Representations – Warranties
- Precision Glassblowing of Colorado (hereinafter to be referred to as PGB) warrants that the goods sold hereunder shall be free from defects in workmanship or material and shall conform in all material respects to the specifications set forth in the Buyer’s purchase order as accepted by PGB. Buyer’s sole and exclusive remedy for PGB’s breach of warranty shall be limited to, at PGB’s option, repairing or replacing goods that are proven defective or proven not to conform in all material respects with such. Where goods are replaced by PGB, Buyer shall return the defective or non-conforming goods to PGB. PGB shall not be responsible for any other damage or loss sustained by Buyer or any third party.
- PGB warrants that goods delivered hereunder will have been produced under all applicable requirements of the Fair Labor Standards Act, as mentioned and of the regulations and orders of the United States Department of Labor issued under Section 14 thereof.
- PGB warrants to Buyer that the sale or use of goods sold hereunder will not infringe the claims of any U.S. Patent, and agrees to indemnify Buyer against liability for any such infringement except where goods are manufactured and/or supplied by PGB in accordance with buyer’s drawing and/or specifications. PGB does not warrant against infringement arising from the use of such goods by Buyer in combination with other materials or in the operation of any process, and PGB shall have no liability to Buyer by reason thereof.
- Recommendations by PGB, if any, covering the use, utilization, properties and/or qualities of goods sold hereunder are believed reliable but PGB makes no warranty whatsoever with respect thereto. Use of application of goods sold hereunder is at the discretion of Buyer without any liability or obligation on the part of PGB except as expressly warranted by PGB.
- The warranties set fort in this Section 2 constitute the only warranties given by PGB and are in lieu of any and all other warranties, express or implied, arising by law or custom, including, but not by way of limitation, the implied WARRANTY OF MERCHANTABILITY and the implied WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. Any samples submitted by PGB shall not be deemed to create any warranties, express or implied.
PGB’s prices do not include wire transfers, sales, use, excise or similar taxes, and accordingly, in addition to the price specified herein, the amount of any sales, use, excise or other similar tax applicable to the sale of goods hereunder shall be paid by Buyer, or, in lieu thereof, Buyer shall provide PGB with a tax exemption certificate issued by the appropriate taxing authority.
- Unless otherwise provided on the invoice, payment of the Purchase Price shall be due and payable within thirty (30) days after invoice.
- Any amounts payable to PGB hereunder which are not paid when due shall thereafter bear interest at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by applicable law, whichever is less. Time is of the essence of all payments due hereunder. In the event any payment due PGB is collected at law, or through an attorney-at-law or under advice therefrom, or through a collection agency, Buyer agrees to pay all costs of collection, including without limitation, all court costs and reasonable attorneys fees.
- Any check or remittance received from or for the account of Buyer may be accepted and applied by PGB against any indebtedness or obligation owing by Buyer to PGB, as shown on the books and records of PGB, without prejudice to and without discharging the remainder of any such indebtedness or obligation, regardless of any condition, provision, statement, legend or notation appearing on, referring to or accompanying such check or remittance.
- Force Majeure. Any delays in or a failure of performance by PGB shall not constitute default or give rise to any claims for damages if and to the extent caused by circumstances beyond PGB’s control, directly or indirectly, such as, but not limited to: fire, flood, earthquake, the elements, acts of God; accidents or unavoidable casualties; wars (whether declared or undeclared), rebellions, insurrections or revolutions in any country; riots or civil disorder; strikes; lockouts or labor difficulties; acts rulings, regulations, decisions or requirements of any tribunal or government agency, board or official; interruptions of transportation facilities or delays in transit; supply shortages, or the failure of any third party to perform any commitment to PGB relative to the manufacture or delivery of the goods; or any other cause, whether similar or dissimilar to the causes enumerated herein, beyond the reasonable control of PGB.
- Limitation of Liability. In no event shall PGB be liable to Buyer, whether in contract or in tort, or any other legal theory, for any indirect, special, incidental, consequential or similar damages arising out of or in connection with the sale, delivery or non-delivery, condition or possession of any of the goods sold hereunder, or for any claim made against Buyer by any other party, even if PGB has been advised of the possibility of such claim. In no event shall PGB’s Liability under any claim made by Buyer exceed the purchase price of the goods sold hereunder in respect of which such claim is made.
- Shipments and delivery dates are based upon PGB’s best judgment, are subject to factory schedules and production limitations, and hence are not guaranteed.
- Unless otherwise indicated, all goods will be shipped F.O.B. PGB’s plant. When goods are shipped F.O.B. PGB’s plant, any arrangements made or expenses incurred by PGB for carrier or insurance of goods after delivery shall be for the account of Buyer and promptly paid or reimbursed to PGB by Buyer, in which event, unless Buyer specifies complete instructions as to the method of payment, PGB may exercise its judgment and discretion in choosing the carrier and means of shipment and Buyer is responsible for notifying the carrier as to any damages to or loss in transit of such goods.
- In addition to any other remedy available to PGB at law or in equity, if Buyer fails to fulfill the terms of payment, PGB may defer further shipments of goods or may, at its option, cancel the unshipped balance of such goods and bill Buyer for costs of cancellation.
- PGB reserves the right to making any shipments of goods to request from Buyer satisfactory security for performance of Buyer’s obligations hereunder.
- In the event PGB defers delivery at Buyer’s request, Buyer shall indemnify PGB against any and all loss and additional expense incurred by PGB in connection with such deferred deliveries, including, without limitation, demurrage, handling, storage, insurance and similar charges. Transfer to storage shall be considered delivery for all purposes hereunder, including invoicing and payment, and Buyer shall bear all risks of loss or damage to the goods during storage.
- PGB may deliver goods in partial shipments and reserves the right to invoice for partial deliveries. Payment for partial deliveries shall be necessary, but PGB may, at its option give notice in writing to Buyer that PGB is ready and willing to deliver in accordance with the provision hereof and such notice shall constitute a valid tender of delivery.
Inspection/Limitation of Actions
- Buyer shall promptly inspect and test the goods upon delivery. Anything herein to the contrary notwithstanding, to the extent that any defects or non-conformities in the goods are discoverable by inspection upon delivery of the goods to Buyer, all obligations of PGB to Buyer with respect to such defects or non-conformities shall be deemed to be satisfied, and all goods shall be deemed to be free of such defects or non-conformities, unless buyer notifies PGB of such defects or non-conformities in writing not more than ten (10) days after the date of delivery referencing PGB’s invoice number. With respect to any claims for shortages, etc., such claims shall not be accepted by PGB unless they are made by Buyer in writing within forty-eight (48) hours after delivery of the goods, and are accompanied by a reference to PGB invoice number
- No action, regardless of form, arising out of or in connection with the sale of the goods sold hereunder (other than the action by PGB for any amount due to PGB by Buyer) may be brought more than six (6) months after cause of action has arisen.
Custom Changes, Cancellations
Specifications changes made subsequent to placing an order are subject to price revisions and to any adjustment necessary to cover material procured and processed and labor expended prior to receipt of revised specifications. Cancellations shall be only by mutual agreement in writing, based on any adjustment necessary to cover labor expended and material procured.
The Terms and Conditions contained herein supersede all prior discussions and agreements between the parties with respect to the subject matter hereof, and this document contains the sole and entire agreement between the parties with respect to the matters covered hereby. The sole terms and conditions to the sale of goods hereunder are those set forth herein. The Terms and Conditions of Sale contained herein may not be modified or amended except by an instrument in writing signed by one of PGB’s duly authorized officers. Unless, within five (5) days of your receipt hereof, you deliver to PGB written objection to the Terms and Conditions of Sale, you shall be deemed to have accepted each and every one of the terms and conditions contained herein.
- Goods are sold to accepted manufacture variations or tolerances, except where otherwise agreed to by both parties.
- Buyer shall protect, defend, indemnify, and hold PGB and it’s officers, employees, agents, licensees and representative (collectively, the “Indemnities”) harmless from and against any and all claims, suits, losses, liabilities, expenses (including costs of suit and attorney’ fees), and damages relating to, resulting from or arising out of any alleged or actual defect in any goods sold hereunder, except in the case of gross negligence of PGB. Buyer shall give PGB notice of any such action or proceeding and shall tender the defense to PGB. Buyer shall defend PGB, with respect to each and every claim for which PGB is indemnified by Buyer under this Agreement.