1. APPLICABILITY:
These Terms and Conditions of Sale (“Terms”) apply to the purchase of products [“Products”] from The Eagle Leasing Company. (“Seller”) by the purchaser (“Buyer”). These two parties shall hereinafter be identified as “the Parties.” These Terms along with Seller’s quotation comprise the entire agreement between the parties (collectively, the “Agreement”), except as hereafter modified by Seller in writing and signed by its authorized representative. Buyer accepts this Agreement by sending a purchase order in response to the quotation or by Buyer’s written instructions to Seller to ship Product(s). No terms, conditions or warranties other than those identified in the quotation and these Terms shall apply. No agreement or understanding, oral or written, in any way purporting to modify Seller’s quotation and/or these Terms and Conditions, whether contained in Buyer’s purchase order or shipping release forms, or elsewhere, shall be binding on Seller unless hereafter accepted in writing and signed by Seller’s authorized representative. Buyer is hereby notified of Seller’s express rejection of any terms, conditions or provisions inconsistent with this Agreement or to any other terms proposed by Buyer in accepting Seller’s quotation. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the Products, shall constitute an agreement by Seller to any terms or conditions other than Seller’s. If Seller’s quotation includes separate changes for services and/or transportation, or is solely for services, such services and/or transportation shall also be covered under this Agreement to the extent consistent with its intent. The term “Products” herein shall thus also include, as appropriate, services and transportation.
2. CANCELLATION:
Cancellation or modification of all or any part of any order are subject to Seller’s prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to Seller all expenses incurred and damages sustained by Seller on account of the cancellation or modification, plus a reasonable profit, unless otherwise agreed by the Parties. Buyer’s deposit, if any, shall be credited towards the amount due under this Section 2.
3. PRICE:
All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to sales, value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to this Agreement are the responsibility of Buyer unless Buyer presents an exemption certificate acceptable to Seller and the applicable taxing authorities. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will pay Seller the amount of the Tax and any penalties and interest related thereto.
4. PAYMENT:
Unless otherwise set forth in Seller’s quotation or Sales Confirmation, Buyer will pay all invoiced amounts on or prior to the date of delivery. If the quotation requires a deposit by Buyer, such deposit must be paid in in accordance with the quotation. Seller reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) for Buyer’s failure to pay for the Products or any other breach by Buyer of these Terms. In addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend the delivery of any Products if Buyer fails to pay any amounts when due. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Seller relating to any other matter, and regardless of whether relating to Seller’s breach, bankruptcy, or otherwise.
5. DELIVERY; SHIPPING:
(a) Unless specified as “firm” by Seller’s sales confirmation, the delivery date(s) applicable to any order are only best estimates, and Seller’s failure to meet same shall not be deemed a material breach of contract. If Buyer causes Seller to delay shipment or completion of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. (b) Unless otherwise agreed in writing by the parties, Seller will deliver the Products at the location specified in the quotation using Seller’s standard methods for packaging and shipping same. If delivery is FOB origin, Buyer will take delivery of the Products within four working days of Seller’s notice that the Products are available for pickup. If Buyer fails to take delivery of the Products within this four day period, Buyer will pay Seller for the Products and all storage expenses incurred by Seller. Seller may, in its sole discretion, without liability or penalty, make partial and/or early shipments of Products to Buyer. Each shipment will constitute a separate sale for payment purposes, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s purchase order. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense, and will provide all required licenses and consents to the Seller before shipment.
6. TITLE; RISK OF LOSS:
Risk of loss or damage and title passes to Buyer upon delivery. If Buyer fails to accept delivery, or if Seller is unable to deliver the Products to the Delivery Location on the scheduled date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) risk of loss to the Products will pass to Buyer; (ii) the Products will be deemed to have been delivered to Buyer; and (iii) Seller, at its option, may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting from the failure including but not limited to the cost of storage and insurance).
7. INSPECTION; REJECTION OF PRODUCTS:
(a) As used in this Section 7, “Nonconforming Products” means the Products delivered are materially different from those identified in Buyer’s purchase order. Buyer will inspect the Products within five days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Seller in writing of any Nonconforming Products and furnishes Seller with written evidence or other documentation reasonably required by Seller. (b) If Buyer timely and properly notifies Seller of any Nonconforming Products, then Seller will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, or (ii) cure the nonconformity within ten days, or (iii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Seller’s request, Buyer will dispose of the Nonconforming Products or return the Nonconforming Products to Seller at Seller’sexpense. Upon receipt of the Nonconforming Products, Seller will promptly refund the monies owed or ship the replacement Products to the Delivery Location at Seller’s expense, with Seller retaining the risk of loss until delivery. (c) Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Products, and except as set forth in this Section 7, Buyer has no right to return the Products to Seller without Seller’s written authorization.
8. LIMITED WARRANTY:
Seller warrants to Buyer that the Products will be free from defects in material and workmanship for a period of twelve months following the date of delivery. Buyer must notify Seller of any warranty claims within 30 days of the date the ostensible defect was first known or should have been known. Warranty claims filed after such 30-day period will be deemed to have been waived. Seller shall have a reasonable period after being notified of a warranty claim to, at its sole discretion, repair, rehabilitate, correct or replace such Products. The warranty period for Products repaired or replaced by Seller shall be for the remainder of the original warranty period plus 30 days.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND SELLER SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Unless Seller agrees in a writing signed by its authorized representative, no agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty except as stated herein.
9. INDEMNIFICATION:
(a) Buyer will defend, indemnify, and hold harmless Seller, its directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (“Claims”) arising out of or occurring in connection with the negligence or willful misconduct of Buyer or its employees, agents or transferees (i.e., the Products’ ultimate users), including but not limited to: (i) any misuse or modification of the Products by them, (ii) any act (or failure to act) by them in contravention of any safety procedures or instructions that Seller provides to Buyer or its employees or agents, or (iii) the failure to store, install, operate, or maintain the Products in accordance with normal industry practice and guidelines. (b) Seller will defend, indemnify, and hold harmless Buyer, its directors, officers, shareholders, employees, agents or transferees (i.e., the Products’ ultimate users) from and against any Claims arising out of or occurring in connection with the negligence or willful misconduct of Seller or its employees or agents in performing the contract that results from the order, and then only to the proportionate extent of such negligence or willful misconduct.
10. LIABILITY:
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE OR UNDER- UTILIZATION OF LABOR OR FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES. EXCEPT FOR DEATH OR BODILY INJURY OR PROPERTY DAMAGE RESULTING FROM THE PROPORTIONATE EXTENT OF SELLER’S NEGLIGENCE OR WILLFUL MISCONDUCT IN ACCORDANCE WITH SECTION 9(b) HEREIN, SELLER’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE PRODUCTS WILL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TOEXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
THE BUYER FURTHER AND SPECIFICALLY COVENANTS AND AGREES THAT THE SELLER SHALL NOT BE LIABLE IN ANY WAY, FOR ANY REASON WHATSOEVER, INCLUDING THE NEGLIGENCE OF SELLER OR ITS REPRESENTATIVES, FOR LOSS OR DAMAGE TO ANY PROPERTY WHICH IS STORED OR KEPT IN, UPON OR ATTACHED OR ADJACENT TO THE PRODUCTS WHILE THE PRODUCTS ARE IN USE BY BUYER OR ITS TRANSFEREES OR IN THE POSSESSION OF BUYER OR ITS TRANSFEREES. BUYER COVENANTS AND AGREES TO INSURE ITSELF AGAINST ANY SUCH LOSS OR DAMAGE BY OBTAINING AND MAINTAINING ITS OWN ADEQUATE POLICY OR POLICIES OF INSURANCE.
11. CHANGES:
Seller reserves the right to alter, modify, or redesign its Products without any obligation to replace previous shipments to Buyer.
12. NO LICENSE:
Seller’s sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by Seller, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to Seller, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without Seller’s prior written consent, use any trademark or trade name of Seller in connection with any the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of Seller.
13. TERMINATION:
In addition to any other remedies that Seller may have, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
14. CONFIDENTIALITY:
All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, quotations, pricing, payment terms, vendors and sources of parts, materials and components, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized in advance by Seller in a writing signed by its authorized representative. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to injunctive relief for any violation of this Section 14, without having to post bond or establish the insufficiency of a remedy at law. This Section 14 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
15. FORCE MAJEURE:
Seller will not be liable for any failures or delays caused by strikes, differences with workers, or any causes beyond the reasonable control of Seller, including but not limited to fires, floods, storms, accidents; pandemics, epidemics or quarantines or the recurrences thereof, or the orders of any governmental authority related thereto; other action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, Seller will not be obligated to seek or obtain any settlement that, in Seller’s sole judgment, is not in Seller’s best Interest.
16. COMPLIANCE:
Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.
17. GOVERNING LAW; VENUE; DISPUTE RESOLUTION:
(a) The contract for the sale of Products by Seller to Buyer shall be deemed to have been finally executed in Connecticut, regardless of the location from which the sale documents originated. All matters arising out of or relating to this Agreement will be governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Connecticut. Any legal suit, action or proceeding arising out of or relating to the Agreement will be instituted in the federal or State courts located in Connecticut. Each party irrevocably submits to the exclusive jurisdiction of these named courts in any the suit, action or proceeding. (b) Seller will have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, will be submitted to a court of law or arbitrated. The venue for any the arbitration will be in New Haven County, Connecticut and subject to the rules of the American Arbitration Association. There will be one arbitrator and the arbitration will be conducted in the English language. The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction. (c) In the event the matter is submitted to a court, Seller and Buyer hereby agree to waive their right to trial by jury and covenant that neither of them will request trial by jury in any litigation .
18. SURVIVAL:
In addition to any other term whose context may so require, Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17 and 19 of this Agreement will survive termination or expiration of the order and resulting contract.
19. MISCELLANEOUS:
Buyer acknowledges that is has not been induced to purchase any the Products from Seller by any representation or warranty not expressly set forth in this Agreement. These Terms and the Sales Confirmation constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. None of the Terms may be added to, modified, superseded, or otherwise altered, except by a written document signed by an authorized representative of Seller that specifically references these Terms and states that it modifies them. If there is a conflict between the provisions of any sales confirmation and these Terms, then the terms of the sales confirmation will govern. No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of this Agreement is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer will not assign any quotation or accepted order for the Products, in whole or in part, without Seller’s prior written consent. Buyer shall have no right to set off against its payment obligations under this Agreement any amount owed to it by Seller under any other separate order or agreement between them. Sea Box quotations are not binding offers regardless of any validity period stated therein. Acceptance of a Buyer’s order by Sea Box is required to form a sales contract.
EFFECTIVE DATE: 1/01/2023
