General TERMS & CONDITIONS of Sale
1. APPLICABILITY. These General Terms and Conditions of Sale (“Terms and Conditions”) are the terms which govern the sale of the goods and services by the corporate entity issuing the quotation (“Seller”) to the person or entities to whom the goods or services are sold or offered (“Buyer”). Buyer accepts these Terms and Conditions by signing and returning Seller’s quotation, by sending a purchase order in response to the quotation, by submitting instructions to Seller to ship the goods, or by accepting or paying for the goods or services (the “Sales Confirmation”). Any sale without an accompanying quotation shall be void and of no effect. These Terms and Conditions and the Sales Confirmation (collectively, this "Agreement") comprise the entire agreement between the parties, except as hereafter modified by Seller in writing and signed by Seller’s representative (a “Superseding Agreement”). These Terms and Conditions, in all instances, prevail over any of the Buyer’s general terms and conditions of purchase or other terms (including, but not limited to, additional or different terms, conditions or warranties other than those identified on the quotation), regardless of whether such terms are contained in Buyer's Sales Confirmation. Neither Seller's subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by Seller to any such terms. Trade custom, trade usage and past performance are hereby superseded by these Terms and Conditions and shall not be used to interpret these Terms and Conditions.
2. OTHER DEFINITIONS.
- “Goods” shall mean the machinery, equipment, products, and other tangible property from time to time sold or offered for sale by Seller.
- “Services” shall mean the labor from time to time provided by Seller.
3. ORDER ACCEPTANCE. No order for Goods or Services shall be binding on Seller until Seller issues an order confirmation letter to the Buyer outlining the order details (including, but not limited to, the order number, unit description, and projected completion date).
4. ORDER CHANGES BY SELLER. Seller reserves the right to change the details of any Goods, provided that such change shall not impair the performance or critical dimensions of such Goods. Furthermore, Seller may, from time to time, change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services, or any performance dates set forth in the quotation. In no event shall Seller be responsible to provide any notification pursuant to changes made under this Section and in no event, shall Seller be liable for cost deductions for changes made pursuant to this Section.
5. PRICE. Unless otherwise stated, all prices are in United States Dollars. Prices relating to Goods are Incoterm 2010 Ex Works, place of manufacture. Labor rates for Services shall be calculated from the time of dispatch until return or dispatched to another job. No amount is included in any price for sales, use, privilege, excise, or other taxes imposed on, or measured by, the gross receipt from the sale of Goods or Services. Buyer shall promptly pay any such charge directly to the governmental authority assessing them or reimburse on demand any such charges paid by the Seller. All prices quoted are exclusive of delivery costs, including freight, delivery, setup and service charges unless expressly stated to the contrary. Seller reserves the right to apply, in its sole discretion, surcharges related to freight, including, but not limited to charges applied against incoming manufacturing components.
6. CHANGES TO PRICE. If the price of Goods should be increased by Seller before delivery of the Goods, when applicable, then these Terms and Conditions shall be construed as if the increased price(s) were originally inserted herein, and the Buyer shall be billed by Seller on the basis of such increase price(s). Labor rates for Services are subject to change without notice.
7. PAYMENTS. All payments shall be in United States Dollars, without offset, back charge, retention or withholding of any kind. All invoices shall be payable in accordance with the payment terms and information located on the invoice. Any amounts not paid when due will be subject to interest at the rate of one and a half percent (1.5%) per month or the highest non-usurious rate permitted by applicable law, whichever is less. Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due. At the request of Seller, payments will be made through a confirmed, irrevocable, letter of credit in form and on banks acceptable to Seller.
8. DELIVERY, RISK OF LOSS. Delivery to the carrier, including carriers owned or controlled by Seller, or notification that Goods are ready for shipment, shall constitute delivery to the Buyer for all purposes and risk of loss to the Goods shall pass to the Buyer.
9. SHIPMENT. Prices include the cost of standard packaging and crating required for normal domestic transportation. Freight charges included in any Price are subject to adjustment for actual costs incurred by the Seller and shall always be borne by the Buyer. If any Goods will be shipped out of the continental limits of the United States of America, all fees and expenses relating to export documentation, export packaging, marking or importation into the country of destination shall be the sole responsibility of the Buyer. Goods must ship within ten (10) business days after notification of unit completion. Goods on-site after ten (10) days may be stored by Seller, at its option, either on-site or to an off-site storage location until shipped, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
10. PARTIAL SHIPMENT. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
11. ACCEPTANCE. All Goods shall be inspected and accepted within thirty (30) days after delivery. All Services shall be inspected and accepted within thirty (30) days after performance. Failure of Buyer to provide Seller with an itemized list of defects within such thirty (30) days or permit Seller a reasonable opportunity to correct any listed defects shall be deemed acceptance of the Goods or Services. In the event of multiple shipments for Goods or extended Services, each individual shipment shall be separately accepted, and Services shall be periodically inspected and accepted. Buyer expressly waives any right to reject Goods or Services that substantially conform to the specifications relating hereto and any right to revoke acceptance after such thirty (30) day period.
12. SERVICE SUPERVISION. All Services performed by Seller at a location owned or controlled by Buyer shall be performed by Seller’s personnel under the supervision and control of Buyer.
13. ACCESS, PERMITS AND UTILITIES. Seller’s employees shall have free and unobstructed access to the site at which Services are to be performed. Buyer shall furnish safe and proper equipment, parts, tools and working conditions, safe storage for Seller’s property, and all necessary lifting equipment, steam, electricity, gas, oil, water, and other utilities necessary to perform the Services. Buyer shall be solely responsible for obtaining all licenses, registrations and permits necessary for Seller to perform Services.
14. EXCUSABLE DELAYS. Seller shall have no liability for any failure to deliver the Goods or perform Services to Buyer if such failures arise from causes beyond the reasonable control of Seller, including, but not limited to, acts of God, delays of suppliers or carriers, government actions or inactions (including denial or non-issuance of a license), shortages of materials, labor difficulties, national or regional emergencies, etc.
15. OTHER ADDITIONAL COSTS. In addition to the purchase price, Buyer shall pay to Seller any costs incurred as a result of: (a) changes in the Goods or Services or delays in delivery requested by Buyer; (b) delays in delivery arising from Buyer’s failure to provide information, drawings or materials; (c) material or labor cost increases by suppliers borne by Seller; or (d) changes in the laws, codes, rules or regulations applicable to the Goods or Services after the date of quotation by Seller.
16. WARRANTY. To the extent that Goods are warranted by their original manufacturers, and to the extent that such warranties are assignable to Buyer, Seller assigns to Buyer any rights and remedies it has relating to such Goods. Seller further agrees to perform any obligations of the original manufacturer under the manufacturer’s warranty to the extent that such manufacturer authorizes Seller to perform such warranty obligations. SELLER WARRANTS GOODS MANUFACTURED, AND SERVICES PERFORMED BY SELLER PURSUANT TO THE WARRANTY POLICY STATEMENTS ISSUED FROM TIME TO TIME BY SELLER. EXCEPT AS SET FORTH IN THE APPLICABLE WARRANTY POLICY STATEMENT, SELLER MAKES NO WARRANTY EXPRESSED OR IMPLIED WITH RESPECT TO GOODS OR SERVICES INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
17. CANCELLATION. Orders for Goods or Services may not be cancelled by Buyer after acceptance by Seller. Seller shall be entitled to request reasonable assurances that Buyer will accept and pay for any Goods or Services, including, but not limited to, requiring payments on account or in advance if there are reasons to believe that Buyer will not accept and pay for Goods or Services when delivered. Until such assurances are received, Seller shall be entitled to stop work on Goods or Services, cancel any agreement to sell Goods or Services, sue to recover the purchase price or any expenses incurred to the date of cancellation, resell the Goods or Services to a third party, or exercise any other remedy available by law or in equity for breach of contract.
18. LIMITATION OF LIABILITY.
a. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS OR SERVICES SOLD HEREUNDER.
The limitation of liability set forth in Section 21.b. above shall not apply to liability resulting from Seller's gross negligence or willful misconduct.
19. INDEMNITY (INCLUDING FOR NEGLIGENCE). BUYER HEREBY ASSUMES AND AGREES TO INDEMNIFY, DEFEND, PROTECT, SAVE, KEEP AND HOLD HARMLESS SELLER, ITS AGENTS, EMPLOYEES, SUBCONTRACTORS, AND INVITEES FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INJURIES, CLAIMS, CAUSES OF ACTION LIABILITIES, DEMANDS AND EXPENSES INCLUDING ATTORNEY FEES AND OTHER LEGAL EXPENSES OF WHATSOEVER KIND AND NATURE FOR INJURY TO OR ILLNESS OR DEATH OF ANY PERSON, AND FOR ALL DAMAGE TO, LOSS OR DESTRUCTION OF PROPERTY, COLLECTIVE LOSSES RELATING TO OR CONNECTED IN ANYWAY, ARISING FROM, OR ON ACCOUNT OF THE GOODS OR SERVICES PURCHASED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY SUCH LOSSES CAUSED OR OCCASIONED BY ANY NEGLIGENT ACT OR OMISSION OF SELLER, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, INVITEES OR LICENSEES. The foregoing indemnity is a material part of this transaction, supported by, and in consideration of, a reduction in the purchase and is intended to apply notwithstanding the joint or concurrent negligence of Seller.
20. COMPLIANCE WITH LAW. Buyer shall comply with all applicable foreign and domestic laws, statutes, regulations, rules, or orders, and the same shall be deemed incorporated herein by reference. Buyer shall maintain in effect all required licenses, permits, authorizations, permissions, and consents to fulfill all Agreement obligations. Buyer shall comply with the import and export laws of all countries involved in the sale of the Goods and/or Services under the Agreement. Buyer shall comply with any resale, retransfer or reexport authorizations required by United States export regulations or the import/export regulations of other involved counties for the Goods and/or Services under the Agreement. Buyer assumes all responsibility for the import clearance requirements, payment of all duties or associated fees for the Goods and/or Services shipped under the Agreement. Seller may terminate the Agreement at any time due to imposed regulations or requirements of the United States government or the governments of any involved countries under the Agreement.
21. GOVERNING LAW/INTERPRETATION. Buyer agrees that any sale of, or agreement to sell Goods or Services will be deemed to be made and performed solely in Cobb County, State of Georgia, United States of America, to the exclusion of all other jurisdictions. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS OR THE DOCUMENTS RELATED HERETO AND IS HEREBY EXPRESSLY DISCLAIMED BY SELLER AND BUYER. Any sale or agreement to sell Goods or Services shall be interpreted according to the laws of the State of Georgia, United States of America, excluding any provision thereof that would direct the application of laws of another jurisdiction.
22. ARBITRATION. Any dispute arising from, or relating to, the sale of Goods or Services, including the interpretation of these Terms and Conditions, shall be resolved by binding arbitration according to the laws of the State of Georgia, United States of America.
23. WAIVER. The waiver by Seller or Buyer of any breach under the Agreement shall not be deemed to be a waiver of any subsequent breach of a like or different nature. The failure to enforce these Terms and Conditions shall not be deemed a waiver of such provision.
24. NOTICES. All notices, request, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
25. SEVERABILITY. If any term or provision within these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. ORDER OF PRECEDENCE. These Terms and Conditions and the Sales Confirmation constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter, except wherein modified by a Superseding Agreement. If there is a conflict between the provisions of the Sales Confirmation, these Terms and Conditions, and a Superseding Agreement, then these Terms and Conditions will govern.