These Terms and Conditions of Sale (“Terms and Conditions”) shall apply to any sale of products or services (collectively “Products”) by Monmade, LLC (“Seller”) to any buyer (“Buyer”) whether pursuant to a purchase order, quotation, statement of work, or any other document (collectively “Order”). If these Terms and Conditions differ in any way from the terms and conditions of any Order or if these Terms and Conditions are construed as an acceptance or as a confirmation acting as an acceptance, then acceptance is EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN SUCH ORDER. Further, these Terms and Conditions shall be deemed notice of objection to such terms and conditions of Buyer. If these Terms and Conditions are construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Buyer’s acceptance of the Products shall manifest Buyer’s assent to these Terms and Conditions. No addition to or modification of these Terms and Conditions will be effective unless agreed to by Seller in writing.
2. TERMS OF PAYMENT; PRICING.
(a) Unless otherwise stated in the Order, all payments for Products are due thirty (30) calendar days after date of invoice. Seller, in its sole discretion, may charge a service charge on any unpaid balance beginning thirty-one (31) calendar days after date of invoice at the lower of: (i) one and one-half percent (1.5%) per month; or (ii) the highest rate permitted by law.
(b) Buyer shall have no right to withhold or offset any amount due Seller because of any claim by Buyer against Seller pursuant to the Order or any other order or agreement. All payments for Products are nonrefundable. Seller reserves the right to discontinue the provision of Products to Buyer as a result of one or more past due invoices or if Seller has reason to believe that Buyer will be unable to pay its obligations.
3. OTHER CHARGES.
(a) All insurance and shipping charges are the responsibility of Buyer.
(b) Prices quoted by Seller are exclusive of all city, state or federal taxes. Any and all present or future taxes or other governmental fees, duties, imposts, impositions or charges upon the shipment or sale of Products shall be the responsibility of Buyer. Any such taxes paid by Seller at any time will be repaid by Buyer.
4. DELIVERY; TITLE AND RISK OF LOSS.
(a) All delivery dates are estimates only.
(b) Title to and risk of loss of the Products herein described shall pass to Buyer upon delivery of said Products to a carrier at the facility of manufacture.
5. FORCE MAJEURE.
Seller shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstance beyond its control, including, but not by way of limitation, any failures or delays in performance caused by any of Seller’s suppliers or producers, or any fires, epidemics, pandemics, floods, compliance with any federal, state, or local laws, orders or policies, or delays in transit or delivery on the part of transportation companies.
6. DISCLAIMER OF WARRANTY FOR PRODUCTS
THE PRODUCTS ARE PROVIDED AS IS AND SELLER DISCLAIMS ALL WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Buyer shall receive the benefit of any producer-supplied end-user warranties, if any, to the extent such warranties are authorized to be passed through to Buyer.
7. LIMITATION OF LIABILITY.
(a) In no event shall Seller be liable for any special, indirect, consequential, incidental, or punitive damages, whether arising under contract, warranty, tort, negligence, strict liability or any other theory of liability, including but not limited to loss of profits, loss of use of the Products, or loss of goodwill.
(b) Notwithstanding whether any remedy fails of its essential purpose or otherwise, in no event shall Seller’s liability for any Products supplied hereunder exceed the purchase price paid by Buyer to Seller for the applicable Products, regardless of whether the claim is based on contract, tort, warranty or any other theory of liability.
Catalogs, circulars and similar pamphlets of the Seller are issued for general information purposes only and shall not be deemed to modify the provisions hereof or create any warranties.
(a) This contract of sale may not be assigned by Buyer without the prior written consent of the Seller.
(b) This Agreement shall be governed by the substantive laws of the Commonwealth of Pennsylvania without regard to its conflict of laws principles. All suits, actions, or other proceedings arising out of or relating to the Order shall be brought only in the federal and state courts located in Allegheny County, Pennsylvania.
(c) Failure of Seller to enforce any of the terms, conditions and limitations contained in these terms and conditions shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein, and the failure of Seller to exercise any rights arising from default of Buyer or otherwise shall not be deemed to be a waiver of such right or any other right.
(d) These Terms and Conditions contain the exclusive statement of the terms and conditions between Buyer and Seller as to the sale of Products under an Order, and these Terms and Conditions may only be modified by a writing signed on behalf of Buyer and Seller by their respective, duly authorized representatives.