Acceptance and Application of Terms and Conditions
The parties agree that they shall be governed by the terms and conditions set forth below (the “Terms and Conditions”) and the terms set forth on the attached invoice, purchase order, quotation of confirmation (collectively the Invoice). TOPFLIGHT’S PERFORMANCE UNDER THE INVOICE IS EXPRESSLY MADE CONDITIONAL ON PURCHASER’S ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. Any conflicts that exist between the Terms and Conditions and the Invoice shall be resolved in favor of the Invoice. If acceptance of the Invoice contains additional or different terms, the acceptance of the additional or different terms is expressly made conditional on the assent of Topflight to the additional or different terms.
Warranty and Disclaimer
Topflight expressly warrants to Purchaser that its Product(s), under normal and intended use, maintenance, and storage, is free from defects in workmanship for twelve (12) months from the date of shipment, unless otherwise stated. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES. TOPFLIGHT MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLDUING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No provisions, representations, diagrams, drawings, or pictures contained in any product literature, price list, catalogue, purchase order, product data sheet, order acknowledgment, invoice, delivery ticket, or any other communication by Topflight, including information on Topflight’s website or representations made by Topflight’s employees or agents, constitute express warranties. Results of tests and recommendations included in communications of Topflight do not constitute express warranties. To the extent sample products were provided to or examined by Purchaser, the samples do not constitute express warranties. TOPFLIGHT MAKES NO WARRANTY AS TO EXPERIMENTAL AND DEVELOPMENTAL SAMPLES OR MATERIALS. SINCE MANY FACTORS MAY AFFECT THE USE AND PERFORMANCE OF A TOPFLIGHT PRODUCT IN A PARTICULAR APPLICATION, INCLUDING, AMONG OTHERS, THE PRODUCT SELECTED FOR USE, THE CONDITIONS IN WHICH THE PRODUCT IS USED, THE TIME AND ENVIRONMENTAL CONDITIONS IN WHICH THE PRODUCT IS EXPECTED TO PERFORM, THE MATERIALS TO BE USED WITH THE PRODUCT, THE SURFACE PREPARATION OF THOSE MATERIALS, AND THE APPLICATION METHOD FOR THE PRODUCT, PURCHASER ACCEPTS RESPONSIBILITY FOR DETERMINING WHETHER TOPFLIGHT’S PRODUCT IS FIT FORA PARTICULAR PURPOSE AND SUITABLE FOR PURCHASER’S METHOD OF APPLICATION.
Changes to Products
Topflight will request customer approval on modifications or changes to the composition, design, color and appearance of the Product(s).
Purchaser’s exclusive remedy and Topflight’s sole obligation for any breach of warranty under these Terms and Conditions is limited to, at Topflight’s option, either: 1) replacement of Topflight’s Product, or 2) reimbursement of the purchase price of Topflight’s Product paid by Purchaser. TOPFLIGHT DISCLAIMS ANY OTHER OBLIGATION OR LIABILITIES ARISING OUT OF BREACH OF WARRANTY. Topflight will not be liable for any loss, damage, expense or consequential, incidental or special damages of any kind arising from any breach of warranty or other breach of the Terms and Conditions, either in contract, tort, product liability or otherwise. Purchaser assumes all risk and liability for loss, damage or injury to any person or to the property of itself or others arising out of the use of Topflight’s Product(s) or any product of Purchaser, except to the extent such loss results from a defect in Topflight’s Product that was both: a) not visible on reasonable inspection by Purchaser and b) caused by Topflight’s negligence. In addition to the foregoing, Purchaser agrees to defend (including payment of attorney’s fees), indemnify and hold harmless Topflight from any liability as a consequence of any use of Topflight’s Product(s) or any product of Purchaser. Topflight agrees to cooperate in the defense of any claim for which Purchaser defends, indemnifies and holds Topflight harmless. No action, suit or other legal proceeding may be brought in connection with the transactions contemplated by these Terms and Conditions unless it is commenced within one year after the delivery of Topflight’s Product(s) in issue.
Limitation of Remedy
Purchaser’s exclusive remedy and Topflight’s sole obligation for any breach of warranty under these Terms and Conditions is limited to, at Topflight’s option, either: 1) replacement of Topflight’s Product(s), or 2) reimbursement of the purchase price of Topflight’s Product(s) paid by Purchaser. TOPFLIGHT DISCLAIMS ANY OTHER OBLIGATION OR LIABILITIES ARISING OUT OF BREACH OF WARRANTY. Topflight will not be liable for any loss, damage, expense or consequential, incidental or special damages of any kind arising from any breach of warranty or other breach of the Terms and Conditions, either in contract, tort, product liability or otherwise. Purchaser assumes all risk and liability for loss, damage or injury to any person or to the property of itself or others arising out of the use of Topflight’s Product(s) or any product of Purchaser, except to the extent such loss results from a defect in Topflight’s Product that was both: a) not visible on reasonable inspection by Purchaser and b) caused by Topflight’s negligence. Notwithstanding anything in these Terms and Conditions to the contrary, TOPFLIGHT SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES OTHER THAN THE REPLACEMENT OR REPAIR OF SUCH DEFECTIVE WORK OR MATERIALS AND UNDER NO CIRCUMSTANCES SHALL TOPFLIGHT’S LIABILITY EXCEED THE ACTUAL COSTS PAID BY PURCHASER TO TOPFLIGHT FOR THE PRODUCT(S) WHICH WERE SOLD BY TOPFLIGHT TO PURCHASER HEREUNDER. TOPFLIGHT SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES UNDER ANY CIRCUMSTANCES.
Topflight shall not be liable for failure to perform its obligations caused by forces beyond its control including, but not limited to: strikes or other labor disturbances; inability to obtain equipment, parts, materials or supplies; acts of governments or of agencies thereof; fires; storms, floods or other natural disasters; machinery breakdowns; failure of utilities; war; embargoes; civil disturbances; acts of God. In the event of any such condition: I) Topflight’s time for performance will be extended during the condition and for a reasonable time thereafter; 2) Topflight reserves the right to allocate equitably, taking into account contractual commitments; and 3) which is permanent or occurs for an unreasonable length of time, Topflight is excused from performance.
Acceptance of Order
All orders are taken subject to the acceptance of the home office Glen Rock, Pennsylvania.
Delivery and Title to Goods Sold Hereunder
If the Product(s) sold hereunder are to be delivered by Topflight to the Purchaser, title and risk of loss to the Product(s) hereunder shall pass from Topflight to Purchaser upon delivery thereof to Purchaser or its designated agent. Any claims by Purchaser for shortages, breakage or for any nonconformance with the terms and conditions of the Invoice shall be noted on Topflight’s delivery receipt by the Purchaser at the time of delivery or the same shall be deemed waived by Purchaser. If delivery is by common carrier, all goods shall be delivered FOB Topflight’s plant and title and risk of loss to the Product(s) hereunder shall pass from Topflight to Purchaser when they are placed with the common carrier. If delivery is to be made to a job site specified by the Purchaser and upon delivery at the job site, there is not present at the job site an employee of the Purchaser authorized to accept delivery and sign a delivery document evidencing delivery of material as listed on the Invoice, then Topflight reserves the right to deposit the material at the job site previously designated by the Purchaser without obtaining a signed receipt therefore, and Purchaser agrees to liability for payment of the Invoice as if it were signed by an authorized employee of Purchaser.
Purchaser hereby grants to Topflight a security interest (which shall be deemed a purchase money security interest) in all Product(s) provided to Purchaser by Topflight to secure payment by Purchaser for such Product(s). In the event of nonpayment by Purchaser of any debt, obligation or liability now or hereafter incurred or owing by Purchaser to Topflight, Topflight shall have all rights of, and all of the remedies available to, an unpaid secured creditor under the Uniform Commercial Code as enacted by the Commonwealth of Pennsylvania, and all other rights and remedies available at law or in equity. Purchaser agrees, and, to the extent permitted by law, Topflight is authorized to, execute and file whatever documents are necessary, including security agreements or financing statements, to evidence and perfect the security interest granted by this paragraph.
Cancellation; Change Orders
An Invoice cannot be modified or cancelled by Purchaser without the written consent of Topflight. In the event of a permitted termination, Purchaser shall pay to Topflight a cancellation fee in an amount equal to Topflight’s actual out-of-pocket costs incurred plus ten percent (10%). In the event that Purchaser has made any payment prior to a permitted cancellation, Topflight may retain such funds as necessary to apply toward the aforementioned cancellation fee. Topflight expressly reserves the right to cancel the Invoice based upon any of the following occurrences: (a) the insolvency or financial condition of Purchaser; (b) the appointment of or taking possession of any Purchaser’s assets by a trustee, receiver, creditor or any third party; (c) Purchaser’s transfer of substantially all of its assets; or (d) any other default under the Invoice or these Terms and Conditions.
Any excise, levies or taxes which Topflight is required to pay or collect, under any existing or future law or regulation (domestic or foreign), upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Product(s) covered hereby, shall be for the account of the Purchaser, and Purchaser agrees to pay the amount thereof to Topflight upon request.
In the event of default or breach by Purchaser, Topflight may cancel any outstanding order(s) and declare all obligations immediately due and payable, and shall in addition have all remedies afforded by the Uniform Commercial Code as enacted by the Commonwealth of Pennsylvania, and any other applicable law. In addition, Topflight shall be entitled to reimbursement of all expenses incurred in exercising any remedies available to it, including reasonable attorneys’ fees and legal expenses.
Governing Law, Jurisdiction and Venue
The parties agree that all matters arising out of or related to the Invoice and these Terms and Conditions shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to the conflict of laws provisions thereof, and should any dispute arise, the parties agree that the Court of Common Pleas of York County, Pennsylvania or the Middle District of Pennsylvania shall have sole and exclusive jurisdiction over any claims filed in connection with this matter and Purchaser hereby irrevocably consents to the jurisdiction of the aforementioned courts. In the event that Topflight must retain counsel to collect any outstanding amounts due, the Purchaser shall pay Topflight’s attorneys’ fees and costs.
Entire Agreement; Modification
These Terms and Conditions and Invoice constitute the entire agreement between Topflight and Purchaser. No modification hereof shall be of any force and effect unless in writing and signed by the party claimed to be bound thereby. A waiver of any of the terms of the Invoice or these Terms or Conditions shall not be deemed a continuing waiver, but shall apply solely to the instance to which the waiver is directed. If any portion of these Terms and Conditions is declared to be unenforceable by a court of competent jurisdiction, all other portions shall be considered to be valid and enforceable to the extent that they are reasonably severable.