TORBRAM ELECTRIC SUPPLY ("TORBRAM") GENERAL TERMS AND CONDITIONS OF SALE ("TERMS")
These Terms and the provisions shall constitute the entire agreement (collectively, the "Agreement" between Buyer and TORBRAM) and shall supersede and replace all prior oral and written agreements and can be modified or cancelled only by written agreement signed by Buyer and Torbram. Buyer expressly WAIVES all terms and provisions in any of Buyer's correspondence, purchase orders or other forms which negate, limit, extend or otherwise conflict with this Agreement. Buyer's acceptance must be based solely upon the provisions of this Agreement.
(1) TORBRAM shall have the continuing right to approve Buyer's credit, and may at any time demand advance payment, satisfactory security or a guarantee of prompt payment. (2) Interest of 2% per month (24% per annum) will be imposed on overdue amounts. Buyer agrees to pay TORBRAM'S costs of collection of overdue invoices, including, without limitation, legal fees on a solicitor and client basis. (3) Invoices are payable in full on the 25th day of the month immediately following the date of the invoice, as it appears thereon. (4) Applicable taxes must be paid by the Buyer.
(1) TORBRAM warrants that the Goods sold are of merchantable quality at the time they are delivered UNLESS manufactured in conformance with the Buyer's specifications, drawings or other description and that TORBRAM conveys good and marketable title to them, subject to TORBRAM'S security interest. (2) EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TORBRAM EXCLUDES ALL EXPRESSED OR IMPLIED WARRANTIES, CONDITIONS AND OBLIGATIONS OF TORBRAM, WHETHER STATUTORY, ORAL OR OTHERWISE, CONCERNING THE QUALITY OF THE GOODS OR THEIR FITNESS FOR ANY USE OR PURPOSE. (3) TORBRAM SPECIFICALLY, BUT NOT BY WAY OF LIMITATION, DOES NOT WARRANT THE ACCURACY OR SUFFICIENCY OF ANY ADVICE OR RECOMMENDATIONS GIVEN TO BUYER IN CONNECTION WITH THE SALE OF GOODS.
4. LIMITATION OF LIABILITY REGARDING DEFECTIVE GOODS
(1) TORBRAM shall not under any circumstances be liable for any prospective profit or for any special, indirect, consequential, punitive or exemplary damages, such as, but not limited to injuries to persons, damage or loss of other property or equipment, loss of profit or revenue, cost of capital, cost of purchased or replacement goods, or claims for service interruption. TORBRAM, at its sole option, shall either (i) replace or repair any defective Goods; (ii) refund the purchase price upon return of any defective Goods, or (iii) provide a credit equal to the value of any returned defective goods. THIS SHALL BE BUYER'S EXCLUSIVE REMEDY. (2) Buyer shall not return any Goods until TORBRAM has had reasonable opportunity to investigate the claim.
5. RETURN OF GOODS
(1) No Goods may be returned to TORBRAM without written authorization from TORBRAM. (2) Acceptance of returns shall be at the complete discretion of TORBRAM. (3) Returned Goods are subject to a minimum service charge of the higher of $25.00 or 15% of the invoice price. Transportation charges are borne by the Buyer on all returned Goods. (4) In addition, where an order involves specialized or rare goods, the Buyer shall also be responsible for any and all additional service costs charged by the manufacturer to TORBRAM. (5) Where written authorization is provided by TORBRAM for the return of Goods, the Buyer shall be entitled to a credit equal to the purchase price of the Goods returned. The Buyer shall under no circumstances be entitled to a cash refund of the purchase price.
7. DAMAGE AND LOSS
(1) Upon delivery to the carrier, responsibility for delivery to the destination in good condition rests with the carrier. TORBRAM will assist insofar as is practical in securing satisfactory adjustment of claims against the carrier, however, all claims for loss or damage must be made by the Buyer against the carrier and TORBRAM shall not be responsible for such loss or damage. (2) TORBRAM is not responsible for misuse or misapplication of its goods, intentional or otherwise. Improper application or installation, failure to provide safety devices for protective measure, or operation above the rated capacity are all beyond the control and responsibility of TORBRAM. (3) TORBRAM shall not be liable to the Buyer or be deemed to be in breach of the Agreement by reason of any delay in performing or any failure to perform any of TORBRAM'S obligations in relation to the Goods or any related services if the delay or failure is due to any cause beyond TORBRAM'S reasonable control.
8. TITLE, RISK OF LOSS AND SECURITY INTEREST
(1) Risk of damage to or loss of the Goods shall pass to the Buyer upon due tender of Goods for delivery at the f.o.b. point. (2) Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer until TORBRAM has received payment in full. (3) Until such time as the property in the Goods passes to the Buyer, TORBRAM shall be entitled at any time to require the Buyer to deliver up the Goods to TORBRAM or to enter on the premises of the Buyer or its agents where the Goods are stored and to Repossess the Goods.
(1) The headings to each section are inserted for convenience of reference only and do not form part of this Agreement. (2) The parties hereto agree that this document be written in the English language. Les parties aux présentes conviennent à ce que ce document sort rédige dans la langue anglaise.