E-Store Terms and Conditions
Revised September 2020
For purposes of the “Agreement” between the Buyer and Seller, “Seller” shall mean the Portescap legal entity that sells the Goods to Buyer. To the extent that a disagreement may arise under the “Agreement”, that Portescap legal entity shall be entitled to all remedies available under applicable law. All orders are subject to acceptance by Seller at Seller's applicable manufacturing facility. "Terms and Conditions" means collectively, the terms and conditions contained herein, any Seller's "Supplement to Terms and Conditions of Sale", and terms and conditions stated in Seller's quotation. "Agreement" means the agreement arising from the acceptance of this order and its attachments, including these Terms and Conditions, which are incorporated into and are part of the purchase order. Any terms and conditions originating with Buyer are superseded by the Terms and Conditions and shall not be or become part of the contract between Buyer and Seller unless specifically accepted in writing signed by a duly authorized representative of Seller. Acknowledgement of the receipt of any order, including signing and returning to Buyer its acknowledgement copy, if any, shall not constitute acceptance by Seller of any additional or different terms and conditions, nor shall Seller's commencement of effort, in itself, be construed as acceptance of an order containing additional or different terms and conditions. Seller shall have no liability until and unless the orders are accepted. Buyer assumes full responsibility for inaccurate, incomplete or faulty data supplied to Seller for Seller's use in the performance of orders. For purposes of the Agreement between Seller and Buyer, the Seller shall be the legal entity where the Goods are manufactured.
Prices and shipping lead times are subject to change without notice for any reason, including without limitation, changes related to the cost of raw materials for the Goods. Any such changes shall apply to booked and/or acknowledged orders. They are prepared for the purpose of furnishing general information and are not quotations or offers to sell on the part of the Seller. No payment discounts are offered, and minor inadvertent administrative errors contained in an invoice are subject to correction and shall not constitute reason for untimely payment. All Prices are quoted net, Delivered Duty Paid (DDP), (INCOTERMS 2020) in US dollars. Goods will be billed at the prices in effect at the time of shipment.
Prices do not include any sales, use, excise, property, import, export or such taxes that may be levied on the transaction by local, state, federal or foreign governments. Any such taxes shall be the responsibility of Buyer. If Seller is required to pay any such taxes, the cost shall be added to the invoice or billed to Buyer separately.
Unless otherwise agreed to by Seller, all shipments are made Delivered Duty Paid (DDP) (INCOTERMS 2020) Seller's factory. In no event shall Seller be held liable for any damages or expenses caused by delays in delivery. The parties recognize that delivery dates are approximate.
Method and route of shipment are at Seller's discretion. If Seller is prepared to make shipment, and Buyer delays delivery, terms of payment shall apply as though delivery had been affected as of the date that Seller was prepared to make shipment. The acceptance of the Goods by Buyer shall constitute a waiver of all claims for delay. Buyer and Seller agree that "TIME IS NOT OF THE ESSENCE" in Seller's performance of this order.
Seller reserves the right to ship the Goods up to five (5) days in advance of the specified delivery dates without affecting the terms of payment, price or any other of the terms of the order. Delivery dates are approximate and an eventual delay in delivery does not give the Buyer the right to cancel or reduce the order, nor to claim compensation for direct, indirect or consequential damages, loss of production, non achieved profit, etc., Seller shall not be liable for delay in delivery or failure to manufacture due to causes beyond its or its subcontractors' reasonable control, including, but not limited to, delays or failures due in whole or in part to, acts of God, acts of Buyer, acts of civil or military authority, priorities, fire, strike, floods, acts of terrorism, insurrection, epidemics, quarantine, war, riot, transportation delays, acts of a public enemy, obsolescence of components, inability to obtain necessary labor, materials or manufacturing facilities, or other causes similar to those enumerated. In the event of any such delay or failure, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
5. TERMS OF PAYMENT
Terms of payment are Cash In Advance via PayPal/Credit Card.
The Buyer understands and agrees that the Goods are being sold “AS IS, WITH ALL FAULTS.”
ALL SALES ARE FINAL. BUYER MAY NOT RETURN THE GOODS TO SELLER EXCEPT WITH THE PRIOR WRITTEN APPROVAL OF SELLER.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL SELLER BE LIABLE (AND BUYER WAIVES ALL CLAIMS AGAINST SELLER) FOR CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR INDIRECT DAMAGES, COSTS OR EXPENSES BASED UPON NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY IN TORT, OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION ARISING, DIRECTLY OR INDIRECTLY, FROM GOODS THAT ARE THE SUBJECT OF THIS ORDER, OR THE USE OR FAILURE THEREOF, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PRODUCTION, PROFITS OR INJURY TO PERSONS OR PROPERTY. THIS DISCLAIMER SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IN THE EVENT THAT BUYER’S SOLE AND EXCLUSIVE REMEDY SHALL FAIL OF ITS ESSENTIAL PURPOSE.
SELLER’S MAXIMUM LIABILITY SHALL NOT EXCEED THE PRICE PAID BY BUYER FOR THE GOODS THAT GAVE RISE TO ANY SUCH LIABILITY. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THE CONTRACT AND SHALL APPLY REGARDLESS OF THE BASIS OF BUYER’S CLAIM, BE IT IN CONTRACT, WARRANTY, TORT OR OTHERWISE. THE REMEDIES OF BUYER CONTAINED IN THIS CONTRACT ARE EXCLUSIVE AND IN LIEU OF ANY OTHER REMEDIES AVAILABLE TO BUYER UNDER APPLICABLE LAW.
8. GENERAL INDEMNITY.
Buyer agrees to hold Seller harmless from any and all liability, and to pay all costs and attorney's fees, for injury or damage to persons or property caused in any manner by Goods covered by the order while in possession or under the control of Buyer or Buyer’s successor in interest.
9. PATENT INDEMNITY.
Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights.
10. PROPERTY RIGHTS.
Except where otherwise expressly agreed, all patterns, tools, jigs and fixtures, drawings, designs, software and other materials and data developed, fabricated or otherwise required in the performance of this order, notwithstanding any charges, shall be and remain Seller's property and in Seller's possession and control.
Except as specifically provided for in this order or in an agreement signed by both Seller and Buyer, Buyer shall have no right in any technical data, Intellectual Property Rights, and computer software associated with this order or any Goods furnished to Buyer. In the event Seller agrees to provide Buyer with proprietary information, drawings, designs or data in conjunction with this order, Buyer agrees that such information, drawings or data will not be disclosed to a third party, or used by Buyer, without the written permission of an authorized official of Seller.
The Goods delivered remain the property of Seller until full payment.
11. RIGHT TO GOODS; DEFAULT; INSOLVENCY.
If Buyer becomes insolvent or if Buyer is in default for any reason under the terms of this or any other agreement between Buyer and Seller, Seller shall be entitled, at Seller's option, to discontinue further performance of all or part of the order, to withhold shipments, in whole or in part, and/or to recall Goods in transit, retake same, and repossess all Goods which may be stored with Seller for Buyer's account, without the necessity of taking any other proceedings. Buyer consents that all Goods so withheld, recalled, retaken or repossessed shall become Seller's absolute property, provided that Buyer is given full credit. The foregoing shall not be construed as limiting, in any manner, any rights or remedies available to Seller under contract, at law or equity.
The order is accepted with the understanding that it is subject to Seller's ability to obtain the necessary raw materials, and the order and all shipments applicable thereto are subject to Seller's current manufacturing schedules, and governmental regulations, orders, directives and restrictions that may be in effect from time to time.
Waiver by Seller of a breach of any of the Terms and Conditions shall not be construed as a waiver of any other breach. Any failure at any time of Seller to enforce any provision of these Terms and Conditions shall not constitute a waiver of such provisions or prejudice Seller's right to enforce such provisions at any time. Should any provision of these Terms and Conditions be or become void or not enforceable by force or operation of law, all other provisions shall remain valid and enforceable.
Buyer shall not assign, subcontract, or otherwise transfer the order, in whole or in part, without the prior written consent of Seller, and any such assignment, subcontract, or transfer without Seller's prior written consent shall be void.
15. BUYER SUPPLIED MATERIAL.
All material or equipment owned or furnished by Buyer while in Seller's possession will be carefully handled and stored but Seller will not be responsible for accidental loss thereof or damage thereto.
Changes in whole or in part of the order can be made only with Seller's consent and upon terms that will permit an equitable adjustment to be made in both the price and schedule of the Goods to be delivered. Changes will be recognized and implemented only when communicated to Seller by Buyer's authorized representative, in writing.
Termination of the order in whole or in part can be made only with Seller's prior written consent and upon terms that will indemnify Seller against loss and afford an equitable profit.
18. PLACE OF MANUFACTURE.
Seller has the right to determine in which of Seller's manufacturing facilities all or part of the order may be fabricated, processed, assembled, etc.
19. RESERVATION OF RIGHTS.
Seller reserves the right to make subsequent improvements and changes in the design of Goods without imposing any obligation to make such changes or improvements upon Goods sold to Buyer.
All Goods shall be installed by and at the expense of Buyer. Should Buyer request the services of Seller, such service shall be rendered and charged at the established rate at the time of performing said service, plus all other expenses including travel, hotel bills and living expenses.
21. GOVERNING LAW; LIMITATION ON ACTIONS.
This order shall be governed and construed in accordance with the laws of the State of New York. No actions arising out of the sale of Goods covered by this order, other than an action by Seller to recover the purchase price of such Goods, may be brought by either party more than one (1) year after the cause of action accrues. Buyer and Seller expressly reject the application of this Contract to the United Nations Convention on Contracts for the International Sale of Goods.
22. RESTRICTIONS ON EXPORT.
Buyer acknowledges that the Goods and any technical data related to the Goods may be controlled for export by the U.S. Department of Commerce or Department of State and that such items may require authorization prior to export from the United States or re-export. Buyer agrees that it will not export, re-export, or otherwise distribute the Goods or any technical data related thereto, in violation of any export control laws or regulations of the United States.
23. Entire Agreement.
This is the complete and exclusive statement of the agreement between Seller and Buyer with respect to Buyer’s purchase of the Goods. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Seller and Buyer.