Terms of Sale
The sale of goods by The Shamrock Companies, Inc. and its subsidiaries (“Shamrock”) is subject to the terms and conditions contained herein. The terms and conditions contained herein take precedence over any terms and conditions which are proposed by a buyer of goods (“Buyer”) whether contained on a purchase order or otherwise. The terms and conditions contained herein, together with any quotation delivered by Shamrock to Buyer (the “Quotation”), is the entire contract between the Buyer and Shamrock and shall supersede any and all other agreements and understandings between the parties with respect to the subject matter hereof. Shamrock hereby rejects any and all terms or conditions proposed by Buyer, whether or not contained in any of Buyer’s business forms (including any purchase order).
All prices for goods are F.O.B. Origin. Unless otherwise set forth in the Quotation the prices for goods will be the prices in effect on the date of shipment. All prices are stated in United States Dollars and do not include taxes.
Terms of Payment
Unless otherwise stated in the Quotation, terms of payment are net thirty (30) days from the date of invoice. Buyer agrees to pay interest on overdue invoices at the greater of: (i) one and one-half percent (1-1/2%) per month or (ii) the highest rate permitted by law.
Cancellation or Modification of Orders
Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without Shamrock’s written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and engineering costs incurred or for which Shamrock is obligated prior to cancellation or modification. Notwithstanding the foregoing, Buyer may not cancel or modify the order under any circumstances, if special or custom products are ordered from Shamrock.
Unless otherwise agreed in writing by the parties, Shamrock reserves the right to select the mode of transport and the identity of the carrier. Neither Buyer nor any consignee shall have the right to direct or reconsign any shipment to any destination other than that specified in the bill of lading without Shamrock’s written consent. Buyer shall be responsible to pay for all shipping and transportation costs.
Title and Risk of Loss
Title and risk of loss passes to Buyer upon delivery of the goods to the carrier at the location of Shamrock.
Limited Warranty/Exclusive Remedy
Shamrock warrants that the goods are free from defect in material and workmanship at the time of shipment. Buyer is solely responsible for determining the appropriateness of any goods purchased. If, after inspection of the goods by Shamrock, the goods are defective then Shamrock will, at its option, repair or replace the defective good or refund an appropriate portion of the purchase price for the defective good. Shamrock shall have no obligation with respect to any defect in any of its goods unless it is notified within ninety (90) days after shipment of the goods stating the full particulars of the claim. Shamrock shall have the right to inspect the goods alleged to be defective on Buyer’s premises or, at Shamrock’s request, at Shamrock’s designated facility. The remedy of repair, replace or refund provided for herein is the sole and exclusive remedy of Buyer for a defective good. THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND SHAMROCK WILL NOT BE LIABLE FOR INJURIES OR DAMAGES TO PERSONS OR PROPERTY RESULTING FROM ANY CAUSE WHATSOEVER. THIS LIMITATION APPLIES TO ALL GOODS DURING AND AFTER THE WARRANTY PERIOD. IN NO EVENT WILL SHAMROCK BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR COMMERCIAL LOSSES, EVEN IF SHAMROCK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. To the extent the limitation or exclusion of liabilities or damages contained herein is not permitted under applicable law, this limited warranty will apply to the maximum extent allowed by applicable law.
Disclaimer of other Warranties
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ALL OTHER OBLIGATIONS OR LIABILITIES OF SHAMROCK, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY SHAMROCK.
Limitation of Warranty
Shamrock assumes no warranty liability with respect to defects in any goods caused by: (a) improper installation or maintenance of the goods; (b) repairs to the goods by anyone other than Shamrock or its authorized agent; or (c) negligent or other improper use, handling and/or storage of the goods including the storage of goods in conditions not normally accorded to photosensitive materials. Shamrock does not make any warranty and assumes no warranty liability for goods that are not manufactured by Shamrock.
No agent, distributor or representative is authorized to make any warranty repair on behalf of Shamrock or to assume for Shamrock any other liability in connection with any Shamrock’s goods.
Buyer Intellectual Property
If words, symbols or designs are provided to Shamrock by Buyer for printing on a particular good then the Buyer represents that the words, symbols and designs are either in the public domain or are the property of Buyer and do not infringe on the trademarks, copyrights or other intellectual property rights of others.
All shipments to be made hereunder shall at all times be subject to the approval of Shamrock’s credit department. Shamrock may invoice Buyer and recover for each delivery made of Goods made as a separate transaction without regard to any other delivery. If Buyer is in default under any agreement with Shamrock, or if, in Shamrock’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Shamrock may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, or (ii) terminate any order of goods that may have been placed by Buyer. Buyer shall reimburse Shamrock for any costs incurred by Shamrock, including reasonable attorney’s fees, to collect amounts due by Buyer to Shamrock.
Shamrock shall not be liable for failure to perform or delays in performance caused by acts of God; war (declared or undeclared), riot or act of terrorism; fire, explosions or floods; strikes, work stoppages, slow-downs, or other labor difficulties; shortage of vehicles, fuel, power, material or labor; embargo or delay in transportation; accidents; compliance with any order or request by a government agency or official thereof; or any other event or contingency beyond its reasonable control. In the event of the occurrence of any of the foregoing, the time for performance shall be extended for such time as may be reasonably necessary to enable Shamrock to perform. Shamrock, may, during any period of shortage due to any of the above contingencies, allocate its available supply of Goods among itself and its customers in such manner as Shamrock, in its reasonable judgment, deems fair and equitable.
In addition to any remedies that may be provided under these terms, Shamrock may terminate this Agreement or any Order for which partial shipment has been made with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
All non-public, confidential or proprietary information of Shamrock, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Shamrock to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Shamrock in writing. Upon Shamrock’s request, Buyer shall promptly return all documents and other materials received from Shamrock. Shamrock shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Shamrock on a non-confidential basis from a third party.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Shamrock. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
Limitation of Actions
Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of this agreement by Shamrock shall be barred unless commenced by Buyer within one year from the date of shipment.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
Relationship of the Parties
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.
Third Party Beneficiary
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.
If any provision of this agreement shall be held to be unlawful or unenforceable, the remaining portions of this agreement shall remain in full force and effect. No other agreement or understanding shall modify this agreement in any way or shall be binding upon Shamrock unless contained in a writing signed by Shamrock’s authorized representative.