The following Standard Terms and Conditions shall apply and control all offers, sales, order confirmations, and deliveries by Flagg, Inc. (“Flagg”) to you (“Buyer”). All purchases by Buyer are expressly limited and conditioned upon acceptance of the following terms and conditions and any provision, printed or otherwise, contained in any purchase order, confirmation, acknowledgment, or other document inconsistent with, different from or in addition to the following Standard Terms and Conditions are not accepted by Flagg unless specifically agreed in writing by the President of Flagg Incorporated.
All prices are subject to change by Flagg at any time and from time to time. All prices quoted are exclusive of transportation, insurance, state and local use, sales and similar taxes, excises or governmental charges which may be levied, imposed or charged against Flagg (whether by Federal, State, or local authorities) on account of the sale by Flagg to Buyer. Buyer agrees to pay such taxes, and when applicable such taxes will appear as separate items on Flagg’s invoice(s). All orders are subject to final approval and acceptance by Flagg through an authorized representative and are not binding on Flagg unless and until so approved and accepted.
All orders will be invoiced at the time of shipment. No discount will be allowed unless agreed to in writing by an authorized representative of Flagg. Invoices more than 60 days ADI will incur a service charge of 1 ½% per month, 18% per year (or such lesser maximum amount allowed by law). Buyer shall be responsible for all costs of collection, including reasonable attorney’s fees. If credit is extended, Flagg may withdraw or modify credit terms at any time without notice. If, in Flagg’s sole judgment, doubt arises at any time as to the ability of Buyer to pay for any goods or services, or Buyer is past due in payment of any amount owing to Flagg, Flagg may (without liability and without prejudice to any other remedies, and regardless of any schedule of shipment or payment to the contrary) suspend any future shipments and stop any goods in transit until Flagg shall have received payment in full of all amounts owing to Flagg by Buyer. Buyer’s orders may not be terminated, cancelled or modified, or shipment deferred after acceptance of Buyer’s order by Flagg, except with Flagg’s written consent and subject to conditions then agreed upon between Flagg and Buyer.
All shipments and deliveries are subject to Flagg’s availability schedule. Flagg makes every reasonable effort to deliver materials in a timely manner to locations specified. Flagg reserves the right not to deliver and no guarantees are expressed or implied. Flagg shall not be liable to Buyer or to any end user for any claim arising from shipping dates, times or changes. Delivery charges, if any, apply for each delivery attempted. No charges will apply for attempts made after customer’s normal business hours, on generally recognized federal holidays, or when customer is closed due to extreme weather conditions. Flagg reserves the right to determine the shipping location and type of carrier or shipper on all shipments. Title to the goods and risk of loss and damage shall pass to buyer upon delivery to a common carrier and, if there be no common carrier, upon delivery to Buyer.
Effect of Additional or Different Terms and Conditions of Buyer
Flagg’s Standard Terms and Conditions as contained herein and any attachments hereto shall take precedence over any additional or different terms and conditions of Buyer and constitute the entire understanding between the parties relating to the goods purchased hereunder. ACCEPTANCE BY BUYER IS LIMITED TO FLAGG’S TERMS AND CONDITIONS AND BUYER, UPON PLACING AN ORDER FOR ANY GOODS OR SERVICES, AGREES TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. Any additional or different terms and conditions contained in Buyer’s purchase order or response to Flagg’s quotation shall not be effective or binding unless specifically consented to in writing by Flagg. Neither Flagg’s commencement of performance nor delivery shall be deemed an acceptance of Buyer’s additional terms and conditions.
UNLESS SPECIFICALLY NOTED IN WRITING, FLAGG MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ON THE GOODS AND PRODUCTS SOLD AND DISTRIBUTED BY FLAGG.
Limited Warranty on Certain Products
Notwithstanding the provisions of subsection 5(a) above, products that have been fabricated, assembled, or otherwise modified by Flagg will be warranted for one (1) year after date of shipment to Buyer to be reasonably free from defects in workmanship and, when properly handled and fabricated, will conform, within accepted tolerance, to applicable manufacturing specifications. This limited warranty shall be void if: (i) the products have not been stored, installed, or maintained in accordance with accepted industry practices or any specific instructions provided by Flagg; or (ii) the products have been subjected to any accident, abuse, or misuse.
Limitation of Liability
FLAGG’S LIABILITY BASED ON ANY LEGAL THEORY INCLUDING WITHOUT LIMITATION, NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, STRICT LIABILITY, TORT, OR ALLEGED DAMAGED OR DEFECTIVE GOODS, SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE GOODS IN QUESTION OR, AT FLAGG’S SOLE OPTION, A CREDIT TO BUYER OF THE PURCHASE PRICE PAID. IN NO EVENT SHALL FLAGG BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR FOR ANY OTHER RELATED LOSSES OR EXPENSES.
Notice of Claim
In case of any claim by Buyer against Flagg for a defect in the goods or breach of warranty with respect thereto, Buyer must notify Flagg in writing of the alleged defect or breach within a reasonable time, which Buyer agrees must be within thirty (30) days from the date of receipt of such goods. Such notice shall give a full basis for the claim. Under no circumstances are the goods to be returned to Flagg unless Buyer has received Flagg’s written instruction to do so. Buyer shall have no right to deduct the amount of any claim from Flagg’s invoice unless and until the claim is allowed by Flagg or adjudicated by proper authority.
Limitation of Actions
To the extent permitted by law, Buyer agrees that any action for breach of warranty or other action against Flagg arising from the sale of goods by Flagg to Buyer must be commenced within one (1) year after the date of the invoice for such goods. After said period, any such action or claim shall be barred.
Goods and products may be returned only with prior authorization from Flagg. Returned goods are subject to inspection, and must be in salable condition. Returned goods are subject to a 25% re-stocking charge. If merchandise is proved defective, the requirements of salable condition and re-stocking fee(s) do not apply. Special orders, non-stock sizes, materials beyond their shelf life, and run-specific materials may not be returned. Customers may not return items after 30 days. Seam kits may not be returned.
The provisions of any contract resulting from quotation, offer, acceptance or sales between Buyer and Flagg shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to conflicts of laws principles, and shall be deemed to be between merchants. Buyer irrevocably consents to the personal jurisdiction and venue of any state or federal court in Ohio.