IMPAC SALES TERMS AND CONDITIONS
Sales Terms and Conditions November 2021
Impac Company, Inc. and/or its subsidiary or affiliate that is selling the product is herein referred to as the “Seller” and the customer or person or entity purchasing products (“Products”) from Seller is referred to as the “Buyer”.
THESE TERMS AND CONDITIONS, TOGETHER WITH ANY PRICE LIST OR SCHEDULE, QUOTATION, ACKNOWLEDGMENT OR INVOICE FROM SELLER RELATING TO THE SALE OF THE PRODUCTS, CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENT GOVERNING THE SALE OF PRODUCTS BY SELLER TO BUYER (THE “AGREEMENT”). SELLER’S ACCEPTANCE OF BUYER’S ORDER IS EXPRESSLY CONDITIONED UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE.
Prices are based on labor, freight and material costs at time of Seller’s quotation. In the event of any increases in Seller’s costs between the date of quotation and date of shipment, Seller shall have the right to increase the quoted price to Seller’s then current price at the time of shipment and invoice the Buyer for the increased price. Unless otherwise specified in writing by Seller, all prices are exclusive of taxes, transportation and insurance, which are to be borne by Buyer.
2. TERMS OF PAYMENT; CREDIT; COLLECTION:
Unless otherwise specified in writing by Seller, Seller’s invoice is due under agreed credit terms payable in U.S. currency. Customer must give written notice to Impac Company within fifteen (15) days from the date of this invoice of any objection to the goods listed, or the receipt thereof, all objections shall be deemed waived. Customer waives all right to set off claim which it may assert against Impac Company and/or withhold payment to Impac Company based on a claim that Impac Company is indebted or has any obligations to Customer. No claim asserted by Customer against Impac Company shall relieve Customer of its obligations to make timely payment to Impac Company. Seller may, at its option, impose a late payment charge on any past due invoice equal to the lesser of 1.5% per month or the maximum rate allowed by law, from the date on which payment is due until the outstanding balance is paid in full. In the event Buyer fails to make any payment when due under the terms of this Agreement, Seller shall have the right, among other remedies, to terminate this Agreement or to suspend further performance under this Agreement and/or other agreements with Buyer. Buyer shall be liable for all costs and expenses, including attorney’ fees, relating to the collection of past due amounts. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries. Buyer hereby grants Seller a security interest in all Products sold to Buyer by Seller, which security interest shall continue until all such Products are fully paid for in cash, and Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to protect and perfect such security interest. Upon request of Buyer, Seller may, in its sole discretion, execute a waiver of lien in a form reasonably acceptable to Seller; provided, however, in the event Seller provides a lien waiver prior to full payment, Buyer hereby agrees to indemnify Seller from any and all losses, liabilities, costs, expenses and damages of any kind incurred by Seller as a result of Buyer’s failure to pay all amounts due to Seller in full on or before the date due pursuant to the terms of the Agreement.
Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Products, shall be for Buyer’s account and shall be added to the price.
4. SHIPMENT AND DELIVERY:
Unless otherwise agreed to by the parties in writing, shipments are made F.O.B. origin. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by carrier at Seller’s shipping point. Buyer hereby expressly waives any and all claims against Seller for shortages or damages suffered in transit, such claims are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. Customer shall have seven (7) calendar days from the date of delivery to reject goods as nonconforming. Such rejection must be in writing received by Impac Company within such seven (7) days and specify the goods rejected and the specific nonconformity asserted. Impac Company shall have a reasonable time after receipt of proper notice of rejection of nonconforming good or of revocation of acceptance of nonconforming good to repair or replace the goods or refund the purchase price, with the remedy to be selected by Impac Company in its sole discretion. If the shipment of the goods equipment is not returned to shipping line within ten (10) days by Buyer for any reason, Buyer agrees to reimburse Seller, upon demand, for any and all storage costs and other additional expenses resulting therefrom.
5. NO WARRANTY:
Customer is responsible for determining the good it chooses to purchase and for what purposes those goods will be used. Customer is not relying on the skill or judgment of Impac Company to select or furnish goods suitable for any particular purpose. Seller makes no representations or warranties regarding the performance characteristics of any Product, including but not limited to representations or warranties with regard to fire rating, load bearing capabilities, blast resistance, hurricane proof, impact proof or tensile strength. Buyer acknowledges and agrees that any marketing materials, product descriptions, notations, stickers, certifications or seals affixed to, or provided with, the Products or Product brochures, catalogs or other materials, including but not limited to those affixed or provided by Seller, shall not constitute a representation, warranty or certification from the Seller, but instead constitute representations, warranties, or certifications made by the manufacturer of the Product. Product selection is the sole responsibility of the Buyer and its customers and is taken at the Buyer’s sole risk. It is the Buyer and its customers’ responsibility to consult all local building code laws, and the certification and rating agencies published materials and websites for guidelines on the standards necessary to meet all regulations and codes in the area where the Product(s) will be installed. It is Buyer’s responsibility to read and review all materials, representations and warranties regarding the Product provided by the manufacturer prior to purchase. Subject to the limitations of Section 6 below, to the extent possible, Seller shall assign to Buyer the Product’s manufacturer warranties. Notwithstanding the foregoing.
6. EXCUSE OF PERFORMANCE:
Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or circumstances or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the Agreement shall otherwise remain unaffected as a result of the foregoing.