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{{vm.headerLinks.productList.linkText.split(" ")[0]}}Unless Eastern Industrial Supplies, Inc. and or its affiliates (“Eastern” or “we”) has entered into a written agreement with you as seller that is signed by an authorized representative of Eastern, the following terms and conditions will govern when we purchase products or services (such products or services, the “Products”) from you. We value our business relationships and trust that you understand that we must have a set of terms and conditions that fairly balances the costs and risks of doing business between us.
These Terms and Conditions and any document of Eastern attached hereto, and any other written or electronic communication of Eastern that directed you to or incorporates these Terms and Conditions, including any request for quote or purchase order, will collectively constitute the “Contract Documents” (and in the event of any conflict, these Terms and Conditions will prevail) governing sale of the Products described in the Contract Documents. You will be deemed to have accepted the provisions of the Contract Documents, including these Terms and Conditions, by manifesting your acceptance by any of the following: (a) signing and returning to Eastern a copy of the Contract Documents; (b) sending to Eastern a written acknowledgment of the Contract Documents; (c) sending an order confirmation or giving instructions to Eastern respecting the purchase or delivery of the Products following receipt of the Contract Documents; (d) commencing performance under the Contract Documents; (e) shipping all or any part of the Products; (f) accepting payment for any of the Products; or (g) indicating in some other manner your acceptance of the Contract Documents. Eastern may revoke its offer to purchase the Products at any time prior to your acceptance. You will be deemed to have received the Contract Documents if we have notified you where they can be accessed via the Internet. Unless a longer period of time is specified in a quotation for the purchase of Products, prices quoted cannot be revoked prior to thirty (30) days from the date of quotation (the “Offer Period”). If you attempt to revoke a quotation before the expiration of the Offer Period, Eastern may nevertheless accept your quotation or other communication during the Offer Period, but any acceptance by Eastern is expressly conditioned upon these Terms and Conditions forming a part of the Contract Documents. Upon acceptance, you irrevocably agree and commit to sell the Products in accordance with the Contract Documents. EASTERN HEREBY OBJECTS TO AND REJECTS THE PROVISIONS OF ANY QUOTE, CONFIRMATION OR OTHER DOCUMENT WHICH IS INCONSISTENT WITH OR IN ADDITION TO THE PROVISIONS OF EASTERN’S CONTRACT DOCUMENTS (WHICH INCONSISTENT OR ADDITIONAL PROVISIONS ARE HEREBY EXCLUDED FROM THE CONTRACT), AND EASTERN’S OFFER AND OBLIGATIONS ARE EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. THE CONTRACT DOCUMENTS SHALL BE THE COMPLETE AND EXCLUSIVE CONTRACT BETWEEN YOU AND EASTERN WITH RESPECT TO THE PRODUCTS (THE “CONTRACT”) AND MAY BE MODIFIED ONLY IN A WRITING SIGNED BY EASTERN’S AUTHORIZED REPRESENTATIVE.
Eastern may at any time direct changes, or cause you to make changes, to the Products or to otherwise change the scope of this Contract including such matters as inspection, testing or quality control, and you agree to make such changes promptly. Any difference in price or time for performance resulting from such changes shall be equitably adjusted by Eastern after receipt of documentation in such form and detail as Eastern may direct. Any changes to this Contract shall be made in accordance with this Section 2. In addition to any other rights of Eastern to terminate this Contract, Eastern may, at its option, immediately terminate all or any part of this Contract, at any time and for any reason, by giving written notice to you. Upon such termination, Eastern shall pay to you the following amounts without duplication: (a) the Contract price for all Products completed and delivered in accordance with the Contract Documents and not previously paid for, and (b) the actual costs of work-in-process and raw materials incurred by you in furnishing the Products under this Contract to the extent such costs are reasonable in amount and are properly allocable to the terminated portion of this Contract (provided you have delivered to Eastern any such work-in-process or raw materials), less the sum of the reasonable value or cost (whichever is higher) of any goods or materials used or sold by you with Eastern’s written consent and the cost of any damaged or destroyed goods or material. In connection with such termination, Eastern will make no payments for finished goods, services, work-in-progress or raw materials fabricated or procured by you in amounts in excess of those expressly authorized under this Contract nor for any undelivered goods or raw materials that are in your standard stock or that are readily marketable. Payments made under this Section shall not exceed the aggregate price payable by Eastern for Products that are undelivered at the date of termination. Except as provided in this Section, Eastern shall not be liable for payments to you, directly or on account of claims by your subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, or general and administrative burden charges from termination of this Contract. Within sixty (60) days from the effective date of termination, you shall submit a comprehensive termination claim to Eastern, with sufficient supporting data to permit Eastern’s audit and shall thereafter promptly furnish such supplemental and supporting information as Eastern shall request. Eastern or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim by you.
The price of the Products shall be as agreed to by the parties and confirmed by Eastern and, unless otherwise agreed in writing by Eastern, shall be inclusive of all other charges, including foreign, federal, state, and local taxes (excepting only sales taxes Eastern is required to pay by applicable law), customs duties, import duties, costs of carriage, packing, packaging, and insurance. Without limiting the generality of the foregoing, you will not charge Eastern for boxing, packaging, palletizing or crating (including any damage thereto) unless Eastern specifically agrees to such charges in writing in advance. You will cooperate with Eastern in obtaining any sales tax exemption certificates or other similar documents, if applicable. No increase in price or extra charges, including any interest or finance charges, shall be effective unless Eastern, in its sole discretion, consents to them in writing in advance, and if Eastern consents to a price increase or extra charges, it shall not be effective until at least thirty (30) days after such consent is given. Unless otherwise stated in the Contract Documents, all sums due under the Contract Documents shall be paid in United States dollars. Unless specified otherwise in the Contract Documents, payment shall be due no sooner than thirty (30) days after the receipt of a correct invoice and receipt of the Products described in the invoice. You shall apply each payment by Eastern to the invoices for which such payment is made. If applicable, Eastern shall be entitled at all times to set-off any amount owing from you against any amount payable to you from Eastern, arising out of this or any other transaction.
You represent and warrant that (a) you are authorized or licensed to provide the Products; (b) you have marketable title to and the right to convey the Products; (c) the Products are unencumbered and free from security interests and liens; and (d) the Products do not infringe any trademark, patent, copyright, design, or similar intellectual property right. In addition to any other express or implied warranties that you have provided or that Eastern may otherwise have, you expressly and unconditionally warrant for the maximum period allowed by law after the date of delivery (or replacement) to Eastern that all Products shall, unless otherwise specified or agreed by Eastern, be new and of first-class quality, be merchantable, be fit for the specific purpose of Eastern or its customer, be free of defects in materials, workmanship, manufacture and design (whether latent or otherwise), be adequately contained, packaged and labeled, and conform strictly to the stricter of (i) the specifications and descriptions set forth in the Contract Documents, or (ii) your catalogs, product brochures, and other representations, depictions, samples, and models of the Products. All warranties are for the benefit of Eastern and its customers and their respective successors and assigns and shall survive any inspection, delivery, acceptance, and payment. You shall assign in full, and without cost to Eastern, all warranties from your suppliers that are applicable to the Products and deliver such assigned warranties with the Products. You shall indemnify, defend, and hold Eastern and its applicable customers harmless against any and all loss, liability, expense, claims, or demands, including attorneys’ and consultants’ fees and expenses arising from your or your agents’ breach of this Contract, negligence, gross negligence, or other act that causes any personal injury (including death), property damage, or economic losses, including damage to you, Eastern, or third parties, in any manner connected with the performance of this Contract, including indirect, incidental, consequential, and punitive damages or losses, except to the extent caused by Eastern’s sole negligence. If any such claim is made against Eastern, Eastern shall give you notice of such claim and shall, at your expense, furnish assistance in connection with the defense of such suit as is reasonably requested by you. Eastern shall have the right, but not the obligation, to control the defense or settlement of any claim or lawsuit covered by your indemnity, all at your expense. At Eastern’s option, you shall be liable at your sole expense to assume the defense of any such litigation, but Eastern may, at its own expense, associate attorneys of its own choice to aid in the defense of any such suit. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of the Contract.
The date or dates for delivery of the Products are as agreed to by the parties and confirmed by Eastern. Eastern reserves the right to accept or reject, in whole or in part, partial or excess deliveries of Products. Unless otherwise specified in the Contract Documents: (a) all deliveries of Products shall be Delivered Duty Paid (DDP) Eastern’s chosen location (as defined in “Incoterms 2010”), using the carrier of Eastern’s choice and (b) title and risk of loss shall pass to Eastern after delivery of the Products to Eastern at the DDP delivery point. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THIS CONTRACT. A packing slip shall accompany each shipment of Products. Without limiting Eastern’s rights described in Section 8, if you fail to deliver the Products in accordance with the delivery schedule described in the Contract Documents, Eastern may procure substitute products from a third party, and you will be responsible for any price differential or expediting costs. You shall be liable for any loss or damage to, and shall procure such insurance as may be reasonable under the circumstances covering loss or damage to, the Products or any property held on Eastern’s behalf. At your expense you shall also obtain and maintain in effect until the expiration of the applicable statute of limitations general liability, products liability and other similar insurance coverage that is reasonable and customary in the industry, but such insurance shall have a limit of not less than $1,000,000 per occurrence for bodily injury and property damage and $2,000,000 in the aggregate. All such insurance shall contain a waiver of subrogation in favor of Eastern and its affiliates, and shall be primary to any insurance maintained by Eastern, which shall be for the sole benefit of Eastern and its affiliates. Upon Eastern’s request, Eastern shall be named as loss payee and/or additional insured in such policies and you will provide Eastern with one or more certificates of insurance evidencing such coverage.
Eastern shall have the right, but shall be under no duty, to inspect or test the Products before processing, use, or resale, and any processing, use, or resale shall not constitute a waiver of any claim. Complaints or notice of defects in the Products shall be deemed timely if made within a reasonable period of time after discovery by Eastern of such defects. Payment for any of the Products shall not be deemed an acceptance of such Products. Any failure of the Products to conform to any of the warranties of Section 4 shall, if Eastern has accepted the Products, constitute a nonconformity that substantially impairs such Product’s value to Eastern for which Eastern may revoke acceptance, such acceptance being deemed to have been induced either: (a) on the reasonable assumption that such nonconformity would be cured and it has not been reasonably cured or (b) if Eastern did not discover such nonconformity prior to acceptance, by the difficulty of discovery before acceptance or by your assurances.
You agree that you shall strictly comply with all applicable foreign, federal, state, and local laws, rules, regulations, codes, and ordinances, including all applicable laws and regulations regarding employment and discrimination. You shall arrange for all inspections and approvals by governmental officials including customs clearance or other import or export obligations, if necessary. Upon request of Eastern, you shall provide a certificate of origin or other documentation reasonably requested by Eastern. You shall not offer or provide to Eastern’s purchasing agents, or any other employees, agents or representatives of Eastern, any gratuities, gifts, payments, or anything of value in an attempt to influence directly such person’s administration of the provisions of this Contract. The foregoing shall not prohibit you from providing de minimus meals or gifts to Eastern’s employees in accordance with customary ethical industry practices.
Except as expressly provided in the Contract Documents, Eastern and you shall have only those rights and remedies provided by applicable law; provided, however, that if the Products or any part thereof are not supplied in accordance with the Contract Documents or by the delivery date specified therein or you otherwise fail to observe strictly or to comply strictly with any of the Contract Documents, Eastern may avail itself of one or more of the following remedies at its discretion, regardless of whether Eastern has accepted the Products in whole or in part: (a) to cancel this Contract, in whole or in part; (b) to reject the Products, in whole or in part, and return them to you at your risk and cost for a full refund to be paid promptly by you; (c) to refuse to accept any further deliveries of any Products, without any liability to you; or (d) to claim any damages available to Eastern as may have been sustained, including any consequential loss or damage (including any claim for damages or indemnity in respect to any sum paid or payable to any third party), any difference in value of nonconforming Products Eastern has accepted, or any loss of revenue, loss of profits, or loss of any contract, arising out of the supply of the Products or their use or resale by Eastern. Notwithstanding any contrary provision in the Contract Documents or any other statement, whether written or oral, Eastern, through its agents or otherwise, does not assume any responsibility or liability to indemnify, defend, save, or hold harmless any other person, firm or party from or against any loss, damage, or injury, including any indirect, incidental, consequential, special, or punitive damages, losses, or injuries whatsoever, regardless of any language by which such assumption purports to be expressed or implied. Notwithstanding anything to the contrary in the Contract Documents, any claim by Eastern may be made within the limitation period provided by the applicable statute of limitations.
Neither party will be liable for loss or damage due to nonperformance resulting from any cause beyond the affected party’s reasonable control, including compliance with any regulation, order, or instruction of any governmental authority, act of God, war (declared or undeclared), terrorism, act or omission of the other party, act of civil or military authority, fire, epidemic, flood, catastrophe, strike against a third party, port shut-down, or riot. In the event of any excused delay due to any such cause, the affected party will promptly notify the other party thereof and will at the same time, or the earliest practical date after such notice, specify any revised performance schedule. If a force majeure event affects your performance, Eastern may, but is not obligated to, (a) terminate this Contract in whole or in part; (b) reject any delivered Products, in whole or in part, and return them to you at your risk and cost for a full refund to be paid promptly by you; or (c) refuse to accept any further deliveries of any Products, in each case without any liability to you.
For all purchases located within, or if you are organized in, the United States, the law of the State of South Carolina, without regard to its conflict of laws principles, will govern this Contract and the rights and obligations of the parties hereunder. For all international purchases from sellers with no United States presence, the United Nations Convention on Contracts for the International Sale of Goods (the “Sales Convention”) will, to the extent applicable and as limited herein, govern this Contract and the rights and obligations of the parties hereunder. Notwithstanding the foregoing, in the event of any inconsistency or conflict between provisions of this Contract and the Sales Convention, the provisions of this Contract will govern and prevail. To the extent of any such inconsistency or conflict, the provisions of this Contract will be deemed to derogate from the provisions of the Sales Convention within the meaning of Article 6 thereof. Questions that are not expressly settled in this Contract or by application of the Sales Convention are to be settled in conformity with the internal laws of the State of South Carolina, U.S.A., without regard to its conflict of laws principles.
Eastern and you hereby irrevocably consent to the exclusive jurisdiction of the Courts of the State of South Carolina or the United States District Court for the District of South Carolina in any and all actions and proceedings arising out of or relating to the Contract Documents or any transaction between the parties. You hereby waive any objection which you may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. EACH PARTY HEREBY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION, PROCEEDING OR COUNTERCLAIM ARISING WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT DOCUMENTS OR WITH RESPECT TO ANY CLAIMS ARISING OUT OF ANY TRANSACTIONS BETWEEN THE PARTIES.
Neither party will transfer or assign this Contract, whether by operation of law or otherwise, without the prior express written consent of the other party. Any attempted transfer or assignment hereof without such consent will be void and without force or effect. Except as otherwise expressly provided herein, this Contract is not intended to be for the benefit of, and will not be enforceable by, any person not a party to it or the permitted assignee of such party. Notwithstanding the foregoing, if the Products will be resold by Eastern to its customers, you agree that any such customer may enforce directly against you all of your warranties and related covenants and obligations, and that Eastern shall not be required to join as a party in any litigation related thereto.
Unless specified otherwise elsewhere in the Contract, all notices and similar communications provided hereunder must be in writing, and delivered by first-class, prepaid, registered United States mail or reputable overnight courier service.
Eastern may disclose technical or business information of Eastern or its customers to you in connection with the negotiation or performance of this Contract. You agree to keep confidential all such information as well as any other information relating to this Contract. You shall not disclose or use, directly or indirectly, such information for any purpose other than the purposes of performing this Contract.
All rights and remedies hereunder will be in addition to all other rights and remedies under applicable law, all of which rights and remedies will be nonexclusive and cumulative. No waiver by either party of any default will be deemed a waiver of any subsequent default. If any provision of this Contract is determined to be invalid, such invalidity will not affect the validity of the remaining portions of this Contract. Your acceptance of the Contract Documents will constitute your representation and warranty that you have obtained all necessary approvals, licenses and permits required from all applicable governmental authority with respect to the shipment, importation, delivery or use of the Products. Eastern will have the right to cancel its performance under this Contract, and may withhold or suspend performance of any of its responsibilities hereunder, for any failure or delay by you in giving Eastern any assurances Eastern may require, in its sole discretion, that all such approvals, licenses and permits have been obtained, in which event you will promptly reimburse and indemnify Eastern for all damages, costs or losses incurred by Eastern due to such failure or delay by you.
Unless Eastern Industrial Supplies, Inc. and or its affiliates (“Eastern” or “we”) has entered into a written agreement with you as purchaser that is signed by an authorized representative of Eastern, the following terms and conditions will govern when we sell products to you. We value your business and trust that you understand that our pricing is based on our having a set of terms and conditions that fairly balances the costs and risks of doing business between us.
Unless a different period of time is specified in a quotation for the sale of products by Eastern (the “Products”) or fabrication services by Eastern to alter or modify Products in accordance with the Services Specifications (the “Services”), prices quoted expire ten (10) days from the date of quotation or sooner if Eastern notifies you before your acceptance. These Terms and Conditions and any document of Eastern attached hereto, and any other written or electronic communication of Eastern that is directed you to or incorporates these Terms and Conditions, including any quotation, will collectively constitute the “Contract Documents” (and in the event of any conflict, these Terms and Conditions will prevail) governing sale of the Products and Services described in the Contract Documents. You will be deemed to have accepted the provisions of the Contract Documents, including these Terms and Conditions, by manifesting your acceptance by any of the following: (a) signing and returning to Eastern a copy of the Contract Documents; (b) sending to Eastern a written acknowledgement of the Contract Documents; (c) placing a purchase order or giving instructions to Eastern respecting the sale or delivery of the Products or Services following receipt of the Contract Documents; (d) failing to cancel a pending purchase order within ten (10) days after receiving the Contract Documents; (e) accepting delivery of all or any part of the Products or Services; (f) paying for all or any part of the Products or Services; or (g) indicating in some other manner your acceptance of the Contract Documents. You will be deemed to have received the Contract Documents if we have notified you where they can be accessed via the Internet. If you attempt to accept a quotation after it has expired, Eastern may accept your purchase order or other communication, but any acceptance by Eastern is expressly conditioned upon these Terms and Conditions forming a part of the Contract Documents. Upon acceptance, you irrevocably agree and commit to purchase the Products or Services in accordance with the Contract Documents. EASTERN HEREBY OBJECTS TO AND REJECTS THE PROVISIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT WHICH IS INCONSISTENT WITH OR IN ADDITION TO THE PROVISIONS OF EASTERN’S CONTRACT DOCUMENTS (WHICH INCONSISTENT OR ADDITIONAL PROVISIONS ARE HEREBY EXCLUDED FROM THE CONTRACT), AND EASTERN’S OFFER AND OBLIGATIONS ARE EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. THE CONTRACT DOCUMENTS SHALL BE THE COMPLETE AND EXCLUSIVE CONTRACT BETWEEN YOU AND EASTERN WITH RESPECT TO THE PRODUCTS OR SERVICES (THE “CONTRACT”) AND MAY BE MODIFIED ONLY IN A WRITING SIGNED BY EASTERN’S AUTHORIZED REPRESENTATIVE. NO PRIOR OR OTHER CONTEMPORANEOUS PROPOSALS, STATEMENTS, FORECASTS, SAMPLES, MODELS, SPECIFICATIONS, COURSE OF DEALING OR USAGE OF TRADE SHALL BE PART OF THE CONTRACT BETWEEN YOU AND EASTERN.
Unless specified otherwise elsewhere in the Contract, all invoices are payable in full, at Eastern’s headquarters in Greenville, South Carolina, in United States dollars, within thirty (30) days after date of invoice. All payments will be due and payable without offset, discount (unless explicitly provided for in the Contract) or any reduction in the Contract price, without deduction for any exchange or conversion, and also without deduction for any taxes or duties levied by any governmental authority. Any payment received from or for your account may be accepted and applied by Eastern against any indebtedness owing by you, as shown by the books and records of Eastern, without discharge of the remainder of any such indebtedness regardless of any statement by you referring to or accompanying such payment. You agree to pay late payment charges for each month or portion thereof on any payment hereunder that is not made when due. The late payment charge rate will be the lesser of (a) 1.5% per month, and (b) the maximum rate allowed by applicable law. You also agree to pay a dormancy charge of $5.00 per month to maintain any outstanding credit balance (owed to you) over 60 days old. Eastern shall be entitled at all times to set-off any amount owing from you against any amount payable to you from Eastern, arising out of this or any other transaction, including but not limited to credit balances owed to you under South Carolina’s Uniform Unclaimed Property Act or similar unclaimed property acts in other jurisdictions. Eastern may, at any time, in its sole discretion, limit or cancel any credit terms given to you as to time and amount; and as a condition to Eastern’s obligations under the Contract (including sourcing or delivering all or any part of the Products or Services), Eastern may, in its sole discretion, require you to (i) pay in cash an amount sufficient to cover the unpaid Contract price (including all related transportation, storage and other costs to be charged to you), (ii) obtain and maintain an irrevocable bond or commercial letter of credit in favor of Eastern for such unpaid Contract price, in each case on terms satisfactory to Eastern in its sole discretion, or (iii) require a joint check arrangement with you and the party hiring you. Such letter of credit will be payable on sight and be in a form and issued and confirmed by a bank or banks satisfactory to Eastern, in its sole discretion. The terms of any such letter of credit will comply with any specifications or requirements furnished by Eastern to you, including provisions for transferability, partial delivery, transshipment, and acceptance of stale documents. You will bear and pay the full cost, including all banking charges, incurred in connection with the issuance, confirmation and amendment of each such letter of credit. The opening or confirmation of such letter of credit will not discharge your direct payment obligation to Eastern. Any credit balances on your account must be used within one year from the date of issuance or will be forfeited.
You will be in default and fundamental and material breach of this Contract upon the occurrence of any of the following: (a) your uncured breach or nonfulfillment of this or any other contract with Eastern; (b) your failure to obtain and maintain any bond or letter of credit required by Eastern in accordance with the Contract; (c) your failure to make timely payment to Eastern for any installment of the Products or Services; (d) your failure to assort, specify, or accept any installment of non-defective Products or Services; (e) your insolvency, calling of a meeting of your creditors, or general assignment for the benefit of your creditors; or (f) commencement of bankruptcy, insolvency, reorganization, arrangement or similar proceedings concerning you (but, in the case of involuntary proceedings, only if not dismissed within thirty (30) days after commencement). In the event of any such default by you, Eastern may, in addition to any other rights and remedies under applicable law, exercise any one or more of the following rights and remedies, which are intended to be cumulative and not mutually exclusive: (i) cancel any part of this Contract or any other contract with you (with you being liable for damages); (ii) defer any shipment of Products or delay the provision of Services under this or any other contract; (iii) declare immediately due and payable all outstanding invoices under this or any other contract; (iv) immediately repossess all or any part of the Products in transit or in the custody or control of you pursuant to this or any other contract, at your sole risk and expense; (v) finish all or any portion of its performance of the Contract and charge you up to the full Contract price; and (vi) re-sell all or any part of the Products covered by this or any other contract, or any materials supplied for the Contract, at public or private sale, with you being responsible for all losses and expenses incurred in such sale.
As collateral security for the payment of all amounts due under the Contract, you hereby grant to Eastern, a lien on and security interest in and to all of your right, title and interest in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds of the foregoing, until Eastern has received payment in full therefor and for any related Services from you. The foregoing security interest constitutes a purchase money security interest. You agree that you will cause all Products which Eastern has delivered but for which Eastern has not been paid in full (wherein Eastern has accordingly retained its interest) to remain in a separate and distinct location, marked by conspicuous signage disclosing Eastern’s security interest in such Products and will not transfer to any third party any interest in such Products. Notwithstanding Eastern’s security interest in the Products, you will bear all risk of loss or damage with respect to the Products, and will be responsible for maintaining full replacement cost insurance for the Products, at your sole expense, with Eastern named as a loss payee and additional insured, until Eastern has been paid in full therefor. Notwithstanding Eastern’s security interest in any of the Products, you will be solely responsible and liable for any and all taxes, warehousing or storage costs, transportation costs or other costs or liabilities associated with the Products following delivery thereof by Eastern in accordance with the Contract. You agree to execute any document deemed necessary or appropriate by Eastern, in its sole discretion, to perfect or enforce the security interest of Eastern in the Products, or in the alternative, Eastern may file or record the Contract or any memorandum or statement thereof without your signature.
Unless specified otherwise elsewhere in the Contract, Eastern’s delivery of the Products will be at Eastern’s warehouse, with risk of loss and damage passing to you at such point, subject to Eastern’s rights under applicable law. For any Products held subject to your instructions or which Eastern, in its sole discretion, has determined should be held for your account, Eastern may invoice before delivery, with risk of loss or damage passing to you as of the date of such invoice. You will pay all insurance, freight, and delivery charges as a separate item. Unless specified otherwise elsewhere in the Contract, delivery of Products in a quantity varying not more than ten percent (10%) from the Contract amount will be deemed complete delivery of the Contract amount, and payment will be made for the actual quantity delivered. Delivery may, in Eastern’s discretion, be made in severable installments, and installment deliveries will be accepted by you and paid for at Contract prices and terms. Unless specified otherwise elsewhere in the Contract, all delivery dates are Eastern’s good faith estimates of shipping and are not guaranteed. Products invoiced and held in any location for any reason will be held at your risk and expense, and Eastern may charge for insurance and storage at prevailing rates.
Eastern may from time to time provide suggestions or assistance regarding the use or applicability of particular Products or the quantity or quality of particular Products. You acknowledge that Eastern does not manufacture any Products and that the Products have characteristics selected by you, and you will not rely on any suggestions or assistance provided by Eastern, including whether the type, quantity or quality of Products described in a quotation or other document of Eastern, and subsequently delivered to you, are sufficient for your purposes. You further acknowledge that the conditions affecting each application of Products are unique, and may be subject to national, state and local standards and codes, and you will obtain approval of Products from architects or engineers consistent with good industry practice. Eastern may also from time to time furnish you with specifications, literature and other information provided by the manufacturers of Products, whether by delivery to you of manufacturers’ information or links to manufacturers’ websites. You acknowledge that Eastern makes no representations regarding the accuracy of such information and assumes no liability regarding its content. You agree to defend, indemnify and hold harmless Eastern and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, your employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the Products by you or of the information, designs, services or other work supplied to you, whether caused by the concurrent and/or contributory negligence of you, Eastern, or any of our respective agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of the Contract.
SUBJECT TO SECTIONS 4 AND 8, EASTERN WARRANTS VALID TITLE TO PRODUCTS. ALL PRODUCT WARRANTIES, IF ANY, ARE LIMITED TO THOSE OFFERED BY THE MANUFACTURER. EASTERN WILL, TO THE EXTENT ASSIGNABLE BY THEIR TERMS, ASSIGN TO YOU ANY WARRANTIES GIVEN TO EASTERN BY THE MANUFACTURER AND WILL REASONABLY COOPERATE WITH YOU IN CONNECTION WITH ANY WARRANTY CLAIMS YOU MAY HAVE AGAINST THE MANUFACTURER OF THE PRODUCTS. EASTERN WARRANTS THAT IT SHALL PERFORM THE SERVICES IN ACCORDANCE WITH THE WRITTEN FABRICATION OR OTHER SPECIFICATIONS SET FORTH IN THE APPLICABLE ACCEPTED PURCHASE ORDER (“SERVICES SPECIFICATIONS”). EXCEPT FOR THE FOREGOING, ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTIES BASED UPON SAMPLES, MODELS, OR THE MANUFACTURER’S OR YOUR SPECIFICATIONS (OTHER THAN THE SERVICES SPECIFICATIONS), ARE EXPRESSLY DISCLAIMED. YOU ASSUME ALL RISK AND LIABILITY CONCERNING THE USE OF PRODUCTS. ANY ADVICE, SUGGESTIONS, OR ASSISTANCE THAT EASTERN FURNISHES TO YOU AND THE RESULTS THEREOF ARE PROVIDED AT YOUR SOLE RISK AND EXPENSE.
WITHOUT LIMITING THE GENERALITY OF ANY OTHER PROVISION IN THE CONTRACT LIMITING OR EXCLUDING LIABILITY OF EASTERN, THE DAMAGES RECOVERABLE BY YOU BASED ON ANY CLAIM OF ANY KIND WHATSOEVER (INCLUDING NEGLIGENCE) ARISING FROM OR IN ANY WAY CONNECTED TO THIS CONTRACT, THE PRODUCTS OR SERVICES SHALL NOT BE GREATER THAN THE ACTUAL CONTRACT PRICE OF THE PRODUCTS OR SERVICES PAID BY YOU WITH RESPECT TO WHICH SUCH CLAIM IS MADE, AND IN NO EVENT SHALL EASTERN BE LIABLE FOR YOUR OR ANY THIRD PARTY’S SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF USE, LOST PROFITS, LOSS OF GOODWILL, LATE DELIVERY, NONDELIVERY, DEFECTIVE CONDITION, OR USE OF THE PRODUCTS.
You agree to examine and test Products within thirty (30) days after receipt, before use or resale, and will give Eastern prompt written notice of any alleged nonconformity and an opportunity to investigate. Your use or resale of Products will be deemed acceptance as conforming to the Contract. Any claim by you, with reference to Products or Services for any cause, will be deemed waived by you unless your written and particularized claim is (i) received by Eastern (a) within thirty (30) days after receipt of Products for all claims other than those for latent defects or (b) within ninety (90) days after receipt of Products for a latent defect, and (ii) you provide Eastern an opportunity to investigate; provided, however, that in no case will Eastern have any obligation after Products have been further modified or incorporated in other products or systems. If you have a claim for defective Products or Services, you will make such Products available without cost to Eastern at a point reasonably designated by Eastern (with failure to do so deemed acceptance and waiver of all claims for defect), and you must store such Products in a reasonably protected environment. If Eastern determines a defect claim to be valid, Eastern may, at its sole option and election, either: (i) replace any defective or nonconforming Products or reperform any defective Services, or part thereof; (ii) repair any defective or nonconforming Products; (iii) accept return of any defective Products and refund the purchase price therefor to you; or (iv) pay to you the difference in value of conforming Products as of the scheduled Contract delivery date and the value of the Products actually delivered. No Products that have been altered in accordance with Services Specifications may be returned. No other Products may be returned without our prior written authorization. For any authorized returns, you (i) will be responsible for prepaying all costs of packing, shipping, refurbishing and damage related to Products, and (ii) will pay to Eastern a restocking fee, which may include restocking fees charged by the manufacturer. Repairs and/or replacements will be shipped to Eastern’s warehouse unless otherwise agreed in writing by Eastern. Eastern will not be responsible for any labor, removal, or installation charges that may result from repair and/or replacement of any Products. Your exclusive remedy and Eastern’s sole liability for any loss, damage, injury, or expense of any kind arising from fabrication, delivery, sale, installation, use, or shipment of Products will be, at Eastern’s option, the remedies described above, whether based on contract, warranty, tort, or any other basis of recovery. Your failure to conform to any part of this Section will be deemed acceptance of Products and Services and a waiver of all claims for defect.
Neither party will be liable for loss or damage due to nonperformance resulting from any cause beyond the affected party’s reasonable control, including compliance with any regulation, order, or instruction of any governmental authority, act of God, war (declared or undeclared), terrorism, act or omission of the other party, act of civil or military authority, fire, epidemic, pandemic, flood, catastrophe, strike, factory or port shut-down, lockout, riot, rationing, shortage of material, or inability of such affected party to obtain necessary labor from usual sources; provided, however, no delay in the performance of your payment obligations hereunder (including any obligation with respect to obtaining a bond or a confirmed letter of credit) will be excused on account of any such cause. In the event of any excused delay due to any such cause, the affected party will as soon as practical notify the other party thereof and will at the same time, or the earliest practical date after such notice, specify any revised performance schedule. In the event of any such excused delay, the time of performance by the affected party will be extended for a period equal to the time lost by the affected party by reason of the delay. If the transaction is covered by a letter of credit, the letter of credit will provide that receipt by the confirming or issuing bank of a copy of the notice of delay from Eastern will operate as the instruction of you to said banks to amend the letter of credit to extend the times for shipment and the expiration of the letter of credit to the date(s) indicated in said notice.
All prices are exclusive of any applicable import duties and tariffs, customs fees, export licensing fees, or import or export taxes, federal, state, provincial or local sales, use, property, or value added taxes or other any taxes or official charges, all of which are your sole responsibility. Eastern may change quoted prices by notice to you prior to your acceptance. Notwithstanding any firm pricing for a period of time, Eastern may pass through, and you will pay, any price increases or surcharges incurred by Eastern that are generally applicable to the industry and arise from raw material or commodity shortages or price disruptions.
For all sales located within, or if you are organized in, the United States, the law of the State of South Carolina, without regard to its conflict of laws principles, will govern this Contract and the rights and obligations of the parties hereunder. For all international sales to purchasers with no United States presence, the United Nations Convention on Contracts for the International Sale of Goods (the “Sales Convention”) will, to the extent applicable and as limited herein, govern this Contract and the rights and obligations of the parties hereunder. Notwithstanding the foregoing, in the event of any inconsistency or conflict between provisions of this Contract and the Sales Convention, the provisions of this Contract will govern and prevail. To the extent of any such inconsistency or conflict, the provisions of this Contract will be deemed to derogate from the provisions of the Sales Convention within the meaning of Article 6 thereof. Further, without limiting the generality of the foregoing, the following provisions of the Sales Convention are hereby excluded from this Contract: Articles 8(3), 9, 11, 16(2), 39(2), 44, 46, 50, and 84(1). Questions that are not expressly settled in this Contract or by application of the Sales Convention are to be settled in conformity with the internal laws of the State of South Carolina, U.S.A., without regard to its conflict of laws principles. The Convention on the Limitation Period in the International Sale of Goods is hereby excluded and will not govern any claim arising from or relating to this Contract or the sale or purchase of Products.
Eastern and you hereby irrevocably consent to the exclusive jurisdiction of the Courts of the State of South Carolina or the United States District Court for the District of South Carolina in any and all actions and proceedings arising out of or relating to the Contract Documents or any transaction between the parties. You hereby waive any objection which you may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. Anything to the contrary in this Contract notwithstanding, in addition to your obligations described in Section 9, any claim by you of any kind, nature, or description is barred and waived, and no proceedings of any kind may be commenced by you, unless you institute a proceeding in one of the above-described courts within one (1) year after the claim first arose. EACH PARTY HEREBY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION, PROCEEDING OR COUNTERCLAIM ARISING WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT DOCUMENTS OR WITH RESPECT TO ANY CLAIMS ARISING OUT OF ANY TRANSACTIONS BETWEEN THE PARTIES.
Neither party will transfer or assign this Contract, whether by operation of law or otherwise, without the prior express written consent of the other party. Any attempted transfer or assignment hereof without such consent will be void and without force or effect. Except as otherwise expressly provided herein, this Contract is not intended to be for the benefit of, and will not be enforceable by, any person not a party to it or the permitted assignee of such party.
Unless specified otherwise elsewhere in the Contract, all notices and similar communications provided hereunder must be in writing, and delivered by first-class, prepaid, registered United States mail or reputable overnight courier service.
All rights and remedies hereunder will be in addition to all other rights and remedies under applicable law, all of which rights and remedies will be nonexclusive and cumulative. No waiver by either party of any default will be deemed a waiver of any subsequent default. If any provision of this Contract is determined to be invalid, such invalidity will not affect the validity of the remaining portions of this Contract. Your acceptance of the Contract Documents will constitute your representation and warranty that you have obtained all necessary approvals, licenses and permits required from all applicable governmental authority with respect to the shipment, importation, delivery or use of the Products. Eastern will have the right to cancel its performance under this Contract, and may withhold or suspend performance of any of its responsibilities hereunder, for any failure or delay by you in giving Eastern any assurances Eastern may require, in its sole discretion, that all such approvals, licenses and permits have been obtained, in which event you will promptly reimburse and indemnify Eastern for all damages, costs or losses incurred by Eastern due to such failure or delay by you.
