ESI ACQUISITION CORP Doing Business as JA MOODY and MOODY MARINE SERVICE INC
STANDARD TERMS AND CONDITIONS OF SALE
These conditions shall apply to all contracts between ESI ACQUISITION CORP DBA JA Moody or DBA MOODY MARINE SERVICE INC (hereafter known as Seller) and the Customer, either written or oral, for the sale or supply of any products or services, to the exclusion of any other terms and conditions where a purchase order has been given to Seller. In the case of any inconsistency between the terms and conditions of any quotation, purchase order, acknowledgement, or form of contract sent from Customer to Seller, or contained in any other communication between the Customer and Seller, or any terms and conditions implied by trade, custom, practice or prior course of dealings, then these conditions shall prevail.
ORDERS AND ACCEPTANCE
Specifications or any description of the products or services appearing in any catalogue or marketing materials shall not form a part of the contract between the Seller and the Customer unless such specification or description is specifically referenced and restated in the order and specifically acknowledged by Seller in its acceptance.
PRICE AND PAYMENT
All prices quoted by seller are exclusive of sales, use, excise taxes, duties, charges, or similar costs. Unless otherwise stipulated in any quotation or otherwise expressly agreed in writing, all prices are exclusive of all shipping costs and insurance, which shall be invoiced to and paid by the Customer as additional charges. Unless otherwise stipulated in any quotation or otherwise expressly agreed in writing, all prices are exclusive of installation, engineering and related charges, which shall be invoiced to and paid by the Customer as additional charges. Unless otherwise agreed in writing, the Customer shall make payment of the purchase price in US dollars at the time stated in the quotation or upon delivery of the product or services, without deduction or discount of any kind. Each payment shall be made within thirty days of invoice date and payable upon presentation of invoice and customary documents. If a Customer disputes any invoice or part thereof, the Customer shall immediately pay the undisputed portion of the invoice and shall immediately notify Seller in writing of the reasons for such dispute. The parties shall seek to resolve the dispute within fourteen days of such notification. Upon resolution of the dispute, such sum as is agreed upon by the parties as payable shall be paid immediately to the Seller.
DELIVERY, TITLE AND RISK OF LOSS
All times and dates given by Seller for delivery of products or services are given in good faith, and Seller shall use reasonable efforts to meet such delivery times and dates, and, except as expressly provided for in this article, Seller shall have no liability to the Customer in the event of a delay in delivery or performance that is beyond of the control of Seller. Unless otherwise expressly stated in the quotation or order, delivery of products shall be F.O.B seller’s facility. Buyer will provide sales tax exemption certificates on request. As security for the full and prompt payment of all amounts owed by Customer to the Seller, the Customer grants Seller a security interest in all products supplied by Seller to the Customer. The Customer shall execute all such documents and do all such other things as may be reasonably necessary to perfect and register such security interest. Seller shall have the right to make, and the Customer agrees to accept, delivery by installments. Upon delivery, it shall be the responsibility of the Customer to inspect the condition of the products or services to determine that they conform to the order. The Customer shall have no claim against the Seller by reason of the defects in the condition of the products or services at time of delivery or failure to conform with the order unless the Customer provides written notice of such defect or failure to conform to Seller within thirty (30) days of delivery by Seller of the products.
Customer cancellation for convenience for non-stock items will incur restocking fees after 5 days based in part on manufacturer’s incurred costs towards order completion.
Customer may return an order upon advance written approval of Seller per a written Return Merchandise Authorization form; Customer must pay the freight charges and Seller’s reasonable cancellation and restocking charges, based in part on manufacturer’s charges. No merchandise is returnable without Seller’s advance written consent, with shipping instructions furnished, and no merchandise will be accepted for credit without Seller’s written authorization. No credit will be issued to Customer until credit from the manufacturer is received.
Where Seller supplies any goods supplied by a third party, Seller does not give any warranty, guarantee, or indemnity on such goods, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee, or indemnity provided to Seller by such third party. Seller warrants that at the time of delivery the products or services shall be and shall perform substantially in compliance with any specification, drawings, and other documents expressly incorporated into the order; and during the warranty period the products or services shall remain free from defects in material and workmanship, failing which Seller shall (at its option) either repair or replace the defective products/services or issue a credit to Customer in an amount equal to the purchase price of the defective products/services.
LIMITATIONS OF LIABILITY
Notwithstanding any other provisions in these conditions:
- Any obligation, liability, right, claim, or remedy in tort (including, without limitation, for the avoidance of doubt, any breach of statutory duty) that the Customer may otherwise have against Seller is hereby excluded fully as permitted by law.
- Where Seller supplies products/services, Customer shall be responsible for ensuring that such products/services are suitable for use in the process media and or Customer designated application and shall indemnify and hold Seller harmless from and against all damages, claims, costs, or liabilities incurred by Seller arising from the products/service not being suitable.
- SELLER SHALL NOT BE LIABLE TO THE CUSTOMER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE HOWSOEVER ARISING FOR ANY LOSS OF PROFIT OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE WHATSOEVER INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF PRODUCTION, MATERIAL WASTAGE, DEPLETION OF GOODWILL, REPUTATION OR LOSS OR CORRUPTION OF DATA, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS BEING INCURRED.
- Seller’s aggregate liability to the Customer arising out of the supply of any products/services will in no event exceed the price paid by the Customer to Seller for such products and /or services. The Customer agrees and acknowledges that these conditions have been the subject of discussion and negotiation and are fully understood by the Customer.
EXPORT AND IMPORT TERMS
Delivery and performance respectively of the Products/Services supplied by Seller are subject to applicable export control laws and regulations of the United States and conditioned upon receipt of required government licenses and approvals. The Customer shall, in a timely manner and at its own expense, provide to Seller such end user certificates as necessary in support of obtaining and maintaining export compliance.
Seller shall not be liable for delay or failure in performance of any of its obligations to the Customer attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, actions or inactions of government bodies whether in its sovereign or contractual capacity, judicial action, war, civil disturbance, insurrection, sabotage, act of a public enemy, act of terrorism, labor difficulties or disputes, failure or delay by Seller’s suppliers or subcontractors, transportation difficulties, shortage of energy, materials, labor or equipment, accident, fire, flood, storm or other act of God, (“Force Majeure”) or the Customer’s fault or negligence.
Seller may terminate any order:
- Immediately upon notice to the Customer if the Customer is delinquent for more than 30 days in the payment of any sum due to Seller
- Immediately upon notice to the Customer if it is in breach of any obligation under the order and the Customer has failed to remedy such breach within 30 days of written notice to the Customer requiring the breach to be remedied.
- Termination of any order by Seller shall be without liability or obligation of any kind on the part of Seller.
Customer agrees to indemnify, release, defend and hold harmless Seller, its affiliates, their employees, officers, directors, shareholders, agents, and subcontractors against all claims, costs, charges, expenses, damages and other liabilities (including attorney’s fees) in connection with any injury, death, or ill health, of any personnel of Customer, its affiliates, its subcontractors, or any loss of or damage to property (whether owned, leased or hired) of Customer, its affiliates, its subcontractors, regardless of the cause therefor, including without limitation, the negligence or strict liability of the Seller’s indemnities, its affiliates, their employees, officers, directors, agents, and subcontractors. Customer will indemnify, hold harmless, and defend the seller’s indemnitees from and against any claims, suits, judgements, expenses, or liabilities of any nature (including without limitation, all reasonable attorneys’ fees) which are threatened or brought against, or are incurred by, Seller’s indemnitees arising from any actions, omissions, or misrepresentations of Customer in the use, promotion, or sale of products or services provided by Seller.
Seller shall not be obliged to safeguard or hold confidential any data, technical or other information furnished by Customer for Seller’s supply of products or services unless (and only to the extent that) the Customer and Seller have entered into a separate written confidentially agreement.
GOVERNING LAW AND JURISDICTION
These Conditions shall be governed by and construed in accordance with the laws of the State of Pennsylvania.
If any dispute arises in connection with the order for products or services, the parties shall meet within ten (10) days in a good faith effort to resolve the dispute without recourse to legal proceedings. If the parties fail to reach agreement within thirty (30) days of negotiations, the difference or dispute may be referred for resolution in accordance with the following article. The dispute or breach relating to the order for products or services shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration association then in effect. The parties may agree on the selection of a single arbitrator, but if they cannot so agree, each party shall select an arbitrator and the two selected arbitrators shall select a third arbitrator. No arbitrator may be affiliated, whether directly or indirectly, with any of the parties, including without limitation, as an employee, consultant, partner or shareholder. The arbitrator(s) shall permit each of the parties to engage in a reasonable amount of discovery. In the event either party requests arbitration, the arbitration shall be held in Philadelphia, Pennsylvania. The award by the arbitrator(s) shall be final, and judgement upon the award rendered may be entered in any court having jurisdiction thereof.
Any provision of these conditions that is prohibited or unenforceable for any reason in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability without invalidating the remaining provisions, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. For any provision severed from these conditions, there shall be deemed to be substituted a like provision to accomplish the intent of the parties as closely as possible to the provision so severed, as determined by any court of competent jurisdiction, to the extent permitted by law.
Any notice to be given under these Conditions shall be in writing and may be hand delivered (including by courier service) in the case of the Customer, notice may be sent to its principal place of business or such other address as the Customer may have provided to Seller for this purpose. In the case of Seller, notices shall be sent to Seller at the address stated on the order marked to the attention of “General Manager.”
Neither the Customer nor Seller may assign these conditions in whole or in part without the prior written consent of the other party. No amendment to the order shall be effective unless in writing and signed on behalf of both parties. No failure by either party to enforce, at any time or for any period, any one or more of the terms or conditions of the Order shall be construed as a waiver of them or of the right at any time subsequently to enforce all terms and conditions of the Order. Any obligations and duties, which by their nature extend beyond the expiration or earlier termination of these Conditions and/or the completion of each Order shall survive any such expiration or termination and remain in effect.
ENTIRE AGREEMENT AND THIRD PARTIES
These Conditions supersede all previous communications, transactions, and understandings, whether written or oral, and constitute the sole and entire agreement between the parties pertaining to any Order. No modification or deletion of, or addition to these Conditions or any Order shall be binding on either party unless made in writing and signed by a duly authorized representative of both parties. No contract between the parties for the supply of Products or Services shall confer any right upon any third party, either by virtue of the contracts (Rights of Third Parties) Act 1999 or otherwise.