Terms and Conditions of Sale
1. Definitions. “Seller” means EZ-Dumpster, LLC. “Purchaser” means the entity purchasing the Products from Seller pursuant to the attached Sales Agreement (the “Sales Agreement”). All capitalized terms not otherwise defined herein shall bear the definition assigned in the Sales Agreement.
2. Acceptance of Terms and Conditions. The terms and conditions set forth in these Terms and Conditions of Sale (hereinafter, the “Terms and Conditions”) control all purchases of Products from the Seller. The acceptance of Purchaser’s order for the Products is expressly conditioned upon Purchaser’s assent to these terms and conditions and, in the absence of a writing executed by a duly authorized representative of Seller, Seller objects to and is not bound by conditions that differ from or add to the terms and conditions specified herein. To the extent these Terms and Conditions may conflict with any terms and conditions of a purchase order or other procurement document issued by Purchaser, these Terms and Conditions shall govern, regardless of whether Seller objects to same.
3. Prices and Taxes. Unless otherwise stated in writing by Seller, all prices are stated in U.S. Dollars, and are subject to change on thirty (30) days’ notice to the Purchaser. The prices offered apply only to the specific quantities of Products and/or delivery schedules set forth in the Sales Agreement.
The amount of any present or future sales, use, excise or other tax applicable to the purchase or shipment of the Products will be added to the invoice (in addition to the Purchase Price set forth in the Sales Agreement) and must be paid by Purchaser, unless Purchaser provides an applicable exemption certificate.
4. Payment Terms. Standard payment terms are net thirty (30) days from the date of Seller’s invoice, unless other terms of payment are agreed to by both parties in the Sales Agreement. If, prior to the shipment of the Products, the Purchaser fails to fulfil the terms of payment of any prior invoice or, if in the opinion of Seller, Purchaser’s financial condition becomes materially impaired, Seller reserves the right to change without notice the terms of payment and/or delay or discontinue future shipments until past due obligations have been paid.
Any amounts payable by Purchaser in connection with the purchase of the Products which remain unpaid after the due date shall be subject to a late charge equal to the lesser of (i) one percent (1%) per month from the due date until the time such amount is paid, or (ii) the maximum rate permitted under applicable law. Seller may recover all costs of collection including reasonable attorneys’ fees.
5. Delivery and Risk of Loss. Seller shall use reasonable efforts to deliver the Products to Purchaser by the date set forth in the Sales Agreement. Delivery shall be made to the location designated by the Purchaser and all transportation, shipping and handling charges shall be paid by the Purchaser. Times quoted for delivery represent Seller’s best estimates and Seller shall in good faith endeavour to meet such times. Timely delivery is dependent upon prompt receipt of all Purchaser-furnished information.
Title and risk of loss to the Products shall pass to the Purchaser at the time the Products are delivered; provided, however, that Seller hereby retains title to the Products and a security interest therein until payment in full and performance by Purchaser of all obligations under the Sales Agreement.
Upon delivery, Purchaser assumes full responsibility and liability for compliance with government laws, rules and regulations relating to the Products, including without limitation storage, handling, use, and disposal.
6. Inspection and Acceptance. The Purchaser shall inspect and accept or reject the Products delivered pursuant to the Sales Agreement immediately after Purchaser receives delivery of same. The Purchaser shall notify the Seller of any visible defects, nonconformities, quantity shortages, or incorrect product shipments within fifteen (15) days of the delivery of the Products. Purchaser’s failure to so notify the Seller within the time period set forth above shall be deemed an unconditional acceptance of the Products delivered hereunder and a waiver of any visible defects, nonconformities, quantity shortages, or incorrect product shipments.
No Products may be returned without Seller’s prior authorization. Once authorization is received, Purchaser shall return nonconforming Products in accordance with instructions issued by Seller. Seller agrees to assume round trip transportation costs for nonconforming Products not to exceed normal (non express) shipping charges within the continental United States. Failure to follow Seller’s return procedures may result in restocking charges, warranty denial or refusal of a shipment.
7. Cancellation. Purchaser’s Cancellation for Convenience: Purchaser may cancel any order for convenience on the following terms: (i) For standard Products, Purchaser may cancel or reschedule a product without penalty if the cancellation is more than one (1) day from the shipping date (as specified in the Sales Agreement), although cancellations within 1 day of the shipping date may be subject to special charges; or (ii) for nonstandard Products, Purchaser may cancel or reschedule more than five (5) days from the shipping date set forth in the Sales Agreement, except that Purchaser shall accept delivery of all such Products which are completed at the time of cancellation or rescheduling. In no event can an order be cancelled by Purchaser once shipment of the Products has been made.
Purchaser’s Cancellation for Default: Upon written notice to Seller, any order may be canceled in whole or in part in accordance with the terms hereof, because of Seller’s failure to deliver products by the shipping date set forth in the Sales Agreement (this failure hereinafter called “Default”). Cancellation by Purchaser for Seller’s Default shall be effective only upon Seller’s failure to correct such Default within a reasonable period of time, but not less than thirty (30) days after receipt by Seller of written notice of such Default. Upon cancellation, Purchaser, as its sole remedy, may recover from Seller as damages the difference between cost of procurement from another source (cover) and the contract price, less expenses saved as a consequence of Seller’s breach. In no event shall these damages exceed ten percent (10%) of Seller’s product price multiplied by the number of Products which remain unshipped at the time of cancellation.
Seller’s Cancellation: Seller shall have the right to cancel any unfilled order without notice to Purchaser in the event that Purchaser becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. Any order that can be cancelled or rescheduled by Purchaser may be cancelled or rescheduled by Seller if notice is given to Purchaser.
8. Limited Warranty. SELLER ONLY WARRANTS THAT THE PRODUCTS SHALL MEET THE SPECIFICATIONS SET FORTH IN THE SALES AGREEMENT. SELLER MAKES NO OTHER REPRESENTATION, GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9 HEREOF. SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EVEN IF THAT PURPOSE IS KNOWN TO SELLER. ANY PRODUCT INFORMATION OR ASSISTANCE WHICH SELLER MAY FURNISH TO PRUCHASER IS GRATUITOUS AND SHALL IN NO WAY BE DEEMED PART OF THE SALE OF THE PRODUCTS HEREUNDER NOR CONSTITUTE A WARRANTY OF THE PRODUCTS.
THE LIMITED WARRANTY DOES NOT APPLY TO, AND SELLER ASSUMES NO RESPONSIBILITY FOR, DAMAGE OR DEFECTS ARISING FROM, WITHOUT LIMITATION, MISUSE, IMPROPER OPERATION, ACCIDENT, NEGLECT, MODIFICATION, REPAIR BY PURCHASER, DEMANDS EXCEEDING PERFOMANCE LEVELS ESTABLISHED BY SPECIFICATIONS OR OPERATING INSTRUCTIONS, FAILURE TO CARRY OUT RECOMMENDED SERVICING, OR FROM THE USE OF REPLACEMENTS COMPONENTS OTHER THAN THOSE SUPPLIED OR APPROVED IN WRITING BY SELLER.
9. Patent Indemnities. Infringement by Seller. Seller warrants that the Products manufactured by Seller and sold hereunder do not infringe any U.S. patent or copyright. If Purchaser receives a claim that any such Product, or parts thereof, infringe upon the rights of others under any U.S. patent or copyright, Purchaser shall notify Seller immediately in writing. As to all infringement claims relating to Products manufactured by Seller: (a) Purchaser shall give Seller information, assistance and exclusive authority to evaluate, defend and settle such claims; (b) Seller shall then, at its own expense, defend or settle such claims, procure for the Purchaser the right to use the Products, or remove or modify them to avoid infringement. If none of these alternatives is available on terms reasonable to Seller, then Purchaser shall return the Products to Seller and Seller shall refund to Purchaser the Purchase Price paid by the Purchaser less reasonable depreciation for Purchaser's use of the Products. Upon the refund of such Purchase Price to Purchaser, Seller shall have no further liability to Purchaser under the Sales Agreement or otherwise.
Infringement by Purchaser. If some or all of the Products sold hereunder are made by Seller pursuant to specifications furnished by the Purchaser, or if Purchaser modifies or combines, operates or uses the Products other than as specified by Seller, then the indemnity obligation of Seller under this Section shall be null and void and should a claim be made that such Products infringe the rights of any third party under patent, trademark or otherwise, then Purchaser shall indemnify and hold Seller harmless against any liability or expense, including reasonable attorneys' fees, incurred by Seller in connection therewith.
10. Limitation of Liability. In no event shall Seller's liability hereunder exceed the actual loss or damage sustained by Purchaser, up to the purchase price of the Products.
SELLER SHALL NOT BE LIABLE UNDER ANY THEORY OF RECOVERY, WHETHER IN CONTRACT, TORT OR WARRANTY, FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY INCIDENTAL, UNFORESEEN, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE PRODUCTS, EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO SELLER IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SELLER.
11. Force Majeure. Seller will make every effort to complete shipment, and performance hereunder, but shall not be liable for any loss or damage for delay in delivery, inability to install or any other failure to perform due to causes beyond its reasonable control including, but not limited to, acts of government or compliance with any governmental rules or regulations, acts of God or the public, war, civil commotion, terrorist acts, blockades, embargoes, calamities, floods, fires, earthquakes, explosions, storms, strikes, lockouts, labor disputes, or unavailability of labor, raw materials, power or supplies. Should such a delay occur, upon notice to Purchaser, Seller may reasonably extend delivery or production schedules or, at its option, cancel the order in whole or part without liability other than to return any unearned deposit or prepayment.
12. Arbitration; Venue. Any disagreement, dispute, controversy or claim arising out of the Sales Agreement or the transactions contemplated thereby, including without limitation, interpretation thereof, or any alleged breach or invalidity, which cannot be resolved through the good faith negotiations of the parties, shall be resolved through arbitration. The arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association (except to the extent such rules conflict with the provisions of the Sales Agreement and/or these Terms and Conditions, in which event, the Sales Agreement and/or Terms and Conditions shall control). The tribunal shall be composed of three arbitrators (one selected by each party and the third selected by the arbitrators selected by the parties) and shall be conducted in Newark, New Jersey (“Site”). Any arbitration proceedings shall be conducted in confidence and the award or decision of the tribunal shall be final and binding upon the parties.
13. Assignment. Neither party may assign any rights or obligations under the Sales Agreement without the written consent of the other. The Sales Agreement shall inure to and be binding upon the parties and their respective successors, permitted assigns and legal representatives.
14. Governing Law. The Sales Agreement shall be governed by the laws of the State of New Jersey without regard to conflict of law principles.
15. Integration. The Sales Agreement, including these Terms and Conditions or other documents incorporated by reference, constitute the entire agreement and the complete and exclusive statement of agreement with respect to the subject matter hereof, and supersede any and all prior agreements, understandings and communications between the parties with respect to the Products.
16. Severability. No provision of the Sales Agreement which may be deemed unenforceable will in any way invalidate any other portion or provision of this Agreement.
17. Waiver. No failure and no delay in exercising, on the part of any party, any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude the further exercise of any other right.
18. Notices. Any notice or other communication under the Sales Agreement shall be deemed properly given if given in writing and delivered in person or sent by reputable overnight courier or certified mail, return receipt requested, properly addressed and stamped with the required postage, to the intended recipient at its address specified on the face hereof. Either party may from time to time change such address by giving the other party notice of such change in accordance with this Section.
