In these Terms and Conditions (“Terms”): (a) “Seller” means East Coast Storage & Equipment Company, Inc.; (b) “Buyer” means the person or company who places an order to be supplied by Seller; (c) “Parties” means Seller and Buyer; and (d) “Contract” means these Terms together with Seller’s Acknowledgement of Order form signed by Buyer, which form shall identify the goods ordered and/or services being provided along with the corresponding price(s).
2. THE CONTRACT:
2.1 No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in Seller’s Acknowledgement of Order form, or otherwise expressly agreed in a signed writing by both Parties shall be binding on Seller.
2.2 The Contract shall become effective only upon the date of Buyer signs Seller’s Acknowledgement of Order form or upon Buyer’s acceptance of the goods ordered and/or services provided, whichever is earlier (“Effective Date”). If the details of the goods provided and/or services rendered described in any Seller’s quotation or other writing which came before Buyer’s execution of Seller’s Acknowledgement of Order differ from those set out in the Acknowledgement of Order form the latter shall apply.
2.3 No alteration or variation to the Contract shall be binding on Seller unless agreed in a signed writing by both Parties. However, Seller reserves the right to effect (a) modifications and/or improvements to the goods, and/or (b) modifications to the services being provided, as long as the performance of the goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
3.1 Payment shall be made in accordance with the schedule set forth in Seller’s Acknowledgement of Order form. If no payment schedule is so set forth, payment shall be due (a) fifty percent upon Seller’s execution of Seller’s Acknowledgement of Order form, and (b) fifty percent upon Buyer taking possession of the goods (or in the case of services being rendered, twenty-five percent upon Buyer taking possession of the goods and twenty-five percent upon substantial completion of Seller’s performance of the work.
3.2 Payment shall be made (a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded); and (b) in the currency set forth on Seller’s Acknowledgement of Order form. On any payment past due thirty or more days, interest shall accrue monthly at a rate of interest equal to the lesser of eighteen percent per annum or the maximum legal rate at the time any such interest is to be calculated.
3.3 In the event payment is not timely made, in addition to all other rights and remedies to which Seller may be entitled pursuant to these Terms or applicable law, Seller shall have the right to (a) suspend performance of the Contract (including withholding shipment and/or services); and (b) at any time require such reasonable security for payment as Seller may deem reasonable.
4.1 Unless otherwise stated in Seller’s Acknowledgement of Order form, all delivery schedules and/or service schedules run from the Effective Date and are to be treated as estimates only. Delivery will be made in accordance with such schedules. If no delivery schedule is so set forth (a) delivery shall be due within thirty days of the Effective Date, and/or (b) services shall commence within thirty days of the Effective Date.
4.2 If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Seller reasonably requires to proceed with its obligations under the Contract), the delivery/completion period shall both be adjusted accordingly.
4.3 If delivery is delayed due to any act or omission of Buyer or its agents, or if having been notified that the goods are ready for dispatch, Buyer fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the goods into a suitable store at Buyer’s expense. Upon placing the goods into the store, delivery shall be deemed to be complete, risk in the goods shall pass to Buyer and Buyer shall pay Seller accordingly.
5. FORCE MAJEURE:
Force Majeure of any kind, unforeseeable production, traffic or shipping disturbances, war, acts of terrorism, fire, floods, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government, and any other hindrances beyond the control of the party obliged to perform which diminish, delay or prevent production, shipment, acceptance or use of the goods, or make it an unreasonable proposition, shall relieve the party from its obligation to supply or take delivery, as the case may be, as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, supply and/or acceptance is delayed by more than sixty days, either party shall have the right to cancel the Contract. Should the Seller’s suppliers fail to supply him in whole or in part, the Seller shall not be under obligation to purchase from other sources. In such cases, the Seller shall have the right to distribute the available quantities to Buyer and Seller shall have the right to cancel the remainder of the Contract.
6. DELIVERY, RISK & TITLE:
Unless otherwise expressly stated in the Contract, the goods will be shipped F.O.B. Origin Freight Prepaid to the destination named in the Contract. Claims for shortfalls in quantity or for incorrect delivery shall be void if made more than 14 days after receipt by Buyer.
7. DEFECTS AFTER DELIVERY:
7.1 Seller warrants (a) good title to and the unencumbered use of the goods; and (b) that the goods shall be free of defects in materials and workmanship. Seller will make good by supplying replacement parts or repairing defective parts for any defective parts which, under proper use, care and maintenance, are reported to Seller in writing within one year after their delivery (the “Warranty Period”) and which arise solely from faulty materials or workmanship, provided always that defective items are returned to Seller at Buyer’s cost carriage and insurance prepaid within the Warranty Period. Repaired or replacement items will be delivered by Seller at Seller’s cost to Buyer.
7.2 Notwithstanding the foregoing, Seller shall not be liable for any defects caused by (a) fair wear and tear, (b) non-compliance with Seller’s storage, installation, operation or environmental requirements, (c) lack of proper maintenance, or (d) any modification or repair not previously authorized by Seller in writing. Seller’s costs incurred in investigating and rectifying such defects shall be paid by Buyer upon demand.
7.3 The provisions of this Clause 7 constitutes Seller’s sole warranty and Buyer’s exclusive remedy for breach thereof. Other than provided by the provisions of this Clause 7, no representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods.
8. LIMITATION OF LIABILITY:
Seller’s maximum aggregate liability for any and all losses, liabilities, expenses (including legally compensable legal expenses, if required by law), damages, claims or actions incurred under or in connection with the goods and their installation, arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of intellectual property rights or otherwise, shall in no circumstances exceed a sum equal to the total price of the Contract.
9.1 No waiver by Seller with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by Seller.
9.2 Wherever possible, each provision of the Contract shall be interpreted in such manner as to be effective and valid under applicable law, but, if any provision or part of the Contract is deemed to be prohibited under applicable law, such provision will be ineffective only to the extent of such prohibition and will not affect the remainder of the Contract, which will remain in full force and affect.
9.3 Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.
9.4 The Contract shall in all respects be construed in accordance with the laws of the State of New Jersey without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. Venue for all legal disputes involving the Contract or arising from the Contract shall be in any court of competent jurisdiction within the State of New Jersey.
9.7 The headings to the Clauses and paragraphs of these Terms are for guidance only and shall not affect the interpretation thereof.
9.8 The Contract, inclusive of these Terms, embody the entire agreement and understanding between the Parties with respect to the subject matter of the Contract, and will be binding upon and inure to their benefit and be enforceable by the Parties and their successors and permitted assigns, if any. Any prior understandings and agreements are merged into these Terms.
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