This writing constitutes an offer by CONDOR USA INC. (“Seller” to sell the product(s) and/or services described herein (the “Products”) in accordance with these terms and conditions (“Terms and Conditions”). It is not an acceptance of any offer made by buyer (“Buyer”). Acceptance by Seller of Buyer’s order is expressly made conditioned on assent to these Terms and Conditions, either by written acknowledgement or by conduct of Buyer that recognizes the existence of a contract with respect to the Products described on Seller’s acknowledgement form. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing; failure of Seller to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these terms and conditions nor an acceptance of any of such provisions.
Unless otherwise specified on the face hereof, this offer is subject to written acceptance of Buyer’s order by Seller at its principal place of business in Charlotte, NC within thirty (30) days.
II. Delivery and Risk of Loss
1. Delivery of the Products to a common carrier at Seller’s principal place of business or at any other loading point, if so agreed to by the parties, shall constitute delivery to Buyer (“Delivery”), and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall upon Delivery, shift to Buyer.
If Buyer is responsible for any shipment delay, Seller’s written notification to Buyer that the Products ordered hereunder are ready for shipping shall constitute Delivery to Buyer, and all further risk of loss or damage shall be borne by Buyer.
2. Delivery dates are approximate and are subject to revision at any time due, but not limited to, the following events:
a) Delay in receipt of Buyer’s final and complete specifications; b) Delay in Seller’s receipt of samples, gauges or other items needed to complete testing of the Products ordered hereunder; c) Delay in Seller’s receipt of the Products from Seller’s suppliers for reasons beyond Seller’s reasonable control; d) Any other reasons beyond Seller’s reasonable control.
3. Seller shall not be liable for any damages as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including without limitation, any act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation or inability to obtain necessary labor, materials or manufacturing facilities.
If the Products are not shipped within fifteen (15) days after notification to Buyer that they are ready for shipping, for any reason beyond Seller’s reasonable control, including Buyer’s failure to give shipping instructions, Seller may store such Products at Buyer’s sole risk in a warehouse or other storage facility or upon Seller’s premises and Buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates upon submission of invoices therefore.
IV. Suspension and Cancellation
1. If Buyer shall omit delivery instructions or instructions concerning work commencement or shall fail to accept Delivery or allow work to be done or shall fail to make any payment when it becomes due or shall commit any other breach of contract, and if Buyer shall fail to remedy the same within seven (7) days of receiving Seller’s request in writing to do so, or if Buyer shall enter into any composition or arrangement with its creditors or if any distress or execution is levied upon any goods or property of Buyer, or if Buyer shall commit any act of bankruptcy or, if a corporation, a receiver shall be appointed of the whole or any part of its undertaking or assets or if Buyer shall pass a resolution for winding up or if a Court shall make an order to that effect or if Buyer shall have a receiving order made against it, then at Seller’s sole option Seller may defer or cancel any further deliveries or services and treat the Contract or any other contract between Seller and Buyer as terminated, but such termination shall be without prejudice to Seller’s right to any unpaid price for goods or materials delivered or cost of work done under the Contract and to damages for loss suffered in consequence of such termination.
2. Following Seller’s acceptance of the order, Buyer may not cancel the same without Seller’s written consent. Upon such consent, the following payments shall become due to Seller:
a) The contract price for all products completed or services performed at the time of receipt of Buyer’s request for cancellation.
b) For work in progress, order entry expense, engineering process expense and any materials and supplies procured by Seller or for which Seller is committed in connection with Buyer’s order a sum equal to the actual cost thereof, together with overhead expenses in the amount of twenty (20)% of the contract price.
c) If Buyer has received any price discounts due to the quantity of goods ordered, but has not purchased the applicable quantity at the time of cancellation, Buyer must also pay Seller the difference between the price Buyer paid and the price it would have paid had Seller’s price been based on the quantity actually purchased.
3. Seller shall suspend the performance of the Contract upon receipt of Buyer’s written request to do so but only for a period not exceeding thirty (30) days and Buyer shall reimburse Seller for all storage charges and other additional costs Seller incurs thereby. In the event of the suspension as aforesaid continuing for a period in excess of thirty (30) days, then Seller may terminate the Contract and the rights and liabilities of the parties thereto shall be the same as if the Contract had been cancelled in accordance with the provisions of article III. Section 2 of these Terms and Conditions.
4. If Seller shall be prevented from delivering goods or materials or performing work in accordance with the Contract as a result of delay or default on the part of Buyer or any other reason beyond Seller’s reasonable control Seller shall be entitled to reschedule the Delivery or performance date or dates as it shall reasonably require.
V. Prices and Payment
1. If the Products are shipped from Seller’s principal place of business or from any other source within the U.S.A., the quoted price is f.o.b. Seller’s principal place of business or the source of shipment, whichever is applicable.
2. If Products are shipped from outside the U.S.A., the quoted price is f.o.b., port of entry, U.S.A. unless otherwise stated in the quotation.
3. The quoted price of the Products does not include duty, tariffs, taxes, freight costs, packaging, or similar charges, which shall be borne by Buyer.
4. Buyer shall be responsible for any packing, insurance and shipping charges of domestic shipments of the Products and Buyer shall reimburse Seller for any such charges paid by Seller.
5. Buyer agrees to pay all charges for installation, training, and repair, which will be invoiced at Seller’s then current rates, and any expenses associated therewith, upon receipt of invoice.
6. Overdue amounts shall bear a delinquency charge of interest at the maximum rate permitted by applicable law, except that if applicable law provides no maximum rate, the delinquency rate shall be 18% per annum.