Terms & Conditions
STANDARD TERMS AND CONDITIONS OF SALE
1. SCOPE AND ACCEPTANCE - The Terms and Conditions (Terms) contained herein apply to all products offered for sale or sold by and to all quotations and offers made by and purchase orders accepted by Cotapaxi or through its distributors or sales representatives. These Terms supersede and apply in lieu of any course of dealing between the parties or usage of trade in the industry. THESE TERMS SUPERCEDE ANY CONFLICTING TERMS AND CONDITIONS ON ANY PURCHASE ORDER OR OTHER PROCUREMENT DOCUMENT ISSUED BY THE BUYER AND ARE DEEMED ACCEPTED BY BUYER BY IMPLICATION, ACCEPTANCE OF SUCH PRODUCTS AND/OR PAYMENT FOR PRODUCTS ORDERED. No objection to provisions contained in any communication from Buyer is required from Cotapaxi and a failure to object shall not be deemed a waiver of those provisions. Any changes in the Terms contained herein must specifically be agreed to in writing singed by an officer of Cotapaxi before becoming binding on either party.
2. ORDERS - All orders are subject to availability and acceptance by Cotapaxi's authorized representative.
3. PRICE, TAXES AND QUOTATIONS - Prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other requirements which are not part of the original price quote. Any order that can be cancelled and rescheduled pursuant to paragraph 9
- (a) is subject to a price change immediately. All prices are exclusive of any present or future applicable sales, revenue or excise tax, value added tax, turnover tax, import duty (including brokerage fees) or other tax. Such taxes, when applicable, shall be paid by Buyer unless Buyer provides a proper tax exemption certificate. Unless otherwise agreed to in writing by the parties, prices quoted by Cotapaxi are those current at the date of quotation and shall be subject to variation by Cotapaxi.
4. PAYMENT TERMS Cotapaxi may require advance payment, payment on delivery, payment secured by irrevocable letter of credit or a bank guarantee acceptable to Cotapaxi. Credit approved customers shall be permitted to pay net invoice amounts thirty (30) days from the date of invoice. All payments are to be in United States dollars.
5. LATE CHARGES - Buyer agrees to pay interest on any balance not paid when due at a rate of one and one-half percent (1.5%) per month (18% per year).
6. DELIVERY AND SHIPMENT - Buyer shall pay all shipping costs and required taxes. Shipment dates are estimates only. Early and part shipments permitted and each part shipment may be invoiced separately. Unless otherwise expressly specified in a writing signed by both Cotapaxi and Buyer, delivery time is not of the essence. Cotapaxi is not responsible for any loss arising from delay in delivery. Buyer must report any visible defects, quantity shortages or incorrect product shipments within seven (7) days of receipt of the shipment and failure to so report shall be an unqualified waiver of any rights to reject or return products.
7. TITLE AND RISK OF LOSS - Risk of loss passes to Buyer upon delivery to a transport agent. Title in all goods shall remain in Cotapaxi until the invoices for such goods have been paid in full. If payment in full is not received in accordance with these Terms, Cotapaxi may in its sole discretion demand return of the products or payment.
8. ORDER CANCELLATION
- (a) Buyers Cancellation for Convenience: Buyer may cancel any order for convenience on the following terms:
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- (I) For standard products, Buyer may cancel or reschedule a product without penalty if the cancellation is more than thirty (30) days from the Confirmed Shipping Date (as specified in Cotapaxi's Order Acknowledgment or other document); cancellations within 30 days of a Confirmed Shipping Date must be approved in writing by a Cotapaxi sales manager and may be subject to special charges;
- (ii) For nonstandard or products produced to Buyers specifications, Buyer may cancel or reschedule more than ninety (90) days from the Confirmed Shipping Date, except that Buyer shall accept delivery of all such products which are completed and those which in process at the time of cancellation or rescheduling. Buyer also shall pay promptly to Cotapaxi the costs of settling and paying claims arising out of the termination of work under Cotapaxi's subcontracts or vendors and any accounting, legal and clerical costs arising out of the cancellation.
- (b) Buyers Cancellation for Default: Upon written notice to Cotapaxi, any order may be canceled in whole or in part in accordance with the terms hereof, because of Cotapaxi's failure to deliver products by the Confirmed Shipping Date (hereinafter Default) or within thirty (30) days after receipt by Cotapaxi of Written notice of such Default.
- (c) Cotapaxi's Cancellation: Cotapaxi shall have the right to cancel any unfilled order without notice to Buyer in the event that Buyer becomes insolvent, adjudicated bankrupt, petitions for or consents to any relief under any bankruptcy reorganization statute, or becomes unable to meet its financial obligations in the normal course of business. Any order that can be cancelled or rescheduled by Buyer under Section 10(a) may be cancelled or rescheduled by Cotapaxi is notice is given to Buyer.
9. LIMITED WARRANTY - Except as specified below, products sold by Cotapaxi shall be free from defects in materials and workmanship and shall conform to published specifications for a period of six (6) months from the date of shipment of the products. This warranty does not apply to any products which have been subject to misuse, neglect, accident or modification or which have been soldered or altered such that they are not capable of being tested under normal test conditions. Cotapaxi shall make the final determination as to whether its products are defective. Buyer shall pass this warranty to any third-party purchaser of Cotapaxi products.
NO IMPLIED WARRANTIES - THE EXPRESS WARRANTY AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COTAPAXI DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS.
10. LIMITATION OF LIABILITY COTAPAXI SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, THE COST OF LABOR, REWORK CHARGES, DELAY, LOST PROFITS, OR LOSS OF GOODWILL ARISING OUT OF THE SALE, INSTALLATION OR USE OF ANY COTAPAXI PRODUCT. IF COTAPAXI HAS ANY LIABILITY FOR BREACH OF CONTRACT, BREACH OF ANY IMPLIED CONDITION, WARRANTY OR REPRESENTATION, THE AGGREGATE LIABILITY OF COTAPAXI TO BUYER SHALL BE LIMITED IN RESPECT OF ANY OCCURRENCE OR SERIES OF OCCURRENCES TO THE CONTRACTUAL VALUE OF THE PRODUCTS THAT ARE THE SUBJECT OF THE CONTRACT.
11. REMEDIES
- (a) Upon Cancellation for Cotapaxi's Default: Buyer, as its sole remedy, may recover from Cotapaxi as damages the difference between cost of procurement from another source (cover) and the contract price, less expenses saved as a consequence of Cotapaxi's breach. In no event shall these damages exceed ten percent (10%) of Cotapaxi's product price multiplied by the number of products unconditionally (not subject to cancellation under Section 10(a) ) ordered by Buyer which remain unshipped at the time of cancellation.
- (b) For Cotapaxi's Breach of Warranty: Cotapaxi's sole obligation for products failing to comply with the warranty set forth in Section 12 shall be, at Cotapaxi's option, to either repair, replace or issue credit for the nonconforming product where, within fourteen (14) days of the expiration of the warranty period:
- (I) Cotapaxi has received written notice of any nonconformity; (ii) after Cotapaxi's written authorization, Buyer has returned the nonconforming product to Cotapaxi; and (iii) Cotapaxi has determined that the produce it nonconforming and that such nonconformity is not the result of mistreatment or misuse.
12. INTELLECTUAL PROPERTY
- (a) Indemnification for Infringement: Subject to the limitations below, Cotapaxi may defend any suit or proceeding brought against Buyer based on a claim that any product sold hereunder constitutes infringement of any intellectual property rights if Buyer must promptly notify Cotapaxi in writing and give full and complete authority and sole control of the defense of such suit or proceeding to Cotapaxi through counsel of its choosing. Buyer shall provide its full assistance and cooperation to Cotapaxi for defense of the suit or proceeding. Cotapaxi will pay damages and costs awarded against Buyer which are required to be indemnified under applicable laws but Cotapaxi shall not be responsible for any compromise made without Cotapaxi's consent. In no event shall Cotapaxi's liability for such damages and costs (including attorneys fees and other legal costs) exceed the contractual value of the products or services that are the subject of the lawsuit. In providing such a defense, or in the event that such product is held to constitute infringement and the use of the product is enjoined, Cotapaxi, in its discretion, shall procure the right to continue using such product, or modify it so that it become non-infringing. Cotapaxi shall not indemnify any claims of infringement arising from Cotapaxi's compliance with Buyers design, specifications or instructions, or use of any product in combination with other products or in connection with a manufacturing or other process. Cotapaxi may seek reimbursement for defense costs or any other sums incurred in connection with the claim of indemnification in the event the product is not judicially determined to be an infringement. This indemnification is Buyers exclusive remedy and Cotapaxi's sole obligation for any claim of infringement of intellectual property rights. Cotapaxi makes no warranty that products sold hereunder will not infringe any intellectual property rights.
- (b) Cotapaxi Retains its Intellectual Property Rights: The sale of any products hereunder does not convey any license by implication, estoppel or otherwise. Cotapaxi retains the copyright in all documents, catalogs and other writings supplied to Buyer and all patents in the products sold. Unless otherwise agreed in writing, Buyer shall obtain no interest in any dies, molds or other tooling used in the production process of any Cotapaxi product.
13. CONFIDENTIAL INFORMATION - Unless required by law, neither Cotapaxi or Buyer shall use, divulge or communicate to any third party any information of the other it reasonably knows to be confidential.
14. FORCE MAJEURE Cotapaxi shall not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, acts of God, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, fire, explosion, act of terrorism, accident, flood, inability to obtain material, equipment or transportation, or any other causes beyond the reasonable control of Cotapaxi. The anticipated delivery date shall be deemed extended for a period of time equal to the time lost due to any delay excusable under this Section.
15. ASSIGNMENT Cotapaxi shall be entitled to assign its rights under this Agreement, in whole or in part. Buyer shall not assign its rights under this Agreement without Cotapaxi's prior written consent.
16. NOTICES - Any notice required to be given hereunder shall be deemed to have been given if sent by prepaid first class mail to the party concerned at its last known address. Notice to Cotapaxi shall be directed to its Home Office located at 338 Hackensack Street, Carlstadt, NJ 07072
17. WAIVER - Cotapaxi's failure to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such rights nor operate to bar the exercise or enforcement thereof at any time thereafter.
18. SEVERABILITY - If any part of these Terms is found to be illegal, void or unenforceable for any reason, such provision shall be severed from the Terms and the remaining provisions shall remain in full force and effect.
19. GOVERNING LAW - The parties acknowledge and agree that any offer and acceptance by the parties shall be a contract made in the State of New Jersey, U.S.A. All questions pertaining to the validity, construction, execution and performance of this agreement shall be construed and governed in accordance with the laws of the State of New Jersey, U.S.A., without giving effect to principles of comity of nations or conflicts of law. If the products purchased hereunder are purchased by a Buyer residing in a country other than the United States, then the parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from this agreement and these Terms.
20. JURISDICTION AND VENUE - Buyer agrees that the courts of the State of New Jersey located in Bergen county, New Jersey, U.S.A. (or if there is exclusive federal jurisdiction, the United States District Court for the Central District of New Jersey) shall have exclusive jurisdiction and venue over any dispute arising out of these Terms or any sale in connection therewith. Any action shall only be brought in such courts and, to the extent not otherwise subject to the jurisdiction of such courts. Buyer hereby agrees to the jurisdiction of such courts and hereby waives any objection to jurisdiction.
21. LIMITATION OF ACTIONS - No action for breach of the contract for sale of products shall be commenced more than one (1) year after the accrual of the cause of action thereto.
22. ATTORNEYS FEES - The prevailing party in any suit or proceeding (including appeals from any judgment or other final determinations therein) to enforce these Terms or any agreement between Cotapaxi and Buyer regarding Buyers purchase of products from Cotapaxi shall be entitled to reasonable attorneys fees and costs.
23. BUYERS REPRESENTATION AND WARRANTY - Buyer represents and warrants that Buyer has read and understood these Term and has had the opportunity to review these Terms with an attorney. Buyer further represents that these Terms are fair and reasonable to Buyer.