on estimated manufacturing periods and shall not be deemed to represent fixed or guaranteed delivery dates. Delivery shall be FOB. ACS point-of-manufacture, as applicable, and title shall pass upon delivery to carrier at point-of-manufacture and thereafter all risk of loss and damage shall be upon Buyer. ACS delivery obligation shall be contingent upon its approval of Buyer’s credit at time of shipment.
5. FORCE MAJEURE: ACS shall not be liable for any claim, damage, loss, expense or liability as a result of any delay or failure to ship or provide services due in whole or in part to any cause beyond the reasonable control of ACS including, but not limited to, restrictions imposed by any governmental legislation, rules or regulation, any act or omission of Buyer, strikes, slowdowns or other labor unrest, embargoes, riots, storms, fire, accidents, war, act of terrorism, delay in transportation, or inability to obtain necessary labor, materials, or manufacturing facilities. Any such failure or delay by ACS shall not be considered a breach of contract. The date of shipment or delivery of services shall be extended for a period equal to the time lost because of the delay. Should shipment of product or provision of services become impossible, the obligation of ACS will be terminated and it will be compensated for products or services provided until that point.
6. ACCEPTANCE: CLAIMS: Buyer shall inspect products delivered hereunder. Products shall not be subject to acceptance on the basis of any destructive or nondestructive testing unless expressly stated in the ACS quotation or offer of sale, Any claim must be made by Buyer in writing within 20 days of receipt, and all ascertainable defects and nonconformities shall be stated with particularity or be deemed waived. Under no circumstances shall products be returned to ACS without its written authorization. A claim that products are nonconforming shall not entitle Buyer to deduct any sum from any invoice. Invoices shall be paid in full in accordance with the terms of sale. Upon verification by ACS of the defect or nonconformance, ACS may repair, replace or, in its sole discretion, credit or pay to Buyer the amount so allowed.
7. CHANGES: ALTERATIONS: ACS may make such changes in the design and construction of products as shall, in its judgment, constitute an improvement. ACS may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or because materials are unavailable from suppliers.
8. TECHNICAL INFORMATION: APPLICATION: ACS shall have no responsibility for errors or variations in specifications, drawings, designs or products delivered to Buyer if Buyer or Buyer’s agent has not adequately communicated to ACS full and correct technical information and application details. Buyer agrees to pay for changes made necessary by said incorrect information which may require change in specifications, drawings, designs or products by ACS and agrees to assume all expenses thereto resulting from such changes when such expenses occur without fault of ACS.
9. LIMITATION ON WARRANTIES; LIABILITY: ACS warrants its products to be as specified in its retail catalog in accordance with its published Warranty Policies. ACS Warranty Policies are published on the ACS web site at the following URL:
http://www.acs-coupler.com/warranties/dealer_warranty.asp. Any suggestions by ACS or an agent of ACS regarding use, application or suitability of the products shall not be construed as a warranty unless confirmed to be such in writing by ACS. For products not manufactured by ACS, it extends to Buyer the warranties of the manufacturer only. THIS WARRANTY IS EXCLUSIVE AND ACS MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED. ACS MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY SERVICES, INCLUDING WITHOUT LIMITATION CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION ACS MAY MAKE, INCLUDING ANY WARRANTIES CONCERNING THE USE, APPLICATION, PERFORMANCE, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF ITS RECOMMENDATIONS OR DELIVERABLES. IN THE EVENT OF ANY MODIFICATION, ALTERATION OR REMOVAL OF ANY PART OF PRODUCT NOT AUTHORIZED IN WRITING BY ACS OR FAILURE TO INSTALL THE PRODUCT(S) EXACTLY ACCORDING TO INSTRUCTIONS PROVIDED BY ACS OR FAILURE TO PROVIDE ALL SAFETY INFORMATION OR TRAIN ALL USERS AS TO THE SAFE OPERATION OF SAID PRODUCT(s) WHICH RESULTS IN PERSONAL INJURY OR DEATH OR DAMAGE TO PROPERTY, NO WARRANTY, LIABILITY OR RESPONSIBILITY SHALL APPLY TO ACS, AND BUYER SHALL INDEMNIFY ACS AGAINST ANY CLAIM, DEMAND, LOSS, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS’ FEES, IN ANY WAY RELATEDTO SUCH INJURY, DEATH OR
DAMAGE.
10. LIABILITIES AND DAMAGES: Buyer agrees that if products are nonconforming through no fault of Buyer, Buyer’s exclusive remedy shall be one of the following, at the option of ACS, (a) repair or replacement of the nonconforming products or (b) repayment to Buyer of the purchase price. IN NO EVENT SHALL BUYER BE ENTITLED TO (NOR SELLER LIABLE FOR) ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES OF ANY KIND, WHETHER ARISING OUT OF (A) THIRD PARTY CLAIMS AGAINST BUYER, OR (B) BREACH OF CONTRACT, TORT, WARRANTY (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY ACS, OR ANY UNDERTAKINGS, ACTS, OR OMISSIONS RELATING THERETO.
11. DISPUTE RESOLUTION: If a dispute arises out of or relates to this Contract, or breach thereof, the dispute shall first be submitted to the CEO of ACS for resolution. If the dispute cannot, in good faith, be settled through this submission within a period of 90 days from the date of written notice by a party of the existence of such dispute, the parties agree to submit the dispute to mediation administered by the American Arbitration Assn. prior to resorting to arbitration, litigation or any other dispute resolution procedure.
12. LIMITATIONS ON SUITS AND ACTIONS: No action or suit to enforce Buyer’s rights or remedies arising from this sale shall be commenced later than one year from the date of shipment.
13. APPLICABLE LAWS: All orders, sales and these terms and conditions shall be governed by the laws of the State of Ohio, excluding conflict of law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. All laws and regulations required to be incorporated in agreements of this character are incorporated herein by this reference. ACS certifies that these products were produced in compliance with all applicable requirements of Section 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor under Section 14 thereof. Any commodities, technology, or software exported pursuant to these terms and conditions will be exported from the United States in accordance with U.S. laws and regulations, including the Export Administration Regulations or International Traffic in Arms Regulations, as applicable. Diversion, exportation or re-exportation contrary to U.S. law is prohibited.
14. FINAL AGREEMENT: These terms and conditions constitute the entire agreement between ACS and Buyer with respect to the subject matter thereof, and there are no understandings, agreements or representations, express or implied, which are not contained herein.
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