TERMS AND CONDITION OF SALE
1. SCOPE
The General Terms and Conditions of Sale herein provide for the sale by Telecom Surplus Resources, Inc. dba TSR ComSupply (“Seller”) to Buyer of: (a) all products provided by the Seller (“Products”), and (b) any services to be performed by the Seller (“Services”).
2. PURCHASE & SALE
All Quotes from the Seller are valid for 30 days (unless otherwise noted) with the exception of freight Quotes which are valid for 5 days. All Products quoted are subject to prior sale. Acceptance of any order by receipt of Purchase Order between Buyer and Seller is expressly limited to the terms and conditions stated herein (“the Terms and Conditions”). The General Terms and Conditions herein shall govern any Purchase Order except as otherwise provided in a valid, specific, written Quote from Seller for a specific Purchase Order.
By delivery to Seller of an order and/or the acceptance of goods, the Buyer acknowledges receipt of these Terms and Conditions. Any contract of sale between Buyer and Seller shall incorporate these Terms and Conditions and such contract shall not be amended or modified by the provisions of any Purchase Order or other communication from the Buyer, unless agreed upon by both parties in writing.
3. PRICE AND PAYMENT
Unless otherwise provided in a Quote, Product and Service prices (“Purchase Price”) are valid for thirty (30) days. Freight terms and charges are to be outlined in the Quote as to whether Freight is included or being charged on a separate line item. The Purchase Price shall not include, (a) additional freight handling, demurrage, and additional insurance charges from Seller’s designated dock to the Buyer’s designated destination, (b) special labeling, (c) packing requirements exceeding Seller’s commercial standards, and (d) any and all taxes assessed against or payable by Seller in connection with the sale, except for taxes imposed upon Seller’s net income. If Buyer claims to be exempt from any sales, use, or other taxes, then Buyer shall deliver to Seller the appropriate exemption certification prior to shipping and Seller Invoicing to Buyer.
4. CREDIT AND DEFAULT
All Purchase Orders are subject to credit approval prior to acceptance. With respect to any Invoice, Buyer shall pay the total amount due to Seller (the “Invoice Total”) in full, exclusively in United States dollars, within thirty (30) days after the date of the related Invoice, unless otherwise noted. The related Invoice may be subject to an additional 1.5% per month late charge if not paid on time. Payments can be made by check, ACH, or Wire Transfer with no additional fees. Payments made by credit card or other electronic payment platform are subject to a 3% convenience charge or the fee that platform imposes on Seller, whichever is higher. Seller retains a continuing security interest in all Products until the related Invoice Total is paid in full. If Seller determines at any time that, in the opinion of Seller, Buyer is unable to comply with the payment terms, then Seller may suspend credit terms, require progress payments, demand payment in full for outstanding balance, withhold shipments, and repossess all Products previously delivered, which shall become the absolute property of Seller subject to credit therefore.
If Buyer fails to fulfill the terms of payment of any Invoice or if the financial condition of Buyer shall become impaired or unsatisfactory to Seller, or if necessitated by any acts or requirements of any governmental authority, Seller reserves the right to change the terms of payment and/or defer or discontinue further shipments, without prejudice to any other lawful remedy available to Seller, until past due payments are made and satisfactory assurances of Buyer’s credit standing or ability to meet its obligations under the applicable Contract are received by Seller, or until compliance with such acts or requirements of such governmental authority.
Seller also reserves the right in the case of any of the foregoing events to cancel all Purchase Orders or Contracts with Buyer.
5. CHANGES / CANCELLATIONS / RETURNS
Buyer may cancel their orders by providing written notice to Seller at least 60 days in advance of the scheduled delivery date of the Products. Within 60 days of the scheduled delivery date of the Products, Buyer’s Purchase Orders accepted by Seller are not subject to change, cancellation, delay, or return without Seller’s prior written consent. If Products are shipped to Seller and then Buyer cancel’s their order, Buyer must pay all shipping costs to return product to Seller and pay a restocking fee equal to 25% of the value of the order canceled.
6. DELIVERY, TITLE AND RISK OF LOSS
If Buyer directly arranges for or contracts for the shipping of the Products purchased from Seller, Title and Risk of Loss and Damage shall pass to Buyer upon Seller’s placing materials with the designated carrier. In case of damage during shipment, the Buyer will be solely responsible for filing any damage claims with the designated carrier.
If Seller directly arranges for or contracts for the shipping of Products purchased from Seller, Title to Products shall pass to Buyer upon Seller’s placing materials with the designated carrier and Risk of loss or Damage shall pass to Buyer upon delivery of the Products to the destination listed in the related Purchase Order. If Products arrive at Buyer’s listed destination damaged it is Buyer’s sole responsibility to (a) refuse acceptance of Products from carrier, (b) take written notes and/or photos of the damage, (c) inform Seller of damage and refusal of acceptance of Products within 5 days and (d) help Seller, when requested, in the filing of a damage claim with carrier. If the Buyer accepts visibly damaged Products or improperly handled or packaged Products from the carrier without notification to the Seller prior to the carrier’s departure from the delivery point, then Title of the Product remains with the Buyer. If Buyer discovers shortages or incorrect product in the shipment that differ from what is noted on the Packing Slip, Buyer must inform Seller within 5 days of the receipt of product shortage or incorrect product and Seller will work with Buyer to remedy the shortage or incorrect product. If a Buyer opens a carton after acceptance and discovers “concealed freight damage,” it is the Buyer’s sole responsibility to file a formal claim with both the freight carrier and the Seller.
BUYER MUST INFORM SELLER, WITHIN 5 DAYS OF THE RECEIPT OF MATERIALS IN A DELIVERY, OF ANY DESCREPANCIES IN THE TYPLE, LENGTH, COUNT OR AMOUNT OF PRODUCTS LISTED ON SELLERS PACKING LIST AND WHAT THE BUYERS RECEIVING OR WAREHOUSE DEPARTMENT SHOWS AS BEING RECEIVED IN THAT DELIVERY. ONCE 5 DAYS HAVE PASSED SINCE DELIVERY AND SELLER HAS DELIVERED TO BUYER AN INVOICE FOR THE MATERIALS DELIVERED AND BUYER HAS NOT INFORMED SELLERS OF ANY DESCRPENCIES IN THE DELIVERY, THE SELLER’S PACKING LIST AND OTHER RELATED SHIPPING DOCUMENTS FOR THAT DELIVERY BECOME THE AGREED AMOUNT OF TYPE, LENGTH, COUNT OR AMOUNT OF PRODUCTS DELIVERED TO THE BUYER.
Seller reserves the right to: (a) make partial shipments and submit invoices for partial shipments, and (b) ship overages or underages of weight, length, size and/or quantity in accordance with Seller’s commercial standards.
7. STORAGE
If Buyer fails to accept delivery of the goods, then, except where such failure or delay is caused by a force majeure event or Seller’s failure to comply with its obligations under these terms or the purchase order, Seller may store the goods until delivery takes place and charge Buyer for all related costs and expenses (including insurance).
8. WARRANTY
Seller provides no warranty in respect of goods which may be sold by Seller but which are not manufactured by Seller. Such goods are sold only with the warranties, if any, of the manufacturers thereof.
Unless otherwise required by law, Seller disclaims any and all other warranties, express or implied, in relation to the goods (including warranties of merchantability and fitness for a particular purpose and/ or warranty of non-Infringement). Seller will not be liable to any party in strict liability, tort, contract, or any other manner for damages caused or claimed to be caused as a result of any design or defect in the goods.
9. LIMITATIONS OF LIABILITY
THE REMEDIES PROVIDED IN THESE TERMS SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER (INCLUDING THIRD PARTY CLAIMS). SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE SUCH AS (BUT NOT LIMITED TO), DELAY DAMAGE, DAMAGE DUE TO BUSINESS INTERRUPTION, LOST PROFITS, LOST SAVINGS, LOST REVENUE, MISSED OPPORTUNITIES, LOSS OF GOODWILL, OR FORFEITED PENALTIES OR FINES, WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT (INCLUDING NEGLIGENCE), WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY.
SELLER’S TOTAL LIABILITY IN CONNECTION WITH OR ARISING OUT OF THE PROVISION OF GOODS, PARTS OR SERVICES TO BUYER FOR CLAIMS OF ANY KIND (INCLUDING THIRD PARTY CLAIMS) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE FOR THE SPECIFIC GOODS OR SERVICES THAT GIVES RISE TO THE CLAIM.
THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE IN THIS CLAUSE SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW.
10. INDEMNITY
The Buyer shall release, defend, indemnify and hold harmless Seller, Seller’s affiliates, and each of their respective officers, directors, managers, employees, representatives, and advisors from and against any liability, loss, damage, claim, fine, penalty, judgment, settlement, cost and expense (including legal fees and expenses) arising out of or in connection with any act or omission of Buyer in relation to the Products or Services under these terms, including without limitation: (a) the handling, storage, marketing, sale, resale, distribution, use, or disposal of the goods (whether used alone or in combination with other substances) by Buyer or by any third party , and (b) the failure of the Buyer to comply with any instructions or regulations relating to (product) safety, applicable laws and regulations.
This clause shall survive the expiration, termination, or cancellation of the relationship between the Parties.
11. FORCE MAJEURE
Neither Party shall be liable to the other, nor considered in breach or default of its obligations, to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond the impacted Party’s reasonable control, including but not limited to: (a) natural or man-made disasters, acts of God, acts or omissions of governmental authorities, fire, severe weather conditions, earthquake, strikes or other labor disturbances, flood, serious risk of kidnapping, war (declared or undeclared), armed conflict, acts or threats of terrorism, pandemics, epidemics, quarantines, regional, national or international calamities, civil unrest, riot, severe delay in transportation, severe car shortage, or inability to obtain necessary materials, components or services; (b) in the case of Seller, acts or omissions of Buyer, including failure to timely provide Seller with any access, information, tools, material, and approvals necessary to permit Seller to timely perform the required activities.
12. GOVERNING LAW
These terms and conditions shall be governed by and construed in accordance with the laws of the State of Colorado.