General.  In these terms and conditions of sale, Zenger Group is referred to as “Seller” and the party to whom Seller’s quotation or invoice is addressed is referred to as “Buyer”.  All sales of Seller are subject to the following terms and conditions.  Any purchase order or other communication from Buyer that contains terms and conditions in addition to or inconsistent with the following will not be binding upon Seller unless acceptance of those terms and conditions is made in writing by an authorized representative of Seller.  Failure of Seller to object to provisions contained in any purchase order or other communication from Buyer will not be construed as a waiver of these terms and conditions nor an acceptance of any such provisions.  Seller’s quotation, these terms and conditions and Seller’s order acknowledgment or invoice constitute the entire agreement between Buyer and Seller with respect to the sale of Seller’s products, and supersede all oral and written proposals, representations, understandings and agreements previously made or existing with respect to the sale of Seller’s products.  Seller’s quotation, these terms and conditions and Seller’s order acknowledgment or invoice are governed by and must be construed according to the laws of the State of New York without reference to the laws of any other jurisdiction.  Any action or proceeding relating to the sale of Seller’s products must be commenced and will remain in New York State Supreme Court, Erie County, or in the United States District Court for the Western District of New York.

Acceptance of Orders.  Orders become effective only when accepted by Seller in writing.  To avoid delay, new Buyers should include credit information or references with their first order, or remit cash.  Transportation costs must not be deducted from the selling price.

Cancellation.  Orders for normal quantities of standard products may be cancelled without charge, if written notice is provided to Seller in enough time to stop shipment.  Cancellation of orders for standard products in abnormal quantities or orders for products to be produced in accordance with Buyer’s specifications or designs requires the prior consent of Seller which may not be unreasonably withheld, provided, that Seller will be reimbursed for any costs that it cannot mitigate.  Determination of whether a particular quantity is abnormal or whether products were produced in accordance with Buyer’s specifications will be made by Seller.  Seller’s determinations and Seller’s calculation of any costs that it cannot mitigate will be final and conclusive.

Delay.  Shipping dates are estimated.  If the Buyer delays in supplying information necessary to proceed with an order, the estimated date of shipment may be extended by Seller accordingly.  Seller is not liable for late shipments.  Any penalty clause for failure to meet shipment dates is not binding upon Seller unless specifically approved in writing by an officer of Seller.  If Buyer causes a delay in shipment, Seller may invoice Buyer and hold the products at Buyer’s risk, cost and expense pending Buyer’s instructions.

Payment.  If satisfactory credit is established with Seller, terms of credit are net 30 days from date of invoice.  If Buyer defaults in any payments when due, Seller reserves the right to defer delivery or cancel the order, without prejudice to its other lawful remedies.  In the event Seller engages the services of an attorney to collect such overdue amounts, Buyer agrees to pay the attorney’s fees and disbursements.  Seller reserves the right to ship its order and make collection by sight draft with bill of lading attached or on a C.O.D. basis or any other terms.

Taxes and Other Charges.  Buyer will pay any manufacturers’ tax, retailer’s occupation tax, use tax, sales tax, duty, custom inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, imposed by any government authority, on or measured by any transaction between Seller and Buyer.

Freight; Title and Risk of Loss.  All prices quoted (including repairs and parts) are F.O.B. Seller’s location, no freight allowed.  Title and risk of loss pass to Buyer upon delivery to carrier.

Return of Products.  Buyer must obtain authorization and shipping instructions from Seller before returning any products.

Limitation of Liability.  SELLER WILL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY SPECIAL, CONTINGENT, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES.  Seller’s total liability with respect to a claim for any damages arising out of or connected with the sale, purchase or use of any product sold by Seller will in no event exceed the price paid for the product.

Indemnification.  If Seller is made a party to any proceeding, action or arbitration, on the basis of breach of warranty, negligence, strict liability or tort, by Buyer, or any persons deriving title from Buyer, or any third party, unless it shall be determined that Seller was solely negligent or solely at fault, then Buyer will indemnify and hold Seller harmless for all damages, costs and expenses in connection with such proceeding, action or arbitration, including attorneys fees.

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