The Terms and Conditions of the Sale of Plaber America, Inc's ("Seller") products ("Products") available on the site (as hereinafter defined) are limited to those contained herein. Any additional or different terms in any forms delivered by you ("Buyer") are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. By accepting delivery of the products described in Seller's invoice or in other Seller's documentation. Buyer agrees to be bound by and accepts these Terms and Conditions of Product Sales unless Buyer and Seller signed a separate agreement, in which case the separate agreement will govern.
These Terms and Conditions of Sale are referred to herein as either "Terms and Conditions of Sale" or this "agreement". By making a purchase, placing an order (as hereinafter defined) or otherwise shopping on Seller's website. i.e. www.hprcusa.com (the "site") or at other authorized dealer, Buyer accepts these terms and conditions of sale. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these terms and conditions of sale or any purchase order or invoice related thereto.
1. Formation of contract
An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion (the "Order"). Seller's acceptance of an Order is binding on Seller only if made by a written Order Confirmation (the "Order Confirmation") or, if not by Order Confirmation, by shipment of the Products ordered (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 by Seller other than an Order Confirmation shall not be deemed acceptance of an Order. Seller's acceptance of an Order is not subject to any minimum quantity of ordered Products. Buyer shall submit to Seller any request of cancellation of, or request of changes to, the Order within twenty-four (24) hours from the date of submission of the Order to Seller. Any changes to the Order shall be binding only upon Seller's approval of such changes. The consummation of multiple sales of the Products under these Terms and Conditions of Sale shall not be construed, or otherwise interpreted, as a supply agreement between Seller and Buyer.
2. Price and Payment
All prices, discounts and transportation charges are in U.S. Dollars and are subject to change without notice. If no price is stated on Seller's invoice, prices shall be Seller's current prices in effect on the date of acceptance of orders by Seller (or, in Seller's sole discretion, on the date of shipment) as set forth on price lists available on the Site. Product prices may be modified by Seller from time to time. All general or special taxes, duties, fees, freight and insurance costs and any other charges of any nature whatsoever, imposed on, in connection with or measured by any transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. Terms of payment on all Orders are subject to the approval of Seller's credit department. If Buyer: (i) does not pay Seller the amount due when such amount is due; or (ii) refuses the delivery of the ordered Products; or (iii) defaults in the performance of these Terms and Conditions of Sale, the quotation or invoice issued from Seller to Buyer, Seller may, at Seller's sole option, without incurring liability and without prejudice to Seller's other lawful remedies: (i) terminate Seller's obligations under these Terms and Conditions of Sale and/or any quotation or invoice issued from Seller to Buyer, (ii) declare immediately due and payable all of Buyer's obligations to Seller, (iii) change credit terms with respect to any further work, (iv) suspend or discontinue any further work until Buyer pays all overdue amounts and/or (v) repossess the Products. Buyer agrees to reimburse Seller for all costs incurred by Seller in collecting any sums owed by Buyer to Seller, including without limitation, reasonable attorneys' fees and costs of proceedings. In the event Seller elects the option referred to at this Section 2 (i) Buyer agrees to pay a late fee of up to Fifty percent (50%) of the price of the Products that have not been delivered or of which Buyer has refused the delivery. Seller reserves the right to require payment in advance or other secured form of payment from time to time. The accepted method of payment for purchase of the Products on the Site is credit card, i.e. Visa, Mastercard, American Express and Paypal. Upon verification of the credit card information provided by Buyer, Buyer will receive the Order Confirmation via email, indicating the order number associated to the Order (the "Order Number"). Buyer shall keep and use the Order Number for future reference in any communications with Seller.
Buyer shall select the mode of transportation available on the Site for the ordered Products. Buyer shall be responsible for, and pay the costs of, the delivery of the Products. Buyer shall pay all sales, use, excise or other applicable taxes or charges, to any Government (national, state or local) which are imposed on or measured by the sale, as well as any and all of the insurance costs. In the event of delay in delivery of the ordered Products, Seller will store all Products at Buyer's risk and expense. Upon receipt of the delivered Products (the "Delivered Products") Buyer shall inspect the Delivered Products in compliance to Section 5 of these Terms and Conditions of Sale.
4. Title; Risk of Loss
Seller retains the right and title to the Products sold to Buyer until Seller is paid in full for the Products. Buyer shall obtain the right and title to the Products upon payment to Seller of the purchase price and any taxes, excise or other charges. The risk of loss of the Products, including, but not limited to the risk of loss, theft, damage or destruction, will transfer to Buyer when Seller delivers the Products to be shipped to the carrier chosen and paid by Buyer. Seller is not responsible for any loss, damage or delay which may occur after Seller delivers the Product to the carrier.
5. Inspection; Claims
Buyer shall inspect the Delivered Products upon receipt and any claims for shortages or other errors (e.g. the delivered Products are altered and/or damaged or do not in any other way conform to the Order) must be made in writing to Seller by email to email@example.com and by registered mail with return receipt to Seller's address indicated on the Site (the "Seller's Address") within eight (8) days after the Products are delivered to Buyer (the "Claim Deadline"). Failure to give such notice shall constitute acceptance of the delivered Products by Buyer and a waiver of all such claims by Buyer. Buyer agrees that minor technical non-conformity to the Delivered Products (i.e. color, weight, width, or finish) (a "Minor Discrepancy") shall not constitute grounds for a claim under this Section 5. No claim shall be acceptable by Seller if such claim is relating to Delivered Products that have in any way been altered by Buyer after Buyer took possession of the delivered Products.
6. Right to Return Products
Buyer may return the Delivered Products provided that: (i) Buyer gives Seller notice of any claims relating to the Delivered Products in compliance with the provisions of Section 5 no later than the Claim Deadline; (ii) the claim reported by Buyer to Seller is not a Minor Discrepancy; (iii) the Delivered Products are returned to Seller in the same conditions and in the same package in which they were delivered, including any instructions, spare parts, and accessories; (iv) the Delivered Products are mailed via express courier to Seller’s Address with no additional label or tape placed on the original package (collectively, the “Return Conditions”). Provided that all the Return Conditions are met, Seller agrees to provide Buyer with a refund of the purchase price on the credit card used for purchase. In the event the Return Conditions are not satisfied and/or the delivered Products have in any way been altered after Buyer took possession of the Product, Buyer shall be deemed to have waived his/her right to return the Delivered Products, as well as his/her/its right to receive any refund of the purchase price. Seller retains the right to inspect the returned goods before granting any credit to Buyer.
7. No Set-off
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, express written approval.
8. Disclaimer of Warranties
The Warranties set forth herein or in Seller’s Warranty documents with respect to a product are the only Warranties made by Seller in connection with the Products and the Transactions contemplated as a result of this sale. Seller makes no other Warranties or representations to Buyer or any third parties, whether express or implied, with respect to the Products, and Seller specifically disclaims all implied Warranties including, without limitation, the implied Warranties of merchantability, fitness for a particular purpose and non-infringement. Products sold hereunder are sold only to the specifications specifically set forth by Seller in writing. Seller’s sole obligation for a remedy to buyer shall be: (i) repair of non-conforming products; or (ii) refund of the purchase price, provided that all the requirements set forth in the applicable laws and in these general Terms and Conditions are met. Buyer assumes all risk whatsoever as to the result of the use of products purchased, whether used alone or in combination with other products or substances.
9. Limitation of Liability
No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the Products in respect of which damages are claimed. In no event shall Seller be liable to Buyer for any incident, consequential, indirect, statutory, special, exemplary, or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, inconvenience, loss business opportunities, damage to good will or reputation, or loss of data, arising out of, or as a result of, the sale, delivery, servicing, use or loss of the Products sold hereunder, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen.
10. Force Majeure
Seller will endeavor to dill all accepted Orders as soon as it is practical and consistent with production schedules. Seller shall not be responsible for failure to fill orders or other default or damage where such has been caused by act of God, war, major disaster, terrorism, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statues, laws, rules or ruling of any court of government, demand for goods exceeding Seller’s available supply, or any other cause beyond Seller’s control affecting production or delivery. In the event of any nonperformance caused by any of the foregoing, Seller may, at this option and without liability, cancel all or any portion of its obligations to Buyer and/or extend any date upon which performance is due.
11. Use of Seller’s Brand
With any purchase, Buyer acquires the Products but no other rights associated with the Product. Seller retains all intellectual property rights associated with the Products, which include, but are not limited to, trade names and any other distinctive sign or brand whose property rights are legally or factually attributable to Seller or to any affiliated company of Seller. Any use of Seller’s intellectual property rights by Buyer is subject to Seller’s prior written consent, which may be withheld and/or conditioned by Seller in Seller’s sole and absolute discretion. Buyer shall not alter, remove, or modify any Seller trademarks, labels or markings, nor affix any other trademarks, labels, instructions, warnings or markings to or on the Products or the packages or boxes used for the Products without Seller’s prior written consent; provided, that the Buyer may affix labels or other indices on the Products it sells or distributes to identify that the Buyer is the seller or distributor of such Products, so long as such labels do not cover and are not inconsistent with Seller’s trademarks, labels or markings.
12. Seller’s Rights
If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may suspend any pending Orders of any Products and any other contractual obligations Seller might have with the Buyer. Seller shall not be held liable for any delay in delivery dates due to this suspension. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. In case of shortages in the availability of materials used in the manufacturing of the Products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner as Seller deems proper in Seller’s sole discretion, without thereby incurring any liability of any nature whatsoever.
13. Governing Law
This Agreement shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of New Jersey, without giving effect to its principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14. Dispute Resolution
Any dispute, controversy or claim arising out of or related in any way to these Terms and Conditions of Sale and/or any sale and purchase of products hereunder or any transactions contemplated hereby which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of three (3) arbitrators sitting in the State of New York, County of New York. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of New York. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential damages, indirect damages, special damages, exemplary damages, punitive damages or specific performance. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement.
15. No assignment
This contract between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this Agreement without Buyer’s consent if the assignment is to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
16. Compliance with Laws; Export Laws
Buyer and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the products.
These Terms and Conditions of Sale are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller. These Terms and Conditions of Sale constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by Seller of any of Seller’s Terms and Conditions of Sale or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Seller’s Terms and Conditions of Sale. If any clause or portion hereof shall be held by a court competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph heading are for convenience only and shall not be used in interpreting or construing there Seller’ Terms and Conditions of Sale.