Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
A LUNT DESIGN, INC.
A Lunt Design, Inc. (“A Lunt”), offers to sell (each a “Sale”) its goods and services
(“Deliverables”) only on the terms and conditions herein, which, together with the
Specifications, as defined below, constitute the entire agreement between A Lunt and the
customer/buyer (“Buyer”).
1. Contract; Terms Exclusive. A Lunt’s offer to sell Deliverables shall be deemed
accepted by Buyer’s purchase of Deliverables, Buyer’s submission of a request for
proposal to purchase Deliverables, Buyer’s submission of a purchase offer to purchase
Deliverables, or any other act, communication or instrument of Buyer in response to
which A Lunt sells Deliverables to Buyer (each a “Purchase Order”). If Buyer’s Purchase
Order or other correspondence contains terms or conditions contrary to or in addition to
these terms and conditions, acceptance of the Purchase Order by A Lunt shall not be
construed as assent to such contrary terms and conditions or constitute a waiver by A
Lunt of any of these terms and conditions, and A Lunt expressly objects to any and all
different or additional terms and conditions of Sale which Buyer may set forth on any
Purchase Order, unless A Lunt specifically agrees to them in writing. THIS OFFER IS
EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. IF THIS FORM IS
DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY BUYER, A LUNT’S
ACCEPTANCE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE
TERMS AND CONDITIONS.
2. Deliverables Being Purchased. The specific nature of the Deliverables, the quantity
ordered, date(s) of delivery, price and other specifications applicable to the Deliverables
being purchased shall be as agreed upon by A Lunt and Buyer and are collectively
referred to herein as “Specifications”. Specifications shall not include any general terms
and conditions of purchase, even if referred to as part of Buyer’s Specifications. A Lunt
shall have no obligation to ensure that any Deliverables purchased from A Lunt meet any
unique specifications and/or other requirements unless set forth in Buyer’s Purchase
Order and expressly accepted by A Lunt in writing.
3. Price and Payment. The purchase price for the Deliverables shall be as set forth in the
Purchase Order. The purchase price shall be payable as set forth in the Purchase Order,
or, if payment terms are not stated, shall be payable within thirty (30) days of the date of
A Lunt’s invoice. If completion of manufacture or shipment is delayed by Buyer, A Lunt
reserves the right to regard date of completion as date of shipment and require payment
based upon percentage of completion. Deliverables held as a result of Buyer’s inability or
refusal to accept delivery are at the risk and expense of Buyer, including, without
limitation, all of A Lunt’s handling, reshipping, restocking and storage charges. Interest
at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum
interest allowable by law) shall be paid on the unpaid balance of any invoice not paid in
full by Buyer by the due date thereof. Such interest shall be in addition to the purchase
price. A Lunt may, without notice, change or withdraw extensions of credit at any time,
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in which event A Lunt may require cash payments and/or collateral security for account
balances. A Lunt may also refuse to sell to Buyer until overdue accounts are paid in full.
If Buyer fails to make any payment when due, in addition to all other sums payable
hereunder, Buyer shall pay A Lunt the reasonable costs and expenses incurred by A Lunt
in connection with any actions taken to enforce collection of such unpaid amounts and to
protect A Lunt’s rights, whether by legal proceedings or otherwise, including, without
limitation, reasonable attorneys’ fees, court costs and other expenses. A Lunt’s election
to not commence legal proceedings to enforce its right of collection shall not be deemed a
waiver by A Lunt of its rights to commence such proceedings in the future.
4. Changes to Price, Quantity and Delivery. Notwithstanding any other provision of
these terms and conditions, A Lunt may make changes to the Specifications (price,
quantity and delivery schedule of the Deliverables) if such changes are based on
unanticipated changes in supply chain availability and/or supply chain pricing, increases
in labor costs, changes in A Lunt manufacturing capacity, transportation unavailability or
any other factor that unexpectedly affects A Lunt’s cost and/or ability to produce the
Deliverables according to the Specifications.
5. Retained Security Interest. Buyer hereby grants A Lunt a security interest in any
Deliverables delivered to secure the payment of same until the entire purchase price has
been paid. The rights and remedies of A Lunt, as a secured party with respect to
Deliverables, shall be governed by the Uniform Commercial Code, or equivalent state
statute(s) where the Deliverables are located. Buyer authorizes A Lunt to execute and
record on behalf of Buyer such financing statements and other instruments as A Lunt may
deem necessary to perfect or protect its security interest.
6. Taxes. Unless otherwise agreed in writing, prices listed do not include any applicable
present or future sales, use, or other taxes, or any export or import taxes, customs duties,
brokerage fees, freight, or insurance, all of which shall be for the account of and be paid
by Buyer. Applicable taxes, if any, shall be paid by the Buyer either directly to the taxing
authority or, if collected by A Lunt, to A Lunt upon receipt of A Lunt’s invoice for the
amount of the tax. In the case of controversy as to whether a transaction is taxable, Buyer
agrees to remit the amount of the tax to A Lunt pending a specific ruling from the taxing
authority which assesses or collects the tax.
7. Changes to Design or Composition. At any time, A Lunt may make changes to the
design or composition of Deliverables that, in its judgment, do not materially change the
form, fit, function or quality of the Deliverables. Changes in design or composition made
at the request of Buyer shall be at Buyer’s risk and responsibility, at the expense of
Buyer, and shall be paid for upon receipt of A Lunt’s invoice. A Lunt reserves the right,
in its absolute discretion, to add to or remove from the range of products supplied by A
Lunt, including the Deliverables, and may do so immediately on written notice to Buyer.
8. Delivery. Specified shipment/delivery dates are approximate. Unless otherwise agreed to
in writing, Deliverables will be shipped F.O.B. point of shipment. Title and risk of loss
shall pass to Buyer upon delivery to common carrier. If freight must be prepaid, payment
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will be made for the account of Buyer. In the event goods require extra or special
packaging due to the nature of the Deliverables, the manner in which they will be
transported or otherwise, Buyer is responsible for the extra charges therefore. A Lunt
shall not be liable for shipment delays, or any loss or damage to Deliverables while in
transit, and all claims therefore shall be made immediately by Buyer to the carrier. A
Lunt reserves the right to deliver Deliverables in installments unless expressly agreed
otherwise. A Lunt will invoice installment deliveries at the time of shipment unless
otherwise agreed in writing. Delay in any installment delivery shall not relieve Buyer of
its obligation to accept all remaining installment deliveries.
9. Returns. Deliverables may be returned by Buyer only when authorized in writing by A
Lunt. Deliverables must be returned properly packaged and shipped freight prepaid to A
Lunt.
10. Setoff; Deductions. In no event is Buyer authorized to deduct any amounts from the
amounts owed A Lunt unless specifically authorized in writing by A Lunt.
11. Quantity. A Lunt shall have no obligation to provide any Deliverables in excess of the
amount set forth in the Specifications. Buyer will notify A Lunt of any excess
Deliverables delivered to Buyer and, upon A Lunt’s request, will return any excess
Deliverables to A Lunt.
12. Recalls. If Buyer is directed to assist in any suspension of supply or recall of
Deliverables for any reason by A Lunt or any governmental authority, Buyer must
cooperate and comply with all such reasonable directions to ensure the most effective
response to the suspension or recall. The cost and expense of such suspension or recall
will be borne by (a) A Lunt to the extent due to an act or omission of A Lunt, or its,
employees, agents or contractors, and (b) Buyer to the extent due to an act or omission of
Buyer, or its, employees, agents or contractors.
13. Intellectual Property Rights. A Lunt retains exclusive ownership of all right, title and
interest in and to all of A Lunt’s intellectual property, and A Lunt’s sale of the
Deliverables to Buyer does not grant or confer upon Buyer or any other person any
express or implied license in or to any A Lunt intellectual property.
14. Permits. Buyer represents and warrants to A Lunt that Buyer has all necessary permits
and licenses necessary to permit the lawful purchase and use of the Deliverables and to
make any subsequent resale of the Deliverables.
15. Limited Warranty. A Lunt warrants that Deliverables will (i) be free from faulty
workmanship and defective materials, and (ii) comply in all material respects with the
Specifications; provided A Lunt shall not be responsible for any defect in quality or
design attributable to Buyer’s Specifications, such as Buyer’s specifying the materials to
be used in, or the means or methods used by A Lunt in producing any Deliverables. In the
event any Deliverable fails to meet the foregoing warranty within said warranty period, A
Lunt’s sole obligation shall be, in its sole discretion, to either correct the matter or replace
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the non-conforming Deliverables. A Lunt shall not be liable for any problems with any
Deliverables resulting from any alterations to Deliverables made by the Buyer or any
other act or omission of the Buyer or any third party. The foregoing warranties provided
by A Lunt are the only warranties provided by A Lunt with respect to Deliverables, and
may be modified or amended only by a written instrument signed by an authorized officer
of A Lunt. EXCEPT FOR THESE EXPRESS WARRANTIES, A LUNT MAKES NO
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE
OR DESIGN. Any sample or literature provided to Buyer was to illustrate the general
type of goods and not an affirmation that the Deliverables will conform. No employee or
representative of A Lunt has authority to bind A Lunt to any representation, affirmation
or warranty not specifically included herein.
16. Limitation of Liability. Notwithstanding anything to the contrary contained herein, A
Lunt’s aggregate liability in connection with the Sale or provision of any Deliverables,
regardless of the form of action giving rise to such liability (whether in breach of
warranty, contract, negligence, strict liability or any other theory in contract, tort or
otherwise), shall not exceed the amount actually paid by Buyer to A Lunt for such
Deliverables. IN NO EVENT SHALL A LUNT BE LIABLE FOR ANY EXEMPLARY,
SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY
KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF A LUNT
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. All remedies
of Buyer shall be limited exclusively and in lieu of any and all other remedies to those
contained in these terms and conditions.
17. Confidential Information. The terms of any Purchase Orders from Buyer to A Lunt
shall be kept confidential. Buyer shall not issue any publicity or advertising relating to
Purchase Orders, Deliverables, or Buyer’s relationship with A Lunt without A Lunt’s
prior written consent.
18. Default; Indemnification. If Buyer shall fail to pay all or any part of the sums due or to
become due to A Lunt, fail to comply with these terms and conditions, fail to keep or
perform any of Buyer’s obligations, become insolvent or become a party to any federal or
state insolvency proceeding or receivership, or become a judgment debtor, at A Lunt’s
option any sum due or to become due to A Lunt may become immediately due and
payable in full. Buyer shall indemnify and hold harmless A Lunt from and against each
and every loss, liability, cost , damage and expense, including costs of litigation and
attorneys’ fees (each a “Loss”) incurred or suffered by A Lunt which are in any manner,
directly or indirectly, in whole or in part, caused, contributed to or occasioned by reason
of Buyer’s, its employees’, agents’ or representatives’ default or breach of any
representation, warranty, obligation or covenant of Buyer contained in any Purchase
Order, or Buyer’s performance or failure to perform hereunder, or its negligence, whether
active or passive, and without limiting Buyer’s liability, the foregoing shall include injury
to or death of any person or persons and damage to or loss of property. Concurrently, or
in the alternative, A Lunt may at its option, in addition and without prejudice to its other
lawful rights and remedies (i) defer further shipments of Deliverables until each default
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has been corrected to A Lunt’s reasonable satisfaction, or (ii) elect not to make any
further shipments of Deliverables, and/or (iii) exercise any other remedies available under
applicable law. Waiver of any default shall not be a waiver of any other subsequent
default. No course of conduct, nor any delay of A Lunt in exercising any rights, nor A
Lunt’s acceptance of a payment from Buyer with knowledge of an existing default or
breach, shall waive any rights of A Lunt or be deemed a modification of any Purchase
Order.
19. Right of Termination. A Lunt, at any time upon notice to Buyer, may reduce its
obligations to deliver Deliverables for good cause shown to Buyer, including but not
limited to supply chain difficulties. In such event, Buyer shall pay for Deliverables
completed hereunder on a percentage of completion basis. Purchase Orders may be
cancelled by Buyer only with the written consent of A Lunt and upon Buyer’s payment
for any and all expenses and other losses and damages incurred by A Lunt a result of
such cancellation, including A Lunt’s out of pocket costs, overhead, and anticipated
profit.
20. Financial Responsibility. Buyer warrants that it has and will at all times maintain and,
upon request by A Lunt, show that it has sufficient working capital and financial ability
to perform and complete its obligations herein. Buyer warrants to A Lunt that it is not
insolvent within the meaning of the Federal Bankruptcy Laws and the laws of the states
in which it conducts its business. In addition to any and all other rights and remedies
which A Lunt may have pursuant to the law of contracts or at common law, A Lunt
reserves the right to terminate its obligations, without liability, in respect of any
undelivered Deliverables if Buyer shall (i) become insolvent or bankrupt, (ii) make any
general assignment for the benefit of its creditors, (iii) if any trustee or receiver is
appointed of any substantial part of Buyer’s assets or (iv) Buyer shall be adjudicated a
bankrupt.
21. Force Majeure. Neither A Lunt nor Buyer shall not be liable for any failure or delay in
performing any obligations hereunder if such failure or delay is caused by a strike,
lockout, labor dispute, accident, war, act of terrorism, act of God, epidemic, pandemic,
government action, fire, flood, or other casualty or cause beyond A Lunt’s or Buyer’s
reasonable control.
22. Entire Agreement. These terms and conditions, together with the applicable
Specifications, constitutes the sole and entire agreement between A Lunt and Buyer, and
all prior or contemporaneous understandings or agreements, oral or written, are merged
herein. No subsequent changes or modifications of these terms and conditions are
binding upon either party unless accepted by it in writing. Buyer expressly waives all
provisions contained in correspondence, forms, or other writings relating to the Sale of
the Deliverables which negate, limit, extend, or conflict with the provisions hereof. In the
event any term or provision hereof shall be deemed unenforceable, the remaining terms
and conditions shall remain in effect to the fullest extent possible.
23. Controlling Law; Jurisdiction. These terms and conditions and the transaction to which
these terms and conditions relate, shall be governed by and construed in accordance with
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the laws of the State of New York without effect given to its choice of law provisions. All
disputes between A Lunt and Buyer relating hereto shall be resolved exclusively in the
state or federal courts located in Erie County, New York. Buyer consents to the personal
jurisdiction of such courts.
24. Assignment. Buyer may not assign or transfer any right or interest in or to these terms
and conditions and/or the transaction to which these terms and conditions relate, to any
third party whatsoever without the prior written consent of A Lunt.
25. Notices. Any and all notices required to be given hereunder shall be in writing and
handdelivered (including by commercial courier), with an appropriate receipt thereof
obtained, or sent by United States certified mail, return receipt requested, to the addresses
of the respective parties set forth on the face hereof, or to such other address as either
party may designate to the other by written notice for such purpose from time to time.
Non-Waiver. A Lunt or Buyer’s exercise or failure to exercise or enforce any right or remedy
granted or provided by these terms and conditions or its acceptance of or payment for any
Deliverables shall not be deemed as or construed to be a waiver of any right or remedy