Offer and Acceptance
These Terms and Conditions of Sale constitute an offer made by Rutan Poly Industries, Inc. (“Rutan”) to Customer (“Offer”).Acceptance of this Offer is limited to acceptance of the express terms and conditions contained herein. Any previous offers made by Customer, whether written or verbal, not already expressly accepted by Rutan in writing are hereby objected to and rejected. In no event shall this Offer be deemed an acceptance of any prior offer by Customer. The terms and conditions set forth herein shall supersede any terms, conditions, and provisions set forth in any request for quotation, purchase order, confirmation or other writing Customer may have given or give to Rutan, and the rights of the parties with respect to the purchase and sale of goods covered hereby shall be governed exclusively by the terms, conditions, and provisions hereof. No contrary, additional, or different provisions, terms, or conditions shall be binding on Rutan unless accepted by Rutan in a writing which makes specific reference to this Offer and acknowledges such modifications or revisions. Once this Offer is accepted by Customer, this order may be canceled by Customer only with Rutan’s written consent and upon terms that will indemnify Rutan against any and all loss, including but not limited to re-stocking charges. Unless Customer notifies Rutan in writing that the Customer objects to and rejects this offer within a commercially reasonable time after Customer becomes aware, or should have become aware, of Rutan’s commencement to provide the Goods or shipment of such Goods, then such commencement to procure the Goods or shipment of such Goods shall constitute Customer’s acceptance of this Offer. This Offer is subject to Rutan’s credit approval of Customer.
All invoices submitted by Rutan to Customer shall be payable net within thirty (30) days after the date of said invoices. All payments due to Rutan hereunder shall be paid in United States dollars to Rutan, or to such entity or person as is designated by Rutan, in accordance with the remittance instructions contained in the Invoice. Notwithstanding any other terms and conditions in this Agreement, in the event that any payment due from Customer to Rutan pursuant to this Agreement is not received and cleared by Rutan as provided for hereunder, then in addition to all other rights and remedies available to Rutan under law and hereunder, Rutan shall be entitled to a payment by Customer of accrued interest on any unpaid balance from its due date until payment is made at the rate of one and one half percent (1.5%) per month or the highest interest rate allowable by law, whichever is less. Customer understands and agrees that its obligation to make payments to Rutan shall be absolute and unconditional under any and all circumstances, whether or not Rutan violates any of its obligations described herein or otherwise, and such payments shall not be subject to any defense, set-off, or counterclaim for any reason whatsoever
Shipment and Delivery
This Offer is made with the understanding that it is subject to inventory availability. All orders are subject to overrun or underrun of 10%, in the case of Rutan standard inventory, and 15% in the case of orders made to Customer’s specifications. All shipping and handling expenses are the sole responsibility of Customer, and Customer shall reimburse Rutan for any such charges and expenses incurred by Rutan on Customer’s behalf. Delivery dates are estimates only and are based on normal shipping conditions (shipping conditions and actual ship dates may vary). Unless otherwise indicated on the sales order, all goods shall be delivered F.O.B. Rutan’s Mahwah, New Jersey location. Rutan will endeavor to meet all scheduled dates (including delivery dates) set forth in the sales order or otherwise requested in writing by Customer and accepted in writing by Rutan; provided, however, that Rutan reserves the right to change any and all such scheduled dates subject to Rutan’s availability schedule without notice and without liability to Customer.If shipment of goods is delayed at the request of Customer, then Rutan shall be entitled to place the goods in storage for the account of Customer, and all expenses incurred by Rutan in connection with the storage, handling, preservation, or insurance of the goods shall be paid by Customer upon presentation of Rutan’s invoice. Method and route of shipment are at Rutan’s discretion unless Customer supplies explicit written instructions with respect thereto, in which case Rutan shall attempt, but shall not be obligated, to comply with such instructions. Unless otherwise indicated on the sales order, all shipments are insured at Customer’s expense and made at Customer’s risk. Non-delivery by Rutan as to any product shall not be deemed a breach of this Agreement. Any non-delivery shall not relieve Customer from its obligation to accept or be responsible for any subsequent or prior shipment. All shipments shall be packaged in accordance with Rutan’s standard and customary packaging practices unless otherwise specified in the sales order. Rutan shall not be required to obtain insurance for any goods packaged according to Customer’s specifications. Rutan retains the right, at its option, to cancel this Agreement, in whole or in part, without any resulting liability to Customer or any third party. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered goods.
Except as otherwise expressly set forth herein, neither party shall be liable for any delay or for any consequence of any delay in the delivery or purchase, as the case may be, of any goods if such delay shall be due to any cause beyond its reasonable control, including, but not limited to, acts of God, acts of terrorism, acts of a public enemy, changes in law, wars, floods, fires, storms, strikes, lockouts, delivery of nonconforming or defective material, supplies, or equipment, significant interruptions of transportation, freight embargoes or failures, exhaustion or unavailability on the open market or delays in delivery of material, supplies, equipment, or services necessary for the performance of any provision hereof, or the happening of any material and reasonably unforeseeable act, misfortune, or casualty by which performance hereunder is delayed or prevented; provided, however, that the party so affected will use all commercially reasonable efforts to remedy the situation, except that nothing contained herein shall require such party to make settlement of any labor dispute on terms unacceptable to it and no such party shall be liable to the other for any losses, damages, or costs by reason of its inability to remedy the situation. If any such delay occurs, then (unless the cause thereof shall frustrate or render impossible or illegal the performance of this contract or shall otherwise discharge the same), the parties’ period for performing their respective obligations shall be extended by such period (not limited to the length of the delay) as the other party may reasonably require to complete the performance of its obligation.
Limitation of Liability
RUTAN SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUES, PROFITS, USE, CUSTOMERS, AGENTS OR DISTRIBUTORS) RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH ANY SALE, MANUFACTURE, DISTRIBUTION, OR ANY USE OF ANY GOODS OR FOR ANY FAILURE OF SUPPLY OF ANY GOODS FOR ANY REASON, WHETHER OR NOT RUTAN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THE FOREGOING LIMITATION OF LIABILITY SHALL NOT BE CONSTRUED TO APPLY ONLY TO DAMAGES OCCURRING AS A RESULT OF A BREACH OF PRODUCT WARRANTY, BUT SHALL APPLY TO ANY DAMAGES RELATED TO GOODS PURCHASED AND SOLD HEREUNDER.
Except as provided in this paragraph, Customer shall accept all goods shipped in accordance with the terms and conditions of this Agreement. In order to reject a shipment, Customer must give written notice (each, a “Rejection Notice”) to Rutan within five (5) business days after receipt of the shipment, together with a reasonably detailed written statement of its reasons for rejection. If no such notice is received, then Customer shall be deemed to have accepted the shipment of the goods and to have waived any and all claims with respect thereto. No claim of any kind (whether as to delivered goods or for non-delivery of goods, including claims of improper or defective materials and whether arising in tort or contract) shall be greater in amount than the purchase price of the goods in respect of which such damages are claimed.
In no case shall Customer return goods without first obtaining a Return Authorization (“RA”). Upon receipt of a Rejection Notice, Rutan shall issue a RA to Customer. RA’s are valid for 10 days from date of issuance. Returned goods must be delivered to Rutan, in their original packaging and be accompanied by Customer’s RA. Customer must prepay shipping charges and insure the shipment or accept the risk if the product is lost or damaged in shipment. Refunds or credits do not include original shipping and handling charges.
Governing Law; Forum; Enforcement
This Agreement and any disputes between the parties arising in connection herewith shall be governed by and interpreted in accordance with the laws of the State of New Jersey applicable to contracts made and to be performed entirely within such State, without regard to (and without application of) its laws, rules, and principles regarding conflicts of laws. All disputes arising out of this Agreement shall be resolved by a court of competent jurisdiction in the State of New Jersey and both parties hereby consent to the exclusive jurisdiction of the courts of the State of New Jersey and the Federal District Court for the District of New Jersey. In the event Rutan takes or maintains any action to enforce its rights hereunder and prevails, Customer shall reimburse Rutan for its reasonable costs and expenses incurred, including, without limitation, reasonable fees and disbursements of counsel and other advisors and professionals.
Prices; Quotations; Other Charges
All prices are in United States dollars. Written quotations automatically expire five (5) calendar days from the date issued and are subject to termination by notice within that period. Unless otherwise expressly provided in this Offer, the prices quoted shall not include any charges for artwork, printing, plates, freight, transportation, customs or duties, tariffs, taxes (whether sales, use, import, or other taxes of any nature whatsoever), insurance, or any other charges relating to the sale, transportation, and shipment to, or use by, Customer of the products sold hereunder. Such charges and/or taxes shall be the sole responsibility of, and shall be borne exclusively by, Customer. Wherever applicable, any such charges and/or taxes will be added to the invoice as a separate charge to be paid by Customer. If Rutan is required to pay any such charges and/or taxes, Customer agrees to reimburse Rutan for any amounts so paid upon demand.
Title and Risk of Loss; Security Interest
Title to and risk of loss and damage for any shipment of goods shall pass to Customer immediately upon the earlier to occur of deposit with a common carrier or delivery of such shipment to Customer or its designated agent. Customer hereby agrees that this Agreement grants to Rutan an irrevocable and continuing security interest in any and all goods shipped to Customer until the entire balance of the price of such goods and all other monies then due from Customer to Rutan are paid in full. Rutan may execute, on behalf of Customer, all instruments, including financing statements and certificates necessary to perfect and/or file a security interest under the laws of any state and under the Uniform Commercial Code (“UCC”) without notice to Customer. Upon breach by Customer of any of the terms and conditions of this Agreement or under any of the invoices which may be issued pursuant hereto, Rutan shall have all of the rights and remedies of a secured creditor under the UCC, including without limitation, the right to foreclose the security interest on the delivered goods or proceeds thereof by any judicial procedure or take possession of the goods, including the proceeds thereof from any sale. If Customer defaults on any payment or makes an assignment for the benefit of creditors, or if a proceeding in insolvency or bankruptcy is initiated by or against Customer, whether voluntary or involuntary, Rutan shall have the right to withhold shipments, in whole or in part, and to recall goods in transit, retake same, and remove and/or repossess goods which may be stored for Customer’s account, without the necessity of taking any other proceedings, and to take such other action as may be necessary to protect its security interest, including any other remedies Rutan may have by operation of law or otherwise.
The foregoing rights and remedies shall be in addition to, and not in lieu of, any other rights or remedies which Rutan may have hereunder, by operation of law or otherwise.
RUTAN HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ALL GOODS SOLD HEREUNDER.
RUTAN’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF ANY WARRANTY WITH RESPECT TO ANY GOODS SHALL BE REFUND OF THE PURCHASE PRICE OF THE NONCONFORMING GOOD. FURTHERMORE, ANY SUCH WARRANTY SHALL BE NULL AND VOID AND SHALL NOT APPLY TO ANY GOODS WHICH ARE (i) ALTERED, MODIFIED, DAMAGED, ABUSED, OR MISUSED (WHETHER INTENTIONALLY OR ACCIDENTALLY) OR (ii) NOTWITHSTANDING SUCH NONCONFORMITY, ARE USED OR OTHERWISE ACCEPTED BY CUSTOMER OR CUSTOMER WAIVES ITS CLAIM FOR REJECTION UNDER THE PROVISIONS OF THIS AGREEMENT. THE FOREGOING WARRANTY SET FORTH ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, AND RUTAN DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE AND/OR A PARTICULAR PURPOSE.
Customer shall indemnify and reimburse Rutan for, and hold Rutan harmless from, any and all damages, costs, expenses, losses, claims, demands, liabilities, awards, judgments, and/or obligations (including, without limitation, charges, deficiencies, assessments, dues, fines, penalties, interest, amounts paid in settlement, and reasonable fess and disbursements of counsel) (collectively, “Damages”) arising from, relating to, or in any way sustained by Rutan due to: (i) any breach by Customer of any of its representations, warranties, covenants, and agreements set forth herein; (ii) any negligent act or omission of Customer, or any of its directors, officers, employees, affiliates, agents, or representatives, with respect to any products purchased hereunder; (iii) Customer’s use, handling, storage, or re-sale of any product purchased hereunder; or (iv) any fraud or willful misconduct on the part of Customer; provided, however, that Customer shall not be liable for any such Damages to the extent arising from Rutan’s gross negligence or willful misconduct.
Subcontracting and Assignability
Customer may not assign or subcontract this Agreement or any of its rights or obligations hereunder without Rutan’s prior written consent and any purported assignment in violation of this provision will be void. This Agreement shall be binding upon and inure to the benefit of, and shall be enforce¬able by, the parties hereto and their permitted successors and assigns.
If any part of this Agreement shall be held unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and, to the extent permissible under applicable law, such unenforceable provision or provisions shall be deemed revised to the minimum extent possible to permit enforcement of such provision on terms as near as possible to such provision as originally drafted.
Relationship of the Parties
Rutan and Customer are independent contractors under this Agreement. Nothing contained in this Agreement is intended nor is to be construed so as to constitute the parties as partners or joint venturers with respect to this agreement. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party to any other contract, agreement, or undertaking with any third party.
Compliance with Laws
Customer shall comply with all applicable laws, rules, regulations, orders, and other requirements (whether federal, state, local, national, international, or otherwise) of all governmental, quasi-governmental, official, and similar bodies, persons, and entities in connection with its performance hereunder.
Rutan’s remedies herein are cumulative and in addition to any other or further remedies available to it at law or equity.
Rutan’s failure to enforce any right provided herein or to which it is entitled at law or equity will not constitute a waiver of that right or of any other rights to which it is entitled.
Entire Agreement; Modification; Waiver
These Terms and Conditions of Sale contain the entire agreement of the parties regarding the subject matter hereof and supersede all prior quotes, orders, purchase orders, bills of lading, invoices, proposals, letters of intent, agreements, understandings, and negotiations regarding the same. No modification of this order shall be effective without Rutan’s written consent. Except as otherwise provided herein, in no event shall this Agreement be deemed amendable or amended except by a writing specifically referencing this Agreement and signed by Rutan and Customer. Any waiver by Rutan of strict compliance with any provision of this order shall not be deemed a waiver of any of Rutan’s rights, privileges, claims, or remedies hereunder (with respect to such provision or any other provision hereof), nor of Rutan’s right to insist on strict compliance with respect to such provision thereafter.
Certificates of Compliance and Special Document Requests
If Customer requires a certificate of compliance for any purpose, including a certificate of compliance with governmental regulations, or special documentation of any kind, Customer must specify this and provide an example of the required certificate of compliance or special documentation at the time Customer submits its purchase order. Rutan reserves the right to charge a reasonable fee for the provision of such certificate of compliance or special documentation.