General Terms and Conditions
(a) This sales order is an offer by LCN GLOBAL, LLC D/B/A AMSTON TOOL COMPANY a CONNECTICUT LIMITED LIABILITY COMPANY (the "Seller") for the sale of the goods specified on the face of this sales order ("Goods") to the party to whom the sales order is addressed (the "Buyer") in accordance with and subject to these terms and conditions (the "Terms"; together with the terms and conditions on the face of the Order Invoice, the "Order" or “Order Invoice"). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Buyer’s acceptance to these Terms and Conditions of the Order. These Terms prevail over any terms or conditions contained in any other documentation, except with respect to any Supplemental Agreement(s), proffered by Seller in connection with any Order Invoice sent to Buyer, which is mutually signed and executed by both Buyer and Seller, and whereby such Supplemental Agreement, together with the Order Invoice shall be interpreted and understood by the Parties, and any to the extent necessary any court, mediator, arbitrator or other adjudicating body as follows: To extent of any conflict between (i) the General Terms and Conditions and (ii) where the Order Invoice and/or such Supplemental Agreement are more specific, then the Order Invoice and/or Supplemental Agreement shall Control, and (iii) in any and all instances shall expressly exclude any of Buyer’s general terms and conditions of purchase or any other document proffered by Buyer in connection with this Order, unless mutually agreed to in writing, signed and executed by the Buyer and Seller, and whereby for such an Agreement to be given effect shall require an Officer of LCN Global, LLC to have caused their signature to appear adjacent to any such clause that therein would result in the nullification, limitation or modification, in any way the, collective legal effect of any or all of these Terms and Conditions, the Supplemental Agreement proffered by Seller in connection with an Order Invoice, and the Order Invoice itself, as stated therein.
(b) These Terms also apply to any repaired or replacement Goods provided by Seller hereunder.
(c) Seller is not obligated to any minimum sales or future sale obligations under this Order.
- Acceptance. This Order is not binding on Seller until Buyer accepts the Order in writing. Seller may withdraw the Order any time before it is accepted by Buyer.
- Delivery Date. Seller shall deliver the Goods promptly after receiving Buyer’s order and payment (the "Delivery Date"). Delivery dates are estimated and not a guarantee of a particular delivery date. Seller shall not be liable for a failure or delay in shipment.
- Quantity; Variation. Seller reserves the right to deliver a lesser quantity than Goods ordered, based upon available stock and supplies. Buyer shall accept the delivery of Goods at the reduced quantity, and the Price for the Goods shall be adjusted on a pro rata basis. Furthermore, unless otherwise specified on the Order Invoice or Supplemental Agreement terms, Goods are subject to variations and deviations in respect to size, dimensions, weight, uniformity, composition, properties, internal conditions, and quality.
- Delivery Location. All Goods shall be delivered to the address specified on the Order Invoice (the "Delivery Location") during Seller's normal business hours or as otherwise agreed by Seller.
- Shipping Terms. Unless otherwise stated or agreed to on the Order Invoice, or agreed to by Buyer and Seller: (i) delivery shall be made DAP Delivery Location (in accordance with incoterms 2010) or in accordance with the terms on the face of this order.(ii) Seller shall incur the cost of domestic ground shipping and insurance. (iii) Seller’s obligation to ship Goods to Buyer shall be via a “Ground” carrier, such as UPS Ground, or FedEx Ground (“Standard Shipping”). However, if at any time prior to Seller shipping Goods to Buyer, Buyer wishes Seller to ship Goods via Air or Express carrier (“Expedited Shipping”), Seller may, at its discretion, cooperate with Buyer to make such alternative shipping arrangements, and to the extent Seller chooses to accommodate Buyer’s alternative shipping arrangement request, Buyer agrees that it shall be responsible for any additional expenses associated therein, and that such arrangements shall be subject to the following additional terms:
- If Buyer elects alternative shipping arrangement that is not arranged for by the Seller, and under Seller’s account with a common carrier, title and risk of loss of all goods shipped in such a manner shall be deemed to have transferred FOB at the location where the Goods are transferred from Seller to Buyer’s elected delivery carrier.
- Buyer shall prepay Seller, in full, any and all expenses borne by Seller that are associated with the alternative shipping arrangement, prior to Seller shipping the Goods to Buyer. Such prepayment may be subject to further true-up and reimbursement, three (3) business days upon Buyer’s receipt of such True-Up from Seller, in the event Seller decides, which it may do at its sole discretion, to advance any additional or unforeseen expenses, with or without Buyers pre-approval.
- Buyer agrees that, unless otherwise expressly agreed to in writing and signed by the parties, under no circumstances shall Buyer’s election to waive its rights to Standard Shipping, to the extent such Shipping is included in the Order Invoice unit Price, and electing instead to incur the cost of an alternative shipping arrangement, including, but not limited to, Expedited Shipping or Buyer arranging pickup at Seller’s designated location, result in any right or claim by Buyer to seek a refund, credit, rebate or other form of price reduction or compensation, due to the fact that Seller did not incur the Standard Shipping Costs as contemplated in the original Order Invoice, due to Seller’s willingness or cooperation with Buyer’s request for such alternative shipping arrangement.
- Title and Risk of Loss. Unless otherwise agreed, Seller shall bear risk of loss or damage to the Goods until Title passes. However, in the event an alternative shipping arrangement is agreed to by the Parties, which may be done at Seller’s sole discretion, whereby Seller is not arranging for the delivery of any Goods pursuant to Seller’s contracts/accounts based on Seller’s then-existing common carrier relationships, pursuant to such contracts/accounts, title and risk of loss shall be FOB Seller’s pick-up location with title and risk of loss passing to Buyer upon transfer by Seller to Buyer’s delivery carrier. Seller shall bear risk of loss or damage to the Goods until Title passes.
- Packaging; Returns. Goods shall be packed for shipment according to Seller’s customary practices, and which shall be subject to change at any time and without notice. Any Unit of the Goods that, upon inspection by Buyer, in accordance with Section 10 of these Terms & Conditions, may be either replaced, refunded or credited towards a future order, at Seller’s discretion.
- Amendment and Modification. No change to this Agreement is binding upon Seller unless it is in writing, specifically states that it amends this Agreement and is signed by an authorized representative of Seller.
- Inspection. Buyer shall inspect the Goods on the Delivery Date and shall notify Seller no later than the end of the following business day from when the Goods were received by Buyer if any Goods are nonconforming or defective. Otherwise, Buyer shall be deemed to have accepted all Goods.
- Price. The price of the Goods is the price stated in the Order (the "Price"). Unless otherwise specified in the Order Invoice, or any Supplemental Agreement terms, the Price includes all packaging, insurance, customs duties and fees, except that all Sales & Use, excise or other similar state taxes shall be excluded from the price, unless separately stated on the Order Invoice.
- Sales and Use Taxes. Buyer shall be responsible for any federal, state, county or municipal sales tax, property tax, excise tax or similar charge, or other tax assessment (other than Seller’s income taxes) to the extent such taxes are assessed or charged on the sale of the Products sold by Seller to Buyer, pursuant to this Agreement, shall be paid by Buyer. Buyer shall provide Seller with an appropriate resale or other applicable exemption certificate, and shall indemnify and hold harmless Seller, in the event Seller is assessed any such taxes by any government taxing authority.
- Cancellations: Buyer shall not change, cancel or reduce its Order, or suspend delivery(ies) of Goods, except upon Seller’s prior written consent (which Seller may withhold in its sole discretion) and upon terms which indemnify Seller against all loss. Seller reserves the right to cancel any order at any time prior to shipping Goods to Buyer, and without incurring liability so long as Buyer is provided a refund of any payments for Goods not fulfilled after being notified of such cancellation. Seller’s right to cancel shall not be limited for any reason including, but not limited to situations where Seller accepted offer where the goods quoted in such Order were not in-stock or ready to ship, from Seller’s location at the time order was placed, and without regard as to whether: (i) Seller knew the Goods were or were not in stock at the time the Seller accepted the order, (ii) the Seller failed to disclose the Goods were not in stock at the time the Order was accepted, or (iii) Seller had a mistaken belief, no matter reasonable or unreasonable, that the Goods were in stock at the time Seller accepted the order or that the Goods would soon be in stock shortly after the order was accepted.
- Payment Terms.
- Buyer shall prepay for all Goods ordered. Seller shall have no obligation to deliver Goods unless and until fully paid.
- If Buyer has placed a deposit for Goods, in accordance with a Supplemental agreement, the deposit must be made before the order is placed, pursuant to the terms of the Supplemental agreement. Payment shall be due in full once goods are available for shipment by Seller, and Seller shall only be obligated to deliver Goods once full payment has been received by Seller.
- All payments hereunder must be in US dollars and made by wire transfer, unless otherwise agreed in writing by both parties. If both parties agree to a Credit Card payment, which shall be stated on the Order Invoice, Buyer will be responsible for a 3.5% surcharge fee along with any other processing fees.
- To the extent applicable to any transaction where Seller has expressly agreed to offer Credit Terms, or to the extent Seller has expressly agreed, in writing signed by the Parties, to ship Goods prior to payment:
- In the event Seller believes that Buyer’s financial condition compromises the ability to make timely payment, Seller may delay or postpone the delivery of Goods and condition shipment of Goods on full or partial advance payment or letter of credit, all in Seller’s sole discretion.
- All unpaid Order Invoices will be charged (i) a 1.5% monthly late fee plus (ii) 1.5% monthly interest on unpaid amounts, such charges not to exceed the maximum charge permitted by law.
- Buyer hereby grants to Seller, and Seller hereby reserves, a security interest in the Goods to secure Buyer’s obligation to fully pay the Order Invoice amount. Buyer agrees to cooperate in all respects in order that Seller may perfect such security interest. Seller may, in its discretion, file a UCC-1 Financing Statement (or equivalent) to perfect its security interest. The security interest shall be deemed released upon full payment received by Seller.
- General Indemnification. Buyer shall defend, indemnify and hold harmless Seller and Seller's parent company, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, members, partners and employees and Seller's customers and clients (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods purchased by Buyer or Buyer's negligence, willful misconduct or breach of the Terms. Buyer shall not enter into any settlement without Seller's or Indemnitee's prior written consent.
- Intellectual Property Indemnification. Buyer shall, at its expense, defend, indemnify and hold harmless Seller and any Indemnitee against any and all Losses arising out of or in connection with any claim that Seller's or Indemnitee's use or possession of the Goods infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property right of any third party. In no event shall Buyer enter into any settlement without Seller's or Indemnitee's prior written consent.
- Insurance. During the term of the Order and for a period of 2 years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $10,000,000 with financially sound and reputable insurers. Upon Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with thirty (30) days' advance written notice in the event of a cancellation or material change in Buyer's insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller or the Indemnitees.
- Compliance with Law. Buyer is in compliance with and shall comply with all applicable laws, including state, federal and foreign PRICE GOUGING laws, regulations and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Buyer shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
- Termination. Seller may terminate this Order, in whole or in part, with or without cause, for undelivered Goods on three (3) days prior written notice to Buyer and, if without cause, timely refunding Buyer’s Deposit. In addition to any remedies that may be provided under these Terms, Seller may terminate this Order with immediate effect upon written notice to the Buyer, either before or after the acceptance of the Goods, if Buyer has not performed or complied with any of these Terms, in whole or in part. If the Buyer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Seller may terminate this Order upon written notice to Buyer.
- Limitation of Liability. Nothing in this Order shall exclude or limit (a) Buyer's liability under Sections 15, 16 and 22 hereof, or (b) Buyer's liability for fraud, personal injury or death caused by its negligence or willful misconduct. Seller’s maximum liability to Buyer shall not exceed the lesser of (a) $5,000 or (b) the amount paid by Buyer to Seller for the Goods. In no case shall Seller be liable to Buyer for any consequential, special, incidental, indirect, exemplary or punitive damages or losses, or any loss of profits, revenues, opportunities, goodwill or capital.
- Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Confidential Information. All non-public, confidential or proprietary information of the Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
Except as otherwise agreed to by Seller in writing, Buyer shall, and shall cause its directors, officers, consultants, advisors, agents, employees and representatives to, treat the existence of and the terms of this Agreement as strictly confidential except (i) Buyer may disclose this Agreement and its terms to Buyer’s tax, legal or financial advisors, (ii) as necessary to enforce Buyer’s rights hereunder or (iii) if Buyer is compelled to disclose such information by judicial or administrative process or, based upon the advice of legal counsel, by other requirements of applicable Law.
- Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of god or the public enemy, government restrictions (including moratoria), floods, fire, earthquakes, explosion, epidemic, pandemic, bacterial or viral infection, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances. “Force Majeure Event” expressly includes the novel Coronavirus (COVID-19) pandemic in effect at the time of this Order. Seller shall use reasonable efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than five (5) business days, Seller may terminate this Order immediately by giving written notice to Buyer.
- Assignment. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Buyer of any of its obligations hereunder. Seller may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Buyer's prior written consent.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
- No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Buyer’s Duties; Resale.
(a) By accepting delivery of any Seller product, Buyer agrees to use that product only for its intended use. Buyer assumes, without limitation, all risk of injury, damage, or otherwise arising out of any use other than the intended use of a Seller product.
(b) Buyer agrees to assume all liability arising out of any use by any third party who has directly or indirectly obtained a Seller product from Buyer. In addition, Buyer agrees to indemnify, defend, and hold harmless Seller against all inquiries, claims, damages, actions, causes of action, injuries, and litigation arising out of any use other than the intended use of a Seller product purchased by Buyer or any of its customers or clients.
(c) Without limiting Seller’s rights or remedies, if Buyer fails to fulfill the terms of payment on any Order, Seller may defer further shipments until such payments are made, or may at Seller’s sole option, cancel the Order. Seller reserves the right, even after partial shipment on account of any Order, to require from Buyer satisfactory security for performance of Buyer’s obligations, and refusal to furnish such security will entitle Seller to suspend shipments until such security is furnished and, at Seller’s option, to cancel the Order.
- Jurisdiction; Arbitration; Waiver of Jury Trial.
ALL DISPUTES SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH CONNECTICUT LAW, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. SELLER AND BUYER WILL SUBMIT ALL DISPUTES TO BINDING ARBITRATION IN THE STATE OF CONNECTICUT, COUNTY OF TOLLAND, BEFORE A SINGLE ARBITRATOR OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE ARBITRATOR SHALL BE SELECTED BY APPLICATION OF THE RULES OF THE AAA, OR BY MUTUAL AGREEMENT OF THE PARTIES. NO PARTY WILL CHALLENGE THE JURISDICTION OR VENUE PROVISIONS AS PROVIDED IN THIS SECTION. BOTH PARTIES WILL EQUALLY SHARE THE AAA EXPENSES, FEES, COSTS AND CHARGES.
IN ACCORDANCE WITH THIS SECTION, BOTH BUYER AND SELLER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND AGREE THAT ALL SUCH MATTERS SHALL BE RESOLVED SOLELY BY BINDING ARBITRATION.
- Non-Circumvention. Buyer agrees not to circumvent Seller’s relationship with its manufacturer in any way and will not make direct contact with Seller’s manufacturer for Buyer’s benefit, or the benefit of any other third-party.
- Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally-recognized overnight courier (e.g., FedEx), with all fees pre-paid, fax (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid), or electronically (as may be agreed upon by the parties). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party (or delivery refused), and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Limited Warranties.
- EXCEPT FOR ANY WARRANTIES EXPRESSLY PROVIDED IN WRITING FROM SELLER TO BUYER, SELLER HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER ACCEPTS ALL GOODS ‘AS-IS, WHERE-IS’, WITH ALL FAULTS.
- Seller warrants only that the Goods are as described and manufactured to specification as Makrite Sekura-N95. Final determination of the suitability of the Goods for use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall have no responsibility in connection with such suitability. Buyer assumes all risk and liability for loss, damage or injury to persons or property of Buyer or others arising out of the use or possession of any Goods sold by Seller to Buyer.
- Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order so as to have their intended effect, including, but not limited to, the following provisions: Indemnification, Insurance, Confidential Information, Jurisdiction, Arbitration, Non-Circumvention and Survival.
- Entire Agreement. Subject to the Applicability, Section 1 herein, These Terms and Conditions, together with the LCN Global, LLC Order Invoice, and/or any supplemental written agreements signed and executed by the parties and referencing therein these Terms and Conditions, contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.