BLACKHAWK INDUSTRIAL DISTRIBUTION, INC. - GENERAL TERMS AND CONDITIONS OF SALE
TERMS OF SALE. Seller's acceptance of Buyer’s order is expressly made conditional on Buyer's assent to the terms stated in this document. These general terms and conditions of sale supersede any preprinted general terms and conditions appearing on Buyer's documents, and any pre-printed terms on Buyer’s documents and any terms conflicting with or in addition to these terms shall have no force or effect. Unless an established buyer has a pre-existing agreement (not to include purchase order’s) covering the purchases of any goods and or services. Quotations issued by Seller are not binding contracts and may be changed or withdrawn by Seller without notice. No order is binding on Seller until accepted by an authorized Seller representative.
PRICE AND PAYMENT TERMS.
2.1 All prices are listed in U.S. Dollars, FOB (or FCA per Incoterms for international shipments), point of shipment. Seller may increase the selling price of the goods by giving Buyer 30 day’s written notice, and, unless Buyer notifies Seller in writing within that 30-day period that it does not consent, the increased price will apply to all goods shipped after such 30-day period.
2.2 Buyer is responsible for any costs associated with freight and overseas packaging.
2.3 All orders are subject to satisfactory credit arrangements. Upon prior notice to Buyer, Seller may require payment on different terms, including confirmed irrevocable letter of credit, cash in advance or sight draft. Notwithstanding any standard terms of payment or other arrangements, Seller may, without breaching the terms of the order, delay or suspend any delivery or performance until Seller has received from Buyer commercially reasonable and adequate assurances of payment.
2.4 Invoices are due net 30 days. Invoices not paid net 30 days may be charged a simple interest rate of 18% per annum, or the maximum rate allowed by law, whichever is lower. Seller shall also be entitled to recover all costs of collection with respect to any unpaid amounts, including, but not limited to, reasonable attorneys’ fees
2.5 All payments shall be made in U.S. Dollars.
2.6 Buyer may pay by ACH, wire transfer or check. No payment made by Buyer under this order shall be paid in the form of cash or any bearer instrument nor shall any payment be paid by Buyer to any individual or entity other than Seller. For payments by wire transfer, Seller will provide to Buyer all information necessary to make such payment, including the name and location of the financial institution and the name and number of the bank account. Payment by credit card will only be allowed at time of order placement
SECURITY INTEREST AND LIENS Until Seller receives full payment therefore, it reserves a security interest in and to all goods, products and materials delivered by Seller pursuant to Buyer’s order. Such security interest shall be superior to the rights of any and all creditors of Buyer. Buyer hereby grants such security interest to Seller and authorizes Seller, its employees, attorneys and agents, to file records reflecting such security interest, including financing statements, amendments and continuations, and to send notices to prior secured parties related to the security interest granted herein. Such security interest shall not preclude the enforcement of materialmen’s and/or mechanics’ liens by Seller and such liens and rights shall constitute alternate and additional security. Seller may proceed concurrently to enforce its security interest and its lien rights.
TAXES AND DUTIES. Unless specifically stated otherwise, prices quoted or stated do not include any federal, state or local sales, use, excise or other taxes (including VAT), duties or tariffs. Buyer is responsible for payment of any and all such taxes (including VAT), duties or tariffs imposed by any nation, federal, state, local or other jurisdiction or taxing authority in connection with or related to this order.
EXTRA CHARGES AND REPRICING. Buyer shall be liable for any and all extra charges arising from delays initiated or caused by Buyer. These charges include, but are not limited to, storage charges, handling charges, demurrage charges on trailers already loaded for shipment at the time of delay, unloading charges, and any and all other direct or indirect charges incurred by Seller in connection with the delay. If an order is held beyond the estimated shipping date due to delays created by Buyer such as delay of approved drawings, failure to furnish information necessary for processing of order or failure to supply adequate assurances for payment of the order as requested from Seller, Seller reserves the right to re-price Buyer’s order based on the prices in effect at the time of receipt of approved drawings, information necessary for processing of order, or presentation of adequate assurance for payment as requested by Seller.
RETURNS; CANCELLATION CHARGES.
6.1 No goods shall be returned by Buyer for credit or refund without first obtaining the written consent of, and shipping instructions from, Seller. Credit allows on goods returned without written authorization shall be entirely at the discretion of Seller. Delivery charges on returned goods shall be prepaid by Buyer. All risk of loss during and after deliver to the carrier shall be borne by Buyer.
6.2 No order may be cancelled or suspended by Buyer without prior written approval of Seller, which approval may be granted or withheld at the sole discretion of Seller. Should Seller decide to allow cancellation, Buyer shall be liable for all direct costs incurred by Seller, including applicable overhead, plus all storage, handling, demurrage, and any and all other direct or indirect expenses incurred in connection with the order.
DELIVERY.
7.1 All shipping dates and schedules are approximate. For any direct ship items, Seller assumes no liability for any damages or expenses incurred by Buyer as a result of any non-shipment or delay in shipment.
7.2 For all goods whose ultimate destination will be the United States, delivery terms are FOB point of shipment. For all goods whose destination is outside of the United States, delivery terms are FCA per Incoterms.
7.3 Seller may make partial shipments. Each shipment will be considered a separate and independent transaction, and may be invoiced separately. Seller may withhold production and partial shipments of goods if Buyer has failed to timely pay any invoice. Buyer shall pay all freight charges for delivery of the goods. Seller may charge Buyer a reasonable amount for any storage of the goods due to Buyer’s change in the delivery or shipment date and invoice Buyer accordingly.
WARRANTIES
8.1 Seller warrants that goods it manufactures pursuant to specifications provided by Buyer shall be manufactured in accordance with such specifications, and such goods manufactured by Seller shall be free from defects in Seller supplied material and workmanship under normal use and conditions for a period of 12 months from the date of delivery.
8.2 Seller's obligation to remedy defective materials or workmanship is limited to Seller's option to either repair or replace the defective goods or refund or credit the purchase price as to the goods affected. No allowance shall be granted for repairs or alterations made by Buyer without Seller's prior written consent. No "in and out" charges shall be allowed regarding the expense of removing and replacing the defective goods.
8.3 Seller's warranties do not apply to goods requiring replacement because of normal wear and tear, corrosion or erosion.
8.4 These warranties shall be voided as to any part of the goods that have been subject to abuse, misuse, improper installation (to the extent not installed by Seller), operation or maintenance, accident, negligence, use other than as designed or intended, or modification not specifically authorized by Seller.
8.5 Unless otherwise agreed in writing by Buyer and Seller, Seller makes no warranty or representation that the goods will conform to any federal, state or local laws, regulations, codes or standards.
8.6 The warranties set forth above do not apply to goods, products, components, accessories, parts or attachments manufactured by third parties; such being subject to the manufacturer's warranty, if any. To the extent not prohibited by the manufacturer's warranty, Seller shall pass through to Buyer such manufacturer's warranty. Seller shall make available to Buyer any and all manufacturer’s materials that it has in its possession that relate to the goods sold to Buyer.
8.7 Seller's warranties do not extend to Buyer specifications relating to the goods or any goods furnished from Buyer's designated suppliers.
8.8 EXCEPT AS EXPRESSLY STATED IN SECTION 8, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED. SELLER'S REMEDIES CONSTITUTE SELLER’S SOLE LIABILITY FOR DEFECTIVE GOODS AND BUYER'S SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE GOODS.
PROPRIETARY INFORMATION. All drawings, data, inventories, procedures, quotations and other technical information, if any, supplied by Seller shall remain the property of Seller and shall be held in confidence by Buyer. Buyer shall not reproduce, use or disclose such information to others without Seller's prior written consent.
GOVERNING LAW. The rights, obligations and remedies of Buyer and Seller, the interpretation of the contract and the sale of goods shall be governed by Oklahoma law, without regard to any principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to Buyer’s order. Buyer hereby consents to the exclusive jurisdiction and venue of the federal or state courts located in Tulsa, Tulsa County, Oklahoma, with respect to any matter pertaining to the parties’ contract and hereby waives any defenses it may have with respect to the jurisdiction and venue of such courts
ENTIRE CONTRACT. The terms in this document will constitute the entire agreement between the parties with respect to the goods being sold and supersede any preprinted terms appearing in the Buyer's general terms and conditions, all prior proposals, negotiations and communications, oral or written, between the parties with respect to the same. These terms may not be modified by any course of dealing or performance or usage of trade between the parties. Seller's agents shall have no authority to bind Seller unless stated in writing. These terms may be amended only by written document signed by authorized representatives of both parties.
LIMITED LIABILITY AND DAMAGES. IN NO EVENT SHALL SELLER, ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, WHETHER SUCH CLAIM IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER SELLER, ITS SUPPLIERS OR CONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, SELLER’S TOTAL CUMULATIVE LIABILITY, INCLUDING LIABILITY FOR DEFAULT, INDEMNITY, REWORK, RE-PERFORMANCE, OR REPLACEMENT, UNDER ANY CAUSE OF ACTION, WHETHER IN TORT, CONTRACT OR OTHERWISE AT LAW, SHALL NOT EXCEED THE AGGREGATE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER FOR THE AFFECTED GOODS.
FORCE MAJEURE.
13.1 Any failure of performance by either Seller or Buyer shall not constitute default hereunder or give rise to any claim for damages or otherwise if, and to the extent caused by, an act, event or occurrence beyond the reasonable control of, and not resulting from the fault of the party claiming the protection of this section 13 (an event of “Force Majeure”) including, but not limited to: unusually severe weather conditions, fires, flood, earthquakes, quarantine, blockade, labor disputes, strikes, governmental authority, the inability of Seller to obtain materials, manufacturing difficulties, shortage, war, riot, embargo, sabotage, explosions, epidemics, lightning, injunctions, insurrection, civil strife, or any other similar events.
13.2 Upon the occurrence of any event of Force Majeure, the affected party shall (a) within four (4) business days advise the other party of such event and (b) diligently pursue all reasonable efforts to minimize the effect of any such event of Force Majeure on the production of the goods or the payment for the goods, as the case may be, and to restore such party’s ability to perform hereunder. To the extent that any event of Force Majeure actually delays Seller’s ability to perform hereunder, Seller shall be entitled to an equitable adjustment to the schedule and the price.
13.3 An event of Force Majeure shall not constitute grounds for Buyer’s cancellation of the order, and Seller may allocate its available supply of goods among other buyers.
EXPORT RESTRICTIONS. Buyer agrees to comply in all respects with any governmental laws, orders or other restrictions (“Export Restrictions”) on the export or re-export of the goods imposed by the governments of the United States and the country to which the goods are shipped. Buyer shall not commit any act or omission that will result in a breach of the Export Restrictions.
NOTICES. All notices, authorizations, and requests in connection with this Agreement shall be deemed given (i) three days after being deposited in the U.S. mail, postage prepaid, certified or registered, return receipt requested; or (ii) one day after being sent by overnight courier, charges prepaid, with a confirming fax or email; and addressed, if to Seller, at the following address: 1501 SW Expressway, Broken Arrow, OK 74012, and, if to Buyer, at Buyer’s billing address or to such other address as the party to receive the notice or request so designates by written notice to the other.
