SIJ Americas: Terms and Conditions of Sale
Effective from 30 May 2018
SIJ Americas (Seller) and a client (Buyer) in consideration of the mutual promises set forth in these Terms and Conditions of Sale (Contract) agreed as follows:
This Contract shall exclusively apply to all contracts, each offer and delivery of goods between Kopo International and all our clients. Additional terms, including but not limited to Buyer’s purchase orders, are deemed material and are expressly excluded by this Contract.
1. Validity. Buyer assents to this Contract from the moment when Buyer (1) receives Order Confirmation without sending written objections to Seller within 7 days; or (2) affirms to Seller that he should begin work on the Order Confirmation. Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions.
2. Price and Terms of Payment. The purchase price of goods shall be as stated on the applicable Order Confirmation. Seller’s prices are CIF Port of entry, if not expressly stated otherwise in Order Confirmation or Material Certificate. Seller may announce a surcharge for confirmed orders to reflect any increase in Seller’s costs for any reason beyond Seller’s control, including, but not limited to strikes, shortage of primary material, import tariffs or other governmental regulation, and force majeure events.
Buyer shall make a payment not later than 30 days from delivery date, unless otherwise is provided in the Order Confirmation or Material Certificate. Payment is considered made when received by Seller. If Buyer fails to make payment by due date, Seller without prejudice to any other remedies and rights available to Seller, may charge the interest of 10% on the unpaid amount per annum. If Buyer fails to make a timely payment or there are reasons to doubt Buyer’s solvency or credit standing, Seller may demand securities or prepayment for any outstanding delivery or declare immediate maturity of all outstanding payments.
3. Accord and Satisfaction. Seller shall apply any payment whether full or partial, received from or for the account of Buyer, against the amount owed by Buyer with full reservation of all Seller’s rights and without an accord and satisfaction of Buyer’s liability.
4. LIMITED WARRANTY. UNLESS OTHERWISE PROVIDED IN WRITING IN THE ORDER CONFIRMATION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER ACCEPTS NO RESPONSIBILITY, RISK OR LIABILITY TO BUYER OR OTHERS CONCERNING, RELATING TO OR ARISING OUT OF THE PERFORMANCE, NONPERFORMANCE, FAILURE, EFFICACY, LENGTH OF LIFE OF OR ANY DEFECT IN THE WHOLE OR ANY PART OR PARTS OF ANY PRODUCT OR PRODUCTS MANUFACTURED OR FABRICATED FROM OR INCORPORATING OR OTHERWISE USING THE PRODUCTS SOLD BY SELLER.
5. LIMITATIONS OF LIABILITY. SELLER’S LIABILITY, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), UNDER WARRANTY, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS AGAINST WHICH CLAIM IS MADE. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS, OR LOST SALES.
6. Delivery. Risk of Loss. Delivery date is provided in Order Confirmation, unless agreed otherwise. Partial fulfillment of order is allowed. Unless stated otherwise in Order Confirmation, all deliveries are CIF, and Buyer shall bear risk of loss after the goods are loaded for delivery. Notwithstanding delivery or passage of risk, Seller reserves and retains title to goods supplied, until payment in full of the purchase price and of all claims against Buyer is received by Seller. If the goods were processed, Seller shall become co-owner of processed goods, proportionally to the value of invoice. In case of resale the Buyer herby assigns all the receivables arising from resale, to Seller until the payment is made in full.
7. Claims. Buyer shall inspect the goods upon receipt. For shortage of goods or if the goods are visually damaged, Buyer shall make a claim practically immediately, and in no case later than 3 days from receipt of goods. Buyer shall submit a claim for all other circumstances including damage to wrapped goods, non-visual defects, and all nonconformance to ordered specifications, that is not readily determinable, no later than 6 months of receipt of goods. Buyer shall submit all claims in writing, and specify the reason(s) for the claim. THE FAILURE TO NOTIFY SELLER OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM. Buyer shall give Seller an opportunity to investigate the claim, and shall not return, repair or discard damaged goods without Seller’s written permission. If Seller finds that the claim is valid, Seller shall, in its sole discretion, (i) replace such goods at Seller’s location, or (ii) credit or refund the price for such goods at the purchase rate. Buyer shall ship, at its expense and risk of loss, the nonconforming goods to Seller’s facility. If Seller exercises its option to replace nonconforming goods, Seller shall, after receiving Buyer’s shipment of nonconforming goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced goods to the Seller’s location. Buyer acknowledges and agrees that the abovementioned remedies are Buyer’s sole and exclusive remedies for the delivery of damaged or nonconforming goods.
8. Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Contract, relating to any claim of a third party in connection with the products purchased from Seller or Buyer’s negligence, willful misconduct, or breach of this Contract.
9. Force Majeure. Seller shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part from causes beyond Seller’s reasonable control (which events may include, but not limited to, acts of God, strikes, mill conditions, temporary or permanent mill closures, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and delays in transportation).
10. Credit. Buyer represents and warrants that Buyer is solvent, and can and will pay for the products sold to the Buyer in accordance with this Contract. If Seller has reasons to doubt Buyer’s solvency or credit standing, Seller may by written notice, cancel any order, reevaluate all payment terms, or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of a material adverse change to Buyer’s financial condition.
11. Technical Advice. Seller assumes no obligation or liability for any technical advice furnished to Buyer, including without limitation technical advice with respect to the use of Seller’s goods and services, all such technical advice being given and accepted at Buyer’s risk.
12. Governing law. All matters arising under or relating to this Contract shall be governed by, construed, and enforced in accordance with the laws of the state of New York, without regard to its conflict of laws principles. Buyer and Seller will attempt in good faith to resolve promptly through negotiation any dispute arising from or related to this Contract. Buyer expressly and irrevocably consents to the jurisdiction of the state and federal courts located in New York City, New York. Buyer waives the right to assert improper venue and forum non convenience in any of such actions.
13. WAIVER OF JURY TRIAL. BUYER, ACTING FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED TO THIS CONTRACT.
14. STATUTE OF LIMITATIONS. BUYER AND SELLER AGREE THAT ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS CONTRACT MUST BE BROUGHT WITHIN ONE YEAR AFTER GOODS HAVE BEEN DELIVERED TO BUYER.
15. Nonwaiver. Seller reserves the right to enforce this Contract at any time and none shall be deemed waived unless such waiver is in writing and signed by an authorized officer of Seller.
16. Notice. The notice is valid if given in writing and the intended recipient receives it. E-mail is proper method of notice only if the sender uses a delivery verification service, or if the recipient has communicated from that e-mail address during the Contract performance.
17. Severability. If any provision or part of a provision of this Contract is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.
18. Incorporation by reference. Any clause required to be included in an agreement of this type by any applicable and valid federal, state, or local law shall be deemed incorporated herein.
19. Integration. Modification. This is entire agreement between the parties and is intended to be the complete and final statement of the agreement between Buyer and Seller. All proposals, negotiations, and representations, if any, made prior to the date of conclusion this Contract, whether oral or in writing, are merged and superseded by this Contract. This Contract can be modified only in writing signed by Seller and Buyer.