1. APPLICABILITY

These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Buy Supply, Corp., a New York corporation (together with any entities directly or indirectly owned or controlled by, or under common control with, Buy Supply, Corp., collectively, the “Seller”) to any person or entity purchasing the Goods (each a “Buyer”) (Buyer and Seller each a “Party” and collectively the “Parties”) on or after the effective date set forth above (“Effective Date”).
These Terms, together with any invoice or sales confirmation issued by Seller (“Sales Confirmation”) represent the entire agreement between the Parties (the “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Notwithstanding anything to the contrary herein and therein, any conflict between any understanding existing between the Parties prior to the Effective Date and these Terms shall be conclusively resolved in favor of these Terms, which shall control and supersede. These Terms prevail over, and shall not be amended or supplemented by, any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to amend or supplement these These Terms may only be amended or supplemented in a writing that specifically states that it amends or supplements these Terms and is signed by an authorized representative of each Party.

2. DELIVERY

The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability. Seller shall not be liable for any delays, loss, or damage in The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery.
Unless otherwise agreed in writing by the Parties, Seller shall deliver the Goods to the address specified by Buyer in its purchase order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within three (3) days of Seller’s written Notice (defined below in Section 12(g)) that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written Notice to Seller of the non-delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received. If liability is nonetheless deemed to attach to Seller because of a non-delivery, then any such liability shall be limited, in Seller’s sole and absolute discretion, to: (i) replacing the Goods within a reasonable time after receipt of Notice from Buyer, or (ii) adjusting the invoice respecting such Goods by an amount equal to the lower of either (A) an adjustment reflecting the actual quantity of Goods delivered; or (B) an amount equal to actual compensatory damages demonstrably suffered by the Buyer.
Notwithstanding the foregoing, if Seller delivers to Buyer a quantity of Goods of up to ten percent (10%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.

3. SHIPPING TERMS IRRELEVANT, TITLE, RISK OF LOSS, SECURITY

Notwithstanding Buyer’s indication of a Delivery Point or the use of any shipping terms or INCOTERMS in Buyer’s purchase order or in the Sales Confirmation, title to, and risk of loss of, the Goods, passes to Buyer at Seller’s warehouse, immediately upon Seller making the Goods available for pickup by a carrier.
As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a first priority security interest in and to all the right, title and interest of Buyer in, to, and under, the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
Buyer grants to Seller an irrevocable power of attorney to do and perform, or cause to be done and performed, all acts, deeds, and things necessary or convenient (as determined by Seller) to effectuate the purpose of the foregoing, including without limitation the execution and delivery by Seller of documents and instruments in Buyer’s name, including financing statements, and any amendments, extensions, or terminations thereto, without the need of any prior Notice to Buyer.

4. INSPECTION AND REJECTION OF NONCONFORMING GOODS

Buyer shall inspect the Goods within five (5) days of the date when the Goods would in the ordinary course of events have been received (“Inspection Period”). Buyer will be deemed to have accepted all Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection As directed by Seller, Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 2902 W 37th St., Brooklyn, NY 11224. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are final and Buyer has no right to return Goods purchased under this Agreement to Seller.

5. PRICES

Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the Effective Prices may change from time to time without prior Notice to Buyer.
All Prices are exclusive of all shipping, handling, and transportation charges, insurance costs, sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes. If Seller is procuring any shipping, handling, transportation, or insurance for Buyer, Seller may, but shall not be required to, invoice Buyer separately for said In each case, Seller reserves the right to charge a markup to Buyer for the procurement of said services.

6. PAYMENT TERMS

Buyer shall pay all invoiced amounts due to Seller on sight, unless Buyer has been approved by Seller for credit, in which case the terms of a separate credit agreement shall govern the terms of Buyer’s payments. Buyer shall make all payments hereunder by wire transfer, check, ACH, credit or debit card, and in US dollars.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded Buyer shall reimburse Seller for all costs incurred in connection with any cancelled, rejected, or late payments, including, without limitation, bank fees, chargeback fees, attorneys’ fees, and court costs. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Seller is not responsible for any unauthorized or incorrect orders made by, on behalf of, or purportedly by or on behalf of, Seller shall be entitled to rely conclusively and without investigation on the accuracy of all orders received from Buyer or any person purporting to act on behalf of Buyer. In case of any incorrect order specifications, or unauthorized charges on Buyer’s account or credit card, Seller will reasonably cooperate with Buyer to resolve the issue(s) but shall not have any responsibility or liability to Buyer whatsoever, nor shall Seller have any obligation to cancel or modify any such orders, or refund any monies to Buyer in connection therewith. In each such case, Buyer’s sole remedies shall be against Buyer’s credit card company, bank, or the unauthorized third party.

7. PRODUCT INFORMATION

Seller is not responsible for any inaccuracy in labelling or description of the Goods, including, without limitation, any user manuals, handling or assembly instructions, or safety data sheets accompanying the Goods, all of which are provided to Seller directly by the respective manufacturers of the Goods and relied upon by Seller without investigation. Seller reserves the right to revise any catalog information, pictures, or pricing at any time, without the need to provide Notice to Buyer.
California Proposition 65. A complete list of Proposition 65 regulated chemicals is available at oehha.ca.gov. If a specific product contains a chemical subject to Proposition 65, the applicable warnings will be shown in the product page including, without limitation, the following warnings:
1. `Warning: This product contains a chemical known to the State of California to cause cancer.
2. Warning: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
Potable Water. Buyer is solely responsible for reviewing applicable potable water regulations in the state of purchase and use of any Goods. Federal standards applicable to certain Goods, or for potable water applications, visit http://water.epa.gov/drink/info/lead/index.cfm. Additional information regarding lead content and products impacted by these regulations can be found on the product page.
Except as otherwise specifically stated, some Goods sold by Seller may not comply with Federal Regulations pertaining to the supply of goods or services to the United States Federal Government, including Federal Acquisition Regulations Part 25. Any person purchasing through this website on behalf of the United States Federal Government will be making an “open market” purchase that is not covered by any contract. Open market purchases are NOT GSA schedule By purchasing any product on the open market, the person or entity making the purchase Customer represents that it has authority to make such purchase and has complied with all applicable procurement regulations.
Sales of Goods containing refrigerants, explosives, ammunition, flammable or compressed gas, toxic or any other harmful or regulated substance, material, or component (the “Restricted Items”), may be restricted in Seller’s sole and absolute discretion, and in each case in accordance with applicable Seller may require that Buyer provide additional written representations and certifications, or provide personal identification, as a condition precedent to the sale of Restricted Items. Seller will rely conclusively and without investigation upon such additional representations, certifications, and personal identification, and Seller shall not be responsible for any inaccuracy thereof. Seller reserves the right to cancel any sales that do not comply with the requirements of this section, regardless of whether a Sales Confirmation has been issued.

8. LIMITATIONS OF WARRANTY

All Goods are provided with only existing manufacturer’s warranties, if any, and are in each case subject to the terms and conditions thereof. Buyer is solely responsible for reviewing, understanding, and complying with the terms of any such applicable warranties. Seller is not responsible for handling any warranty claims, all of which shall be addressed directly with the respective manufacturers of the Goods.
SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; AND (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR SELLER SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR ANY INCORRECT LABELLING, DESCRIPTION, DEFECT, ERROR, OMISSION, AND NONCONFORMITY WHATSOEVER OF THE GOODS WITH THEIR MANUFACTURER SPECIFICATIONS, CERTIFICATIONS, OR DESCRIPTIONS, ALL OF WHICH ARE SUPPLIED TO SELLER BY THE MANUFACTURERS OF THE GOODS, AND WHICH SELLER PROVIDES TO BUYER “AS-IS” AND “WITH ALL FAULTS” WITHOUT AN INDEPENDENT INVESTIGATION AS TO THEIR ACCURACY.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES CALCULATED ON THE BASIS OF ANY MULTIPLES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS ACTUALLY COLLECTED BY SELLER FROM BUYER FOR THE GOODS SOLD HEREUNDER, REDUCED BY ANY AMOUNTS RECOVERED BY BUYER FROM COLLATERAL SOURCES OR AS OTHERWISE SET FORTH IN SUBSECTION (c)
As a condition precedent to bringing any claim against Seller, Buyer shall first exhaust its remedies against: (i) its insurers, reinsurers, and indemnitors; (ii) the carrier(s) of the Goods; and (iii) the manufacturers of the Goods, if applicable.

10. COVENANTS

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
Buyer shall maintain confidential and shall disclose, or cause the disclosure, of any non-public information disclosed by Seller, regardless of form, format, or medium, and regardless of whether said information is marked as confidential. Buyer shall preserve the confidentiality of said information with measures at least as great as the measures it employs to protect the confidentiality of its own confidential information, and in any event no less than commercially reasonable measures. Buyer shall give Notice to Seller of any action to compel disclosure of any confidential information, and shall reasonably cooperate with Seller to prevent said disclosure.
If Buyer is a reseller of the Goods, it shall procure and maintain insurance which includes, but is not limited to, commercial general liability (including product liability) with limits of no less than one million dollars ($1,000,000) per occurrence, waiving subrogation against Seller, with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance evidencing the insurance coverage specified herein. In addition, Buyer agrees to exhaust its remedies against its insurers and other indemnitors as a condition precedent to asserting any claims against All obligations in this subsection shall be enforced to the fullest extent permitted by law.

11. INDEMNITY

Buyer shall indemnify and hold Seller harmless, regardless of fault, for any claim, cost, liability, or expense whatsoever, including any expenses incurred in connection with the investigation, preparation, pursuit, or defense, of any claim or proceeding, and including any professional advisors fees (including attorney’s fees and court costs), arising out of or in connection with the breach or non-fulfillment of any of Buyer’s obligations hereunder.

12. MISCELLANEOUS

No Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. A written waiver shall be valid only under the circumstances specified therein.
Force Majeure. No Party shall be liable responsible to the other, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God, (ii) flood, fire, earthquake, epidemics, or explosion, (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; and (ix) other events beyond the control of the Impacted Party. The Impacted Party shall give Notice within thirty (30) days of the Force Majeure Event to the other Party, stating the expected duration of the Force Majeure Event. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law rules, and expressly excluding the applicability of the United Nations’ Convention on Contracts for the International Sale of Goods. Any claim of proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts of the located in Kings County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such claim or proceeding.
Notices. All Notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the receiving Party at the address of said Party specified in the Sales Confirmation or to such other address that may be designated by the receiving Party by Notice. All Notices shall be deemed to have been duly given when actually received, or three (3) days after being sent via nationally-recognized overnight courier (FEDEX, UPS, DHL).
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and the term or provision that is deemed unenforceable as written shall be reformed so as to preserve the initial contracting intent of the Parties to the fullest extent permitted by law.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this
Interpretation. This Agreement shall be deemed to have been jointly drafted and shall not be construed against any Party solely by reason of its Throughout this Agreement, headings are for convenience only, and each gender and number shall include all genders and numbers, as the context requires.
Waiver of Jury Trial. EACH PARTY EXPRESSLY, KNOWINGLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

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