NOTICE: The order is expressly made conditional upon agreement by the Purchaser that these terms and conditions will supersede any and all terms additional to or different as may be proposed by the Purchaser on his purchase order. Such agreement shall be deemed complete if no contrary written notice is sent by Purchaser within (3) days of receipt hereof.
1. Both the customer (BUYER) and FOAMPAK INC.(SELLER) agree that entry of a purchase order on FOAMPAK'S internet ecommerce site is a binding purchase contract offer on the part of the Buyer. The purchase contract offer requires acceptance by FOAMPAK. Such acceptance is subject to final review by FOAMPAK AND FOAMPAK may revoke any purchase offer for any reason!
2. All sales are final. No goods may be returned without the Seller's written permission. Once permission is granted, all goods must be returned freight prepaid to Seller's facilities. The goods must be less than one month old, unused and unopened, of current design, and must be in good condition as determined by Seller. Goods returned that do not meet these criteria will be returned to Buyer and Buyer will be charged for the return freight charges and inspection time. Goods that do meet the above criteria shall be credited to the Buyer's account at the invoiced purchase price less a restocking charge in the amount of 25% and less any cash discounts taken. Proportioners, Polymer spray rigs, and all chemical systems or custom items not usually kept in stock by FOAMPAK are not returnable under the above restocking terms; these items may only be returned with separate written permission from FOAMPAK. Credits to be applied on these items will be determined by Foampak, Inc. on a case by case basis.
3. Delivery may be suspended due to the following: Acts of God, war, riots, fire, explosion, strike, lockout, government inaction, inability to obtain or use fuel, raw materials, containers or transportation facilities; or other cause beyond the control of party affected, preventing the manufacture, shipment, or acceptance of shipment. Likewise, delivery may be suspended if the item in question is discontinued or in short supply. FOAMPAK also reserves the right not to accept the order if pricing is incorrect even by FOAMPAK'S own fault. Orders may also be rejected if customer utilizes unauthorized discount codes (coupons). FOAMPAK reserves the right to revoke credit terms at any time.
4. Unless otherwise specified in writing, all orders are accepted upon condition that Seller will not be liable for any damages for failure to deliver within a specified time, but Seller will use its best efforts to make delivery within a reasonable time.
5. Refused shipments are subject to a restocking charge of 25% of the invoice price plus inspection, shipping, and other miscellaneous charges itemized on the invoice for the refused shipment.
6. Seller reserves the right, among other remedies, to cancel or suspend further deliveries if Buyer fails to pay for a previous shipment when such payment becomes due. If Buyer's financial condition becomes unsatisfactory to Seller, cash or satisfactory security may be required by Seller. FOAMPAK reserves the right to revoke credit terms or change credit limits at any time.
7. Unless otherwise agreed to in writing, risk of loss and responsibility for all materials sold hereunder shall pass to the Buyer upon Seller's delivery to the carrier. In case of hand delivery by FOAMPAK, FOAMPAK is considered a carrier, and title still transfers at FOAMPAK's location. Buyer shall notify Seller within ten (10) days of receipt of goods that have been damaged in shipment. Depending upon the destination and method of shipment and any prior written arrangements made between Buyer and Seller, the insurance claim shall be made by either Buyer or Seller.
8. SELLER MAKES NO WARRANTY EXTENDING BEYOND THE DESCRIPTION OF THE GOODS ON THE FACE HEREOF, AND THERE IS NO IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DISCLAIMS ANY LIABILITY FOR LOSS OF PROFITS, SPECIAL DAMAGES, SPECIFIC PERFORMANCE, INCIDENTIAL OR CONSEQUENTIAL DAMAGES. Claims of failure to meet specifications shall be limited to the replacement of materials or parts with respect to which such failure is claimed, or the repayment of any portion of the purchase price received thereof subject to the return of such materials or parts to the Seller. With respect to parts, if there is no manufacturing defect, Buyer may be liable for Seller's time necessary to determine whether or not such parts are repairable. Without limiting the generality of the foregoing, Buyer expressly assumes all risk of patent infringement by reason of its use of material provided hereunder in combination with other material or in operation of any process. Buyer shall indemnify Seller from and against all costs, expenses and damages arising from claims made by employees, visitors and customers of Buyer based upon any hazard or hazards referred to in any information and/or instructions provided Buyer by Seller. Buyer shall assume all responsibilities for bringing such hazards to the attention of the employees, visitors and customers.
9. Published prices are subject to change without notice. Prices, discounts and terms are those in effect at the time of shipment. Time of shipment in this instance is deemed to be upon delivery of goods to carrier.
10. TERMS: Payment terms are as stated on the face of this document; overdue amounts will be charged interest at 1 1/2% per month (18% per annum). Buyer agrees to pay a finance charge on all past due invoices. If Buyer files a petition in Bankruptcy or a petition for extension of arrangements of his debts or composition with his creditors or makes assignment for the benefit of his creditors, Seller shall have the immediate right to retake possession of all goods available to Seller. Buyer shall pay reasonable attorney fees and all cost of litigation if the Seller is forced to resort to an attorney for collection and enforcement. Buyer also agrees that the laws of the State of New Jersey shall apply to this contract.
11. Seller may require Buyer to reimburse all taxes, excise or other charges, or increase in the same, which Seller may be required to pay to any National, State or Municipal government, which are levied directly upon the sale, production or transportation of goods sold hereunder, or raw materials used therein. If applicable, Buyer shall supply pertinent tax exempt certificates and/or self-assess to the relevant tax authority any sales or use taxes for which the Buyer may be liable. Any increase in freight rates paid by Seller on shipments governed by this order may at Seller's option, be added to the price of materials shipped under same. In the event government action, order or request prevents Seller from adjusting or continuing in effect the price herein stated, Seller shall have the right to cancel this order.
12. Prompt payment discounts specified on the face of this document may not be taken for Documentation Fees, Transportation Charges, Sales Tax, or any other charges which are involved in addition to the cost of the goods. All discounts improperly taken will remain charged to Buyer's account and Buyer will be so notified. BUYER EXPRESSLY AGREES THAT ALL DISCOUNTS TAKEN WILL BE FORFEITED IF THE PAYMENT TERMS ARE NOT MET!13. DEFECTIVE GOODS CLAIMS (REPLACEMENT CLAUSE): Goods considered to be defective may be returned to Seller for inspection with Seller's prior approval. If requested, a replacement part will be shipped to Buyer and it will be invoiced to Buyer's account. Any part being returned for examination must be shipped within 45 days of Buyer's receiving approval from Seller, freight prepaid, using the least expensive shipping means for the weight to Seller's facilities known as (FOAMPAK INC., 427 High Hill Road, Woolwich NJ 08085. Risk of loss with respect to goods returned shall be upon Buyer. Upon receipt, the part will be inspected and if found to be defective as determined solely by the Seller, a credit will be issued to Buyer's account for the amount of the invoice for the replacement part including outgoing shipping charges, as well as for the shipping charges incurred for the return of the part that has been determined to be defective. If the part is determined not to be defective, Buyer will be so notified and will be responsible for payment of the invoice for the replacement part and for additional charges incurred by Seller for further inspection and/or disposition of the part per Buyer's instructions. Defective as used in this instance is limited to mechanical or other failure which is as a direct result of defect in material or workmanship within 1 month of the date of sale of the part in question.
14. Waiver of any portion or part of these conditions shall be on a one-time basis, and shall not be construed as a policy to remain in effect. Subject to express waiver for a particular transaction, Seller reserves the right to enforce any and all terms of this contract at any time.
Modifications to the terms and conditions herein shall not be binding upon Seller without Seller's prior written consent to said modification.