Hubbard-Hall Terms and Conditions of Sale
1. APPLICABILITY. These Terms and Conditions of Sale (“Terms”) are the only terms and conditions which govern the sale of goods (“Goods”) by Hubbard-Hall Inc. (“Seller”) to buyer (“Buyer”) and supersede all other terms and conditions, oral or written, and all other communications between the parties suggesting additional or different terms.
2. ENTIRETY. These Terms represent the final and complete understanding of the parties and may be amended or cancelled only by mutual written agreement. Acceptance is expressly limited to these Terms. Any proposal for additional or different terms or any attempt by Buyer to vary these Terms is hereby deemed material and is objected to and rejected. No terms of any document or forms submitted by Buyer shall be effective to alter or add to these Terms. The earlier of Seller’s commencement of performance or Buyer’s receipt of any of the Goods shall constitute acceptance of these Terms. If a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. Where said contract is silent with respect to a term covered in Terms, these Terms shall control.
3. PRICES. Prices quoted are based on the price at the time of order and are subject to change without notice. Clerical errors are subject to correction without liability. Seller’s weights shall govern, except in the case of proven error.
4. TAXES. Prices do not include any sales, use, excise, privilege, or other taxes or assessments now or hereafter imposed or levied by or under the authority of any foreign, federal, state, or local law, rule, or regulation (collectively, “Law”) concerning the Goods or the manufacture or sale thereof. If Seller pays any such taxes or assessments, Buyer shall, upon demand, immediately reimburse Seller for such amounts.
5. TERMS OF PAYMENT. All payments are due NET 30 days from date of invoice. All orders are subject to acceptance in writing by Seller. No discounts shall be taken unless specifically allowed in writing by Seller. All amounts due Seller from Buyer shall be paid without abatement, deduction, or setoff. The date of the payment of an invoice shall be the date the payment is received by Seller at the location designated on the invoice. Invoices not paid when due are subject to a late payment service charge of the lesser of 1.5% per month or the highest rate permitted under the law, calculated daily and compounded monthly. If Buyer fails to make any payment when due, Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance on the terms of payment above, Seller may require full or partial payment in advance or otherwise adjust the terms including ceasing to supply Buyer. If any invoice is not paid in full on its due date, after a formal notice has gone unheeded for 48 hours, Seller reserves the right to suspend any ongoing and/or upcoming deliveries.
6. FREIGHT. Unless agreed by Seller in writing, all shipments shall be F.O.B. Seller’s Shipping Point. Title and risk of loss or damage to Goods shall pass to Buyer upon delivery to Buyer, to its designated agent, or to a carrier for delivery to Buyer, whichever occurs first. Buyer is solely responsible for and assumes all responsibility for compliance with the Law related to the unloading and storage of the Goods. Buyer further assumes all the risks and financial impact should the Hazard status of the Goods be modified by the regulating authority after the date of purchase (defined herein as the date of the purchase order or other record of order created by Seller in the normal course of business).
7. DELIVERY. Shipping and delivery dates are estimates only and are based on prompt receipt of all necessary information from Buyer. Delays in securing Buyer’s approval of any matter shall, at Seller’s sole discretion, extend the date of delivery. In no event shall Seller be liable for any claim, loss, expense, or damage of any kind whatsoever resulting from or relating to any delays, loss, or damage of Goods in transit.
8. INSPECTION. Immediately upon delivery, Buyer shall carefully inspect the Goods and shall accept all conforming Goods or notify Seller in writing of any nonconforming Goods within three (3) business days. Failure to give such written notice during such period will constitute satisfactory shipment by Seller and irrevocable acceptance by Buyer of all Goods. Goods shall not be returned to Seller without Seller’s express permission. Further, Returnable containers supplied with the Goods are and remain the property of the Seller. Buyer shall be liable to Seller for any and all damage, partial or total, to such containers which is caused by Buyer or any third-party not authorized by Seller. Buyer must return each container within 90 days in order to receive credit for such container. In no event shall returnable containers be sent back to Seller freight collect without Seller’s express consent.
9. CHANGES. Changes in specifications or requirements relating to any Goods, changes in delivery schedules or reschedules or cancellations of orders are not permitted unless Seller has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by Buyer. Returns are subject to the then current restocking fee and must be shipped prepaid.
10. STORAGE. If, because of Buyer’s inability to take delivery, the Goods are not shipped, stopped in transit or returned, Seller may store them for Buyer at Buyer’s expense and risk of loss shall pass to Buyer when the Goods are placed in storage and such date shall constitute the date of shipment for purpose of beginning the warranty and payment periods.
11. LIMITED WARRANTIES. Seller warrants that Seller branded Products conform to Seller’s published specifications at the time of delivery. THESE ARE SELLER’S ONLY WARRANTIES. SELLER MAKES NO OTHER EXPRESS WARRANITES AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges that Seller acts as a distributor for Products not branded by Seller (Resale Products) and that matters relating to the quality of the Products are not within Seller’s control. SELLER MAKES NO WARRANTIES WHATSOEVER CONCERNING RESALE OF PRODUCTS. Buyer further acknowledges that Seller’s recommendations and instructions regarding the use of the Goods are based on experience and information reasonably believed to be reliable. These recommendations, instructions, and information are not and must not be construed as creating any warranty, express or implied. Any technical information provided by Seller with reference to the use of the Goods is given free of charge and Seller assumes no obligation or liability in respect of any information given or any results obtained. No technical information made available by Seller shall be construed to form a Warranty. Buyer shall use all information received at its own risk.
12. LIMITATION OF LIABILITY. Seller’s liability for nonconforming Goods is exclusively limited, at Seller’s option, to replacement of the nonconforming Goods or refund of the purchase price of such Goods. Seller’s aggregate liability to Buyer or anyone claiming through or on behalf of Buyer, with respect to any claim or Loss arising out of or relating to any Goods or alleged to have resulted from any act or omission of Seller, whether negligent or otherwise, and whether in tort, contract, or otherwise, shall be limited to an amount not to exceed the price received by Seller for the Goods or that portion of the Goods with respect to which such liability is claimed. Any contract created between the Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or indemnify Buyer, and (b) there are no flow-downs from any person or entity including the federal government that become part of the contract. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPEICAL DAMAGES, OR ANY OTHER LOSSES OR EXPENSES, INCLUDING WITHOUT LIMITATION, FOR INJURIES TO PERSONS OR DAMAGE TO PROPERTY, LOSS OF PROFIT, REVENUES, OR USE, DIMINUTION IN VALUE, COST OF SUBSTITUTE GOODS, DOWNTIME COSTS, OR CLAIMS OF BUYER’S CUSTOMERS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, AND REGARDLESS OF THE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13. INDEMNITY. Buyer shall defend, indemnify, and hold Seller, its affiliates, parents, and subsidiaries, and their respective officers, directors, members, managers, representatives, agents, and employees harmless from and against all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fee) (collectively, “Losses”), arising out of or relating to (a) Buyer’s negligence, (b) Buyer’s use, misuse, or disposal of the Goods, (c) information provided by Buyer to Seller in connection with the selection and sale of Goods, (d) Buyer’s non-compliance with Laws, regulations, specifications, or applicable standards, (e) Buyer’s use or application other than or varying in any degree from the specifications and Seller’s instructions, (f) Buyer’s modifications made to all or part of the Goods, and (g) Buyer’s breach of these Terms.
14. FORCE MAJEURE. Seller is not liable for nonperformance or delay in performance caused by circumstances beyond Seller’s control (“Force Majeure Event”). A Force Majeure Event includes, without limitation, (a) acts of God, war, riots, fire , explosions, floods, strikes, lockouts, injunctions, supply chain disruptions, unforeseen shutdown of major sources of supply, breakage of machinery or apparatus, national emergency, or pandemic and pandemic-related Laws, regulations, orders, or government or public health guidance (b) Seller’s inability to obtain at prices Seller deems in its discretion to be commercially reasonable, the Goods, fuel, power, raw materials, labor, containers or transportation facilities, (c) the occurrence of any unforeseeable contingency making performance impracticable, or (d) compliance in good faith with any applicable Law, regulation, or order. Any delivery so suspended shall be cancelled without liability, but these Terms otherwise remain unaffected.
15. PRODUCT STEWARDSHIP. Buyer acknowledges that the Goods may be of a Hazardous nature. Buyer agrees that the Goods, regardless of whether they are Hazardous, will be used, handled, stored, transported, and disposed of in such a manner as is necessary for the safety of and protection of persons, property, and the environment, and in accordance with the manufacturer’s recommendations and applicable laws and regulations. Buyer agrees to instruct its employees with respect to, and to make certain that they know and understand, procedures necessary to enable them to comply with the requirements set forth herein and make certain that they are adequately trained in the use, handling, storage, transportation, and disposal of the Goods. Buyer further agrees to deliver the most recent edition of any product literature, including MSDSs, to its employees and customers and to maintain a written record of such deliveries. Buyer shall only resell to those who can handle, use, store, transport, and dispose of the Goods safely.
16. TERMINATION. Seller shall have the right to cease work or terminate these Terms or any purchase order, in whole or in part, at any time, without liability, if: (a) Buyer breaches or defaults under these Terms or any other agreement it has with Seller; (b) a petition under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Buyer; (c) Buyer executes an assignment for benefit of creditors; (d) a receiver is appointed for Buyer or any substantial part of its assets; or (e) Seller has any reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is unable to provide Seller with adequate assurance within ten (10) days after written request therefore by Seller. In all cases, Seller’s rights are cumulative, are not exclusive, and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination.
17. WAIVER. All waivers by Seller must be in writing. Failure of Seller at any time to require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
18. CONFIDENTIALITY. All non-public, confidential, or proprietary information of Seller is confidential, solely for the use in performing hereunder, and may not be disclosed, used, or copied unless authorized in advance by Seller in writing. For purposes of these Terms, disclosure shall include, without limitation, using or providing such information to a language learning model or other Artificial Intelligence system or program.
19. Notices. All notices under these Terms shall be in writing and deemed given to the receiving Party when sent by certified mail, return receipt requested, to the address of the receiving party appearing on the Seller’s acknowledgement of Buyer’s order, or to such other address for written notices that either party has designated and provided to the other party.
20. ASSIGNMENT. No rights or obligations hereunder may be assigned by Buyer without the express written consent of the Seller.
21. APPLICABLE LAW and JURISDICTION. All issues and questions concerning the construction, validity, enforcement and interpretation of these Terms, all transactions arising thereunder, and the contractual relationship between the Buyer and Seller shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Connecticut. All disputes arising under these Terms, any transactions between the Seller and Buyer, and the contractual relationship of the Buyer and Seller shall be subject to the exclusive jurisdiction of the Federal or State courts of the State of Connecticut.
22. MISCELLANEOUS. Buyer shall comply with all applicable laws. Provisions which by their nature should survive will remain in force after any termination or expiration, including, without limitation, the sections concerning confidentiality and indemnification. The section headings are included solely for the convenience of the parties. No provision of these Terms shall be construed by any court or other judicial authority against any party hereto by reason of such party’s being deemed to have drafted or structured such provisions. In the event that any provision of these terms is found to violate any Law or is otherwise deemed invalid, the remaining clauses in these Terms shall remain binding. Any such invalid provision of these Terms will be replaced by a clause that comes as close as possible to the original provision’s content. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than Buyer.