1. GENERAL PROVISIONS
Comer Industries, Inc. is herein referred to as "Comer" and the customer or person or entity purchasing goods ("Products") from Comer is referred to as the "Purchaser." These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms and Conditions. These Terms and Conditions, any price list or schedule, quotation, acknowledgment or invoice from Comer relevant to the sale of the Products and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of the agreement governing the sale of Products by Comer to Purchaser. Purchaser's acceptance of the Products will manifest Purchaser's assent to these Terms and Conditions. No change, modification, rescission, discharge, or waiver of these terms and conditions shall be binding upon the Comer unless made in writing and signed on its behalf by a duly authorized representative of Comer. No conditions, usage of trade, course of dealing or performance purporting to modify, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Comer's receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Purchaser, such acceptance is expressly conditional upon Purchaser's assent to any additional or different terms set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Comer in any quotation, acknowledgment or publication are subject to correction. Comer reserves the right in its sole discretion to refuse orders.
Unless otherwise specified in writing by Comer, the price quoted or specified by Comer for the Products shall remain in effect for thirty (30) days after the date of Comer's quotation or acknowledgment of Purchaser's order for the Products, whichever occurs first, provided an unconditional authorization from Purchaser for the shipment of the Products is received and accepted by Comer within such time period. If such authorization is not received by Comer within such thirty (30) day period, Comer shall have the right to change the price for the Products to Comer's price for the Products at the time of shipment. All prices are exclusive of taxes, transportation and insurance, which are to be borne by Purchaser.
Any current or future tax or governmental charge (or increase in same) affecting Comer's costs of production, sale, or delivery or shipment, or which Comer is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Products, shall be for Purchaser's account and shall be added to the price.
Unless otherwise specified by Comer, terms are net thirty (30) days from date of Comer's invoice in U.S. currency. If any payment owed to Comer is not paid when due, it shall bear interest, at the prime rate fixed by Bank of America, Charlotte, North Carolina as of the date payment is due and shall accrue from the date on which it is due until it is paid. In the event Purchaser fails to make any payment when due, Comer shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with Purchaser. Purchaser shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. Should Purchaser's financial responsibility become unsatisfactory to Comer, cash payments or security satisfactory to Comer may be required by Comer for future deliveries and for the Products theretofore delivered. If such cash payment or security is not provided, in addition to Comer's other rights and remedies, Comer may discontinue deliveries.
Purchaser may request changes or additions to the Products consistent with Comer's specifications and criteria. In the event such changes or additions are accepted by Comer, Comer may revise the price and dates of delivery. Comer reserves the right to change designs and specifications for the Products without prior notice to Purchaser, except with respect to Products being made to order for Purchaser. Comer shall have no obligation to install or make such change in any Products manufactured prior to the date of such change.
Unless otherwise agreed in writing by Comer, orders under this agreement may not be canceled by Purchaser for any reason.
Unless specifically provide otherwise, all shipments are F.O.B. Comer's shipping point. While Comer will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Comer, all shipping dates are approximate and not guaranteed. Comer reserves the right to make partial shipments. Comer, at its option, shall not be bound to tender delivery of any Products for which Purchaser has not provided shipping instructions and other required information. If the shipment of the Products is postponed or delayed by Purchaser for any reason, Purchaser agrees to reimburse Comer for any and all storage costs and other additional expenses resulting there from. Any claims for shortages or damages suffered in transit are the responsibility of Purchaser and shall be submitted by Purchaser directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery. Purchaser shall inspect Products delivered to it by Comer immediately upon receipt, and, any course of dealing to the contrary notwithstanding, failure of Purchaser to give Comer notice of any claim within 30 days after receipt of such Products shall be an unqualified acceptance of such Products.
Comer shall not be liable for delays in performance or for non-performance due to acts of God; acts of Purchaser; war; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Comer's reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Comer upon notice to Purchaser in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Comer determines that its ability to supply the total demand for the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Comer may allocate its available supply of the Products or such material without obligation to acquire other supplies of any such Products or material among itself and its purchasers on such basis as Comer determines to be equitable without liability for any failure of performance which may result therefrom.
Except as otherwise provided with respect to warranty defects in Section 10, advance written permission to return Products must be obtained from Comer's customer service department. Such Products must be current, unused, catalogued Products and must be shipped, transportation prepaid, to the Comer's specified return location. Returns made without proper written permission will not be accepted by Comer. Credit or exchange for such returned Products will be at the billing price or current price, whichever is lower, from which will be deducted an inspection, restocking and repacking charge and the cost of any reconditioning. Comer reserves the right to inspect Products prior to authorizing return.
Subject to the limitations of Section 11, Comer warrants that the Products manufactured by Comer will be free from defects in material and workmanship under normal use and regular service and maintenance for a period of one year from the date of shipment of the Products by Comer, unless otherwise specified by Comer in writing.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Comer's), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Comer.
Comer shall indemnify the Purchaser from any liability the Purchaser incurs for any infringement of United States apparatus patents by the Products manufactured by Comer. The Purchaser shall indemnify Comer from any liability Comer may incur because of claims of infringement of United States process patents in the use of the Products furnished hereunder.
In connection with the transactions contemplated by this agreement, Purchaser is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of the United States and of any applicable state, foreign and local governmental body in connection with the purchase, receipt, use, transfer and disposal of the Products.
Comer's prints and drawings (including without limitation, the underlying technology) furnished by Comer to Purchaser in connection with this agreement are the property of Comer and Comer retains all rights, including without limitation, exclusive rights of use, licensing and sale. Possession of such prints or drawings does not convey to Purchaser any rights or license, and Purchaser shall return all copies (in whatever medium) of such prints or drawings to Comer immediately upon request therefore.
Purchaser shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Comer, and any such assignment, without such consent, shall be void.
The validity, performance, and all other matters relating to the interpretation and effect of this agreement will only be governed by the law of the state of North Carolina. Purchaser and Comer agree that the proper venue for all actions arising in connection herewith will only be in Mecklenburg County, North Carolina and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement.