STANDARD TERMS AND CONDITIONS
This Order Acknowledgement is made and given on the express understanding that the following terms and conditions apply to the sale of seller’s goods. Seller’s acceptance of any purchase order is expressly made conditional upon buyer’s acceptance of all terms and conditions contained herein, and on all pages of seller’s Order Acknowledgment. Seller objects to any additional or different terms and conditions, whether contained in buyer’s forms or otherwise. Seller will not be deemed to have waived these terms and conditions of sale if it fails to object to any provision contained in buyer’s forms or otherwise. Buyer is hereby requested to sign and return Order Acknowledgement within 48 hours of receipt to Seller via email or via facsimile. Buyer’s silence or its written acceptance of seller’s goods constitutes its acceptance of these terms and conditions.
1. Definitions. The term “Seller” means Aerospheres, Inc. located at 220 Little Falls Road, Unit 1, Cedar Grove, New Jersey, 07009 USA. The term “Buyer” means the individual, corporation, or other legal entity that has submitted a written order to Seller. The term “Order” means Buyer’s expressed request, in writing to purchase Goods from Seller. The term “Goods” means all of the products, materials and related services that Buyer desires to purchase from Seller.
2. Order Acceptance. Buyer’s Order is subject to acceptance by Seller, which acceptance is made expressly contingent upon Buyer’s agreement to Seller’s terms and conditions. Acceptance of this Order is subject to all of the terms set forth herein and on the face of Seller’s Order Acknowledgment form (“Form”), which terms shall constitute the sole terms and conditions of this order. Buyer’s acceptance to all such terms and conditions shall be conclusively presumed (A) when Buyer receives this document and the Form, electronically or otherwise, and makes no written objection or request for any changes including but not limited to Bill To, Ship To, Freight, Payment Terms, Shipped Via, Item Number/Description, Quantity Ordered, Unit of Measure, Price, Total Amount, Estimated Ship Date, Freight Forwarder, and or Other Comments; or (B) when buyer accepts all or part of the Goods reflected by the Order. Seller objects to any terms or conditions that differ from or are additional to those stated herein or on the Form. This Order, can be modified only by a document in writing and signed by the Seller.
3. Change of Price. The prices and charges set forth and stated on the face of the Form shall be adjusted to and the Goods and other items covered by this Order shall be invoiced at the prices and charges fixed by Seller at the time of and for each shipment under this Order, provided that such prices and charges shall not exceed the prices and charges appearing on Seller’s applicable formal Quotation or email communications, if any, in effect at the time of each shipment. Any Quotations and or email communications referencing pricing are valid for a period of not more than thirty (30) days.
4. Payment Terms. Payment shall be made in US Dollars by wire transfer or check. Payment terms shall be as set forth on the face of the Form and shall be measured from the Bill of Lading date. Failure by Buyer to make full payment by the due date shall constitute a default. All Orders are subject to credit approval by Seller. Whenever reasonable grounds for insecurity arise with respect to due payment from Buyer or with respect to Buyer’s financial condition generally, Seller may demand different terms of payment from those specified above, and may demand additional assurance of Buyer’s due payment. Any such demand shall be in writing and Seller may, upon the making of such demand, stop acceptance and or suspend shipments of Orders hereunder.
5. Taxes. The prices and charges stated on the face of the Form do not include state or federal excise, sales or use, or other taxes (if any) now in effect or hereafter levied by reason of this transaction. All such taxes shall be for the Buyer’s account. Prior to acceptance of a domestic (United States Bill to) Order by Seller, the Seller requires receipt of an executed State of New Jersey Division of Taxation Sales Tax, Form ST-3, Resale Certificate.
6. Delays. Seller shall use reasonable efforts to fill this Order in accordance with the Estimated Ship Date, but shall not be responsible for any delays in filling this Order nor liable for any losses or damages resulting from such delays. This Order shall not be subject to cancellation for such delays. Buyer is hereby informed that Seller is not the manufacturer and or re-packer of any Item Numbers/Description of material listed either on the Buyer’s Order or Seller’s Order Acknowledgement Form.
7. Force Majeure. Seller will not be liable for failure in the performance of its obligations hereunder where such performance has been delayed, prevented, or rendered commercially impractical due to accidents, differences with workmen, strikes, shortage of labor, inability to obtain materials, fuel or power from normal sources, fires, floods, acts of terrorism, or other acts of God, acts of omissions of Buyer, priorities required, requested or granted for the benefit of any Federal or state government, restrictions imposed by Federal or any state legislation or regulations thereunder, or any cause whether similar or dissimilar to those enumerated, beyond the reasonable control of Seller.
8. Termination of Order. Buyer may not terminate this Order without the written consent of Seller. If Seller consents to such termination, reasonable termination charges, including but not limited to re-stocking fees, shipping charges and documentation charges shall be computed by Seller and shall be assessed in connection with such termination.
9. Delivery and Transportation. Delivery and transportation provisions applicable to this Order shall be those stated on the face of the Form. The method and agency of transportation and the routing will be designated by Seller.
10. Shipments. Seller may make partial shipments and may invoice for each such partial shipment separately, unless specifically advised in writing by Buyer.
11. Export Licensing. (A) Buyer and Seller shall comply with all national and international export and control regulations. Products, Materials, Equipment, Technology, and Technical Data shall not be exported, re-sold, diverted, re-exported or disposed of in other than the country of ultimate destination (currently approved by the United States Government), without the prior approval of the United States Department of State or Commerce or any other Agency of the United States Government, whichever is appropriate. (B) Seller shall assume no liability in the event that an export license is not approved or later withdrawn by the United States Government or other applicable Government. (C) At no time will Seller obtain an Export License in its name. (D) Where Buyer requests a routed transaction (meaning it will along with its U.S. freight forwarder accept responsibility as U.S. Exporter of Record to attain such applicable Government approvals) it shall supply all required documentation to the Seller including the required routed transaction letters from both Buyer and its designated U.S. designated Forwarder/agent.
12. Standard Quantity Tolerances. Unless another tolerance is stated on the face of the Form, the quantity tolerance applicable for certain items of Goods specified on the Order shall be +/- 10%.
13. Governing Law. This document (Standard Terms and Conditions) shall be governed by the laws of the state of New Jersey in the United States of America without regard to such state’s conflicts of law principles that would require the application of the law of any other jurisdiction. Any and all disputes arising out of or relating to this Standard Terms and Conditions shall be subject to the exclusive jurisdiction of the county of Essex, and the state of New Jersey, in the United States of America, or, at the sole discretion of Aerospheres, Inc., to binding arbitration before a single arbitrator pursuant to the American Arbitration Association’s Commercial Dispute Resolution Procedures, with such arbitration to take place in the locations stated above.
14. Confidentiality. Unless otherwise agreed in writing by Seller, Buyer will not disclose the pricing or other terms of this Order to any third party.
15. Electronic Commerce. At Seller’s request, Seller and Buyer will facilitate business transactions by electronically transmitting data. Any data digitally signed pursuant to this section and electronically transmitted will be as legally sufficient as a written, signed, paper document exchanged between the parties, notwithstanding any legal requirement that the data be in writing and signed.
16. Miscellaneous. (A) Headings used herein are for convenience only and shall not be used for interpretive purpose. (B) A party’s failure to act with respect to another party’s breach of any provision contained herein does not constitute a waiver. (C) If any provision contained herein is held to be invalid or unenforceable, such provision shall be narrowly construed, if possible, or otherwise deemed ineffective and the remaining provisions shall not be affected. (D) These Standard Terms and Conditions will survive the fulfillment of the Order.