Acceptance: These terms and Conditions of Sale shall be deemed incorporated into all orders that a Customer may place with Gibbs Interwire (whether by mail, facsimile, telephone or electronic date exchange). Any terms and conditions submitted by a Customer that are inconsistent with or in addition to the terms and conditions herein are not binding upon Gibbs Interwire unless specifically accepted by Gibbs Interwire in writing. To the extent that Gibbs Interwire has agree in writing with Customer to a term or condition that conflicts with, or is in addition to, the terms and conditions stated herein, such conflicting or additional term or condition shall take precedence as to that sale.
Price: Payment must be made to Gibbs Interwire in U.S. dollars. The price does not include, and Customer is responsible to pay, any and all city, state and federal taxes or other governmental charges however designated or levied on the sale of the Product. Additionally, to the extent Customer fails to take delivery in a timely manner, Customer agrees to pay Gibbs Interwire a storage fee of 1% per month of the value of the undelivered product.
Payment: Unless agreed otherwise in writing by Gibbs Interwire the purchase price is due and payable 30 days from the date of Gibbs Interwire’s invoice. Gibbs Interwire provides a 1% discount for any invoice on which full payment is received within 10 days of the date of the invoice. Customer shall pay a late fee to Gibbs Interwire on overdue accounts at the rate of 1 1/2% per month (18% per year) or the maximum amount allowed by applicable law.
Delivery: Unless otherwise agreed to by Gibbs Interwire in writing, Customer is responsible for freight, transportation, insurance and similar charges. For all domestic transactions, title to and all risk of loss or damage with respect to the Product shall pass to Customer upon delivery by Gibbs Interwire to the carrier or Customer’s representative at Gibbs Interwire’s warehouse. Gibbs Interwire will use reasonable commercial efforts to comply with the requested delivery date; however, Gibbs Interwire shall not be liable for any damages, claims or losses resulting from Gibbs Interwire’s failure to meet a delivery date. In the case of short or damaged delivery, Customer must notify both Gibbs Interwire and the carrier in writing within three (3) days after delivery by the carrier. Failure to give such notice shall be deemed an acceptance in full of any such delivery. Gibbs Interwire reserves the right to deliver the quantities requested by Customer subject to deviation not exceeding plus or minus (10%). In the event of any such quantity variance, payment will be based on the actual quantity delivered at the specified unit price.
Cancellations & Returns: Customer understands and acknowledges that upon acceptance of an order by Gibbs Interwire, a valid and binding contract exists between the parties and that Customer is obligated to perform in accordance with the terms accepted by Gibbs Interwire including these Terms and Conditions of Sales. Customer may not unilaterally (i) cancel all or part of an order nor (ii) return and Product that has been delivered. Any adjustments to an accepted order desired by Customer, including cancellation of an order, will only be made at Gibbs Interwire’s sole option and after Customer agrees in writing to reimburse Gibbs Interwire for all losses and expenses incurred by Gibbs Interwire including, but not limited to, lost profit, labor, material costs, processing expenses and reasonable overhead expenses. Similarly, if Customer desires to return delivered Product, Customer must first notify and get the approval of Gibbs Interwire and Gibbs Interwire may withhold such approval in its sole discretion. Any returns will be subject to Customer agreeing to pay all shipping costs as well as reimburse Gibbs Interwire for the losses and expenses enumerated above as well as Gibbs Interwire’s restocking fees.
Purchase Money Security Interest: Customer grants to Gibbs Interwire and Gibbs Interwire retains a purchase money security interest in the Product. Customer agrees to cooperate with Gibbs Interwire to perfect Gibbs Interwire’s security interest. Customer authorizes Gibbs Interwire to file any such instruments, including without limitation, any UCC Financing Statements without Customer’s signature or on behalf of Customer as Customer’s irrevocably appointed attorney-in-fact.
Warranty & Limitation of Liability:
As to Products which have not been processed by Gibbs Interwire prior to the sale to Customer, Product warranties, if any, are provided exclusively by the manufacturer and Gibbs Interwire makes no warranties whatsoever. As to Products that have been processed in some manner by Gibbs Interwire, Gibbs Interwire warrants only that such processing has been performed in accordance with Gibbs Interwire’s specifications if such exists, or, if not, industry standards. Gibbs Interwire is not responsible and makes no warranties, for material provided to Gibbs Interwire for processing. In any event, Gibbs Interwire’s warranty obligation is limited to defects of which Gibbs Interwire is notified in writing within 30 days and at the option of Gibbs Interwire, to either (i) Gibbs Interwire refunding the original purchase price of the defective Product or (ii) Gibbs Interwire replacing or repairing such defective Product. No claim shall be allowed for Product that has been processed in any manner or has been damaged as a result of Customer mishandling or improper use.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, GIBBS INTERWIRE MAKES NO EXPRESS OR IMPLIED WARRANTY (INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FROM ANY COURSE OF DEALING OR TRADE USAGE) REGARDING THE PRODUCTS.
UNDER NO CIRCUMSTANCE SHALL GIBBS INTERWIRE HAVE ANY LIABILITY FOR LOSS OF USE OR FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR ANY OTHER LOSS) TO CUSTOMER OR TO ANY OTHER PERSON, FIRM, COMPANY OR OTHER ENTITY. CUSTOMER AGREES TO INDEMNIFY AND SAVE GIBBS INTERWIRE HARMLESS FROM EACH AND EVERY CLAIM, ACTION, OR PROCEEDING, MADE OR BROUGHT BY ANY OTHER PERSON, FIRM, COMPANY OR OTHER ENTITY SEEKING ANY RECOVERY OR RELEIF ARISING OUT OF THE SALE BY GIBBS INTERWIRE TO CUSTOMER OF THE PRODUCT.
Excusable Delay or Nonperformance: Gibbs Interwire shall not be liable for delay or failure in performance due to fires, floods, strikes or other differences with workers, accidents, unexpected or unusual increases in the cost of procuring the material being supplied to Customer, labor or material or transportation shortages, war (declared or undeclared), terrorist activities, riot, government orders or regulations (including Governmental delay in license issuance), legal interference or prohibitions, commercial impracticability, defaults on the part of suppliers, or other causes beyond Gibbs Interwire’s reasonable control.
Gibbs Interwire may, without prejudice to any other rights it may have, by notice in writing via mail or facsimile to Customer, terminate any order if (i) Customer commits any breach of any of the terms of any order with Gibbs Interwire or (ii) Gibbs Interwire has a reasonable concern regarding Customer’s ability to pay its debts as and when they become due and payable and Customer refuses, or is unable, to produce adequate assurances of performance.
Customer agrees that if it is necessary to enforce-collection of any amount due and unpaid on order, Gibbs Interwire shall be entitle to recover reasonable legal and other collection costs as well as interest as set forth in Section 3.
Applicable Law: The rights and obligations of the parties under these Terms and Conditions of Sale shall be governed by the law of the state of New York, without regard to choice of law or conflicts principles of any jurisdiction. CUSTOMER CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN WESTCHESTER COUNTY, NEW YORK FOR ANY CLAIMS CONCERNING PRODUCT SOLD TO CUSTOMER HEREUNDER.
Miscellaneous: These Terms and Conditions of Sale contain all of the terms and conditions with respect to the purchase and sale of Products sold by Gibbs Interwire to Customer. No other agreement, order, amendment, quotation or acknowledgement in any way purporting to modify any of the terms and conditions is binding upon Gibbs Interwire unless made in writing and signed by an authorized employee of Gibbs Interwire. If any terms or provision of these Terms and Conditions is found to be invalid, illegal, or unenforceable, the Terms and Conditions shall remain in full force and effect and such term shall be deemed stricken and replaced with an alternate term which, to the maximum extent possible, is enforceable and reflects the intent of the parties as set forth herein.