TERMS AND CONDITIONS OF SALE
Unless in direct conflict with a current and active Master Agreement (“MA”) with the Buyer, to which the MA will prevail; FCG, and its subsidiaries, makes all sales subject to the following terms and conditions:
1. Acceptance of Terms and Conditions. FCG's acceptance of all purchase orders is expressly conditioned upon Buyer's consent to, either express or implied, these terms and conditions, and FCG will not accept, and expressly rejects, any other terms and conditions (whether written or oral) originating from Buyer that purport to modify, add to, or otherwise vary the terms and conditions stated herein. Buyer's acceptance of these terms and conditions shall be indicated by any of the foregoing: (a) Buyer's written acknowledgement or other act or expression of acceptance, (b) Buyer's offer to purchase products from FCG, or (c) Buyer's acceptance of shipment from FCG.
2. Shipment/Title/Risk of Loss/Taxes. Title to the product shall pass to Buyer upon delivery of product to the common carrier or Buyer's representative at FCG's dock or any other location directed by Buyer. All risk of loss, damage, theft or destruction to the product shall be borne by Buyer at F.O.B. shipping point. No such loss, damage, theft or destruction to the product, in whole or in part, shall impair the obligations of Buyer under this agreement, all of which shall continue in full force and effect. FCG shall not be liable for any shipping delays. Buyer shall bear all applicable federal, state, municipal or other governmental tax, as well as any applicable import or customs duties, license fees and similar charges, however designated or levied on the sale of products (or delivery thereof) or measured by the purchase price paid for the products.
3. Shortages/Rejection of Delivery. All claims for shortages or rejection of delivery must be made by Buyer to FCG in writing within a period of forty-eight (48) hours from receipt of product and must state in reasonable detail the grounds therefor. Unless such notice is given within the stated period of time, Buyer agrees that it shall be conclusively presumed that Buyer has fully inspected the product and acknowledged that NO shortage or grounds for rejection exists.
4. Security Interest. Buyer grants FCG a security interest in all products sold hereunder and to all products now or hereafter acquired by Buyer from FCG, and to any proceeds thereof, until the purchase price and any other amounts due to FCG have been paid in their entirety. Buyer agrees promptly to execute any financing statement or other documents requested by FCG in order to protect FCG's security interest. Upon any default by Buyer of any of its obligations to FCG, FCG shall have all the rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive.
5. Payment. Unless otherwise agreed in writing by FCG, all credit purchases must be paid in accordance with FCG's normal terms of sale, which are due upon receipt. All past due amounts are subject to a one and a half percent (1.5%) monthly financing charge or the maximum permissible under applicable law. All drafts dishonored for any reason shall be assessed a twenty-five dollar and 00/100 ($25.00) service charge. In the event that Buyer stops payment on any drafts issued to FCG, for any reason, Buyer hereby recognizes that FCG would suffer damage, the exact amount of which cannot be determined with certainty, and Buyer shall pay FCG liquidated damages in the amount of five hundred and 00/100 ($500) for each such draft in addition to the purchase price. Buyer may not take anticipated credit memos before FCG issues the credit on account. Payment using an anticipated credit memo before FCG has issued credit, will be considered short payments and may result in delayed shipments. It is not our policy to issue refunds. Credit memos must be used on current outstanding balance or future purchases. In the event that Buyer utilizes a credit card to purchase products, Buyer agrees not unnecessarily to dispute such charges and further agrees to use best efforts to resolve any good faith dispute. FCG has no continuing obligation to deliver products on credit. FCG may extend credit to Buyer for purchase of products to the extent Buyer may be eligible under the applicable FCG’s programs and consistent with Buyer’s credit capability, as determined by FCG from time to time in FCG’s absolute discretion. In the event that Buyer’s account become dormant with FCG for more than six (6) months and is in a credit balance, Buyer agrees that FCG may impose due to dormancy a monthly administrative charge for inactivity at a rate of the lesser of ten dollars and 00/100 ($10) a month or the credit balance outstanding on Buyer’s account.
6. Returns. All product returns, for whatever reason, must be accompanied by an RMA from FCG. All returns are subject to in-house credit only. Shipping costs for any authorized return to FCG shall be the responsibility of the Buyer. The time allowed for returns is determined by product manufacturers.
7. No Warranties by FCG. Product warranties, if any, are provided by the manufacturer or publisher of the Products. FCG makes no warranties whatsoever. IN NO EVENT SHALL FCG BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OF DAMAGES OF ANY KIND OR NATURE ALLEGED TO HAVE RESULTED FROM ANY BREACH OF WARRANTY. FCG DOES NOT WARRANT THE MERCHANTABILITY OF THE PRODUCTS OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. FCG SHALL HAVE NO DUTY TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PURCHASER FROM AND AGAINST ANY OR ALL DAMAGES AND COST INCURRED BY PURCHASER ARISING FROM THE INFRINGEMENT OF PATENTS OR TRADEMARKS OR THE VIOLATION OF COPYRIGHTS BY PRODUCTS. FCG MAKES NO WARRANTY, EXPRESS OR IMPLIED.NOTWITHSTANDING ANY OTHER TERMS OR CONDITIONS TO THE CONTRARY, FCG’S LIABILITY UNDER THIS SECTION SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCT.
8. Events of Default. Buyer shall be in default under this agreement upon the happening of any of the following events or conditions: (a) default by Buyer on payment of any installment, invoice, bill or any other indebtedness or obligation now or hereafter owed by Buyer to FCG, (b) default in the performance of any obligation, covenant or liability contained in this agreement or any other agreement or document between Buyer and FCG, (c) any inaccuracy with respect to any warranty, representation or statement made or furnished by Buyer, and (d) dissolution, termination of existence, insolvency, business failure, or discontinuance of Buyer's business or the appointment of a receiver for any part of the property of, or assignment for the benefit of creditors by, Buyer or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against Buyer or the attachment, levy, seizure or garnishment of any of Buyer's property, rights, assets (contingent or otherwise) or the product, (e) any change, however, arising, in the ownership or management of Buyer, unless prior to the occurrence of such change in ownership or management FCG shall have been notified of the change in writing and Buyer shall have obtained FCG’s prior written approval to such change.
9. Remedies of FCG.
A. In General. Upon the occurrence of any event of default or any time thereafter, FCG may, at its option and without notice to Buyer, exercise one or more of the following remedies as FCG, in its sole discretion, shall elect: (1) demand or, without demand, sue for amounts then due or thereafter accruing under any invoice, bill or other documentation evidencing Buyer's indebtedness, (2) suspend deliveries as to any or all product, (3) take possession of the product wherever found and for this purpose enter upon any premises of Buyer and remove the product, without court order or other process of law, without any liability for damages, suit, action or other proceeding by Buyer as a result of such entry and/or removal, (4) cause Buyer, at its expense, to promptly return the product to FCG in good, like-new condition, (5) sell the goods, or any part thereof at public or private sale (for cash or credit) at such time or times as FCG shall determine, free and clear of any rights of Buyer, and if notice thereof is required by law, any notice in writing of any such sale by FCG to Buyer not less than ten days prior to the date thereof shall constitute reasonable notice thereof to Buyer, and (6) exercise any and all rights accruing to FCG under any applicable contract or law upon a default by Buyer.
B. Mitigation of Damages. Should FCG repossess any of the product because of Buyer's default, FCG may make a commercially reasonable effort to sell such product at a reasonable price to a third party, provided, however, that FCG shall have no obligation to actively seek out and solicit potential third party Buyers for said products.
C. Collection Costs. In the event of any default on the part of Buyer hereunder, Buyer shall pay any and all collection costs, including reasonable attorneys' fees and costs, incurred by FCG.
D. Rights and Remedies Not Exclusive. No right or remedy conferred upon or reserved to FCG by this agreement shall be exclusive of any other right or remedy provided herein or by law. All rights or remedies conferred upon FCG by this agreement and by law shall be cumulative and in addition to any other right or remedy available to FCG.
10. Time of the Essence. Time is of the essence of this agreement.