Terms & Conditions
- The party contracting with Seller for the purchase of the Goods.
- The contract between Seller and Buyer arising on acceptance by Seller of the Order subject to these Terms and Conditions of Sale.
- All or any part of the products to be provided by Seller under the Contract.
- Any order for Goods submitted by Buyer to Seller.
2. CONTRACT TERMS
All Orders received by Seller shall be subject to these Terms and Conditions. Buyer shall be deemed to have accepted the Contract, including these Terms and Conditions, upon submission of its Order to Seller. The Order shall only be deemed to be accepted when Seller issues written or electronic acceptance of the Order (Order Acknowledgment), at which point and on which date the Contract shall come into existence subject to these Terms and Conditions. These Terms and Conditions apply to the Contract to the exclusion of any other terms that Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice, course of dealing, or otherwise. The Contract shall constitute the final written expression of the entire agreement between Buyer and Seller.
Buyer shall be fully responsible for ensuring that its needs and requirements are met and fulfilled by the Order. Under no circumstances shall Seller be responsible for, or held liable in respect of, any statement or representation relied upon by Buyer which is not reflected in the Order and subsequently confirmed by the Order Acknowledgment. Any samples, drawings, descriptive matter or advertising issued or published by Seller and any descriptions of the Goods contained in Seller’s catalogs, brochures and websites are issued or published for informational purposes only. They shall not form part of the Contract or have any contractual force.
All prices are as displayed on Seller’s website and are subject to change, without notice, at any time. Unless otherwise indicated, all prices are exclusive of all taxes – federal, state or local (including, without limitation, sales, use, excise, manufacturing, receipts, gross income, occupation, value-added and similar taxes).
4. TERMS OF PAYMENT
Full payment for Goods shall be made at the time of Order entry. No payment shall be deemed to have been received until Seller has received cleared funds.
Delivery of the Goods shall take place at the time and manner selected by Buyer at the time of Order entry. Estimated delivery dates are intended to be as accurate as possible but are not guaranteed, and time for delivery is not of the essence. Seller shall not be liable for any losses, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Seller’s negligence), nor shall any delay entitle Buyer to terminate or rescind the Contract unless such delay is caused by Seller and exceeds 180 days.
6. RISK AND TITLE; NON-DELIVERY; DAMAGE IN TRANSIT
All Goods will be shipped FCA Seller’s facility (Incoterms 2010) and both title and risk of loss (including transportation delays and losses) shall pass to Buyer upon delivery to the carrier at the shipping point. The quantity of Goods as recorded by Seller on dispatch from Seller’s facility shall be conclusive evidence of the quantity received by Buyer on delivery, unless Buyer can provide conclusive evidence to the contrary.
Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer notifies Seller in writing of the non-delivery within 3 business days of the date when the Goods would in the ordinary course of events have been received. Any liability for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit to Buyer. If Goods are damaged in transit, Buyer’s only recourse is to file a claim with the carrier. While Seller accepts no liability for damage or loss in transit when Goods are delivered via an independent carrier, Seller will use all reasonable efforts to assist Buyer in pursuing claims for damage or loss in transit against a carrier provided that (i) both Seller and the carrier(s) are notified in writing of the damage or shortage within 3 days of receipt of the Goods and the Goods have been handled by Buyer in accordance with carrier’s conditions (if any); or (ii) both Seller and the carrier(s) are notified in writing of the non-delivery (in the case of total loss) within 3 days of the date when the Goods would in the ordinary course of events have been received.
7. RETURNS AND CANCELLATIONS
Buyer should contact Seller if Buyer is not satisfied with any Good for any reason. Seller will promptly provide an exchange or refund if the Good is returned within 30 days of delivery, in its original packaging and with proof of purchase from Seller. A link has been provided on the shop.portescap.com website to request an RMA (Return Material Authorization). No returns will be accepted without a valid RMA number on the shipping label.
Seller or Buyer may request to cancel the Contract at any time prior to shipment by using the link provided on the shop.portescap.com website to requesting that the order be cancelled. You will receive an email to verify that the order was cancelled. Upon cancellation, Seller will promptly repay Buyer any sums paid in respect of the Goods, less any applicable restocking fees. Seller shall not be liable for any loss, damage, interest or cost whatsoever arising from such cancellation. Seller will use all reasonable efforts to avoid any costs or liabilities in connection with a cancellation; however, any costs and expenses incurred by Seller up to the time of cancellation shall be the liability of Buyer and shall not be refunded.
8. LIMITED WARRANTY; LIMITATION OF LIABILITY
The Seller warrants that the Goods will be free from defects in material and workmanship for a period of twelve (12) months from delivery. Seller’s limited warranty excludes remedy for damage or defect caused by abuse; failure to resist corrosion or erosion from any corrosive agent or fluid, or due to deposits of foreign material from any fluid; modifications not executed by Seller; improper installation or operation; defects or failures arising out of, in any way related to, or as a result, either direct or indirect, of the Buyer’s failure to properly advise the Seller of all normal and special operating conditions, known to or suspected by the Buyer, when the Seller is manufacturing the Product for a specific operation; or normal wear and tear under normal usage. All weights stated in Seller’s catalog and lists are approximate and are excluded from this warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, THE SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE GOODS DELIVERED HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, ARISING BY OPERATION OF LAW OR OTHERWISE.
Seller must be notified in writing of any defect in the Goods within a reasonable period of time after discovery (not to exceed thirty (30) days) and the defective Goods must be delivered within the warranty period specified above, prepaid, to Seller’s factory, with evidence that the Goods have been properly installed, maintained and operated in accordance with Seller’s instructions. If the Seller determines that any such returned Goods are not in conformity with the warranty set forth herein, then Seller shall, at its sole option and expense, either repair the same or supply replacement Goods.
The remedies of Buyer set forth herein are exclusive, and the total liability of Seller hereunder, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, and shall not exceed the purchase price of the Goods giving rise to any such claim for liability. IN NO EVENT SHALL SELLER OR ITS SUPPLIERS BE LIABLE TO BUYER, ANY SUCCESSORS IN INTEREST, OR ANY BENEFICIARY OF THIS CONTRACT FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OR LOSSES, OR FOR ANY SECONDARY CHARGES OR ADMINISTRATIVE OR PUNITIVE DAMAGES, FINES, PENALTIES, FEES, EXPENSES AND OTHER CHARGES, ARISING OUT OF THE CONTRACT OR ANY BREACH THEREOF, WHETHER BASED UPON LOSS OF USE, LOSS OF PRODUCTION, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION OR CLAIMS OF CUSTOMERS OF BUYER FOR SERVICE INTERRUPTION, OR ANY OTHER TYPE OF ECONOMIC LOSS OR DAMAGE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
9. THIRD PARTY RIGHTS
Buyer shall bind subsequent buyers or lessees of the Goods to the terms of the Contract such that said third parties shall have no further rights against Seller than does Buyer. Buyer agrees to notify said third parties of this provision and to make this a condition of any contract concerning the Goods. In the event Seller is subject to any claims, losses, damages or expenses (including attorneys’ fees) as a result of Buyer’s failure to comply with this paragraph, Buyer shall indemnify and hold harmless Seller from all such claims, losses, damages or expenses (including attorneys’ fees).
10. PROPRIETARY INFORMATION; CONFIDENTIALITY
All drawings, models, documents, confidential records, software and other information supplied by Seller are supplied on the express understanding that all copyright and design rights are reserved to Seller and that Buyer will not, without the written consent of Seller, either give away, loan, exhibit, or sell such drawings, models, documents, confidential records, computer software or other information or extracts therefrom or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
Buyer shall consider all information furnished by Seller, which was not previously publicly disclosed by Seller, to be confidential and shall not copy nor disclose any such information to any other person, nor use any such information for commercial purposes, nor make copies of such information without written permission from Seller. Buyer shall not disclose any information relating to any order without Seller’s written permission. Unless otherwise agreed in writing by the parties, no commercial, financial or technical information disclosed in any manner or at any time by Buyer to Seller shall be deemed secret or confidential and Buyer shall have no rights against Seller with respect thereto.
11. STATUTE OF LIMITATIONS
Pursuant to Section 2-725(1) of the Uniform Commercial Code, Buyer and Seller agree that the statute of limitations is limited to eighteen (18) months from the time a breach occurs.
12. MANUALS AND WARNINGS
Seller’s instruction manuals and warnings may be accessed at shop.portescap.com website. Buyer acknowledges and accepts complete responsibility for ensuring that such manuals and warnings, and all future updates, are made available to and utilized by all users of the Goods, and that said individuals are properly trained to safely and competently operate the Goods. Buyer further accepts complete responsibility to make such instruction manuals and warnings available to all subsequent purchasers of the Goods. Buyer agrees to indemnify and hold harmless Seller from any and all claims, losses, damages or expenses (including attorneys’ fees) arising from or in any way connected with Buyer’s responsibility hereunder.
13. FORCE MAJEURE
Seller shall not be liable for failure to deliver or delays in delivery or manufacture occasioned by causes beyond the reasonable control of Seller including, but not limited to, strikes, labor slowdowns, lockouts, fires, floods, riots, thefts, accidents, embargoes, import or export limitations, war or other outbreak of hostilities, terrorist activity, sabotage, riot, insurrection, civil disobedience or disturbance, acts of God, acts of the public enemy, unusually severe weather, inability to obtain shipping space, machinery breakdowns, delay of carriers, interruptions or failures of transportation, utilities, computers or communications, delay in obtaining or inability to obtain sufficient labor, materials, supplies or services, and any action by or law or regulation of any government, quasi-governmental or supranational body or agency. In the event of any such delay, the time for performance shall be reasonably extended.
14. GENERAL PROVISIONS
Any term found to be illegal or unenforceable shall be severed and shall not, in any way, affect the validity of the Contract. Seller’s failure to enforce any rights or remedies available in the event of the Buyer’s default shall not constitute a waiver and shall not bar the enforcement of such rights should the default continue as in the event of future defaults. The Contract is entered in the state and county where Seller’s facility providing the Goods to Buyer is located and shall be construed in accordance with the laws of such state, without regard to the conflicts of law provisions of such state. It is expressly agreed that any legal action which is instituted as a result of a dispute arising out of the performance of the Contract shall be brought in the state or local court having jurisdiction in the court where Seller’s facility providing the Goods to Buyer is located, or in the Federal District Court which encompasses that county, and all parties consent to venue and personal jurisdiction in the courts thereof. Buyer shall not assign the Contract or any Order, or any interest therein, or any rights hereunder, without the prior written consent of Seller. Seller shall be entitled to assign or sub-contract the whole or part of its obligations under the Contract.
15. COMPLIANCE WITH LAWS
Buyer agrees to comply with all applicable federal, state, local, and foreign laws, statutes, ordinances, regulations, rules, orders, and other requirements of any governmental, regulatory or administrative agency, authority, court, and other tribunal to which Buyer may be subject as a result of the activities contemplated by these Terms and Conditions.
16. EXPORT CONTROL REGULATIONS
Buyer understands that Seller and the Goods are subject to the United States Export Administration Act, the Trading with the Enemy Act, the International Traffic in Arms Regulations (in the case of Goods that are considered defense articles), and other laws and regulations of the United States of America (collectively, the “Regulations”), which Regulations are enforced, inter alia, by the United States Departments of Commerce, State and Treasury. The Regulations, in part, prohibit export or diversion of the Goods to certain countries. Buyer agrees to abide by all Regulations, including those concerning the resale and disposition of the Goods. Buyer warrants that it will not sell, transfer or support, directly or indirectly, or assist in any sale or transfer of any products or product technology in countries or to users concerning which such sale, transfer or support is not permitted under applicable Regulations. Buyer shall defend, hold harmless and indemnify Seller for any damages resulting to Seller from a breach of this paragraph by Buyer.
17. PRINTERS, STENOGRAPHIC, AND CLERICAL ERRORS
Seller is not responsible for printers’ errors made in any of its publications and other forms of printed matter, or for any stenographic and clerical errors. All such errors are subject to correction.