LINDENMEYR BOOK PUBLISHING
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Terms”) apply to all sales by Lindenmeyr Book Publishing (“Seller”) to its Customers (each, a “Customer”). All Customer orders are expressly subject to these terms and conditions. No quotation or agreement is binding upon Seller unless confirmed by Seller’s written acknowledgment or confirmation (an “Acknowledgement”), which states the only obligations to which Seller is bound. Unless Customer objects promptly upon its receipt, such Acknowledgment, together with these Terms, shall constitute the entire agreement between Seller and Customer and there are no understandings, agreements or representations, express or implied, not specified herein or therein.
Price : The price for the sale of any merchandise shall be Seller’s price prevailing at time of shipment unless otherwise specifically stated on the face of an Acknowledgment. The price, if any, set forth on any Acknowledgment is the price in effect as of the date of such Acknowledgment and is included thereon for information purposes only. Any such agreement as to pricing or price protection is based on manufacturer’s then current price and price protection guidelines, which are subject to change. Notwithstanding any such agreement any increase in the cost to Seller of the purchase and delivery of the merchandise, whether by way of a change in manufacturer’s price, imposition of surcharge, change in freight policies or costs, tariffs, duties or otherwise, including with respect to orders previously placed and accepted, will result in a correlative increase in the price payable by Customer.
Taxes and Additional Changes : All federal, state, local and other governmental taxes or other charges imposed upon the manufacture, sale, transportation, delivery and/or use of any merchandise sold to Customer by Seller are the responsibility of, and shall be paid by Customer and shall be added to the prices provided for in the Acknowledgement and the Terms.
Terms of Payment : Terms of payment are as stated on the face of an Acknowledgment and run from date of invoice, not date of shipment or delivery.
Delivery, Title and Contingencies : Except as otherwise provided in an Acknowledgement, shipments of merchandise from mill of manufacturer shall be delivered to Customer f.o.b. mill, less prevailing freight allowance, if any, accorded to Seller by manufacturer, and title to merchandise from any such mill and all risk of loss or damage shall thereupon pass to Customer. Shipments of merchandise from Seller’s warehouses shall be subject to imposition by Seller of delivery charges, and title to merchandise from any such warehouse and all risk of loss or damage shall pass to Customer upon delivery to it at the location specified in an Acknowledgment or at such other location as Customer and Seller may agree. Any date for shipment or delivery specified on the face of any Acknowledgment is only an estimated date, and delivery by Seller shall be timely if made within ten (10) days thereof, or, if Seller orally or in writing notifies Customer prior to the end of said ten day period of a delay in shipment from the mill, delivery shall then be deemed timely if made within ten (10) days after the date of shipment from the mill. Seller shall not be liable to Customer or to any other person for loss or damage of any kind because of its inability or failure to make timely delivery of merchandise as a result of failure of Seller’s suppliers to make adequate or timely delivery of the merchandise or if performance by Seller is rendered impracticable or commercially unreasonable (including as a result of increased expense), as a result of failure of Seller’s suppliers to make adequate or timely delivery of the merchandise; strikes, lockouts or other labor disputes; war, riot, armed conflict, insurrection, embargo or blockade; statute, regulation, order or any other action of any governmental authority; transportation delay or rejected mill runs; fire, flood, accidents, acts of God, or any other circumstances beyond Seller’s control. Quantities so affected may be eliminated from the amount ordered at the discretion of the party affected without liability and Seller may allocate its available supply among its purchasers, but the order shall remain otherwise unaffected
Tolerances : Over-runs and under-runs shall be accepted by Customer in accordance with the specific policies of the manufacturer of the merchandise, and in the absence of any specific policy, usage of trade shall control.
Claims and Returns : SELLER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT THAT ANY MERCHANDISE DELIVERED SHALL BE OF THE MANUFACTURER’S STANDARD QUALITY FOR MERCHANDISE OF SUCH KIND. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND SELLER’S SOLE RESPONSIBILITY HEREUNDER IS AS STATED. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR LOSS OF USE), OR FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE SHIPMENT INVOLVED, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS, ANY ACKNOWLEDGEMENT OR ANY OTHER AGREEMENT BETWEEN SELLER AND CUSTOMER. ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THESE TERMS, ANY ACKNOWLEDGEMENT OR SUCH ANY OTHER AGREEMENT INCLUDING ANY WARRANTIES HEREUNDER, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY.
No Merchandise shall be accepted for return prior to inspection by Seller’s authorized representative, and in no event will a return of allegedly defective merchandise be acceptable for credit if the containers, wrappers, or labels are defaced, damaged, removed or covered, or if the merchandise is not in its original container. Credit will only be allowed on defective merchandise returned within sixty (60) days of the date of delivery, and all returned merchandise is subject to inspection by Seller. No claim will be allowed by Seller after the merchandise either has been cut, printed or written upon, or otherwise altered from its original form.
Miscellaneous : No provision hereof or of any Acknowledgment may be modified, amended or rescinded unless by a written instrument executed by Seller and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or any Acknowledgement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods. Neither this Acknowledgment, nor any right thereunder, may be assigned, either in whole or in part, by customer without the prior written consent of Seller.