Please read this document carefully. It contains very important information about your rights and obligations, as well as limitations and exclusions that may apply to you.
TERMS ARE EXCLUSIVE: This document contains the terms and conditions that apply to your purchase from Aquasol Corporation (hereinafter “Aquasol”). This document constitutes the complete and final agreement of you, the undersigned, (hereinafter referred to as “Purchaser”) and Aquasol for the products described hereon. The terms and conditions contained in this document may not be added to, modified, supplemented or superseded by the use of any other documents including but not limited to any and all Purchaser documents. Any attempt to alter, supplement or amend this document will be null and void unless any such amendment or supplementation is agreed to as evidence by a signed approval by an authorized representative of Aquasol. If Purchaser accepts any performance of Aquasol, Purchaser will be deemed to have accepted the terms and conditions of this document. For special orders, prepayment for tooling, crating, and other charges may apply.
TERMS OF ACCEPTANCE: Payment in full is due upon receipt of invoice. However, the payment terms of a Purchaser with approved credit are net 30 days after date of invoice which shall be the date of release from the warehouse for shipment. If payment is not received when due, there will be assessed a charge for financing at 1.5% per month or fraction thereof. On custom orders, Aquasol reserves the right to ship and bill ten percent (10%) more or ten percent (10%) less than ordered due to difficulties in material procurement and in production scheduling. If any order is not for an integral number of standard containers, Aquasol reserves the right to ship, and Purchaser agrees to pay for, the nearest quantity possible in standard containers, even though this may raise or lower the quantity ordered.
PRICING: The prices shall be those in effect at the time of shipment for the particular product, grade and quantity shipped. Aquasol reserves the right to amend its pricing without notice. If an order is delayed at the request of Purchaser and such delay causes increased cost, the additional cost will be billed to the Purchaser. Additionally, if costs for a particular product are increased as a result of new governmental regulations, tariffs or other customs related charges, or other reasons beyond Aquasol’s control, the increased cost shall be added to the Purchaser’s invoice
TAXES: Unless noted on the face of this invoice, no sales, use or other product taxes are included, and any such taxes, where applicable, are the sole and exclusive responsibility of the Purchaser and must be paid by the Purchaser.
DELIVERY: Title to and risk of loss of the products will pass to Purchaser upon Aquasol tender of delivery of the products to a carrier (Ex-Works North Tonawanda, New York). Purchaser is responsible for all freight, insurance, duty and other related costs and risks.
AVAILABILITY OF SUPPLIES: Delivery of the products ordered by Purchaser is contingent upon Aquasol’s ability to obtain supplies, raw materials and services through its regular and usual sources. If, for any reason beyond Aquasol’s control, Aquasol is unable to meet anticipated deliveries or fill an order, Aquasol will not be liable therefore and may postpone the delivery date(s) under this document for a period of time which is reasonable under all of the circumstances. Aquasol uses its best efforts to stock those items which are standard and for which there is a constant demand and does its best to make rapid delivery of special items which must be manufactured. Accordingly, delivery dates quoted by Aquasol are best estimates or approximations of delivery. Because of many factors which are generally beyond Aquasol’s control, Aquasol cannot guarantee delivery on a specific date (unless a specific delivery date is agreed to in a separate writing) and Aquasol will not be responsible for any penalty charges if a delivery date is exceeded. Aquasol reserves the right to ship in advance of a delivery date, if in Aquasol’s opinion; this should be done to insure delivery within the time desired.
INSPECTIONS AND ACCEPTANCE: Each delivery of products will be inspected promptly by Purchaser for damage and defects. Purchaser must notify Aquasol, in writing, of any and all claimed damage or defects within ten (10) days of Purchaser’s receipt of the products. If Purchaser fails to so inspect or notify Aquasol, in writing, Purchaser will be deemed to have accepted the products and to have waived any claim for damage or defect. If Purchaser inspects the products and promptly notifies Aquasol, in writing within ten (10) days of receipt of the product(s) of its claim that the products are damaged or defective, Aquasol will review Purchaser’s claim, and if valid, as determined in the sole discretion of Aquasol, Purchaser and Aquasol will agree upon the method and timing of resolving such damage or defect.
SECURITY INTEREST: It is understood and agreed that Aquasol reserves and maintains a security interest in the products sold to secure Purchaser’s payment of the purchase price and any other charges owed by Purchaser, and Purchaser agrees that Aquasol may (but is not obligated to) take appropriate actions to evidence and perfect such interest and that Purchaser will cooperate with Aquasol in taking of such actions.
LIMITED WARRANTY, WARRANTY DISCLAIMER AND LIMITATIONS OR REMEDIES AND LIABILITIES: Aquasol warrants to Purchaser, only for commercial use or resale, that at the time of delivery the products will conform (subject to variations acceptable within the industry) to the specifications set forth in this document. Any products determined by Aquasol, in its sole discretion, not to have been in conformity with the specifications will be repaired or replaced, at Aquasol’s option, as long as Purchaser has acted in accordance with the paragraph above regarding inspections and acceptance. No item will be deemed defective or not in accordance herewith if such item conforms to previously accepted materials or if such item fits Purchaser’s parts or equipment or otherwise reasonably accommodates Purchaser’s intended purpose.
Except as set forth above or in a separate warranty given to purchaser by Aquasol, Aquasol makes no other warranties concerning the products whatsoever. AQUASOL DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Purchaser agrees that Aquasol’s obligation described in this paragraph is the sole remedy bargained for by Purchaser in lieu of all other expressed and implied warranties. In no event will Aquasol’s liability exceed the paid purchase price of the products. Aquasol’s obligation described in this paragraph will be Purchaser’s sole and exclusive remedy against Aquasol for any liability with respect to products whether any claim for recovery is based upon or arises out of theories of contract, negligence, tort (including strict liability) or otherwise. IN NO EVENT WILL AQUASOL BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY EXCEPT AS EXPRESSLY PROVIDED HEREIN.
RETURNS: No product is to be returned to Aquasol without written authorization of Aquasol. Aquasol’s products are sold on the basis that the Purchaser has examined them and made its own selection or determination of suitability. Although Aquasol desires to help its customers make the best possible selection, the final decision is that of the Purchaser.
CANCELLATION: Cancellation of an order for a standard product will be accepted without charge only if the cancellation results in no monetary loss to Aquasol. In the event that there is a monetary loss to Aquasol for a cancelled order, said loss will be billed to the Purchaser. Cancellation of custom order(s) will be accepted on the terms that Aquasol will refund only the savings in labor or material which Aquasol can affect by not completing the order. Returns are only accepted if properly authorized. All returns are subject to a 35% restocking fee. Authorized returns should be shipped with freight and duty prepaid.
GENERAL: The contract arising hereunder will be governed by the laws of the state of New York and shall be heard or tried only in the courts of the State of New York, County of Erie or the Federal District Court for the Western District of New York. If any of the provisions of this document are deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
The rights and remedies of Aquasol herein will be cumulative and additional to any other or further rights and remedies provided in law or equity. Waiver by Aquasol of Purchaser’s performance, or inaction with respect to Purchaser’s breach of any provision of this document will not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision will remain in full force and effect as written.
In the production of the products and/or performance of the services covered by this document, Aquasol has fully complied with the Fair Labor Standards Act of 1938, as amended, and all other applicable laws and governmental regulations.
LEGAL FEES: In the event Purchaser breaches this agreement, Purchaser agrees that it will be liable for all of Aquasol’s attorney fees, costs and disbursements incurred as a result of Purchaser’s breach.
FORCE MAJEURE: Failure of Aquasol, in whole or in part, to perform its obligations hereunder when due, if occasioned by act of God, fire, explosion, flood, riot, war, insurrection, labor disputes, sabotage, accident, embargo, or by interruption or delay in transportation, or by any inadequacy or shortage or failure of supply of product, or by compliance with any order, direction, action or request of any court or of any governmental officers, department or agency, or by other causes beyond Aquasol’s control which makes it impossible to perform, shall not subject Aquasol to any liability to Purchaser. In such event, Purchaser may, at its option, either cancel such order in whole or in part or extend the period for performance to the extent of the delay occasioned by any such circumstance.
REMEDIES OF AQUASOL: Upon default by Purchaser, Purchaser agrees to reimburse Aquasol for all attorneys’ fees and costs incurred by Aquasol in connection therewith. Purchaser agrees that any of the following shall constitute an event of default which shall enable Aquasol, at its option, to cancel any unexecuted portion of this order, or to exercise any right or remedy which it may have by law: (a) the failure of Purchaser to perform any term or condition contained herein; (b) any failure of the Purchaser to give required notice; (c) the insolvency of Purchaser or its failure to pay debts as they mature, as assignment by Purchaser for the benefit of its creditors, the appointment of a receiver for Purchaser or for the materials covered by the Sales Document, or the filing of any petition to adjudicate Purchaser bankrupt; (d) the death, incompetence, dissolution or termination of existence of Purchaser; (e) a failure by Purchaser to provide adequate assurance of performance within ten (10) days after a justified demand by Aquasol; or (f) if Aquasol, in good faith, believes that Purchaser’s prospect of performance under this Agreement is impaired. All rights and remedies of Aquasol herein are in addition to, and shall not exclude any rights or remedies that Aquasol may have in law or in equity. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and Purchaser shall pay all such charges.
ORDER OF PREFERENCE: Unless otherwise provided, in the event of a conflict between these terms and conditions and Purchaser’s order, specifications and/or terms and conditions, the order of precedence shall be as follows:
(1) Sales Document
(2) These Terms and Conditions of Sale;
(3) Specifications; and
(4) Purchaser’s Terms and Conditions of Purchase.
HEADINGS. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
In all cases clerical errors are subject to correction.