Standard Terms and Conditions

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Standard Terms and Conditions of Sale

1. GENERAL. The terms and conditions set forth in this agreement apply to all quotations made and all purchase orders entered into by FIBA Technologies, Inc. (“FIBA”), and acceptance by FIBA of any order by confirmation or commencement of performance shall be on the basis of these terms and conditions, even though no reference is made to these terms and conditions at the time of acceptance.

2. OFFER AND ACCEPTANCE. FIBA offers to sell the products involved in this transaction in accordance with all terms of sale set forth herein and no additional or different terms offered by Buyer shall become a part of this agreement unless such additional or different terms have been expressly approved in writing by FIBA. The acceptance of the Terms and Conditions contained herein is an essential prerequisite to any contract of sale made by FIBA. FIBA’s offer to sell the products involved in this transaction is subject to financial credit review. All FIBA quotations remain valid for 30 days.

3. PAYMENT & FREIGHT TERMS. All prices are F.O.B. point of shipment (ex works) unless otherwise specified, and do not include local, state or federal taxes or packaging costs. Taxes are for the account of buyer. All shipments will be arranged by buyer or made freight collect and at buyer’s risk. Unless otherwise specified, payment terms are “Net 30 days from the date the product is completed and buyer is notified by FIBA that the product is available to ship”. For international orders payment terms are: (a) “30% of sale price deposit with the purchase order and balance paid prior to shipment”, or; (b) “irrevocable letter of credit issued by a bank acceptable to FIBA, terms of which will be payable at sight with a dock receipt.” Letter of credit must be issued before order is accepted. All orders are subject to credit approval. FIBA shall not be responsible for switching, spotting, handling, storage, demurrage or any other transportation or accessorial service.

4. CANCELLATION AND RETURNS. Buyer shall be responsible to pay the full purchase order price if products are manufactured in response to a purchase order. Buyer agrees that no orders may be cancelled and no product shall be returned without FIBA’s prior written approval. If cancellation of a purchase order is approved by FIBA, a restocking fee of up to 30 % of the value of the cancelled order shall be paid by Buyer. All claims for loss or damage during transit must be made against the carrier and by notation on freight bill or delivery receipt. Cancellation of an order or portion thereof by the Buyer without the approval and agreement of FIBA will subject Buyer to special, direct, indirect and consequential damages.

5. JURISDICTION AND VENUE; GOVERNING LAW. The validity, performance and interpretation of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without reference to conflict of law provisions. The parties agree that any controversy arising under this Agreement shall be determined by the federal or state courts situated in the Commonwealth of Massachusetts and both parties hereby submit and consent to the exclusive jurisdiction and venue of said courts with respect to all such controversies.

6. FILINGS. Buyer upon request of the FIBA will execute any documents necessary, including UCC statements, to evidence Buyer’s indebtedness to FIBA.

7. WARRANTY. FIBA warrants that new products of its own manufacture will be free from defects in material and workmanship and will be in compliance with (i) all applicable DOT, regulations pertaining to the use of such products in trade or commerce and (ii) subject to the provision of paragraph 14 hereunder, other specifications set forth in the accompanying Purchase Order at the time of shipment and subject to all other provisions and limitations herein after set forth for one (1) year from date of shipment, provided equipment is installed, operated and maintained in accordance with its intended use and FIBA’S written performance specifications. FIBA’s obligations under this warranty are limited to repairing or replacing any such defective or non-conforming product sold by FIBA.FIBA shall have no obligation under this warranty unless such product is promptly returned to FIBA, transportation charges prepaid by Buyer, unless otherwise specified in writing by FIBA, and examination of such product shall disclose to FIBA’s reasonable satisfaction that such product is defective, or non-conforming in which event, FIBA at its sole cost and expense, shall repair or replace such product within a reasonable time after such return of the product to FIBA. FIBA shall bear the cost of repair or replacement of any product which is determined to be defective or non-conforming. The Buyer shall bear the cost of reshipment of the product to Buyer if FIBA determines the product is beyond the warranty period or otherwise not entitled to the benefits of this warranty. The remedies set forth herein are exclusive. FIBA shall not be liable for any direct, indirect, consequential or exemplary damages resulting from the delivery, use or failure of the product (including loss of any material stored in this product) or from any other cause whatsoever.

This limited warranty is void with regard to any product sold by FIBA which has been subject to misuse, negligence, alteration, conversion, corrosion, fire, heat, accident or improper installation, application, storage, combination with other components or repair by others.


8. WARRANTY PROCEDURE. To make a claim under this warranty, Buyer must: 1) give FIBA written notice within ten (10) days after discovery of a claimed defect or non-conformity; 2) immediately discontinue use of the product, and; 3) return such product to the location specified by FIBA for evaluation to validate the warranty claim. If the claimed defect or non-conformity is confirmed by FIBA's inspection and the claim has been timely made, FIBA will at its option and as Buyer's remedy repair or replace such product or any component part thereof,. Any related components or other equipment manufactured by others, which may be sold with FIBA’s product, are not covered by this warranty.

9. LIMITATION OF LIABILITY. FIBA'S liability for its alleged breach of contract, breach of warranty, strict liability, product liability, recall liability, negligence or other cause or theory is limited to replacement of defective or non-conforming products upon timely receipt of notice as required herein, within one year from date of delivery regardless of whether FIBA has or has not been advised of the possibility of such damages or other damages. Under no circumstances will FIBA be responsible for loss of use, lost profits, interruption of business or for any special, incidental or consequential damages regardless of cause. All oral and written advice provided by FIBA relating to the products, including but not limited to technical advice, is subject to the foregoing disclaimer and limitation of damages provision. By accepting delivery of the product the Buyer accepts that this limitation of remedies is reasonable and enforceable. In no event shall FIBA's liability exceed the purchase price for the product and in no event shall FIBA be liable for any breach of warranty beyond the terms stated above.

10. TERMS OF PAYMENT. Buyer shall pay all invoices in full within thirty (30) days of invoice date unless otherwise authorized in writing by FIBA. All past due amounts will be subject to a service charge of up to one and one-half (1-1/2%) percent per month or the highest rate then permitted by law, whichever is less, until paid in full. FIBA reserves the right to exercise any of its lawful remedies if Buyer does not make payments when due. Buyer shall pay all of FIBA’s costs and expenses, including attorney fees incurred by FIBA in the event Buyer is in breach of the terms of payment or any other provision of these terms and conditions. In addition to all other remedies, FIBA may reclaim and repossess the goods.

11. FORCE MAJEURE. FIBA will not be responsible for any delay in performance due to acts of God, war, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, quarantine restrictions, mill conditions, strikes, differences with workmen, delays in transportation, shortage of fuel, labor or materials, or any cause beyond the reasonable control of FIBA.

12. NON WAIVER. Any waiver or failure by FIBA to require strict compliance with any of the provisions hereof shall not operate as a waiver of FIBA's right to insist upon strict compliance therewith thereafter.

13. EXCLUSIVE TERMS AND CONDITIONS; MODIFICATION; ACCEPTANCE. Any offer or acceptance by FIBA is made subject to the terms and conditions contained herein and no additional or different terms offered by Buyer, either written or oral, whether before or after execution of this agreement, shall apply unless specifically stated in writing by FIBA that modification to these terms and conditions are acceptable. Any additional or conflicting terms or conditions, oral or written, that may be contained in any purchase order or other documents are hereby objected to and rejected by FIBA. Should any term or condition hereof be invalid, inapplicable or modified in a writing signed by an Executive Officer of FIBA, all other terms and conditions hereof shall nevertheless remain in full force and effect.

14. SPECIFICATION VARIATIONS. The products produced hereunder will be produced in accordance with FIBA’s standard practices. All products however, including those produced to meet exact specifications, shall be subject to mill tolerances and variations consistent with usual good mill practices in relation to weight, straightness, section, composition and mechanical or physical properties, and to normal variations in surface and internal conditions and in quality to deviations in tolerances and variations consistent with normal mill practical testing and inspection methods.

15. INDEMNIFICATION. Buyer shall indemnify, defend and hold harmless FIBA, its officers, directors, employees and agents from and against any and all demands, claims, actions, causes of action, proceedings, fines, penalties, costs and liabilities (including, but not limited to, necessary attorneys fees and expenses), except to the extent caused solely by FIBA’s willful, unlawful, negligent act or omission of in connection with the agreement.