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The terms and conditions of sale stated here are applicable to all shopping cart orders and are the only conditions of sale applying to pricing, quantities, delivery schedules, terms of payment, shipping and delivery issues, payment terms, product warranties and descriptions and/or specifications of product (s) furnished. Although this form is an “expression of acceptance or confirmation document”, Tisch Environmental Inc. (hereafter referred to as SELLER), shall not be deemed to have waived the following conditions if it fails to object to the conditions appearing in or incorporated by reference or attachment to BUYER’s purchase order document. In the event that the SELLER does not object to the terms and conditions of the BUYER or, in the event of a conflict between BUYER’s purchase order terms or associated document and the SELLER’s terms and conditions herein, the terms and conditions of SELLER, including those stated in or provided with any order acknowledgement shall govern. Any amendment of SELLER’s terms and conditions of sale must be made in writing and signed by SELLER to be binding.
1. Conditions of Sale
The terms and conditions of sale are indicated below and, except as otherwise indicated in this document, are the complete and exclusive statement of the terms and conditions between the parties with respect to the matter contemplated herein, superceding all prior written or oral agreements or understandings, except as note by SELLER. All orders are subject to the review and final acceptance of SELLER. Upon SELLER’s acceptance of BUYER’s purchase order, an acknowledgment will be issued and, together with these terms and conditions of sale, shall constitute the entire agreement between SELLER and BUYER.
2. Terms and Shipment
All shipments are made F.O.B., place of shipment. All shipments are determined by the SELLER as offered in the shopping cart unless agreed upon in writing in SELLER’s formal written quotation or acknowledgment. All SELLER prepay and add shipments are shipped with UPS. There is a $10.00 charge for FedEx Collect or other collect shipments with carriers other than UPS
Prices are subject to change without notice but are usually invoiced at the price (s) shown in the SELLER’s shopping cart. SELLER has the option, during times of fluctuating currencies and/or escalation in raw materials pricing, to review and adjust prices at time of actual shipment. BUYER agrees to accept SELLER’s adjusted prices.
4. Changes in Design
SELLER reserves the right to change or modify in part or whole, the product (s) ordered in any way and manner prior to shipment to the BUYER. The BUYER agrees to accept product (s) from SELLER, as delivered.
5. Shopping Cart Orders
BUYER may not change its shopping cart order without SELLER’s written consent. Any revision in drawings, designs, specifications, shipment completion dates or purchase order termination requested by BUYER may, if accepted, result in additional costs to BUYER. Changes in BUYER’s orders will not be considered effective until reviewed and agreed upon in writing by SELLER.
6. Terms of Payment
SELLER shall not be held liable for non-fulfillment of order (s). SELLER can, at their sole discretion, change the terms of payment of any BUYER to “Cash In Advance”, Collect On Delivery, or any combination of these, at any time. All amounts due shall be payable in United States dollars unless otherwise specifically agreed upon by SELLER.
Every reasonable attempt will be made to ship orders promptly but SELLER shall not be responsible for delays in shipment for any reason. SELLER reserves the right to make partial or complete deliveries of the product (s) covered on BUYER’s shopping cart order.
All products shall be shipped in SELLER’s standard commercial packaging.
SELLER warrants that the products sold will be free of manufacturing defects for a period of thirty (30) days from the original purchase date. To be eligible for credit or replacement, at the SELLERS option, BUYER must notify SELLER in writing of alleged defect or unsuitability within thirty (30) days of original invoice date. Warranty replacement or credit, which will be the SELLER’s decision, does not apply to product that has been improperly shipped or modified or serviced in any manner by a THIRD PARTY. SELLER’s liability in any case shall not exceed the replacement cost of the product that gave rise to the claim. SELLER will be the sole judge in determining if a product is defective. No other warranty is expressed or implied. SELLER is not responsible for any loss or damage incurred in the use or application of any product sold in any manner or design.
SELLER allows for no returns of any standard or custom product without prior written permission. BUYER must contact SELLER and request a Return Material Authorization (RMA). Approval for return shall be at the sole discretion of the SELLER. No returns will be authorized if original packing has been opened. All products approved for return to SELLER must be shipped prepaid by BUYER. Any product (s) returned to SELLER without proper authorization will be returned to BUYER and BUYER’s lone expense. A 15% re-stocking fee will be charged for all returned items.
SELLER reserves the right to correct clerical and typographical errors in any engineering drawing, quotation, acknowledgment, invoice or any other document rendered to BUYER.
12. Risk of Loss
Title, risk of loss, damage and insurance responsibilities of all products pass from SELLER to BUYER upon acceptance of product by the shipping agent or carrier. For all products and materials, SELLER shall retain a security interest in the products and materials until full payment is received. BUYER shall execute any instrument reasonably required for SELLER’s protection of such security interest.
SELLER accepts no cancellation of shopping cart orders, except with our full agreement and written consent. BUYER agrees to fully compensate SELLER for all costs incurred up to the moment of cancellation.
14. Confidential Information
BUYER will not disclose to any person or entity any written or printed information or data fixed in a tangible medium and marked as “confidential” of “proprietary” by SELLER. Documents transmitted from SELLER to BUYER cannot be photocopied or redistributed in any manner, even orally, to any third parties without written permission from SELLER. BUYER recognizes and agrees that the unauthorized use or disclosure of any confidential or proprietary information would cause irreparable injury to SELLER for which it would have no adequate remedy at law, and that any actual or contemplated breach of this clause will entitle SELLER to obtain immediate injunctive relief prohibiting such breach by BUYER, in addition to any rights and remedies available to it.
If any provision of these terms and conditions of sale is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions of sale.
16. Governing Law/Venue
The contract created by the issuance of a shopping cart order acknowledgment shall be construed, interpreted and applied in accordance with the internal laws of the State of Ohio. Buyer consents to this jurisdiction provision and, if BUYER initiates any legal proceeding against SELLER in any other court, BUYER agrees to assume all of SELLER’s costs in connection therewith, including reasonable attorney fees and all travel, lodging, meal, telephone, FAX and computer-related expenses of SELLER.
17. Intellectual Property Rights
All drawings, prints, designs, tooling, equipment, procedures, engineering changes, inventories, trade secrets, know-how, computer and/or product software used by SELLER in conjunction with the processing of any purchase order or other service provided, will remain the sole property of SELLER. BUYER agrees not to reverse engineer any products purchased hereunder.
Except for BUYER’s internal use of SELLER’s name and/or trademarks, BUYER will not use SELLER’s name or trademarks for any other purpose whatsoever without the express written consent of SELLER.
19. Cancellation for Default
SELLER may, upon written notice to BUYER, cancel any and/or all shopping cart orders effective immediately if:
1. BUYER makes an assignment for the benefit of creditors; is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or an insolvent debtor; files a petition for itself for reorganization; or, consents to or acquiesces in the appointment of a trustee, receiver or liquidator;
2. Any proceeding seeking involuntary reorganization, or similar, relief is filed against BUYER which is not dismissed within one (1) month after filing, or if any trustee, receiver or liquidator of BUYER or any subsequent part of its business assets, or properties is appointed without SELLER’s consent and such appointment is not vacated within one (1) month after such appointment:
3. BUYER ceases doing business as a going concern or it or its shareholders take any action (s) looking to its dissolution or liquidation; or
4. Fails to perform any material obligations and such failure is not remedied within fifteen (15) calender days after notice has been given BUYER.
5. BUYER fails to pay for any shopping cart order;
6. Any change occurs in the direct or indirect ownership of BUYER if, in SELLER’s opinion, such change may be detrimental to SELLER’s interest hereunder; or
7. Any cancellation pursuant to this clause will be in addition to and will not be exclusive of or prejudicial to any other rights or remedies at law in equity available to SELLER.
No waiver will be valid unless in writing, signed by an authorized representative of SELLER and no waiver granted will release BUYER from subsequent strict compliance herewith. The SELLER is not responsible for Errors or Omissions associated with the sale of any products and shall not be held liable in any manner