Master Terms and Conditions of Utica Cutlery Company, and its Affiliates
(Excluding Walco Stainless – Food Service Division)
Placement of an order is acceptance of our Terms and Conditions.
- 1. Governing Provisions and Cancellation:
All sales by Utica Cutlery Company, and its affiliate companies, ("Seller") are subject to these terms and conditions, and are expressly conditioned upon assent to these terms and conditions. No additional or different terms or conditions will be binding upon seller unless specifically agreed to in writing. Seller hereby objects to any such additional or different terms, and notifies buyer that Seller is unwilling to sell on any terms other than these terms and conditions. No order may be cancelled or altered by buyer except upon terms and conditions acceptable to Seller, as evidenced by Seller's written consent. EACH CONTRACT OF SALE, INCLUDING THESE TERMS AND CONDITIONS, SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER, AND SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS, OF THE STATE OF NEW YORK. There are no conditions affecting the parties' agreement, which are not expressed in these terms, and conditions.
- 2. Payment Terms:
Payment terms are prepaid with Cash, Check, Credit Card, Wire Transfer (a $50 international/$20 domestic processing fee will apply per order), Money Order, Electronic Transfer, Certified Check, Pay Pal, and approved business Credit. To qualify for business open account you must be a commercial account that is a municipality, government agency, or Dunn & Bradstreet rated Corporation. No Acceptations! A fee of $25.00 will be applied to all refused or returned payments. All payment terms set forth in this document are subject to Seller’s approval of buyer's credit, In Seller's discretion; and if such approval is withheld. Payment shall be due in advance of Seller's performance. Payment terms are NET 30 DAYS. Interest will be charger at the lesser of (i) 18% per year, or (ii) the highest rate permitted by applicable law, on accounts more than 15 calendar days past due. If production or shipment of completed goods, or other Seller performance, is delayed by buyer, Seller may immediately invoice, and buyer shall pay, the percentage of the purchase price corresponding to the percentage of completion: in addition, buyer shall compensate Seller for storage of completed goods or work in process during any such delay, whether stored at Seller's facility or an independent storage company's facilities. MINIMUM ORDER Wholesale Accounts – Orders received under $100.00 will be assessed a $5.00 minimum order charge. Also a $1.00 packing/handling fee will be applied to all orders, this will be billed into freight charges at time of shipment. If orders are shipped 3rd party bill the minimum order charger and packaging/handling fee will be invoice under Freight.
- 3. Taxes and Other Charges:
Any occupation tax, use tax, sales tax, city tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such taxes or other charges, Buyer shall reimburse Seller there for on demand. Buyer takes responsibility for all Use Tax within the state the order is shipped to, as directed by that States tax board and guide lines.
All items are delivered FOB point of origin, shipping to one location within the contiguous USA. Standard ground shipping is currently free on orders over $2200.00 in merchandise only, before taxes, handling, coupons, shipping or accessorial charges in the contiguous USA. Deliveries are curbside only, in original packaging as shipped, with no additional services available. Orders requested to APO/AE, PR, HI, AK, and US Territories will be billed transportation charges at Seller’s discretion, upon a customer's request, prepaid and invoiced. Lift-Gate equipment charges are the responsibility of the customer. Lift-Gate equipment must be requested on the Purchase Order so proper delivery arrangements can be made with the carrier. Lift-Gate charges are $75.00 for commercial locations and $95.00 for residential locations. Charges for the lift-gate equipment will be added to the invoice. Lift-Gate equipment charges are the responsibility of the customer and are not included in any prepaid program unless authorized prior to shipment. If client requests that their order ship a different method than the lowest qualifying free freight method as selected by Utica
Cutlery and its affiliates, client is responsible for any additional charges for the difference in the cost of the free freight method selected and the requested shipping services provided. This will be applicable for small package rates, LTL rates, international shipments, expedited/express/air shipments and any other special consignee requests. Delivery of products to the carrier shall constitute delivery to buyer; and regardless of shipping terms or freight payment; buyer shall bear all risk of loss or damage in transit. Seller reserves the right to make delivery in multiple Shipments, unless otherwise expressly stipulated herein; all such shipments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. a. Custom Equipment, prices do not include freight or crating charges. Optional crating charges will be added to the invoice. Product will be shipped via Seller's or Factory loading dock. Seller ships small package orders per UPS, Fed-X Ground, USPS, or alternation ground service of Sellers choice. Seller ships best way, at sellers choice no acceptations. Residential or Business Classifications of Location is mandatory before shipment to assure accurate rates. Seller reserves the right to refuse requests to drop ship orders for the same products to one or multiple locations. b. Case Lot Merchandise purchased in full case lots will speed up shipments. Custom orders are completed with over/under shipments, not to exceed plus or minus 05% of the original order quantity.
- 4. Claims, Delays and Force Majeure:
Claims for Shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment; and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by buyer. Claims for loss of or damage to goods in transit must be made to the carrier, and not to Seller. Our responsibility for shipment ceases with the acceptance by carriers. All delivery dates are approximate. Back order items are shipped when available, all orders remain open for shipping until canceled. Delay In delivery of any shipment shall not relieve buyer of its obligations to accept remaining shipments. Further, Seller shall not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller's reasonable control, including but not limited to any act of God, act of buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the lime lost because of the delay. Buyer's exclusive remedy for other delays and for Seller's inability to deliver for any reason shall be rescission of its agreement to purchase.
- 5. Changes:
Seller may at any time make such changes in design and construction of products, components or parts, as Seller deems appropriate, without notice to buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
- 6. Warranties:
Seller warrants provided hereunder to be free from nonconformity to any attached specifications, and free of defects in materials and workmanship, appearing within 15 days. All warranties will apply as per their standard terms and conditions. If within such period any such applicable goods shall be proved to Seller's satisfaction to be defective, the affected part will be repaired or replaced free of charge, F.O.B. buyer's original destination or, for customers outside of the U.S., via Seller's loading dock, or Seller will refund the purchase price of the affected part. Such repair, replacement or refund (whichever Seller determines, in its discretion, to provide) shall be Seller's sole obligation and buyer's exclusive remedy for any deficiency In goods furnished hereunder, and shall be conditioned upon buyer's return of such goods to Seller, F.O.B. Seller's loading dock.. Seller gives no warranty on any goods damaged by accident, carelessness, and improper installation, lack of proper setup or supervision. Seller warrants that any out of warranty repair services it provides hereunder will be performed in a manner consistent with customary practice in the Industry. Should a failure to conform to this warranty appear within fifteen 15 calendar days after completion of any repair services, Seller shall, if promptly notified thereof in writing, either perform the repair services again, properly and without charge, or refund the price charged for such repair services. Such re performance or refund (whichever Seller determines, In Its discretion, to provide) shall be the buyer's exclusive remedy and the Seller's sole liability with respect to any deficiency in repair services furnished hereunder.
Return Authorizations must be requested for all returns. Product returned without prior authorization from Factory Location or Seller's New York offices will be refused. a. Requests for returns of merchandise must be made within 10 DAYS of the Invoice date. Sales order # must be provided when requesting this authorization, No Return Authorization will be issued unless Buyers purchase order number or Sellers invoice number Is provided. b. A restocking charge applies as follows; 1. Merchandise less than $100 value - $25 restocking charge. 2. Merchandise more than $100 value - 20% restocking charge. c. Return shipment must be shipped prepaid to original Shipping Location. d. Return Authorization Number must be marked on all returned cartons. e. Returns accepted only on current merchandise found in original carton and in new and resalable condition. Merchandise returned that is in partial lots, used, obsolete or shelf-worn will be disposed of and credit WILL NOT be issued. In the event an unauthorized order return reaches our returns department a 50% restock fee will apply if merchandise is new and in original condition. If merchandise is not salable it will be disposed of and credit WILL NOT be issued. The following items may not be returned: (1) Personalized/Imprinted merchandise, (2) Closeout or Discontinued Merchandise, (3) Used or open Merchandise not in original Cartons and Packaging, (4) All Custom Equipment, included Gold/Silver Plated Items. NO REFUNDS – Credit or Replacement Only.
- 7. Patents, Trademarks and Copyrights:
Seller will, at its own expense, defend any suits that may be instituted by anyone against buyer for alleged Infringement of any United States patent, trademark or copyright relating to goods or services provided by Seller, to the extent that any goods or services that Seller furnishes to buyer are manufactured in accordance with drawings, designs or specifications proposed or furnished by buyer, Seller shall not be liable, and buyer shall indemnify and hold harmless Seller from and against any and all losses, liabilities, damages, claims and expenses (including but not limited to Seller's reasonable attorneys' fees and other costs of defense) incurred by Seller as a result of any claim of patent, trademark, copyright or trade secret infringement, or Infringement or any other proprietary rights of third parties.
- 8. Consequential Damages and Other Liability; Indemnity.
Seller's Liability with respect to the goods or services sold hereunder shall be limited to the warranty and indemnity provided in sections 6 and 9 of the terms and conditions of sale and, with respect to any other breaches of its contract with buyer, shall be limited to the contract price. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods or services, or for any other types of loss of economic advantage, or for claims of buyer's customers or any third party for any such damages, costs or losses. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT AND CONTINGENT DAMAGES WHATSDEVER. Buyer shall Indemnify and hold harmless Seller from and against any and all losses, liabilities, damages and expenses (including but not limited to attorneys' fees and other costs of defense) that Seller may incur as a result of any claim by buyer or by buyer's customers or by any third party arising out of or In connection with the goods or services sold hereunder, including but not limited to any such claim based upon the negligence of Seller in designing, manufacturing, performing and/or selling such goods Of services, unless such losses, liabilities, damages or expenses are ultimately determined to be attributable solely to the willful misconduct of Seller.
- 9. Prices:
All prices are subject to change without notice: and orders placed for future delivery will be invoiced all the prices in effect at time of shipment. Due to price and exchange rate fluctuations on imported merchandise, all prices for containers or imports are subject 10% change at time of shipment if deemed applicable.
- 10. Technical Information:
Any pictorials, sketches, images, models or samples submitted by Seller shall remain the property of Seller, and shall be treated as confidential information unless Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models or samples, or any design or production techniques revealed thereby, shall be made without the express, prior written consent of Seller. All copyright laws apply.