Terms & Conditions
Quotes are valid for thirty (30) days from date issued unless otherwise stated. All pricing is subject to change based on material price fluctuations, material surcharges, and/or other EFC cost changes received prior to shipment. Minimum release quantities apply as stated. Quoted lead times begin from date order is acknowledged. EFC reserves the right to adjust pricing if “buyer” (customer) fails to purchase the quoted annual volumes in a given year for which a purchase order was issued pursuant to the related quotation stating the volume for which the price is valid.
EFC International will send confirmations to all purchase orders received. All orders and releases are firm and non-cancellable upon receipt of purchase order by EFC International and can “not” be cancelled until written confirmation of agreeing to cancellation is received from EFC International in writing. We reserve the right to invoice for all parts contractually obligated to by “buyer” per the acknowledgement of “buyer’s” purchase order.
MODIFICATION OF TERMS
EFC International Terms and Conditions “supersedes” all other terms and conditions with purchase order confirmation. EFC International’s acceptance of any purchase order is subject to “buyer’s” assent to all of the terms and conditions set forth in EFC’s acknowledgement or otherwise stated and “buyer’s” assent to these terms and conditions shall be presumed from “buyer’s” receipt of EFC International’s acknowledgment or otherwise stated, or from “buyer’s” acceptance of all or any part of the product or services ordered. No addition or modification of EFC International’s terms and conditions shall be binding or allowed. Any and all terms and conditions of “buyer” not conforming to EFC International’s terms and conditions will “not” be allowed or accepted unless otherwise agreed upon by “buyer” and EFC International in writing prior to acceptance of purchase order from “buyer”. If “buyer’s” purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in EFC International’s acknowledgment or otherwise stated, EFC International’s acceptance of any purchase order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by EFC International of any of the terms and conditions contained in EFC International’s acknowledgment or otherwise stated.
All invoices are due and payable thirty (30) days after date of invoice. A 1% discount is allowed if payment is made within ten (10) days after date of invoice. On any COD, CIA and/or Credit Card purchase, no deduction for a cash discount is allowed. All first time orders will be shipped on a COD, CIA or Credit Card basis until credit has been established. Taxes are the responsibility of the “buyer” and will be applied until “buyer” provides EFC International with a valid tax exemption certificate, if necessary. EFC International shall reserve the right to invoice separately any such tax as may be imposed at a later date. Payment terms are as specified herein. No other payment terms will be accepted unless otherwise approved in writing by EFC International’s CFO. All granted “open” credit terms of “buyer” are subject to the satisfactory completion of EFC International credit application, submission of acceptable credit references and approval of EFC International credit department. If “buyer” fails to fulfill said named credit terms herein, EFC International reserves the right to revoke “open” credit terms and refuse further shipments and/or purchase orders from “buyer” until “buyer’s” account is brought current for all unpaid invoices. EFC International reserves the right to refuse orders for any reason and shall refund any deposit made by “buyer” in regards to such orders. For Credit Card customers, EFC International accepts Visa, MasterCard and American Express. If terms of payment are CIA, all orders and releases are firm and non-cancellable upon issuance of pro-forma invoice to “buyer” by EFC International. Changes to any pro-forma invoices after issuance will result in administrative fees being assessed and will require payment “prior” to ordering of product. No orders will be allowed to be cancelled unless written confirmation by EFC International is received by “buyer”. Lead time begins when payment is received by EFC International. EFC International reserves the right to invoice for all parts contractually obligated to by “buyer” under the pro-forma invoice issued by EFC International. CIA customers paying by wire transfer will be responsible for their financial institution’s fees and in apition will be charged an appropriate handling fee at EFC International’s sole discretion. Credit Card customers’ credit cards will be charged at time when “buyer” orders product. Appropriate handling fees will be applied where applicable. “Buyer” agrees if “buyer” fails to pay under the credit terms granted by EFC International and thereby causes and/or necessitates EFC International to pursue legal collection and/or suit actions against “buyer” for monies due, that “buyer” will pay all legal costs of EFC International associated with the collection of monies rightfully due EFC International. “Buyer” agrees that any credit balances issued will be applied within one (1) year of issuance. If “not” applied or requested within one (1) year, any balance remaining will be subject to cancellation and EFC International will have no further liability.
Unless otherwise varied, products are shipped domestically with FCA and internationally with EXW terms as defined by the International Chamber of Commerce Incoterms–2000, EFC International shipping warehouse. Shipments are freight collect from any EFC International facility unless otherwise stated. “Buyer” shall be responsible for obtaining insurance. Title and risk of loss for products shall pass when made available to “buyer” on delivery to carrier domestically. If product is damaged in transit, “buyer” must file claim exclusively with airline, carrier, vessel and/or “buyer’s” insurance carrier. Discrepancies in invoicing and delivery must be reported within five (5) days after receipt of goods. No shipment dates are guaranteed. EFC International assumes no liability for any delays or failures to deliver due to “buyer” being placed on credit hold for failure to adhere to EFC International credit policies, an act of God, war or terrorism, weather conditions, fires, strikes, accidents, government regulations/requirements, restrictions, allocations among customers made necessary by any shortages, inability to obtain material or any other cause of like or unlike nature beyond EFC International’s reasonable control. EFC International reserves the right, per industry standards, to under/over ship up to 10% of quantities actually received from EFC International suppliers. CIA and Credit card credit terms require “over” shipment/s received by EFC International to be paid “prior” to shipment of original order. International or Export shipments, “buyer” represents and warrants that it is “not” on, or associated with any organization on the United States Department of Commerce’s Bureau of Industry and Security’s Denied Persons List or Unverified list or the United States Department of the Treasury’s Office of Foreign Assets Control Lists, Specialty Designated Nationals, Specialty Designated Narcotic Traffickers- Kingpin or Specialty Designated Terrorists List or the United States Department of State’s Designated Foreign Terrorist Organizations, Embargoed Countries List or Debarred Persons List or is subject to a denial order issued by the United States Department of Commerce. “Buyer” shall comply with all relevant laws and regulations of government bodies or agencies, including but not limited to all applicable export control laws of the United States or other governing agencies and their successors. It is specifically agreed that “buyer” shall be the foreign principal party in interest and/or that its freight forwarder shall act as “buyer’s” agent in such capacity for Export Administration Act or other applicable purposes and “buyer” and its freight forwarder shall assume all responsibility for all export or routed transactions documentation. At EFC International’s request, “buyer” or its freight forwarder shall provide copies of any export, shipping or import documentation prepared by “buyer” or its freight forwarder related to sales to them by EFC International. At EFC International’s option, this freight policy may be subject to special terms and conditions for certain export orders. “Buyer” shall be responsible for obtaining any licenses or other official authorizations that may be requires by the country of importation and/or under the Export Administration Act, Toxic Substances Control Act and/or other applicable legislation or regulations including but not limited to the Department of Defense or Department of State regulations. The rights and obligations of the parties under these Terms and Conditions shall “not” be governed by the provisions of the 1980 United Nations Convention of Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods. Rather these Terms and Conditions shall be governed by the laws of the State of Missouri, United States, including its provisions of the Uniform Commercial Code, but excluding its conflict of law rules. Any legal action by “buyer” with respect to any transaction must be commenced within one (1) year after the sale of product.
EFC International assumes no liability for any delays or failures to deliver due to “buyer” (customer) being placed on credit hold for failure to adhere to EFC International credit policies, an act of God, war or terrorism, weather conditions, fires, strikes, accidents, government regulations/requirements, restrictions, epidemics/pandemics, allocations among customers made necessary by any shortages, inability to obtain material or any other cause of like or unlike nature beyond EFC International’s reasonable control. EFC is not liable for failure to perform any of its obligations to the extent such performance is hindered, delayed or prevented by Force Majeure. In the event of force majeure, EFC will diligently use all reasonable efforts to remove the cause, condition, event or circumstance of such Force Majeure, and will promptly provide written notice to effected party. EFC will resume performance of any suspended obligation as soon as reasonably possible after the circumstance/event/condition has ended and allowed. “Force Majeure” refers to causes, conditions, events or circumstances which are beyond reasonable control. Such causes, conditions, events and circumstances will include acts of God, strikes, pandemics, lockouts or other industrial disturbances, acts of the public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, arrests and restraints of rulers and people, arrests and restraints of the Government, either federal or state, inability to obtain necessary materials or supplies at market costs or permits due to existing or future rules, orders and laws of governmental authorities (both federal and state), interruptions by government or court orders, present and future orders of any regulatory body having proper jurisdiction, civil disturbances, explosions, sabotage, partial or entire loss of market. Should a force majeure event cause supply/demand market dynamics to create commercial impracticality or result in cost escalation beyond normal or reasonable fluctuations in cost, EFC reserves the right to adjust pricing relative to raw material cost increases and purchase cost increases. Additionally, with or without the occurrence of a force majeure event, EFC reserves the right to adjust pricing if “buyer” (customer) fails to purchase the quoted annual volumes in a given year for which a purchase order was issued pursuant to the related quotation stating the volume for which the price is valid.
EFC International shall reserve the right to cancel, withhold or delay its performance or delivery of product hereunder in the event of any of the following or any comparable events, in which event EFC International shall have no liability for any losses or damages claimed by “buyer” : (1) “buyers” insolvency or filing of bankruptcy; (2) commencement of proceedings by, for or against “buyer” under any law relating to bankruptcy or the relief of debtors; (3) the appointment of a receiver or trustee for “buyer”; (4) the execution of “buyer” of an assignment for the benefit of the creditors; and (5) the determination by EFC International at its sole judgment and discretion, that the “buyer’s” financial condition is such as to endanger its performance hereunder.
“Buyer” shall not assign any order, any interest therein, or this order without the prior written consent of EFC International. Any actual or attempted assignment without EFC International’s prior written consent shall entitle EFC International to cancel such order or to terminate this agreement upon notice to “buyer”. “Buyer” will be responsible for all legal costs of EC International to protect its rights to product shipped to “buyer”.
BREACH OF CONTRACT
“Buyer’s” failure to accept delivery or make payment for the goods shall constitute a breach of contract. “Buyer” shall be liable for any loss suffered by EFC International, including freight charges, cancellations fees, administrative fees and any other loss suffered through “buyer’s” actions. No waiver of any breach of any provision herein shall constitute a waiver of any other breach or relate to any other breach. “Buyer’s” and EFC International rights herein shall be in apition to, and not limited to, any other rights which they may have.
All transactions shall be interpreted, governed and enforced in accordance with the laws of the State of Missouri, excluding conflict of law rules and venue shall be in St. Louis County, State of Missouri. The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by the other party.
EFC International warrants its products to be free from defects in material and workmanship under normal use. Subject to limitations set forth herein. EFC International further warrants that each product will substantially perform in accordance with the description of such product set forth in the relevant EFC International sales material. If the goods furnished hereunder do not conform to the applicable specifications or description, EFC International agrees, at its sole option to replace goods or repay the purchase price of the applicable pro-rata purchase price, or if not paid, allow credit against future purchases. EFC International will make a good faith effort for prompt correction or other adjustment with respect to any product which proves to be defective within warranty period. Except as expressly provided herein, EFC International does not make any warranty or representation, express or implied with respect to its products, including without limitation any implied or expressed warranty of merchantability or fitness for a particular purpose. EFC International disclaims any liability for product defect claims due to product misuse, improper product selection or misapplication. In apition, under no circumstances shall EFC International be liable for lost profits, lost savings, or other consequential, incidental, special or indirect damages, or for acts of negligence that are not intentional or reckless in nature regardless of whether it has been advised of the possibility of such damages. EFC International makes “no” warranties to any customer that can be defined as “consumers” in the Magnuson-Moss Warranty Federal Trade Commission Improvement Act.
PRODUCT LIABILITY INDEMNITY
“Buyer” agrees to defend, indemnify, assume any liability, save and hold harmless EFC International, it’s agents, subsidiaries, employees, suppliers, customers, insurers, successors and assigns, from and against any claims, demands, suits, liabilities, penalties, losses, damages, or charges, settlements, judgments, costs and expenses (including attorney’s fees incurred), by any third party arising out of or based on any alleged non-conformity, defect or failure of any product covered by “buyer’s” purchase order or arising out of any actual or alleged violation by such products of any statute, ordinance, rule or regulation. This indemnity includes without limitation any product safety or quality control recall, corrective action or product retrofit, and any action or processing arising out of any of the above occurrences.
LIMITATION OF LIABILITY
In no event will EFC International be liable for any SPECIAL, INDIRECT INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY damages in connection with or arising out of this agreement, including, but not limited to, damages for injuries to persons or to property or loss of profits or loss of future business or reputation, whether based on tort or breach of contract or other basis, even if it has been advised of the possibility of such damages.
Returns must have an RMA (Return Material Authorization) number assigned and can NOT be returned without one. No RMA number will be issued without product traceability. EFC International must be notified within five (5) days after receipt of goods for an RMA number to be authorized and issued. Credit will not be issued without an RMA number OR “without” the return of product. Returns must be received within thirty (30) days of the issuance of the RMA number. After thirty (30) days, the assigned RMA number will have expired and no credit will be issued or return accepted. Credit will be issued, less applicable restocking charges, within thirty (30) days after returned product is received and inspection and traceability requirements are met.
“Buyer” covenants and agrees, as a condition of purchase, at its’ sole expense to provide and procure broad form vendors liability insurance coverage naming EFC International and subsidiaries as an apitional insured on applicable endorsements and certificates. This coverage shall not be cancelled without EFC International expressed written consent.
TRADEMARKS, COPYRIGHTS & DOMAIN NAMES
“Buyer” acknowledges that it has no right, title or interest in the trade names, trademarks, copyrights, domain names and product names of EFC International. “Buyer” covenants that it will take no action to register or otherwise interfere with such rights of EFC International. “Buyer” agrees that it will not copy the products sold to “buyer” or their packaging, trade dress, catalogs or websites.
The failure of either EFC International or “buyer” to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by the other party.
These Terms and Conditions, together with any other terms and conditions that EFC International publishes or makes available to “buyer” (i) on an invoice or packing slip, (ii) at www.efc-intl.com or (iii) in any document including, without limitation, those involving extension of credit by EFC International, or export of products, represent the entire agreement between the parties and shall supersede all written and unwritten statements, agreements and understandings between EFC International and “buyer” pertaining to the subject matter of this agreement.