Incorporation by Reference
These Terms and Conditions are incorporated in and become a part of any agreement between Buyer and Monadnock relating to products identified or described on the face hereof (the “Products”). None of the Terms and Conditions contained herein may be supplemented, modified, superseded or otherwise altered, regardless of anything contained in Buyer’s purchase order form or otherwise, except to the extent such additions, modifications, or alterations or other terms are typed or handwritten in full (and not merely printed or incorporated by reference) in a document signed by an authorized officer of Monadnock
Terms and Conditions of Sale
Products furnished and services rendered by Monadnock are sold only on the Terms and Conditions stated herein. Notwithstanding any Terms and Conditions on Buyer’s order, Monadnock’s performance of any contract is expressly made conditional on Buyer’s agreement to Monadnock’s Terms and Conditions of Sale unless otherwise specifically agreed to in writing by Monadnock. In the absence of such agreement, commencement of performance and/or delivery shall be for Buyer’s convenience only and shall not constitute an acceptance of Buyer’s Terms and Conditions. If the parties have not previously entered into a written contract, acceptance of any Product or service shall be deemed acceptance of the Terms and Conditions stated herein.
All orders are subject to acceptance by Monadnock, with acceptance becoming effective upon receipt by the Buyer of Monadnock’s written and/or electronic Order Acknowledgment.
Quotations and Prices
All quotations are subject to the Terms and Conditions stated herein as well as any additional Terms and Conditions that may appear within Monadnock’s quotation or proposal form. In the case of a conflict between the Terms and Conditions stated herein and those appearing within Monadnock’s quotation or proposal form, the Terms and Conditions on the face of Monadnock’s quotation or proposal form shall control.
Monadnock’s prices and quotations are subject to the following:
(a) All published prices are subject to change without prior notice.
(b) Unless otherwise specified in writing, all quotations constitute offers, and are valid for and expire thirty (30) days after the date the quotation is issued or until revoked or revised, whichever is sooner; provided that budgetary quotations and estimates, indicated as such on the quotation, are for preliminary information only and shall neither constitute offers, nor impose any responsibility or liability upon Monadnock.
(c) All shipments will be billed at the prices in effect on the date of acceptance of Buyer’s order(s).
(d) Unless otherwise stated by Monadnock in writing, all prices quoted shall be exclusive of transportation, insurance, taxes, (including without limitation, any use tax, sales tax, excise or similar tax), license fees, customs fees, duties, and other charges related thereto, and Buyer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto in a timely manner, and shall hold Monadnock harmless therefrom.
(e) Stenographical, typographical and/or clerical errors are subject to correction so as to give the terms the meaning the parties originally intended.
(f) Unless expressly agreed to in writing by Monadnock, prices quoted are for Products contained in normal domestic commercial packaging.
(g) The start date of the delivery term is the date of Monadnock’s order acceptance as indicated in the written order acknowledgment.
Shipment dates are approximate. Monadnock will make all reasonable efforts to meet its shipment schedule. Monadnock is not liable for any defaults, damages or delays in fulfilling any order caused by conditions beyond its control, including but not limited to, Acts of God, labor troubles, riots, fire, flood, and delays in supply of materials and components, and transportation. If conditions arise which prevent compliance with such schedules, Monadnock shall not be liable for any damage or penalty for failure to give notice or delay, and such delay shall not constitute grounds for cancellation.
(h) Quoted delivery dates are those in effect on the date of the quotation and are subject to change without prior notice.
Terms of Payment
All Products will be invoiced when shipped. Invoices are due and payable in U.S. funds in accordance with the terms specified on the face of the invoice, subject to proper credit approval. For any balance resulting from late or non-payment as reflected in the terms of the invoice, interest shall accrue at the rate of one and one-half percent (1½%) per month commencing the 31st day after the date of the invoice. Should any portion of any invoice be disputed, the undisputed portion(s) of the invoice and other invoices not in dispute shall be paid when due without offset. If any payment is not made when due, Monadnock may, in its discretion, defer the performance of any further work to be performed by Monadnock, including loss of reasonable profits in the event any payment hereunder is not made when due. Buyer hereby grants to Monadnock a purchase money security interest in the Products, which security interest shall extend to all parts or accessories now or hereafter attached to the Products and proceeds therefrom. Buyer hereby agrees to perform all acts necessary to perfect Monadnock’s security interest. A copy of this Terms and Conditions of Sale (along with any form of written acceptance) may be filed on Monadnock’s behalf with appropriate state authorities at any time as a financing statement in order to protect Monadnock’s security interest. Monadnock shall have all rights and remedies of a secured party under the Uniform Commercial Code and, if the account is referred for collection and/or litigation for non-payment, Buyer agrees to pay Monadnock’s reasonable attorney’s fees and all other costs and expenses of collection. Monadnock shall have the continuing right to review Buyer’s credit and at any time (without prior notice) to require full payment in advance, progress payments, satisfactory security or a guarantee of prompt payment. United States government contracts or subcontracts are subject to applicable regulations concerning termination and payment.
Transportation and Risk of Loss
Unless otherwise agreed to in writing by Monadnock, all transportation shall be at Buyer’s expense. Monadnock reserves the right to ship Products freight collect and to select the means of transportation and routing. Unless otherwise advised, Monadnock may, but is not obligated to, insure the Products at full value or declare full value thereof to the transportation company at the time of delivery and any freight and insurance costs shall be Buyer’s responsibility. Title and risk of loss or damage shall pass to Buyer upon delivery of the Products to the transportation company at the FOB point. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Buyer therefor. Notwithstanding any defect or nonconformity, or any other matter, such risk of loss shall remain with Buyer until the Products are returned at Buyer’s expense to such place as Monadnock may designate in writing. Buyer, at its expense, shall fully insure Products against all loss or damage until Monadnock has been paid in full therefor, or the Products have been returned, for whatever reason, to Monadnock in their original condition. All Products must be inspected upon receipt by Buyer and claims should be filed immediately with the transportation company when there is evidence of damage, either concealed or external. As used in the clauses appearing herein or attached hereto, “delivery” shall occur when Products are delivered at the FOB point, which shall be the point of manufacture or such other place, as Monadnock shall specify in writing.
Monadnock shall not be liable in any way as a result of any delay in performance hereunder due to unforeseen circumstances or to causes beyond its control, including, without limitation, strike, lockout, riot, war, fire, act of God, accident; failure or breakdown of components necessary for order completion; subcontractor, supplier or Buyer caused delays; inability to obtain labor, materials or manufacturing facilities; or compliance with any law, regulation or order, whether valid or invalid, of any competent governmental body or any instrumentality thereof whether now existing or hereafter created. Performance shall be deemed suspended during and extended for such time as any such circumstances or causes delay its execution. Whenever such circumstances or causes have been remedied, Monadnock will make and Buyer shall accept performance hereunder. In addition, Monadnock’s inventories and current production may be allocated so as to comply with applicable Government regulations.
Whenever Monadnock accepts an order for any catalog-listed Product, and Buyer cancels said order prior to delivery Monadnock shall assess a cancellation charge of not less than fifteen percent (15%) of the order value or a minimum charge of ($50) fifty dollars, which ever is greater, to cover costs of processing and order handling; cancellation and return of Product within thirty (30) days after delivery shall be subject to a charge of not less than ($20) twenty dollars per/cwt value or a minimum charge of ($100) one hundred dollars, which ever is greater; no such order may be terminated after fifteen (15) days except by mutual written agreement of the Parties. Before any Products may be returned to Monadnock due to such cancellation, Buyer must obtain written authorization from Monadnock or its authorized representative for such return, with specific instructions as to how and where these Products should be returned. Any Product returned to Monadnock shall be undamaged and salable, and shall be sent prepaid via the means of transportation indicated as acceptable by Monadnock in the written return authorization. Buyer is solely responsible for all freight and transportation costs relating to any return. No order for any non-catalog or non-standard products may be terminated by Buyer except by mutual agreement in writing. Terminations by mutual agreement are subject to the following conditions: (1) Buyer will pay, at applicable contract prices, for all Products which are completely manufactured and allocable to Buyer at the time of Monadnock’s receipt of notice of termination; (2) Buyer will pay all costs, direct and indirect, which have been incurred by Monadnock with regard to Products which have not been completely manufactured at the time of Monadnock’s receipt of notice of termination plus a prorated portion of normal profit on the contract; (3) Buyer will pay a cancellation charge on all Products affected by the cancellation. Monadnock’s normal accounting practices shall be used to determine costs and other charges.
Confidential and Proprietary Information – OK
The Buyer agrees not to disclose to any person outside of its employ any confidential and/or proprietary information, which may be disclosed to it relating in any way to any Monadnock Products. Upon termination of any order or relations between the parties, Buyer shall return to Monadnock, upon Monadnock’s request, all drawings, descriptions, and/or other material received from Monadnock and all other materials containing confidential information relating to the Products. Buyer shall not allow persons outside of its employ to inspect such portions or components of the Products identified by Monadnock to be confidential or proprietary without Monadnock’s prior written consent.
Any warranty contained herein or in any quotation or acceptance shall be to the original Buyer only, and may not be assigned or transferred to any third party. Products manufactured by Monadnock are warranted against defects in materials and workmanship for 180 days from date of shipment thereof to Buyer. Monadnock’s liability under valid warranty claims is limited, at the option of Monadnock, to replacement or refund of an equitable portion of the purchase price of the Product. Monadnock shall have no liability for any defect in material or workmanship unless notice of such defect is received by Monadnock within 180 days from the date of shipment. Items consumed in normal use are not covered by this warranty. All warranty replacement or repair shall be limited to Product malfunctions which Monadnock determines are due to defects in original materials or workmanship. All of Monadnock’s obligations under this warranty shall cease in the event of abuse, accident, alteration, misuse or neglect of the Product. In-warranty repaired or replaced materials are warranted only for the remaining unexpired portion of the original warranty period applicable to the repaired or replaced product. After expiration of the applicable warranty period, Buyer shall be charged at prevailing market prices for raw materials, labor, and transportation.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Warranty Replacement and Adjustment
All claims under warranty should include the Product lot number, the date of shipment, and a full description of the circumstances giving rise to the claim. Before any Products are returned for repair and/or adjustment, Buyer must obtain written authorization from Monadnock or its authorized representative for the return, and instructions as to how and where the Products should be returned via a Return Authorization number. Any Product returned to Monadnock for examination shall be sent prepaid via the means of transportation designated by Monadnock. Monadnock reserves the right to reject any warranty claim not promptly reported and any warranty claim on any item that has been altered or has been returned by non-acceptable means of transportation. When a Product is returned for examination and inspection, or for any other reason, Buyer shall be responsible for all damage resulting from improper packing or handling, and/or for loss in transit, notwithstanding any defect or non-conformity in the Product. In all cases, Monadnock will be solely responsible for determining the actual cause and nature of failure, and Monadnock’s determination with regard thereto shall be final. Any Products returned to Monadnock, for whatever reason, must be free from hazardous substances including, but not limited to, corrosive, radioactive, or toxic substances.
If it is determined that Monadnock’s Product has been returned without cause and is not defective, Buyer will be notified and the Product will be returned at Buyer’s expense. In addition, a charge for testing and examination may be assessed in connection with Products so returned.
Limitation of Remedies
Monadnock’s entire liability and the Buyer’s exclusive remedy for any defects in materials or workmanship or non-performance of the Products shall be as set forth above under “Warranty”. For any other claim related in any way to the subject matter of the sale of Monadnock’s Products, Monadnock’s liability, regardless of the form of action, whether in contract or tort, including negligence, shall be limited to the dollar amount Monadnock actually receives for the Products furnished, or to be furnished, or services rendered, or to be rendered as the case may be, which is the subject of claim or dispute.
In no event will Monadnock be liable for any damages caused by the Buyer’s failure to fulfill the Buyer’s responsibilities, or for lost profits or other consequential damages, even if Monadnock has been advised of the possibility of such damages, or for any claim against the Buyer by any other party.
If any provision or provisions of these Terms and Conditions are held to be invalid, illegal, or unenforceable; the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
No action, regardless of form, arising out of, or in any way connected with, the Products furnished or services rendered by Monadnock, may be brought by Buyer more than one (1) year after the cause of action has occurred. This contract between Monadnock and the Buyer shall be construed under and governed by the laws of the State of New Hampshire. Venue for any dispute arising from this contract shall be in New Hampshire.
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