These terms and conditions ("T&C") apply to samples, quotations, shipping notes, confirmations, invoices, and any sales of merchandise by Afushan Co., Ltd. Concerning Afushan's samples, and only to Afushan's samples, any reference in these T&Cs to Afushan's sale of goods or Buyer's sale of goods (other than Sections 1, 3, 6(b), 7, 10-12) for the purchase of goods, It shall be deemed that Afushan provides samples to you and your request for samples. In such event, "Buyer" shall be deemed to refer to you, the party requesting the Sample, and "Goods" shall be deemed to refer to the Sample.
Delay in Delivery; Certain Remedies; and Storage. Afushan's prices and terms of delivery in effect on the date of shipment shall be bound by it. Afushan will endeavor to meet the shipment and delivery dates requested by the Buyer, but such dates are not guaranteed, and Afushan shall not be liable for delays in the shipment or delivery of the Goods. Freight depends on factors such as the availability of Afushan stock, order completion, customer credit, destination, routing, and mode of transport and will be shipped FCA (Incoterms 2020) at Afushan's factory unless Afushan's quotation specifies otherwise. Ownership of the Goods shall pass to Buyer upon delivery to the carrier (unless otherwise specified in Afushan's quotation or purchase order confirmation), after which all risk of loss or damage to the Goods shall be borne by Buyer. Any claims for loss or damage in transit must be made by Buyer directly with the carrier. All delivery dates are approximate; in no event shall Afushan be liable for any incidental, consequential or special damages resulting from late delivery. Buyer shall pay Afushan's price for the Goods and all shipping costs, if applicable. If the Goods are not available on the specified date, Afushan will promptly notify the Buyer. At Afushan's election, either (a) Goods may be shipped when available (unless Buyer cancels any unshipped portion of the order before shipment), or (b) the order may be cancelled. Afshan shall not be liable for damages or penalties for any delay in delivery of the goods. In addition, Afushan's sole liability for failing to deliver shall be limited to the refund of any amount actually paid by Buyer for the undelivered Goods.
If the Buyer fails to accept or release the Goods from Afushan's warehouses by the date specified for release of such Goods in Afushan's quotation or purchase order confirmation, Afushan may, at Afushan's sole discretion, use any or all of the following remedies: (i) billing the Buyer for the full balance of the purchase price; (ii) charging the Buyer for storage and any additional charges; (iii) after 30 days' notice (following such date), removing and abandoning of all or any of the Goods (whether by sale, destruction or otherwise) without imposing any penalty against Afushan, and disposing of the Goods at Afushan's sole discretion (whether by sale, destruction or otherwise) without penalty to Afushan; the buyer remains responsible for the invoice and any storage and disposal charges, less any excess proceeds received by Afushan from the disposal of such goods (in consideration of the after the fee). Buyer expressly waives any claims concerning Afushan's disposition of the Goods, including the manner of nature. Without limiting the preceding, all Goods ordered by Buyer under a Purchase Order will be subject to a monthly storage charge of 5% of the value of the Goods stored from the earlier date at Afushan's sole discretion (unless Afushan's quotation or Purchase Order Acknowledgment specifies that such Goods will be available on (x) the date or time specified in the Purchase Order for release of such Goods or (y) thirty (30) days from such date, whichever is the later.
Force majeure. Afushan shall not be liable for any loss or damage arising from delays or failure to deliver due to force majeure; epidemics; severe weather; war; Goods; imposition of government embargoes, regulations, price restrictions or controls; accidents; delays by common carriers; delays in customs clearance; or any other unavoidable cause or beyond Afushan's reasonable control. At Afushan's option, any date may be extended upon any delay due to force majeure.
Limited Liability. Afushan shall not be liable for any incidental or consequential, special, indirect, or punitive damages (including, but not limited to, loss of profit, revenue, or business) arising out of, or relating to, the sale of merchandise or a breach of these T&Cs. Buyer's sole and exclusive remedy, and Afushan's sole obligation, for any proven claim arising out of or related to the sale of merchandise or otherwise arising out of the Buyer's purchase, possession, or use of the Goods is at Afushan's sole election: (a) refund a sum not to exceed the price of the Goods giving rise to the claim; (b) replace such Goods; or (c) repair such Goods.
Warranty. Afushan makes no warranties, whether express, implied, or statutory with respect to the merchantability, condition, fitness for any purpose, or any other matter regarding any Goods. A warranty is only provided when it is expressly set forth in writing on Afushan's quotation or Purchase Order Confirmation. Any claim for breach of any warranty must be made in writing within five (5) days of the date the Buyer knew or should have known of the alleged breach. Furthermore, Afushan makes no warranties, whether express, implied, or statutory that (a) the Goods comply with any law, regulation, ordinance, or industry standard; and (b) any decorating or labeling on the Goods applied by Afushan complies with federal, state, or local law.
Intellectual Property. Buyer warrants that the sale and use of any Goods manufactured or decorated by Afushan in accordance with any specifications, drawings, designs or instructions furnished by or on behalf of Buyer shall not infringe or contribute to the infringement of any patent, trademark, trade name, copyright, industrial design right or other intellectual property right of any third party. All artwork, designs, models, molds, tooling and other property created, procured and/or used by Afushan for the manufacture or decoration of the Goods shall be and shall remain the property of Afushan, and Afushan's use thereof shall be unrestricted, except for any logos and trademarks of Buyer used on the Goods.
Cancellation or Modification of Order. All orders, once accepted by Afushan, can only be cancelled or modified at the sole discretion of Afushan. If a Buyer requests a cancellation of a purchase order for stock goods, Afushan may accept or reject such cancellation at Afushan's sole discretion; no cancellation of any purchase order will be effective without Afushan's prior written consent. If Afushan agrees to a cancellation after shipment but before receipt, the Buyer is responsible for the cost of shipping the goods back. If the goods have been received, the return is subject to a restocking fee to be determined by Afushan and Buyer is responsible for all return shipping costs. Goods that have been used by Buyer, or goods that are custom or have been custom decorated, printed, hot stamped, or otherwise modified by Afushan, are not eligible for return without review. If Afushan disagrees, the buyer shall be responsible for paying the full purchase price. Even if Afushan agrees, if Buyer cancels or modifies a purchase order for manufactured goods, Buyer shall be responsible for payment of the full purchase price; if Afushan decides to cancel the order before production, Buyer shall be liable to Afushan's suppliers (whether the manufacturer or otherwise) Responsible for all cancellation fees imposed, including but not limited to any cancellation fees. In addition, if Afushan's suppliers increase costs or charges, including but not limited to,
Applicable Law and Exclusive Jurisdiction. All transactions between Buyer and Afushan shall be deemed to have taken place in and be governed by the laws of New Jersey, without regard to principles of conflict of laws. By accepting these T&Cs and by purchasing the Merchandise, Buyer at this moment submits to the exclusive jurisdiction of the state and federal courts of New Jersey concerning any dispute between Buyer and Afushan arising out of or concerning these T&Cs, any purchase order, or Afushan's sale of merchandise, and shall not bring any such action in any other jurisdiction.
Miscellaneous. These T&Cs may not be amended or modified, and no provision shall be waived except by a writing signed by an authorized representative of Afushan. Buyer may not assign any purchase order to any third party without the prior written consent of Afushan. These T&Cs are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. If any provision of these T&Cs is held to be invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these T&Cs shall otherwise remain in full force and effect and enforceable.
For questions about these terms, please contact us.