Terms and Conditions of Sale

GENERAL INTERPRETATION AND COMPLETENESS
This agreement is deemed made in the state of the seller’s principal place of business and shall be interpreted under the Uniform Commercial Code and other laws of New York State in force at the date of the agreement. Products are sold only on the terms set forth in this document. Different or additional terms, previously or hereafter proposed by the buyer, are not agreed to by the seller. This contract contains the final and entire agreement the seller and buyer and no understandings, representations, agreements, modification, alteration or additions shall be effective unless in writing and signed by the seller and purchaser. For the purposes of this agreement, the seller shall be defined as Big City Sales, Inc. and the purchaser shall be defined as the party buying equipment or services from Big City Sales, Inc. Also, Big City Sales acknowledges that it is not a manufacturer, and so for purposes of this agreement the term “original manufacturer of the product” shall mean the people who actually build and warranty the product that is being resold by Big City Sales, Inc. to the purchaser. The term “agreement” as used herein shall mean the sellers accepted the version of the purchaser's purchase order and these terms and conditions of sale as a collective document.

TITLE, RISK OF LOSS AND INSURANCE
Title to each shipment of the product sold hereunder and risk of loss thereof passes to the buyer when such products are delivered by the seller or its agent to a common carrier or licensed trucker consigned to the buyer, or his agent, but they remain subject to the seller’s rights of stoppage in transit and of reclamation. If a strike, embargo, governmental action or any other cause beyond the seller’s control prevents shipment or delivery to the buyer or his agent, or if shipping instructions for any shipment are not received before shipment date, or if payment is to be made on or before delivery, title and risk of loss passes as soon as the shipment has been set aside by the seller and invoiced to the buyer(subject to the seller’s rights as an unpaid the seller) and payment shall be made in accordance with invoice as though the products had been shipped and accepted by the buyer and the seller shall be under no duty to carry insurance thereafter.

PRICES AND TERMS
All prices quoted are FOB point of shipment, and the seller’s regular terms of net 30 days, subject to the approval of its credit department, shall apply. Prorated payments shall become due as shipments are made. If shipments are delayed by the buyer, payments shall become due from the date when the seller is prepared to make shipment. If manufacture is delayed by the buyer, payment shall be made based on the agreed price and percent of completion. The buyer shall be liable for the price of all products substantially conforming to the agreement, notwithstanding that the buyer may not have accepted, or may have revoked acceptance of the same. The seller may, at any time and from time to time, in its sole discretion, limit or cancel the credit of the buyer as to time and amount and, as a consequence, may demand payment in cash before delivery on any untitled portion of this contract, and failure of the buyer to make any such payment within 30 days after demand shall constitute a default under this agreement. Approval of credit for one or more deliveries or contracts shall not be deemed a waiver of the provisions of this paragraph. The buyer hereby represents to the seller that it is now solvent and agrees that each acceptance of delivery of the products sold hereunder shall constitute reaffirmation of this representation at such time.

SALES TAX AND DUTIES
Unless otherwise stated, the seller’s prices do not include sale, use, excise or any other duties. Consequently, in addition to the prices specified herein, the amount of any applicable present or future sales, use, excise or other similar tax applicable to the sale of the products hereunder shall be paid by the buyer.

DELIVERY
The seller will use every reasonable effort to effect shipment on or before the date indicated. The seller shall not be liable for delay in performance or inability to perform occasioned by a cause beyond its control or beyond the control of its suppliers or contractors, including, but not limited to, strike embargo, governmental regulation or inability to obtain materials. If the performance by the seller is delayed by reason thereof, it shall notify the buyer, and time for performance shall be extended for the period of such contingency. If, as a result of any such contingency, the seller is unable to perform, this contract in whole or in part, then to the extent that it is unable to perform, the contract shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portion thereof, if any.

CLAIMS

(a) The buyer shall be deemed to have accepted any product and his right to cancel, reject or claim damages for breach of warranty or otherwise therefore shall expire: (1) in the case of a patent defect, 14 days after arrival of shipment or (2) in the case of latent defect, 30 days after invoice date or (3) in any event when product shall have been altered from its original state.

(b) If within the periods of time specified in subparagraph (a), the buyer notifies the seller in writing sent by registered mail, of a claimed defect, then (1) the buyer shall, together with his notice of claim, offer the seller in writing prompt opportunity to examine the product, and failure to do so constitutes acceptance and waiver of all claims for defect; (2) if the seller determines claim to be valid, it may replace defective product within a reasonable time.

(c) If not so replaced, the seller’s liability for damages on account of any claimed defect in any product delivered by the seller shall in no event exceed the purchase price of the product on which the claim is based. Specifically, and without limiting the generality of the foregoing, the seller shall not be liable for damages relating to any instrument, equipment or apparatus with which the product sold hereunder is used, not for the loss of profit or any incidental or consequential damages.

SEVERABILITY OF BREACH
Any defect in quality or delays in delivery or non-delivery shall affect only the particular installment so defective or delayed and shall not affect the balance of the contract. Any delivery not in dispute shall be paid for on the date, as provided in this contract, without offset, defense or counterclaim and regardless of controversies relating to other delivery or undelivered product.

DEFAULT BY BUYER
If the buyer fails, with or without cause, to furnish the seller with specifications and/or instructions for, or refuses to accept deliveries of, any of the products herein sold, or is otherwise in default under or breaches or repudiates this or any other contract with the seller or fails to pay when due any invoice under said contracts, then, in addition to any and all remedies which the seller may have hereunder or by law, the seller without notice (1) may bill and declare due and payable all undelivered products under this or any other contract with the seller and/or (2) may defer shipment hereunder and under any other contract until such default, breach or repudiation is removed and/or (3)may cancel any undelivered portion of this and/or any other contract in whole or in part (the Buyer remaining liable for damages).

PACKING
All products shall be suitably packed for domestic shipment unless otherwise requested by the purchaser and agreed to in writing by the seller.

WARRANTY
SELLER HEREBY EXPRESSLY EXCLUDES ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS, except as such warranties may be set forth in the seller’s product source (the original manufacturer of the product who transferred ownership to the seller for purposes of resale) current operating manual, catalog or written guaranty covering such product. SELLER ALSO HEREBY EXCLUDES ANY WARRANTY THAT THE PRODUCTS HEREUNDER SHALL BE FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PERSON BY WAY OF PATENT INFRINGEMENT OR THE LIKE. The cost of transport of parts necessitating an intervention under the warranty shall be borne by the purchaser. The cost of labor to remove or reinstall the material provide, traveling, hotel, insurance and other incidental expenses of the staff commission to do the replacement shall be borne by the purchaser. In all cases, the seller, as a wholesaler reseller to the purchaser, will offer the original product manufacturer’s standard warranty on each product to the purchaser as the only available warranty on the product wherever possible. The seller offers no additional warranties on any products it offers to the purchaser.

WAIVER
A waiver by the seller of a breach by the buyer of any provision of this contract shall not be deemed a waiver of future compliance therewith, and such provision, as well as all other provisions hereunder, shall remain in full force and effect.

STORAGE
In the event that shipment of goods is unreasonably delayed because of the buyer’s unwillingness or inability to accept delivery or because of the buyer’s request to witness any test, the seller will store goods and charge the purchaser for the cost of storage, insurance, maintenance of the goods and other incidental costs.

INSTALLATION AND SERVICE
All prices are exclusive of any installation or service the purchaser may require. The charge for such services may be negotiated and included in the price or purchased on a separate order.

MINIMUM BILLING
The minimum billing charge for any order will be $100 exclusive of packaging and transportation.

RETURNS
All sales are final. No goods may be returned without authorization. In the event returns are authorized by the seller, the seller will issue a Return Material Authorization Number (RMA). Goods returned without such RMA, or with freight due, or without payment of a restocking charge of 25% for standard products (100% for custom products) of the invoice will be refused.

CHANGES AND REVISIONS
The seller reserves the right to make revisions and changes in its goods and assumes no obligation to incorporate these changes in earlier models. The terms and conditions contained in the seller’s price sheets and quotations are subject to change without notice.

VARIATION
The seller is under no obligation to any specification changes, modifications or other alterations to the products prior to delivery, but may at its sole discretion either reject or accept to carry out any specification changes, modifications or other alterations to the products proposed by the purchaser prior to delivery provided always that any resultant increase to the order price and/or the time required for performance of the agreement shall be accepted and borne by the purchaser.

DELIVERY-ORDER

TRANSFER OF PROPERTY AND RISK
Delivery takes place when the product is made available at the seller’s manufacturing plant premises. Products will rightfully be deemed to be available at the delivery date agreed upon on order, and if such a date has not been agreed upon, then the date notified to the purchaser by the seller. Risks of any kind incurred by or on the occasion of the products will be borne by the purchaser as soon as delivery occurs. The title of the property to the products will pass to the purchaser from the seller upon FULL payment to the seller of the Order Price. Risk of loss or damage to each product will pass from the seller to the purchaser upon shipment of such product, FOB Manufacturers plant premises title is passed. Purchaser shall then take all necessary insurances to cover these risks. Purchaser shall not transform or resale the products so long as they have not completely paid the seller for the products.

POSTPONEMENT-CANCELLATION
Should the purchaser postpone the delivery of any products, the purchaser will be required to pay to the seller a surcharge to off-set any costs incurred to fulfill the agreement. The rate of the surcharge shall be one percent (1%) of the order value per week or part thereof for the products held by the seller. Should the purchaser postpone the delivery of any product above 6 weeks from the scheduled delivery date, the seller shall have the right to deliver the product and invoice accordingly. In all cases, the purchaser has to notify the seller in writing of any postponement within 30 days of the scheduled delivery date with respect to the concerned products. Should the purchaser cancel the agreement and purchase order prior to the accepted delivery date with respect to the products that are subject to each order, the purchaser will be required to pay Seller all amounts incurred by the seller up to the time of cancellation.

CANCELLATION OF THE ORDER BY THE SELLER
Any order can be automatically canceled by seller, the property of the products being immediately recovered by the seller is (i) when failure to pay due invoices by the payment due date is not cured by the purchaser within 48 hours or any longer period agreed to by the seller, after a formal receipt of a formal notice from the seller to cure such a breach, or (ii) the purchaser becomes insolvent or bankrupted.

INSPECTIONS AND TESTS
Only those tests and inspections as explicitly called for in the purchase order and agreed to be performed on the products by the seller at no charge or at an agreed-upon and quoted additional cost to the purchaser will be conducted. No testing or inspections shall be assumed to be conducted on the product for the purchaser by the seller unless specifically agreed upon at the time of order acceptance by the seller. If test witnessing required by purchaser they shall stipulate to the seller a notice period that is reasonable in advance of when the test is being conducted. Purchaser shall be responsible for all expenses related to having their personnel present during testing. Seller shall also have the right to impose a daily rate per person for test witnessing by outside personnel at the plant where the product is being tested and the purchaser shall agree to those charges before arrangements for such testing are made. Should the purchaser decide not to attend a scheduled test, the test shall be deemed to have been made and successful in the presence of the purchaser. If successful testing is a criterion for making delivery, it shall be deemed as met under these circumstances and the seller shall be allowed to deliver and invoice purchaser. No claim whatsoever relating to the conduct and result of tests will be accepted by the seller after delivery of the product.

INDEMNITIES AND LIQUIDATED DAMAGES
The purchaser cannot claim any kind of indemnity whatsoever, in case of accidents or death to individuals, damage to property not related to the agreement. Seller shall not be liable to the purchaser in contract, in tort or otherwise for any special, incidental, indirect or consequential damages of any nature arising out at any time or from any cause relating in any way to the agreement, including but not limited to loss of profit or business revenue, business opportunity or anticipated savings. Seller is not responsible for errors of omission or changes in data made on drawings or specifications for products made by the manufacturer, where the seller is merely acting as a reseller-distributor of the product. Similarly, application engineering and selection based upon data from the original equipment manufacturer is the responsibility of the manufacturer of the product and the purchaser. Big City Sales, Inc. is herein acting only as a reseller.

JURISDICTION AND CHOICE OF LAW
These conditions of the agreement shall be governed by and construed by the laws of the State and County of the seller (State Of New York, Suffolk County). Any litigation by either seller of the purchaser would have to be initiated in courts in the county of Suffolk, State of New York.

SEVERABILITY
In case any provision of this agreement shall for any reason be held invalid, unenforceable or illegal, such provisions shall be severed from the agreement. The invalidity, unenforceability or illegality shall not affect the other provisions of this agreement.