The following terms and conditions apply to sales of products manufactured and assembled by Eastern Instruments (EI). These terms and conditions shall apply to all such sales and may not be changed in any manner whatsoever except as agreed to by an officer of EI. Any such change must be specified in writing and signed by an officer of EI.
This document may be translated into one or more languages; however, the original document in English shall be the controlling document and prevail over all other translations.
Quotations issued by EI will remain valid and in force for a period of thirty (30) days from the date on the quotation. EI reserves the right to withdraw a quotation at any time and without notice.
- Verbal Quotations: From time-to-time and in the interest of expediting service, EI may issue a verbal quotation for the purpose of assisting a purchaser in their business. Such quotations are general in nature, represent estimations based on purchasers’ requirements, and are not valid unless confirmed in writing by EI within 24 hours after issuing said verbal quotation.
- Written Quotations: EI may issue, upon request by a purchaser, a written quotation for work to be performed. Such quotations may be changed or withdrawn at any time prior to acceptance of a purchaser’s written purchase order. In the event of a change, any quotation for the same item prior to the change will be rendered invalid unless otherwise identified in writing by EI as continuing in force. Quotations identified by EI in writing as part of a work in progress, may be continued until such time as they are accepted (or, declined) by the purchaser, or withdrawn by EI.
- Acceptance of Quotations: Quotations are issued based on EI’s understanding of the purchaser’s requirements and specifications. Any change in purchaser requirements and specifications prior to acceptance will be cause for EI issuing a new quotation. Any changes in purchaser requirements after acceptance of the quotation will, at EI’s discretion, be cause for (1) issuing a new quotation; (2) revision of the terms of the quotation; and/or, (3) withdrawal of the quotation. No change, wherever initiated, will be accepted unless first agreed to in writing by EI.
- PURCHASE ORDERS:
- Acceptance of Orders: EI shall, upon receipt of an order, review said order for completeness and accuracy. Any order entered upon EI will be subject to such review and will not be considered accepted until EI issues a written confirmation of acceptance.
- Purchaser Acceptance of Terms and Conditions: Acceptance of orders shall be conditioned on assent by purchaser to EI’s STANDARD TERMS AND CONDITIONS OF SALE herein described. Such assent will be deemed given unless purchaser expressly notifies EI to the contrary within 5 days after EI gives the purchaser written confirmation of an order or in the absence of such written confirmation, then prior to delivery or performance of such order, whichever shall first occur.
- Orders submitted on purchaser’s own purchase order, which forms may contain statements, clauses or conditions modifying, adding to, or inconsistent with EI’s STANDARD TERMS AND CONDITION OF SALE. Any such statements, clauses or conditions submitted by purchaser shall not be effective nor bind EI. The rights and obligations of EI shall be determined by EI’s STANDARD TERMS AND CONDITIONS OF SALE. EI shall not be deemed to have in any way changed, enlarged or modified its rights, remedies or obligations as fixed by EI’s STANDARD TERMS AND CONDITIONS OF SALE.
- Order Entry: Orders shall be deemed entered when received at Eastern Instruments, Wilmington, North Carolina, USA.
All prices shall be quoted and shown as U.S. dollars (USD) unless otherwise specifically agreed in writing by EI and are subject to change without notice. Prices in effect at the time an order is accepted by EI shall apply.
- Inclusions: Prices include only those products or services specifically identified on the purchase order or quotation from which the purchase order is drawn.
- Exclusions: Prices do not include sales, excise, municipal, state, value-added, occupation or any other government taxes. EI shall not be obligated for the payment of any tax, fee or levy. Purchaser shall assume responsibility for and pay all import and export charges, assessments, tariffs, customs duties, clearances, fees and other customs or customs-related charges including but not limited to broker’s fees however designated.
- Price Revisions: EI reserves the right to revise prices for any work in progress if (1) the purchaser makes any changes in the purchase order affecting the specifications of EI’s product or services covered by said order; and, (2) if, through any action of the purchaser, completion of the order is delayed more than 30 days whether inadvertent or intentional except for Force Majeur.
- PAYMENT TERMS:
Invoices will be considered to be issued at the time of shipment from EI’s facility and are due and payable Net Thirty (30) days from the date on the invoice unless otherwise specified and agreed to in writing by EI.
All invoices are payable in U.S. dollars (USD). Bank drafts, checks or other instruments are subject to immediate collection for the full face value thereof.
- Past due invoices: Past due invoices will be assessed a penalty fee of 1.5% per month of the past due amount and are also subject to the imposition of a handling charge of 3% of the invoiced amount.
- Acceleration of Payments: In the event that any purchaser shall have open and uncollected invoices that are past due, EI reserves the right at any time and in its sole discretion, to demand full or partial payment for the remaining work in process. If any purchaser, in EI’s judgment, presents an unreasonable risk of default, EI may demand full or partial payment for the entire value of the purchase order before proceeding with the contract of sale.
- Delay of Shipment: If the purchaser, for any reason, delays completion of the purchase order or fails to authorize shipment when EI has notified in writing that the purchase order is complete and ready for shipment, the entire amount of the purchase order is then due and payable to EI upon presentation of written demand. The products may, at EI’s discretion, be stored until such time as purchaser pays the amount due. Purchaser shall bear all risk and expense of such storage and the product will not be released until all applicable storage charges are paid.
- Default: If the purchaser defaults on payment of an appropriately rendered invoice, EI may, at its discretion, place the account for collection. In the event the account is placed in collection, or if a suit brought thereon, purchaser agrees to pay all EI’s costs of collection including reasonable attorney’s fees. Purchaser agrees that any such suit may be brought in New Hanover County, North Carolina or a in a venue or jurisdiction chosen by EI
All shipments made by EI will be F.O.B. domestic U.S. or F.C.A. international, Wilmington, North Carolina, USA, unless otherwise accepted in writing by EI. The method and route of shipment will be chosen by EI unless purchaser shall specify otherwise. Purchasers will bear the additional cost of any special routing or shipping requirement.
- All shipments are determined by EI to ship “Best Way”.
- Partial Shipments: EI reserves the right to make partial shipments unless stipulated otherwise in the purchase order. Invoices for partial shipments will be rendered at time of shipment and are due and payable under the requirements of Section V PAYMENT TERMS of this STANDARD TERMS AND CONDITIONS OF SALE. Delay of any partial shipment, whether intentional or not, shall not relieve purchaser from his obligations under the terms of this agreement.
- DELAY OF SHIPMENT:
Any delay or deferral of delivery at purchaser’s request is subject to EI’s prior approval in writing. Such delays or deferrals shall not exceed forty five (45) days. Special order items, custom or other products manufactured to the purchaser’s specifications shall not be subject to delay or deferral.
- EI shall not be liable for any damages or loss as a result of any delay due to any cause beyond EI’s reasonable control, including, without limitation, an act of God; act of purchaser; embargo; or other government act; regulation or request, fire; accident; strike; war, acts of terrorism, boycott, slowdown; riot; delay in transportation; customs delay or seizure; or inability to obtain necessary labor, material or manufacturing facilities. In the event of any such delay (s), the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
- Claims: All claims for loss, breakage and damage (obvious or concealed) shall be the responsibility of the purchaser and shall be made to the carrier by purchaser or his assigned receiving party. EI will provide purchaser reasonable assistance in securing satisfactory resolution of any such claims.
- Claims for shortage or other errors must be made in writing to EI within five (5) days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance of the goods and a waiver of all such claims by purchaser.
Returns for any reason are subject to prior authorization by EI. No product may be returned without the prior written consent of EI. Authorized returns shall be shipped freight prepaid by the purchaser.
- Returns for credit: Such returns are subject to inspection by EI. Goods returned for credit must be received by EI in good condition. Unless otherwise specified, purchaser agrees that the cost any repairs or reconditioning necessary to put equipment in first trade condition will be deducted from the credit requested. Products, not involving an EI error that are accepted for credit shall be subject to a restocking/handling charge of twenty percent (20%) of the invoice price.
- Returns for repair or replacement: Authorization for the return of product or parts shall first be obtained by purchaser or the responsible party from EI’s Customer Service Department. No unauthorized returns for repair or replacement will be accepted.
The following exemptions shall apply to the transactions specified on this contract of sale.
- Taxes: Purchaser exempts EI from all responsibility for collection or payment of any and all taxes levied on the purchaser’s acquisition, receipt, possession, installation, and use of products covered by this contract of sale. Such taxes are the sole responsibility of purchaser and shall be paid by the purchaser to the relevant authorities according to applicable law, regulations and jurisdiction.
- Tax Exemptions: Purchasers claiming exemptions from any or all taxes must submit a current and valid tax exemption certificate issued by a competent government agency with jurisdiction over the collection of such taxes to EI prior to the EI’s acceptance of the purchase order.
- Intellectual Property: Purchaser hereby indemnifies and holds EI harmless from and against any and all damages, liabilities, losses, claims, suits, costs and expenses, including attorney’s fees, resulting from infringement of any patent, trademark or other intellectual property right arising from compliance by EI with purchaser’s designs or other specifications.
- Use & Misuse: Purchaser hereby indemnifies and holds EI harmless from and against any and all damages, liabilities, losses, claims, suits, costs and expenses, including attorney’s fees, resulting from use of products in applications for which they were not designed or misuse in applications for which products were designed but which are beyond agreed upon specifications and performance limits.
This warranty is the sole and exclusive remedy of purchaser. EI warrants products of its own manufacture to be free of defects in material and workmanship for a period of one year from date of shipment to the original user, subject to the following terms and conditions.
- Sole authority: EI retains all rights to enforce, modify, change, amend or discontinue this warranty or any of its terms at any time. No agent, employee or representative of EI has any authority to bind EI to any affirmation, representation or warranty concerning products covered by this contract of sale. Unless an affirmation, representation or warranty made by an officer or authorized EI employee is specifically included within this written agreement, it shall not be enforceable by the purchaser.
- Sole Liability: The sole liability of EI to purchaser for performance of the products is limited to the foregoing warranty of repair or replacement. EI disclaims any warranty of merchantability or fitness for any particular purpose, infringement, or any other written, oral, or implied warranties. In no event shall EI be liable for consequential or indirect damages. EI makes no warranties or representations as to characteristics, quality, or performance of any products sold to purchaser except as otherwise provided herein. If, for any reason, implied warranty cannot be excluded under applicable law, then the duration of such warranty is expressly limited to twenty (20) days from the date of shipment by EI (FOB, domestic U.S., FCA, international shipment) from Wilmington, North Carolina, USA.
- Damage: EI shall have no obligation under this Warranty if damage to product occurs due to improper handling or operation, abuse, misuse, unauthorized repairs made or attempted, or where product is operated outside of its specified limits.
- Repair or Replacement: EI will, subject to the terms of this warranty, replace or repair, at its option, any product or part found to be defective, with the exception of normal wear parts. Purchaser must return any product or part claimed defective to EI shipping prepaid. Third party repairs will void warranties from EI.
- Notice of Claims: Immediately upon receipt of the products, purchaser must inspect same. All claims, including claims for alleged defective goods, must be made to EI within five(5) days after purchaser learns of facts upon which such claim is based. All claims not made in writing and received within the specified time period shall be deemed waived. Purchaser expressly hereby assumes all liability for damages and injury occurring before and after said time period if notice is not made within the specified time period. Any lawsuit or legal action whatsoever by the purchaser against EI relating to any product purchased hereunder must be filed within one (1) year following the date of purchase of the product, any statute of limitations or similar law notwithstanding.
The formation and performance of any sales agreement shall be governed and construed according to the laws of the State of North Carolina, USA. Whenever a term defined in the Uniform Commercial Code is used in these Standard Terms and Conditions of Sale, the definition contained in the North Carolina Uniform Commercial Code is to control. If the purchaser’s place of business is located outside of the United States or its territories, then this transaction shall be governed by the United Nations Convention on Contracts for International Sale of Goods and terms indicated for international sales shall apply as such terms are defined in the 1990 edition of the International Chamber of Commerce “Incoterms” and North Carolina Law shall be the domestic law.
- FORCE MAJEURE:
The parties hereto shall be excused from and shall not be liable for any failure or delay in performance hereunder due to Acts of God, accidents, fires, explosions, strikes, labor disputes, wars, acts of terrorism, failures or delays in transportation, governmental or judicial action affecting the terms herein or otherwise, shortages of labor, fuel, raw material or machinery, or any causes beyond their control.
The failure of EI to insist in any one or more instances upon the performance of any of the terms or conditions set forth herein, or the failure of EI to exercise any of its rights hereunder, shall not be construed as a waiver or relinquishment of any such terms, conditions or rights hereunder and shall not affect EI’s right to insist on compliance with regard to the remaining terms and conditions.
If a court of competent jurisdiction finds any portion of this agreement not to apply or be in conflict with applicable law, the remaining portions shall remain in full force and effect, any such judgment notwithstanding.