The following terms and conditions of sale apply to all goods and services of PMA Tools, Inc. (Seller), regardless of their nature, sold to the Customer named on the reverse of this Order, whether or not they are expressly accepted by the Customer in any specific instance. Any terms and conditions proposed by the Customer which conflict with or deviate from these terms shall be inapplicable unless the Seller has expressly consented thereto in writing. All agreements between the Seller and the Customer must be in writing. The Seller reserves the right to reject all orders unless the Customer has established suitable credit with the Seller or agrees to accept shipments COD. The Seller may require a deposit as a condition of accepting an order.
2. Prices and Payment
Except where otherwise agreed by the parties, all prices are FOB Seller’s plant. All transportation, shipping and packing costs shall be paid by the Customer. Unless otherwise agreed by the Seller in writing, payment is due in full, without discount or deduction for any reason, within 14 days of invoice date. Any amount not paid when due will bear interest at the rate of one and one-half percent (1-1/2%) per month. Any special costs incurred due to special shipping specifications given by the Customer, including costs of insurance if requested by the Customer, shall be paid by the Customer. If, due to possible changes in wages, costs of material or other costs, the price is not fixed for a definite period in the Order, the Seller reserves the right to make reasonable changes in the price for goods to be delivered more than four months after the date of the Order.
3. Delivery Date
The delivery date specified in the Order is subject to final agreement on all technical terms and full compliance by the Customer with all conditions that must be satisfied prior to delivery.
4. Title and Risk of Loss
Title and risk of loss shall pass to the Customer upon delivery to the carrier at Seller’s plant.
5. Inspection and Warranty/Liability for Defects.
The Seller warrants that all products delivered to the Customer will be unencumbered and free of lien and will be free from all defects in material and workmanship for a period of twelve (12) months after delivery. The Seller’s sole responsibility with respect to any goods which prove to be defective in workmanship or material is to replace or repair the same free of charge, FOB Seller’s plant. Except as specifically provided in this Agreement, there are no other warranties, express or implied, in respect of the goods, including but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement. Seller shall have no liability for any special, indirect, consequential or incidental damages.
6. Retention of Title
The Seller hereby expressly reserves a security interest in all goods delivered under this Agreement until the price of such goods has been paid in full. If the Customer wrongfully rejects or revokes acceptance of any goods, breaches any of these terms or fails to make a payment when due, the Seller shall have and may exercise all rights available to the Seller under the Uniform Commercial Code, including, but not limited to, the right to enforce its security interest, and may (a) retake possession of the goods by any lawful means; (b) stop further delivery of any goods to the Customer; (c) proceed under Uniform Commercial Code Section 2-704 respecting goods still unidentified to the contract; (d) resell the goods (including any undelivered balance of such goods) and recover damages; (e) recover damages for the price; and (f) cancel this Agreement and all uncompleted Orders.
Any resale of goods under (d) above may be at public or private sale, including sale by way of one or more contracts to sell or of identification to an existing contract of the Seller. Sale may be as a unit or in parcels and at any time and place and on any commercially reasonable terms. Where the resale is to be made at private sale, the Seller must give the Customer reasonable notice of its intention to resell. Where the resale is at public sale, only goods specifically identified to the Order can be sold, except where there is a recognized market for a public sale of futures in goods of the kind, and the sale must be made at a usual place or market for public sale if one is reasonably available and, except in the case of goods which are perishable or threaten to decline speedily in value, the Seller must give the Customer reasonable notice of the time and place of the resale. The parties agree that written notice given by ordinary first class mail at least ten (10) days in advance of the intended resale date shall constitute reasonable notice.
If the goods are not to be within the view of those attending the sale, the notice of sale must state the place where the goods are located and provide for their reasonable inspection by prospective bidders.
The Seller may buy at such resale and is not accountable to the Customer for any profit made on any resale. In addition, the Seller may recover from the Customer any incidental damages and costs reasonably incurred in the resale and the difference between the resale price and the contract price, less expenses saved in consequence of the Customer’s breach.
7. Force Majeure
Neither party will be liable for any loss or damage whatsoever, and shall be excused from the performance of its obligations under this Agreement for any period and to the extent that such performance is prevented (in whole or in part), by delays caused by the other party or by any act of nature or the public enemy, including but not limited to, wars, terrorism, epidemic, civil disturbance, act of government, court order, labor dispute, shortage or rationing of materials, third party nonperformance, or other cause beyond its reasonable control, and such nonperformance will not be a default hereunder or grounds for termination hereof. The affected party shall give written notice to the other party of any such event as soon as commercially practicable, and each party will use commercially reasonable efforts to mitigate any such event and its consequences.
8. Choice of Law and Jurisdiction
This Agreement shall be construed and enforced under and in accordance with the laws of the State of North Carolina including, without limitation, the Uniform Commercial Code as in effect in that State, but without regard to conflicts of law principles. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable for any reason, such provision shall be deemed null and void, but the remainder of this Agreement shall remain in force and effect in accordance with its terms. The Customer hereby agrees that any legal action arising under this Agreement shall be heard in any federal or state court located in the State of North Carolina and irrevocably consents to the jurisdiction of such courts and waives any objection to such jurisdiction to the fullest extent permitted by law.