TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Terms”) apply to all sales by Lindenmeyr Central (“Seller”) to its Customers (each, a “Customer”). All Customer orders are expressly subject to these terms and conditions and ACCEPTANCE OF A CUSTOMER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON ITS ASSENT TO THE TERMS AND CONDITIONS STATED HEREIN. Seller objects to any terms proposed in Customer’s proposal, purchase order, acknowledgment or other document which add to, vary from, or conflict with the Terms. Any such proposed terms shall be void. No quotation or agreement is binding upon Seller unless confirmed by Seller’s written acknowledgment or confirmation (an “Acknowledgement”), which states the only obligations to which Seller is bound. Unless Customer objects promptly upon its receipt, such Acknowledgment, together with these Terms, shall constitute the entire agreement between Seller and Customer and there are no understandings, agreements or representations, express or implied, not specified herein or therein. Subject to the express provisions of these terms, the customs of the American paper trade relating to merchandise of the type and quality provided for herein shall apply.
Price: The price for the sale of any merchandise shall be Seller’s price prevailing at time of shipment unless otherwise specifically stated on the face of an Acknowledgement. The price, if any, set forth on any Acknowledgment is the price in effect as of the date of such confirmation or acknowledgment and is included thereon for information purposes only. In the case of sales arranged through cooperatives, purchasing groups or print management companies, Seller may pay a rebate to the cooperative, purchasing group or print management company in connection with such sale. Notwithstanding the foregoing, by making a purchase, Buyer specifically agrees to the price stated.
Taxes and Additional Charges: All federal, state, local and other governmental taxes or other charges imposed upon the manufacture, sale, transportation, delivery and/or use of any merchandise sold to Customer by Seller are the responsibility of, and shall be paid by, Customer, and shall be added to the prices provided for in the Acknowledgement and these Terms. Orders below Seller’s minimum order requirement may be subject to additional shipping and handling charges.
Terms of Payment: Terms of payment run from date of invoice, not date of shipment or delivery. Unless otherwise specifically provided in an Acknowledgment, Customer shall pay invoices within 21 days from the date of the invoice. A one and one half percent per month service charge (18 percent per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments. Payments are to be made at the direction and to the location specified by Seller in an Acknowledgment or otherwise. If at any time and for any reason the financial condition of Customer shall become unsatisfactory to Seller, Seller may require cash or satisfactory security on shipments or deliveries or otherwise change any previous payment terms, without impairing the obligation of Customer to take and pay for the quantity of goods ordered. Seller may accept credit or debit cards in its discretion, but no prompt payment or other discounts or rebates shall apply to any payments made using any credit or debit card.
Delivery, Title and Contingencies: Except as otherwise provided in an Acknowledgement, shipments of merchandise from mill of manufacturer shall be delivered to Customer f.o.b. mill, less prevailing freight allowance, if any, accorded to Seller by manufacturer, and title to merchandise from any such mill and all risk of loss or damage shall thereupon pass to Customer. Shipments of merchandise from Seller’s warehouses shall be subject to imposition by Seller of delivery charges, and title to merchandise from any such warehouse and all risk of loss or damage shall pass to Customer upon delivery to it at the location specified in an Acknowledgment or at such other location as Seller and Customer may agree. Any date for shipment or delivery specified on the face of any Acknowledgment is only an estimated date, and delivery by Seller shall be timely if made within ten (10) days thereof, or, if Seller orally or in writing notifies Customer prior to the end of said ten day period of a delay in shipment from the mill, delivery shall then be deemed timely if made within ten (10) days after the date of shipment from the mill. Seller shall not be liable to Customer or to any other person for loss or damage of any kind because of impracticability, inability or failure to make timely delivery of merchandise at the price stated as a result of failure of Seller’s suppliers to make adequate or timely delivery of the merchandise; strikes, lockouts or other labor disputes; war, riot, armed conflict, insurrection, embargo or blockade; statute, regulation, order or any other action of any governmental authority, including duties and imposts; transportation delay or rejected mill runs; fire, flood, accidents, acts of God, or any other circumstance beyond Seller’s control. Quantities so affected may be eliminated from the amount ordered at the discretion of the party affected without liability and Seller may allocate its available supply among its purchasers, but the order shall remain otherwise unaffected.
Tolerances: Over-runs and under-runs shall be accepted by Customer in accordance with the specific policies of the manufacturer of the merchandise, and in the absence of any specific policy, usage of trade shall control.
Claims and Returns:
SELLER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT THAT ANY MERCHANDISE DELIVERED SHALL BE OF THE MANUFACTURER’S STANDARD QUALITY FOR MERCHANDISE OF SUCH KIND.
THE FOREGOING WARRANTY IS EXCLUSIVE OF AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR OTHER MATERIALS. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND SELLER’S SOLE RESPONSIBILITY HEREUNDER IS AS STATED. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF VALUE OR LOSS OF USE), , EVEN THOUGH SELLER MAY HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. SELLER SHALL NOT BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE SHIPMENT INVOLVED, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS, ANY ACKNOWLEDGEMENT OR ANY OTHER AGREEMENT BETWEEN SELLER AND CUSTOMER. ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THESE TERMS, ANY ACKNOWLEDGEMENT OR SUCH ANY OTHER AGREEMENT INCLUDING ANY WARRANTIES HEREUNDER, MUST BE INSTITUTED WITHIN 180 DAYS AFTER DELIVERY.
No merchandise shall be accepted for return prior to inspection by Seller’s authorized representative, and in no event will a return of allegedly defective merchandise be acceptable for credit if the containers, wrappers, or labels are defaced, damaged, removed or covered, or if the merchandise is not in its original container. Credit will only be allowed on defective merchandise returned within sixty (60) days of the date of delivery, and all returned merchandise is subject to inspection by Seller. No claim will be allowed by Seller after the merchandise either has been cut, printed or written upon, or otherwise altered from its original form. Buyer shall not be entitled to deduct from the price invoiced to it the amount of any claim asserted against Seller without Seller’s written consent. Buyer’s failure to accept delivery of any installment of shipment of merchandise in the qualities and on the terms specified by an Acknowledgment or to fulfill any other provision of an Acknowledgment shall constitute a material breach of the entire transaction, in response to which, in addition to any other remedies hereunder or at law, Seller may in its discretion by written notice to Buyer declare the entire transaction terminated as of the date of the breach, or reduce the installments during the remainder of the term hereof to that quantity last ordered by Buyer.
Miscellaneous: No provision hereof or of any Acknowledgment may be modified, amended or rescinded unless by a written instrument executed by Seller and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or any Acknowledgement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. If Customer breaches any of the terms herein, including failure to timely pay for any goods ordered, necessitating any collection efforts or legal action by Seller, Customer agrees that Seller shall be entitled to recover its reasonable costs incurred including, but not limited to, reasonable attorneys’ fees and costs. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods. Any legal action or proceeding concerning the validity, interpretation and enforcement of these terms or any sale of goods by Seller, matters arising out of or related to these terms or any sale of goods by Seller or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address.