ESS TERMS AND CONDITIONS OF SALE
These Terms and Conditions, and the related Quotation or Invoice, shall constitute the contract between Environmental Sampling Supply (ESS) and Buyer. Orders submitted on Buyer’s purchase order or other documents which contain terms and conditions modifying, adding to, or inconsistent with these terms or conditions are acceptable to ESS only upon the condition that these Terms and Conditions of Sale shall take precedence in the event of inconsistency. If ESS and Buyer have previously entered into a formal written contract containing specific terms covering the sale of such products, the terms and conditions of such formal written contract shall govern. IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE TO THE BUYER, BUYER MUST PROVIDE NOTICE TO ESS IMMEDIATELY IN WRITING.
1. WARRANTIES AND LIABILITIES
1.1 ESS warrants that goods will be free from material defects. ESS further warrants that the goods will conform to any descriptions on the face of the Quotation or Invoice. THE WARRANTIES IN THESE TERMS AND CONDITIONS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Where manufacturers’ warranties are available, ESS will make them available to Buyer, without recourse to ESS, to the extent permissible. No representative of ESS is authorized to give or make any other representations or warranty or modify this warranty in any way.
1.2 BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST ESS FOR ANY CAUSE OF ACTION ARISING OUT OF THE SALE OR USE OF ANY PRODUCT DESCRIBED HEREIN SHALL BE REPLACEMENT OF THE PRODUCT OR REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT. In no event shall ESS be liable for special, indirect, incidental or consequential damages howsoever arising, including without limitation, lost revenues or profits.
1.3 Any cause of action for breach of warranty must be brought by Buyer, if at all, within (1) year from the date the cause of action accrued. Any discrepency in pricing or other charges shall be deemed waived by Buyer unless Buyer notifies ESS therof in writing, within ninety (90) days from the date of invoice on which such disputed transaction is reflected.
1.4 In no event shall ESS have any responsibility or liability to the Buyer for any failure or delay in performance by ESS which results, directly or indirectly, in whole or in part, from any cause or circumstance beyond the reasonable control of ESS. Such causes and circumstances shall include, but not be limited to, acts of God, acts of Buyer, acts or orders of any governmental authority, strikes or other labor disputes, natural disasters, accidents, wars, civil disturbances, unavailabliity of supplies from usual suppliers, difficulties or delays in transportation, mail or delivery services, or any other cause beyond ESS’s reasonable control.
1.5 Any claims concerning damage or loss in transit shall be placed through the carrier by the Buyer.
2. PAYMENT TERMS
2.1 Payment in advance is required for all Buyers except for those whose credit has been established with ESS. For Buyers with approved credit, payment terms are net 30 days from the date of the invoice by ESS. All overdue payments are subject to an additional interest and service charge of one and one-half percent (1.5%) (or the maximum rate permissible by law, whichever is lesser) per month or portion thereof from the due date until the date of payment. Buyer shall be responsible for all costs and expenses of collection including reasonable attorney’s fees. Special pricing, discounts or procing concessions are subject to credit accounts remaining within established credit terms.
2.2 Shipping charges, F.O.B. shipping point, will be prepaid and added to the invoice amount. All prices are subject to change without notice. Clerical errors are subject to correction.
2.3 The prices stated are subject to any additions necessary to cover Federal. State and Municipal or other sales or use taxes or any other taxes upon the products or services described herein, all of which shall be paid by Buyer.
3.1 Written authorization must be obtained prior to returning any product to ESS. Products are subject to a restocking fee of 25% for non-preserved items, and 50% for pre-preserved items, unless otherwise agreed in writing.
4. MISCELLANEOUS PROVISIONS
4.1 These Terms and Conditions, together with any additions or revisions which may be agreed to in writing by ESS, embody the whole agreement of the parties and provide the only remedies available. There are no prom,ises, terms, conditionss, understandings, obligations or agreements other than those contained herein, and these Terms and Conditions shall supercede all previous communications, representations, or agreementsm either verbal or written, between the Buyer and ESS. These Terms and Conditions, and any transactions or agreements to which they apply, shall be governed both as to interpretation and performance by the laws of the state of California.
4.2 The invalidity or unenforceability, in whole or in part of any provision, terms or condition hereof shall not affect in any way the validity or enforeceability of the remainder of these Terms and Conditions, the intent of the parties being that the provisions are severable. The section headings of these Terms and Conditions are intended solely for convenient reference and shall not define, limit or affect in any way these Terms and Conditions or their interpretations. No waiver by either party of any provision, term or condition hereof or of any obligation of the other party hereunder shall constitute a waiver of any subsequent breach or other obligation.