Chapman MFG T&C's
STANDARD TERMS AND CONDITIONS OF COMMERCIAL SALES
Revised: December 18, 2017
The following terms and conditions of sale are applicable to any order placed with and acknowledged by the Chapman Manufacturing Company (“Chapman”) from a commercial buyer.
1. SCOPE OF AGREEMENT.
The parties’ entire agreement (the “Agreement”) consists of (i) these Terms and Conditions, and (ii) any additional terms and conditions on the Order Acknowledgement Form (the “Order Acknowledgement”) issued by Chapman in connection with a specific order. These Terms and Conditions are deemed accepted by the buyer (the “Buyer”) upon the shipment of goods (“Product” or “Products”) in compliance with Chapman’s Order Acknowledgement.
The Agreement supersedes any terms and conditions submitted to Chapman prior to Chapman’s acceptance of an order. Chapman’s delivery of its Order Acknowledgement shall constitute a rejection of any terms and conditions other than those contained in the Agreement. The Agreement supersedes any prior agreements between the parties, written or oral, relating to the subject matter of the Buyer’s purchase order.
The Agreement cannot be modified, unless acknowledged in writing by an authorized officer of Chapman. The Agreement cannot be modified by a course of prior dealings between the parties, nor can its terms be supplemented by or varied by industry custom or trade usage. These Terms and Conditions are subject to change at the discretion of Chapman. The Terms and Conditions that apply to an order are those referenced in the Order Acknowledgement.
These Terms and Conditions apply to commercial sales only. Commercial sales are those sales to buyers other than consumers.
2. PRICE AND PAYMENT.
Price shall be specified in the Order Acknowledgement. Unless otherwise expressly stated in the Order Acknowledgement, all prices exclude shipping and taxes.
Unless otherwise specified in the Order Acknowledgement, payment must be received by Chapman within 30 days from the invoice date.
If Buyer disputes all or part of payment required by an invoice, it shall submit a written notice of dispute prior to the payment due date. Failure to serve a notice of dispute before the payment date constitutes a waiver of the dispute. If Buyer disputes part, but not all of an invoice, it shall pay that portion of the invoice that it does not dispute.
If Buyer fails to pay when due, it agrees to pay a service charge of 1.5% per month, or the maximum legal rate, whichever is less on the amount outstanding. Buyer will not be subject to a service charge for payment subject to a timely served notice of dispute.
In the event that Buyer fails make payment when due under the Agreement, Chapman reserves the right to withhold shipment of other orders from that Buyer until full payment is made or sufficient assurance of payment is given.
3. INTERNATIONAL BUYERS
Products are subject to export restrictions under U.S. law. The United States Census Bureau and the Bureau of Industry and Security (“BIS”) regulate exports through the Export Administration Regulations (“EAR”). Chapman does NOT sell any items to any locations in Country Group E. Chapman may require, at its sole discretion, up to thirty (30) days to determine the products export classifications (Export Control Classification Number). Chapman may require, at its sole discretion, up to ninety (90) days for licensing in the event that an export license is required.
In order to comply with export control laws established by the United States Departments of Commerce and State, Chapman requires a written statement defining the ultimate End User, the End Use of each product to be exported, and Buyer’s agreement to comply with the EAR.
Chapman will contact Buyer via email with the appropriate documents that Buyer must complete and return in order for Chapman to complete an order. Chapman cannot complete an order unless Buyer provides completed documentation and provides Chapman with all requested information.
International orders are subject to DUTIES, TAXES or other IMPORT FEES. Buyer is solely responsible for paying all such duties, taxes and fees. Buyer is responsible for completing and submitting all documentation required by the customs office in the destination country. Buyer is also responsible for transportation of Products from the customs office in the destination country.
4. FREIGHT, TITLE, RISK OF LOSS, AND TERMS OF DELIVERY.
Unless otherwise agreed, all shipments shall be F.O.B. Durham, Connecticut. Title and risk of loss shall pass to Buyer when Chapman delivers its products to the carrier, regardless of whether the carrier is selected by Chapman or the Buyer. Chapman shall include a packing list with each shipment. Special packaging instructions must be included with a purchase order. Unless otherwise noted in the Order Acknowledgement, Chapman shall comply with special packaging instructions. Costs incurred complying with special packaging instructions shall be included in Chapman’s invoice, and shall be paid by Buyer.
Any stated delivery dates are approximate. Chapman will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date.
5. SECURITY INTEREST.
Buyer hereby grants to Chapman a security interest in Products sold to Buyer under the Agreement and any proceeds therefrom (including accounts receivable), until payment in full for the Products has been received by the Chapman. Buyer shall sign and deliver to Chapman any document to perfect this security interest that Chapman reasonably requests.
6. REMEDIES IN THE EVENT OF BREACH OR DEFAULT.
If Buyer defaults on its obligations under this Agreement, Chapman’s remedies shall include those provided in the Uniform Commercial Code, as adopted by the State of Connecticut, appearing in §§ 42a-2-701 through -710.
Buyer’s remedies in the event of Chapman default shall be limited to those provided in the Uniform Commercial Code, as adopted by the State of Connecticut, appearing in §§ 42a-2-711 through -714, and are subject to Chapman’s Limitation of Liability provided herein.
No action arising out of or relating to this agreement or the transactions it contemplates may be commenced against Chapman more than 12 months after the delivery date.
7. LIMITATION OF LIABILITY.
Chapman will not be liable for any indirect, special, consequential, or punitive damages (including lost profits) arising out of or relating to this agreement or the transactions it contemplates (whether for breach of contract, tort, negligence, or other form of action) and irrespective of whether Chapman has been advised of the possibility of any such damage. In no event will Chapman’s liability exceed the price Buyer paid to Chapman for the specific Products provided by Chapman giving rise to the claim or cause of action.
8. LICENSE TO USE CHAPMAN GOODWILL & INTELLECTUAL PROPERTY.
Buyer may use Chapman’s name, trade names, trademarks, logos, and goodwill for the limited purpose of reselling and advertising Chapman products for resale. Except as expressly provided herein, Buyer shall not acquire any right, title or interest in and to Chapman’s goodwill or intellectual property, including any product or process information. In no event shall Buyer sell Chapman Products through any public channels, such as, by way of example, eBay, Amazon, and Walmart.
9. CONFIDENTIAL INFORMATION.
To the extent that Chapman agrees with a Buyer to vary the terms and conditions of its Standard Terms and Conditions or to vary other published terms of sale, including pricing, the parties shall treat those terms of sale as confidential, and Buyer shall not disclose this confidential information to any third parties.
10. LIMITED INDEMNIFICATION.
Buyer shall indemnify, defend and hold harmless Chapman, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Buyer’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation, or based on Buyer’s grossly negligent, reckless and/or willful acts.
11. CHAPMAN’S LIMITED WARRANTY.
- PRODUCT WARRANTY: In the event that Chapman is the original equipment manufacturer of the Product, Chapman warrants that, for a period of one year after delivery of the Product (hereinafter the “Warranty Period”) the Product shall be free from material defects in material and workmanship except: (i) when the Product has been modified following the delivery date and/or subject to improper use or handling; or (ii) when an item is a component part of the product furnished by the Buyer. If the Product fails to conform to the foregoing requirements, Buyer is entitled to the remedies described in Paragraph C below. Chapman shall not be responsible for the intended use of its Product unless the Buyer fully discloses that use in writing to Chapman at or before the time of purchase.
B. MANUFACTURER’S WARRANTY. In the event that Chapman is not the manufacturer of the Product or sub-assembly of the Product, Chapman hereby assigns to Buyer all of Chapman’s rights under the applicable manufacturer’s warranties with respect to the Product and such rights shall inure to Buyer’s benefit as though Buyer had purchased the Product directly from the manufacturer.
C. REMEDIES; PROCEDURES; LIMITATIONS. If during the Warranty Period, Buyer notifies Chapman that the Product is not in good working order or materially fails to conform with the requirements of § 11.A., above, at the time Buyer purchases the Product, Chapman shall, at its expense, rework, repair or replace the Product. Buyer shall give Chapman notice of any warranty claim promptly and in writing at the address set forth in the Invoice. Chapman shall not be obligated to provide, nor be liable for, any other or additional remedies. Chapman’s sole obligation shall be limited to making such repairs and replacements as it deems necessary or proper to place the Product in good working order and in conformity with the requirements of § 11.A., above. Chapman’s liability for any breach of its obligation to rework, repair or replace pursuant to this Paragraph C shall be limited to direct damages that Buyer actually incurs, and shall not exceed the price paid for the Product.
D. THE WARRANTY OF CHAPMAN SET FORTH IN PARAGRAPH A IS EXCLUSIVE AND IS GIVEN BY CHAPMAN AND ACCEPTED BY BUYER IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER KNOWN TO CHAPMEN OR NOT). ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY CHAPMAN AND WAIVED BY BUYER.
E. Chapman makes no warranties as to Buyer’s ability to re-sell, use, obtain permits or licenses for any intended use of the Product. Chapman’s sole liability to Buyer for breach of the limited warranty contained in Paragraph A and Buyer’s exclusive remedies for any such breach shall be the remedies set forth in Paragraph C.
Any notice sent pursuant to the Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Order Acknowledgement to Chapman MFG, 471 New Haven Road, Durham, Connecticut 06422, or to such address as either party may in the future designate. Notices shall be effective upon receipt.
13. ASSIGNMENT, DELEGATION.
Buyer may not assign any of its rights under the Agreement or delegate any performance under The Agreement, except with Chapman’s prior written consent. Any purported assignment of rights or delegation of performance in violation of this section is void.
Buyer and Chapman are separate entities. Nothing in the Agreement shall be construed as creating an employer-employee or joint venture relationship.
15. COMPLIANCE WITH LAW.
Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
16. GOVERNING LAW, EXCLUSIVE JURISDICTION.
The Agreement shall be governed by and construed according to the laws of the State of Connecticut, without reference to conflicts of law principles. The parties agree to subject themselves to the jurisdiction of Connecticut state and federal courts. The exclusive jurisdiction over disputes under this Agreement shall be Connecticut state and federal courts. With respect to any litigation arising out of this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury.
17. FORCE MAJEURE.
Neither party shall be liable for any failure to perform or delay in performance of the Agreement due to causes beyond their reasonable control, including natural catastrophes, acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
In the event any provision of the Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Agreement will remain in full force and effect.