1. Agreement. Each quotation/estimate for goods and/or services (the “Goods” and/or “Services”) from, and the performance of the same by, G & J Pyle Designs, Inc. (DBA: “Arttech Casting Co”) (“Seller”) shall, in addition to the terms contained within the attached quote/invoice (the “Contract”), be subject to these Terms and Conditions (together, this “Agreement”).
2. Pricing. The buyer listed on the Contract (the “Buyer”) acknowledges that raw materials purchased by Seller including, but not limited, to precious metals, chemicals, etc. (collectively, “Materials”) are subject to availability and market changes in price. Although Seller shall use commercially reasonable efforts to obtain its Materials at the best available price that it reasonably can, market conditions may dictate that Seller obtain its Materials at a higher price to avoid any delay in delivery of the Goods to the Buyer, and as a result Seller may need to pass on those costs to the Buyer. Therefore, notwithstanding the price listed in the Contract, the price for the Goods are subject to change at any time upon written notice to Buyer. Buyer may, at its option, accept the new price for the Goods or cancel this Agreement by written notice to Seller within three (3) days of receipt of such notice from Seller. If after Seller informs Buyer in writing of a change to the price for the Goods and Buyer does not cancel this Agreement within such three (3) day period, then it shall be deemed that Buyer accepted the change in price for the Goods. The price for the Goods does not include taxes, duties, excises or other charges imposed by law. Finished castings are billed at the weight in raw casting before sprue grinding, sanding or polishing.
3. Payment. The price for the Goods and the due date for payment are stated in the Contract. If Seller has not received the full amount of any required payment by the end of five (5) calendar days after the date it is due, interest of nine percent (9%) shall accrue on the overdue payment.
4. Risk of Loss. Title to the Goods passes upon the earlier of (i) delivery to Buyer by Seller, (ii) attempted delivery and Buyer refuses acceptance of the Goods, or (ii) three (3) days after Seller informs the Buyer in writing that the Goods are ready to be picked up, whether or not Buyer actually takes possession of the Goods, and thereafter all risk of loss or damages shall become the responsibility of Buyer.
5. Time Not of the Essence. Seller will endeavor to deliver the Goods by any agreed date or within any agreed period. These dates and periods, however, are only estimates given in good faith and, consequently, Seller shall not be liable for any failure to deliver the Goods by such a date or within such a period. Time for delivery will not be of the essence.
6. Tooling/Molds. Seller retains or shall acquire, as the case may be, title to any fixtures, patters, dies, tools, molds, jigs, and the like created by Seller or by Buyer to manufacture the Goods (collectively, “Molds”); provided, however, Silicone rubber Molds shall be returned to Buyer upon request at Buyer’s sole expense. If Buyer re-orders similar Goods two or more (2+) years after title to the last order of Goods transferred to the Buyer, then Seller may charge a retrieval fee to retrieve any required Molds from storage. Seller shall store the Molds for up to three (3) years after title to the last order of Goods is transferred to Buyer. Thereafter, Seller may dispose of the Molds at any time without notice to the Buyer in its sole discretion.
7. Storage. If Buyer does not take possession of the Goods within seven (7) days of when title passes to the Buyer, Buyer shall be liable for storage fees for the Goods of $100/day until the Goods are picked up by Buyer from storage.
8. Warranties. SELLER MAKES NO WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, RELATING TO ANY GOODS. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE APPLIES TO ANY GOODS. Notwithstanding the above, Seller makes a limited warranty with respect to the Goods in that all Goods delivered hereunder shall conform to the description contained within the Contract and shall be free from defects in material and workmanship when normally used and serviced for a period of ten (10) days from the date when title passes to the Buyer. If within (ten) 10 days after title to the Goods transfers to the Buyer, the Buyer discovers non-conforming Goods or defect(s) in any Goods, and provided Buyer promptly contacts the Seller and returns the non-conforming or defecting Goods to the Seller at its sole cost, Seller shall, at its option, either (i) repair or replace the non-conforming or defective Good(s) at its cost (which may be the original Goods appropriately repaired) or (ii) return to Buyer a pro-rata portion of the purchase price, if already paid in full, attributable to the non-conforming or defective Goods. All risk of loss and damage to any Goods returned to Seller under this Section shall remain with Buyer until receipt of the Goods by Seller. Seller has no obligation for any non-conforming or defective Goods caused by the misuse, mishandling, neglect, accident, or abuse by Buyer.
9. Disclaimer. Seller makes no representation or warranty as to the appropriateness, suitability or performance with regard to the design or use of the Goods, whether or not known by Seller and whether used alone or in connection with other products or materials, and Buyer represents and warrants that it has not relied upon any statements by the Seller’s employees, agents or representatives to the contrary. Buyer acknowledges that it alone has determined that the Goods purchased hereunder will meet the requirements for Buyer’s intended use. Buyer further acknowledges that the Seller does not perform any testing for biocompatibility of any Goods. Buyer shall perform testing of all Goods promptly upon transfer of title to confirm the Goods conform to the specifications listed in the Contract.
10. Limitation on Liability. Buyer assumes all risk and responsibility from using the Goods and shall be solely liable for any damage to property or person (including death) that may result directly or indirectly from or be in any manner connected to the same. Buyer shall indemnify and hold Seller harmless from any and all liability that is a direct or indirect result of the Buyer’s use of the Goods and Buyer’s breach of any representation, warranty, or covenant contained within this Agreement. Seller’s liability, if any, on any claim relating to the Goods or their sale, operation, or use, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such Goods. SELLER WILL NOT BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, OR ANY LIABILITY OF BUYER TO THIRD PARTIES. All causes of action against Seller arising out of or relating to this Agreement, or performance thereof, shall be brought within one (1) year of transfer of title of the Goods to the Buyer.
11. Termination. This Agreement may be terminated by mutual written consent of Buyer and Seller, but Buyer shall remain liable for Seller’s costs including, but not limited to, labor costs, costs of Materials, and manufacturing and processing costs, which Seller incurred prior to the effective date of termination. If Buyer does not pay any sum when due hereunder, Seller may at its option either (a) cancel this Agreement upon written notice to Buyer or (b) cease performance until Buyer pays all sums due hereunder in full including, but not limited, late charges, storage fees, and Seller’s expenses of enforcement and/or collection.
12. Survival. These Terms and Conditions shall survive the lapse or earlier termination of the Contract.
13 Assignment. Seller may assign its rights and/or obligations, in whole or in part, under this Agreement to a subsidiary or affiliate of Seller. Buyer may not assign its rights or its obligations to any other party without the prior written consent of the Seller, which Seller may give or withhold in the Seller’s sole and absolute discretion.
14. Waiver and Modification. No waiver or modification of this Agreement will be binding upon Seller unless agreed to by Seller in a signed writing. Failure by Seller to enforce strict compliance with this Agreement will not constitute a waiver of any of the provisions of this Agreement. No delay or omission by Seller in exercising any right or remedy shall be a waiver thereof. No single or partial waiver by Seller shall preclude any other or further exercise thereof. All rights and remedies of Seller are cumulative.
15. Severability and Headings. If any provision of this Agreement is or becomes void or unenforceable for any reason, then the validity of the remaining provisions will not be affected. The headings used in this Agreement are for convenience of reference only and do not form a part hereof and shall not in any way modify, interpret or construe the intent of the parties.
16. Choice of Law; Jurisdiction; Waiver of Jury Trial; Attorney Fees. This Agreement will be governed the laws of the State of New York without regard to principles of conflict of laws. Any claims arising out of or related to this Agreement and/or the Goods/Services shall be brought exclusively in Monroe County, New York. Buyer submits to the jurisdiction of all such courts. BUYER AND SELLER HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION TO ENFORCE, DEFEND, CONSTRUE OR OTHERWISE CONCERNING THIS AGREEMENT OR THE GOODS. If Seller incurs attorneys’ fees to enforce any provision of this Agreement, Buyer will be liable for all disbursements, court costs and reasonable attorneys' fees incurred, regardless of whether or not an action is commenced.
17. Entire Agreement. The Contract, together with these Terms and Conditions, contains the entire agreement between the Buyer and Seller regarding the subject matter herein and therein, and supersedes any prior agreements or representations, whether oral or written, and no agreement, representation or understanding not specifically contained herein or therein shall be binding, unless reduced to writing and signed by Buyer and Seller.
18. Force Majeure. Failure by any party to perform any of its obligations under this Agreement resulting from any cause or causes beyond its control including, but not limited to, strikes, labor disputes, fire, acts of God, terrorism, acts or orders of the government, or any other event outside of such party’s control (collectively, a “Force Majeure Event”) shall not constitute an actionable default or breach of this Agreement. Upon occurrence of any Force Majeure Event, such party shall promptly notify the other party of its inability or the delay in performance. The time for performance by such party which cannot be performed because of a Force Majeure Event shall be extended for a period equal to the duration of such inability to perform. Notwithstanding the foregoing, it is understood that Force Majeure Events shall not extend the time for payment of any money which is due and payable.