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1. Agreement. These terms and conditions ("Terms and Conditions") are incorporated into any quotation, work order, purchase order or invoice accompanying these Terms and Conditions and apply to any and all goods and materials ("Goods") provided by NewAge Industries, Inc., a Pennsylvania corporation ("Seller"), to the customer ("Customer"). These Terms and Conditions shall apply to all Goods sold by Seller to Customer and shall become effective upon the earlier of: (a) Customer issuing a purchase order to Seller; (b) Customer's receipt of the Goods; or (c) Seller's receipt of payment in full or in part for the Goods.
2. Acceptance. Any quotation provided by Seller to Customer shall constitute an offer to sell the Goods identified on such quotation in accordance with these Terms and Conditions which, when accepted by Customer, shall constitute a binding agreement between the parties. Customer's acceptance of any offer by Seller is limited to these Terms and Conditions. Any terms and conditions proposed by Customer in any document that are different from, conflict with, or add to these Terms and Conditions shall be deemed to materially alter the offer and are hereby objected to and rejected by Seller. The Purchase Order, including these Terms and Conditions, shall be deemed accepted by Seller upon the earliest to occur of: (a) receipt by Seller of a purchase order from Customer; (b) receipt by Seller of a copy of Seller's quotation acknowledged by Customer without alteration; (c) written acknowledgment from Customer of Customer's acceptance of the terms set forth in Seller's quotation; (d) receipt by Customer of the Goods; or (e) receipt by Seller of payment in full or in part for the Goods. Cancelation of custom orders will be subject to a cancelation fee. The cancelation fee will be determined by the amount of development and production work done at the time of the cancelation. Custom orders that have been fully completed are non-cancelable.
3. Purchase Price. Customer shall pay Seller the purchase price for the Goods as listed in Seller's quotation or as otherwise set forth in Seller's invoice. Seller may change its prices at any time without notification; provided, however, that unless revoked prior to acceptance, prices set forth in Seller's quotation shall be valid only for the period set forth in such quotation. Domestic orders are subject to a $100.00 minimum. Export orders are subject to a $500.00 minimum. Seller's prices are exclusive of insurance, shipping, handling, and taxes. Customer shall have the sole responsibility for payment of all such insurance, shipping, handling, and taxes with respect to the purchase of any Goods. If the sale of Goods is subject to state sales tax, or other charge, Customer shall pay such tax or charge upon the request of Seller. If Customer is a tax-exempt entity, Customer shall present all appropriate documentation for any tax exemption to Seller prior to placing its order.
4. Payment Terms. Customer shall pay all invoices in U.S. Dollars within thirty (30) days from the date of the invoice, unless otherwise specified on the invoice. Accepted payment methods are check, ACH and wire transfer. If Customer fails to make any payments when due, Customer will be charged interest of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by applicable law, which-ever is less, on any overdue balance. Seller is not obligated to extend credit or financing terms to Customer. Seller may in its sole discretion revoke any credit extended to Customer and require payment in full prior to Seller's delivery of Goods or Services. VISA®, MasterCard® and American Express® are accepted only at point-of-sale, subject to approval. Seller may retain possession of any Goods or refuse to provide any Services until Customer has paid in advance all amounts due to Seller. If Seller retains a collection agency, legal counsel or incurs any out-of-pocket expenses to collect payments from Customer, all such costs will be added to the sums due, will bear interest at the rate set forth above and will be the responsibility of Customer. If Customer fails to pay Seller any amounts when due, Seller may immediately suspend all activity relating to this Agreement and may exercise all of Seller's rights and remedies. Customer agrees that, other than Seller's delivery of the Goods and Services, payment to Seller is not contingent on any other occurrence, matter or event including, without limitation, Customer's receipt of payment from any third party.
5. Shipment and Delivery. All Goods are priced F.O.B. shipping point and all freight and shipping charges are the responsibility of and shall be paid by Customer. Manner of shipping and routing of shipments is at the discretion of Seller, unless directed otherwise in writing by Customer and agreed to in writing by Seller.
6. Title and Risk of Loss. Title to the Goods and any risk of loss associated with the Goods shall pass to Customer at the time of delivery of the Goods to the carrier for shipment to Customer. In the event Customer or its agent or representative picks up the Goods at Seller's place of business or Seller delivers the Goods, title and risk of loss pass to Customer at the time of pick up by Customer, its agent or representative or shipment by Seller. With regard to Goods that are returned to Seller, title and risk of loss remains with Customer until receipt and acceptance of the Goods by Seller. All claims for damage and shortage in transit shall be made by Customer with the carrier, and Customer holds Seller harmless for all such claims.
7. Reliance by Seller. Customer represents and warrants to Seller the complete accuracy and correctness of any information, data, dimensions, blueprints, schematics, diagrams, specifications or other drawings or representations, whether oral or in writing, provided by or on behalf of Customer (collectively, the "Specifications"). Seller may rely upon all Specifications and shall have no responsibility to make any independent inquiry or investigation regarding such Specifications. Seller's review of any Specifications will not relieve Customer of its obligation to provide complete, accurate and correct Specifications.
8. Inspection and Acceptance. Customer shall have ten (10) days from receipt of the Goods to inspect the Goods for conformance with the applicable purchase order. Customer may reject Goods that do not substantially conform to the purchase order. Individual coil lengths of stock products have a +/- tolerance of 3%. Seller reserves the right to under/over ship a custom extrusion by up to 10% of the quantity ordered. All rejections shall be made in writing to Seller and shall provide sufficient detail as to the reason for such rejection. The Goods shall be deemed accepted by Customer upon the earliest to occur of: (a) written notice of satisfactory completion of inspection to Seller by Customer; or (b) the expiration of the 10-day inspection period set forth in this paragraph 8.
9. Returns. Only "stock" Goods in "as sold" condition are eligible for return; custom-manufactured Goods will not be accepted for return. To return Goods, Customer shall contact Seller within 90 days of sale for a Return Material Authorization (RMA) number. No returns will be accepted without an RMA number. NewAge's Return Product Policy must be fully adhered to. All Goods accepted for return will be subject to a twenty-five percent (25%) or $50.00 restocking charge, whichever is greater. Seller may decline a return that has been cut to a non-stock length. Seller has sole discretion to determine, after examination, whether returned Goods are defective, and Seller's determination shall be binding on Customer. Customer's sole remedy for returned Goods that have been found to be defective shall be either, in Seller's sole discretion: (a) replacement of the returned Goods; or (b) reimbursement of the amount paid by Customer for the returned Goods, subject to the restocking fee.
10. Limited Warranty; Disclaimer of Warranties. Seller warrants that all delivered Goods shall: (a) be free from defects in material and workmanship for a period of six (6) months from delivery and (b) materially conform to the published specifications. Seller hereby passes through to Customer any and all warranties for Goods manufactured by third parties only to the extent of the original manufacturer's warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, SELLER HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT).
11. Limitation of Liability. SELLER DISCLAIMS ALL LIABILITY FOR AND IS NOT RESPONSIBLE FOR ANY PROBLEMS OR DEFECTS ARISING FROM IMPROPER INSTALLATION, MAINTENANCE, OR USE OF THE GOODS (INCLUDING, WITHOUT LIMITATION USE OF THE GOODS FOR A PROHIBITED USE AS DEFINED BELOW). SELLER IS NOT BOUND BY AND DISCLAIMS ALL LIABILITY FROM ANY REPRESENTATIONS OR UNDERTAKINGS MADE BY ANY OF ITS AGENTS OR EMPLOYEES, INCLUDING BUT NOT LIMITED TO THE SPECIFICATIONS, QUALITY, PACKAGING, PRICE, CONDITIONS, OR DELIVERY OF THE GOODS, EXCEPT AS EXPRESSLY SET FORTH IN THE QUOTATION. SELLER SHALL HAVE NO RESPONSIBILITY FOR CUSTOMER'S LABOR COSTS, DELAY DAMAGES OR SIMILAR CONSEQUENTIAL DAMAGES INCURRED DUE TO THE SHIPMENT OF DEFECTIVE GOODS, OR DELAY IN SHIPMENT OF GOODS. CUSTOMER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE GOODS, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER GOODS. SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF INCOME, ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OR POSSESSION OF THE GOODS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE. NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS AND CONDITIONS TO THE CONTRARY, SELLER'S LIABILITY TO CUSTOMER FOR ACTUAL DIRECT DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE LESSER OF $10,000.00 OR THE TOTAL AMOUNT PAID BY CUSTOMER TO SELLER IN THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
12. Prohibited Uses. The Goods are not intended or authorized for the following uses (each a "Prohibited Use" and collectively, the "Prohibited Uses"): (a) the surgical implantation of any Good into the body (human or animal); (b) the installation of any Good into a product, which product may be surgically implanted into the body (human or animal); (c) the installation of any Good into any life support or similar product; (d) the installation of any Good into any other product for which a failure of such product may result in personal injury or death; (e) the installation of any Good into an aircraft; or (f) the installation of any Good into a product, which product may be used in the operation or maintenance of an aircraft (collectively, the "Prohibited Uses"). Customer represents and warrants to Seller that the Goods will not be used for any of the Prohibited Uses, whether by Customer or the end-user of the Goods. If Customer or the end-user of the Goods uses any of the Goods for a Prohibited Use he, she or it does so at its own risk. Customer shall advise, in writing, its end-users of the Prohibited Uses.
13. Indemnity. In addition to all other rights and remedies available to Seller at law or in equity, Customer assumes the entire responsibility and liability for and agrees to indemnify, defend and hold harmless Seller, its officers, agents, employees, subcontractors, successors and assigns from and against any and all losses, expenses (including, without limitation, attorneys' fees, other professionals' fees and court costs), costs, damages (including, without limitation, consequential, exemplary and special damages), lost profits, demands, liabilities, suits and claims in connection with or arising, directly or indirectly, out of: (a) a breach of these Terms and Conditions by Customer; (b) any act, error or omission, whether negligent or not, of Customer or its agents, employees, suppliers, subcontractors or consultants, including, without limitation, any actual or alleged personal injury (including, without limitation, death) or damage or destruction to property of Seller or other third parties (including, without limitation, loss of use); (c) any variation, inadequacy or inaccuracy contained in any specifications, goods or equipment supplied by or on behalf of Customer; (d) any disputes with regard to the title or possession of any Goods; and (e) Customer or the end-user's use of the Goods for a Prohibited Use.
14. Force Majeure. Seller will be excused from any delay or failure in its performance of its obligations under this Agreement where the delay or failure is due, in whole or in part, directly or indirectly, to a cause beyond Seller's reasonable control including, without limitation, labor difficulties, riots, fire, weather, casualty, accidents, acts of God, acts of terrorism, civil disorder, war, shortage of labor or materials or governmental acts or restrictions. Upon any of the above events, Seller will have the additional right to extend the time to provide the Goods under this Agreement or to cancel any open purchase orders without any resulting liability to Seller.
15. No Setoff. Customer has no rights to set off against amounts due Seller for the Goods and, in the event Customer exercises a set off it shall constitute a breach of these Terms and Conditions by Customer and entitle Seller to all of its rights and remedies under this Agreement, including, without limitation, the right to recover interest and attorneys' fees, and any other remedy available at law or in equity.
16. Attorneys' Fees. In the event of a dispute between the parties with regard to these Terms and Conditions which results in litigation, the prevailing party shall have its attorneys' fees, professionals' fees, and costs paid by the losing party, and such sum may be added to any judgment entered in the litigation. A party's right to the foregoing shall not merge with but shall survive the entry of judgment and shall extend to appeals and collection.
17. Assignment. Customer shall not assign, delegate or otherwise transfer any of its rights or obligations under these Terms and Conditions without the prior written approval of Seller. Any such assignment, delegation or transfer without Seller's prior written consent shall be void. Seller may assign, delegate, or transfer any and all of its rights and obligations under these Terms and Conditions at any time and without prior written consent of Customer.
18. Severability. If one or more of the provisions of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality, or unenforceability. If the amendment or modification of such provision is impossible, these Terms and Conditions shall be construed as if they never contained the invalid, illegal, or unenforceable provision, and such provision shall not affect any other provision of these Terms and Conditions.
19. Governing Law. These Terms and Conditions shall be construed and enforced in accordance with the substantive and procedural laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law, and without regard to rules of construction relating to which party drafted these Terms and Conditions.
20. Exclusive Jurisdiction. Customer consents to the exclusive jurisdiction and venue of the courts of the Commonwealth of Pennsylvania, Bucks County, and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of these Terms and Conditions, and Customer waives any objections to such jurisdiction and venue, including objection as to an inconvenient forum.
21. Waiver. No claim or right arising out of a breach of these Terms and Conditions by Customer may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Seller. Seller's waiver or acceptance of any breach by Customer of any provisions of these Terms and Conditions shall not constitute a waiver of or an excuse for nonperformance as to any other provision nor as to any prior or subsequent breach of the same provision.
22. Entire Agreement. These Terms and Conditions shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. These Terms and Conditions constitute the complete and exclusive statement of the terms of the contract between the parties and the final expression of the terms of such contract, and shall supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term in these Terms and Conditions. Seller's acceptance or acquiescence in a course of performance rendered by Customer pursuant to these Terms and Conditions shall not be relevant to determine the meaning of this contract even though Seller has knowledge of the nature of the performance and opportunity for objection.
23. Commercial Transaction. Seller acknowledges, agrees, represents and warrants that the transactions contemplated by these Terms and Conditions are commercial transactions and not for personal, family, or household use.
24. Discontinuation of Goods; Design and Material Changes. Seller may at any time discontinue offering or providing any or all of the Goods without notice to Customer and without incurring any liability to Customer. Seller may change designs, materials, and specifications of any Goods without notice to Customer and without incurring any liability to Customer.
25. Confidentiality. All quotations, purchase orders and business transactions are confidential.
Note - All Terms and Conditions listed here supersede those printed in our catalogs.