Contract Of Sale
These terms and conditions are incorporated into the purchase order (“order”) being entered into by customer (“Customer”) to purchase goods and/or services from Upstate Parts & Supply, Inc (“UPS”) in such order. Subject to the terms and conditions stated herein, UPS agrees to sell to Customer, and Customer agrees to purchase from UPS, the goods and/or services described in the order. No order is binding upon UPS unless accepted in writing by UPS in its sole discretion. UPS reserves the right, at its sole discretion, to refuse any order. All orders are subject to credit acceptance. The order and these terms and conditions shall constitute the complete and exclusive statement of the contract between the parties (“Agreement”). Any terms proposed by the Customer which add to, vary from or conflict with the terms herein are hereby objected to by UPS. UPS rejects all terms of any order issued except those relating to identification of products, price, and quantity. Product purchased and sold to Customer, unless otherwise agreed to in writing by UPS, shall be UPS’s standard products as specified in UPS’s quotation or acknowledgement.
The price for the goods or services shall be the price as shown on the order. Quoted prices are good for thirty (30) days unless otherwise stated in writing by UPS.
UPS’s prices are exclusive of all taxes, VAT, duties, other governmental charges, and any other taxes, freight or insurance.
All shipments shall be Ex-Works, UPS’s Shipping Point. Customer is responsible for all freight and insurance unless otherwise provided in a purchase order accepted in writing by UPS. Shipping dates quoted by UPS are approximate. UPS does not guarantee a particular date for shipment or delivery. UPS reserves the right to make partial shipments. Any claims for shortages or damages suffered in transit are the responsibility of Customer and shall be submitted by Customer to UPS. If product is damaged in shipping and is un-usable, a claim will be made by UPS to the freight carrier and a new order will need to be placed with UPS by the Customer in order for replacement to be shipped. Once the credit has been issued by the carrier, UPS will issue a credit to the Customer. Shortages and/or damages must be acknowledged and signed for at the time of delivery. If products are held by UPS for Customer at Customer’s request or due to Customer’s failure to supply shipping instructions, UPS may invoice Customer for storage and handling costs. Product held for Customer by UPS, for whatever reason, is held at Customer’s risk and Customer shall reimburse UPS for any insurance, storage or other costs incurred by UPS.
Full Payment shall be due at the time of order placement. For other terms or to open an account please contact us at (315) 431-0224.
Neither party shall be deemed to be in default on account of delays in the delivery of goods or in the performance of services (other than the payment of money) to the extent it is beyond such party’s control and not occasioned by such party’s fault or negligence, including, but not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, labor disputes, riots, acts of war or terrorism, epidemics, or material and transportation shortages.
Disclaimer Of Warranty
UPS does not warrant products not manufactured by UPS, but it does pass on to Customer any available manufacturer’s warranty for those products. Any products provided by UPS are “AS-IS” and except as may be provided in an express warranty by UPS, neither UPS, its affiliates, subsidiaries nor its or their suppliers make any warranties, express or implied, including any implied warranties of merchantability and fitness for a particular purposes. UPS and its affiliates, subsidiaries and its and their suppliers expressly disclaim all warranties not stated in an express written warranty provided to Customer, if any. UPS shall not be responsible for any costs associated with any Customer warranty remedies, including without limitation labor charges for removal or reinstallation of defective parts, for charges for transportation, handling and shipping or refrigerant loss. UPS shall have no liability for parts or service required as a consequence of faulty installation, misapplication, abuse, improper servicing, unauthorized alteration or improper operation by persons other than UPS. Customer acknowledges that any technical advice furnished by UPS with respect to the design, location use or other aspect of the products is given without charge and UPS assumes no obligation or liability to Customer for the advice given or results obtained, and all such advice is given by UPS and accepted by Customer at Customer’s risk. Customer is responsible for obtaining any and all permits and licenses necessary in connection with the installation and/or use of any products. UPS makes no representation or warranty regarding compliance with local codes or otherwise. If Customer is not the ultimate end user or owner of the products and/or services in the order, UPS does not accept and will not be held liable for any flow down requirements from the ultimate user or owner or any higher tier contractor unless specifically agreed to in writing.
Limitation Of Liability
UNDER NO CIRCUMSTANCES SHALL UPS BE HELD LIABLE FOR ANY INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR PROFIT, LOSS OF USE OF EQUIPMENT OR FACILITIES, OR ECONOMIC DAMAGES, WHETHER BASED ON STRICT LIABILITY OR OTHERWISE, WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE, EVEN IF UPS HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. UPS shall only be liable for damage to property, other than the equipment provided under this Agreement, and/or injury or death of persons, to the extent that UPS’s grossly negligent acts or omissions directly and solely caused such injury, death or property damage. UPS’s maximum liability for any reason shall consist of the refunding of all moneys paid by Customer to UPS under this Agreement.
Customer may not change or cancel any purchase order without UPS’s consent, and upon any such change or cancellation Customer shall pay UPS for all incurred direct and indirect costs including overhead. If any portion of an order for special order or configured products is canceled after order release, Customer is subject to a cancellation charge up to 100%. All sales of non-stock items are final, and returns will not be allowed.
No right or interest in this Agreement shall be assigned by Customer without UPS ‘s prior written consent. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes. The assignor shall remain liable for performance notwithstanding the approval of an assignment.
In connection with this Agreement UPS may elect to install, attach to Customer equipment, or provide portable devices (hardware and/or software) that shall remain the personal proprietary property of UPS. No devices installed, attached to real property or portable device(s) shall become a fixture of the Customer locations. Customer shall not acquire any interest, title or equity in any hardware, software, processes, and other intellectual or proprietary rights to devices that are used in connection with providing service on Customer equipment. All intellectual property rights shall remain UPS’s property. UPS shall have free access to enter Customer locations to disconnect and remove any UPS personal proprietary property or devices as well as remove any and all UPS owned parts, tools and personal property.
All inventions, patents, copyrights, trade secrets, know-how or other industrial or intellectual property relating to any products or services shall be and remain the property of UPS. Any improvements, materials, notes, records, drawings, designs, inventions, developments or other intellectual property which is patentable, copyrightable or otherwise protectable anywhere in the world which is conceived, made, discovered, prepared or developed in connection with or in furtherance of the provision of goods or performance of services or otherwise pursuant to this Agreement are and shall be the sole property of UPS or its affiliates. UPS’s prints, drawings or written specification (and the technology depicted) which are furnished to Customer in connection with this Agreement are the property of UPS, and UPS retains all patent, copyright and other rights, including; without limitation, exclusive rights of use, license, or sale. Customer’s possession of such prints, drawings or specifications does not grant Customer any rights or license, express or implied therein and Customer shall, upon UPS’s request, immediately return all originals and copies of such items to UPS.
Customer is wholly responsible for the removal and proper disposal of waste oil, refrigerant and any other material generated in connection with this Agreement.
Any suits by Customer arising from the performance or non-performance by UPS under this Agreement, whether based upon contract, negligence, strict liability or otherwise, shall be brought within one (1) year from the date the claim arose or be deemed waived.
U.S. Export Regulations
Customer will not export or re-export any of goods or services in violation of applicable U.S. laws.
UPS offers standard commercial items that may not comply with Government specifications. UPS does not comply with the Cost Accounting Standards (CAS) or with the Federal Acquisition Regulations (FAR). In no event shall UPS provide any Cost or Pricing Data in connection with this Agreement or subsequent modifications.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED ACCORDING TO THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ITS “CHOICE OF LAW” OR “CONFLICT OF LAW” RULES.
If any provision of the Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement shall remain in full force and effect.
No Amendment Or Waiver
Except as otherwise provided in these terms and conditions, no amendment to this Agreement shall be made without the express written consent of both Customer and UPS. Any waiver under this Agreement must be in writing and signed by the party being charged with such waiver. The failure of a party to enforce any provision of this Agreement promptly shall not be construed as a waiver of such provision or of the right of such party to enforce such provision at a later time. Waiver of any breach shall not constitute waiver of any other or future breach of the same of any other provision.
In the event of any conflict between these terms and conditions and any terms of the order, these terms and conditions shall control.
Exclusion Of U.N. Convention On International Sales
Unless otherwise agreed by UPS and Customer in writing, there is excluded from this Agreement (including any amendments or changes thereto) the application of the United Nations Convention on Contracts for the International Sales of Goods.
Waiver Of Jury
As a material condition of the Agreement, in the event of any litigation between the parties, each party hereby waives all right to a trial by jury.