Legal / Terms & Conditions of Sale
These terms and conditions of sales are the terms and conditions upon which Seneca Data Distributors, Inc (“SDDI”) makes all sales. SDDI will not accept any other terms and conditions of sale, unless Buyer and SDDI have executed a master contract which specifically supersedes and replaces these terms and conditions. Acceptance of all purchase requests is expressly made conditional upon Buyer’s assent, expressed or implied, to the terms and conditions set forth herein without modification or addition.
Buyer’s acceptance of these terms and conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer’s making of an offer to purchase product from SDDI; (b) Buyer’s written acknowledgment hereof; (c) Buyer’s acceptance of any shipment of any part of the items specified for delivery (the “Products”); or (d) any other act or expression of acceptance by Buyer. SDDI’s acceptance is expressly limited to the terms and conditions hereof in their entirety without addition, modification or exception, and any term, condition or proposals hereafter submitted by Buyer (whether oral or in writing) which is inconsistent with or in addition to the terms and conditions set forth hereon is objected to and is hereby rejected by SDDI. SDDI’s silence or failure to respond to any such subsequent or different term, condition or proposal shall not be deemed to be SDDI’s acceptance or approval thereof.
Unless otherwise agreed in writing, delivery shall be made in accordance with SDDI’s shipping policy in effect on the date of shipment. For all domestic transactions, unless otherwise stated on the front of the invoice, title to, and all risk of loss or damage with respect to the Products shall pass to Buyer upon delivery by SDDI to the carrier or Buyer’s representative at SDDI’s warehouse or plant. For all international transactions, the Product shall be sold on a delivered, insurance paid, duty and international freight unpaid basis. SDDI assumes no responsibility for charges attendant to Customs clearance in the country of delivery, customs duty, VAT or any other charges or taxes within the country designated for delivery by the Buyer. Title and risk of loss shall pass to the Buyer upon delivery to the port designated by the Buyer and prior to Customs clearance. Delivery is subject to the payment provisions set forth herein and to SDDI’s receipt from Buyer of all necessary information and documentation from Buyer including all import certificates, exemption and/or resale certificates, licenses and other documents as may be required from Buyer for export of the Product. Buyer shall promptly notify SDDI, in no event later than two (2) business days after delivery, of any claimed shortages or rejection as to any delivery. Such notice shall be in writing and shall be reasonably detailed, stating the grounds for any such rejection. Failure to give any such notice within such time shall be deemed an acceptance in full of any such delivery. SDDI shall not be liable for any shipment delays beyond the reasonable control of SDDI which affect SDDI or any of SDDI’s suppliers, including, but not limited to, delays caused by unavailability or shortages of Products from SDDI’s suppliers; natural disasters, acts of war; acts or omissions of Buyer; fire, strike, riot, or governmental interference; unavailability or shortage of materials, labor, fuel or power through normal commercial channels at customary and reasonable rate s; failure or destruction of plant or equipment arising from any cause whatsoever; or transport failures.
Price and Payment
Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated or levied on the sale of the Products (or the delivery thereof) or measured by the purchase price paid for the Products. (SDDI’s prices set forth on the front side of the invoice do not include such taxes, fees and charges.) Exemption certificates must be presented prior to shipment if they are to be honored. Unless otherwise specified, payment terms are COD. SDDI, at its discretion, may require reasonable advance assurances of payment through irrevocable bank letters of credit or otherwise. All unpaid invoices shall bear interest at an amount equal to 1-1/2% of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), commencing upon the date payment is due. Buyer’s failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of any one or more sales agreements. Notwithstanding any “net” payment provisions specified on the invoice, SDDI shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by SDDI at any time and without prior notice. SDDI retains (and Buyer grants to SDDI by submitting a purchase order – on paper or electronically through our order entry system) a security interest in the Products to secure payment in full and compliance with all sales agreements, and Buyer agrees to execute any additional documents necessary to perfect such security interest. In the event the sales invoice shall be placed by SDDI in the hands of an attorney for the purpose of collection, with or without litigation, or for the purpose of enforcing SDDI’s security interest in the Products, the Buyer agrees to pay any and all costs associated with such placement, including, wi thout limitation, attorney’s fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor’s rights proceedings. If a sale is to occur, or the Product is to be shipped, outside of the United States, Buyer acknowledges and agrees that the amount due SDDI is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence. Any payment by Buyer in local currency or the receipt by SDDI of local currency as a consequence of enforcement procedures against Buyer will be deemed an authorization for SDDI to use that local currency to purchase U.S. Dollars or, if such purchase is prohibited by local law, an authorization to purchase appropriate bonds or other instruments and export them from the Buyer’s country in order to convert the currency into U.S. Dollars and apply the proceeds to the payment of any amounts owed to SDDI by Buyer. Any deficiency as a result of conversion of payment into U.S. Dollars shall be the responsibility of Buyer.
Return of Products purchased hereunder, whether for stock balancing purposes or because such Products are claimed to be defective, shall be governed by SDDI’s Product Return policies as set forth in SDDI’s Sales Catalog in effect on the date of the invoice, or as otherwise provided by SDDI to Buyer in writing. SDDI reserves the right to modify or eliminate such policies at any time. In the event SDDI issues a return authorization to Buyer allowing Buyer to return Product to SDDI, Buyer will deliver the Product to SDDI’s address in the United States, if so required by SDDI, and Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes) as well as import or customs duties, license fees and similar charges, however designated or levied, on any replacement Product to be shipped by SDDI to Buyer.
Use of SDDI’s internet web site by Buyer is done at the sole risk of Buyer. At Buyer’s request, SDDI will provide an account name and password for the use of a specific agent of Buyer. Buyer shall request additional account names and passwords for each agent Buyer wishes to grant access to SDDI’s web site. Buyer is responsible for the proper safeguarding of these account names and passwords. SDDI shall not be held liable for the unauthorized use of account names and passwords. Buyer is responsible to notify SDDI in writing of any need to change the status of SDDI’s web site accounts/passwords. Account names and passwords for SDDI’s web site may be deactivated at any time at the sole discretion of SDDI. Orders entered via SDDI’s order entry system on SDDI’s web site shall carry the same weight and obligation as a written Purchase Order from Buyer.
These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by SDDI to Buyer and shall supersede all prior offers, negotiations, understandings and agreements. Unless Buyer and SDDI have executed a master contract which specifically supersedes and replaces the terms and conditions herein, it is expressly agreed that no prior or contemporaneous agreement or understanding, whether written or oral, shall contradict, modify, supplement or explain the terms and conditions contained herein. No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an authorized officer of SDDI in the United States. Any waiver by SDDI of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults hereunder. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder. Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the State of New York shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions. All sales agreements shall be deemed made in, and shall be governed by, the laws of the State of New York. Buyer consents to the personal jurisdiction of the state and federal courts located in Onondaga County, New York. The venue for any disputes arising out of any sales agreement shall be, at SDDI’s sole and exclusive option, Onondaga County, New York. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.