TERMS AND CONDITIONS
These terms and conditions (“Terms”) shall serve as the agreement (“Agreement”) between Vendor and Buyer and each Purchase Order shall be processed according to the Terms stated herein.
Each Quote for a Product (“Quote”) shall include any special terms and conditions not represented by these Terms. In the event of a conflict between the Terms of this Agreement and the terms of a Quote, the terms of the Quote shall govern.
Prices quoted in a Quote shall expire thirty (30) days from the Quote date. Due to commodity market fluctuations (copper, silicon steel, oil, aluminum, and carbon steel) Company reserves the right to adjust pricing on Quotes should the cost of commodities vary +2% between the date of the Quote to date of acceptance by Buyer. Prices quoted do not include sales or use tax (“Taxes”). Buyer shall be responsible for the payment of all Taxes arising from the purchase of Products.
PURCHASE ORDERS; SUBMITTALS; CHANGE ORDERS
Upon receipt of a purchase order (“Purchase Order”) and deposit (“Deposit”) from Buyer, Vendor shall commence producing drawings and/or submittals (“Submittals”) for review and approval by Buyer. Buyer shall review and submit its response (either approval or disapproval with reasons for disapproval detailed) within 10 days of Vendor’s submittal. If Buyer fails to provide a response within 10 days, the lead time shall be adjusted for each day of delay caused by Buyer. Upon receipt of Approved Submittals (“Approved Submittals”), Vendor shall commence production of the Product(s) based on such Approved Submittals. Should Buyer require changes after production has begun, Buyer must submit a written request and Vendor shall create a change order (“Change Order”) which shall include any additional expenses or time required to manufacture the Products.
THIRD PARTY CONTRACTS
Vendor shall be under no obligation to any terms and conditions of any contracts between Buyer and any third parties. For the avoidance of doubt, any terms or conditions proposed by Buyer that differ from, modify, or are in addition to those contained in this Agreement or the relevant Purchase Order (whichever is latest) shall be void and of no effect whatsoever unless expressly consented to by Vendor in writing and signed by an authorized representative of Vendor.
Should Buyer and Vendor mutually agree to use an electronic method or system to facilitate Purchase Orders, Buyer agrees that the terms and conditions of this Agreement shall govern all such Purchase Orders.
PRODUCTION LEAD TIME
Production lead time shall be as stated in each Quote and remain subject to change due to Buyer delays.
Suspension Due to Nonpayment
To secure the price of the purchased Product, Buyer grants Vendor a security interest in the Product until the Purchase Order is paid in full.
SHIPPING AND ROUTING
All international sales are subject to Incoterms® 2020. Vendor reserves the right to select each shipment’s origin, transportation method, routing, and type of carrier. Should Buyer require the right to specify the shipping requirements or custom shipping details, Buyer shall be responsible for all additional freight and handling charges, which will be added to the related Purchase Order through a Change Order. Shipment of Products shall be in accordance with the terms set forth in the Quote. Products shall be correctly classified to secure the lowest possible shipment and insurance rates. Vendor shall suitably pack or otherwise prepare for shipment all Products in a proper package or container (“Shipping Container”) to prevent damage in transit. If any Products to be delivered under a Purchase Order or if any Buyer equipment repaired at Vendor’s facilities cannot be shipped to or received by Buyer or its end user when ready due to any cause attributable to Buyer, its other contractors, or the end user, Vendor may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Vendor places Products or equipment into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Vendor upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Vendor related to the storage shall be payable by Buyer upon submission of Vendor’s invoices; and (iv) when conditions permit and upon payment of all amounts due, Vendor shall make Products and repaired equipment available to Buyer for delivery.
TITLE AND RISK OF LOSS
As to goods delivered by Vendor, title to the Product shall be passed to Buyer upon delivery at Buyer’s specified delivery address and, thereafter, all risk of loss or damage shall be borne by Buyer. All risk of loss or damage for Products delivered by Delivered Duty Paid (Incotern DDP) by Vendor’s carrier of choice shall be borne by Vendor until delivered.
CANCELLATIONS; INSPECTIONS; RETURNS; REPAIRS
All Purchase Order cancellations (“Cancellations”) must be received in writing. Cancellation fees will be assessed as follows:
Cancellation Fee as a Percentage of Purchase Order Amount
Upon approved submittals and release for production
30 days from approved submittals
60 days from approved submittals
90 days from approved submittals
1 week after submitting Purchase Order
After submittal process has commenced
A minimum of a 65% restocking fee will be applied to any returns after the Product has been shipped. Higher fees may apply based on other conditions. All shipping charges shall be forfeited.
Inspection of Products
Buyer shall have fifteen (15) days following delivery of the Products to the Delivery Location (“Inspection Period”) to inspect all Products received under the relevant Purchase Order and to inform Vendor, in writing, of Buyer’s rejection of any nonconforming Products. In the event a Product is nonconforming, Company shall have a 120-day period to cure such nonconforming Product (“Right to Cure Period”).
Buyer is responsible for installation and field testing.
Buyer must obtain a return authorization (“Return Authorization”) prior to returning any Products. Authorized returns will be issued a Return Authorization via email. Any return sent to Vendor without a Return Authorization will be discarded and no credit will be provided. Returns are allowed only within 15 days of receipt.
Should Buyer return a Product for repair and subsequently declines the provided repair quote, Buyer shall be responsible for the return shipping costs and agrees to accept any redirection charges in the event Buyer provides an inaccurate or incomplete return address.
Vendor warrants that all Products manufactured will conform to applicable specifications and be free from failure due to defects in workmanship and material for twenty-four (24) months from the date of energization of the Product. In the event any Product fails to comply with the foregoing warranty, Vendor will, at its option, either (a) repair or replace the defective Product, or defective part or component thereof, F.O.B. Vendor’s facility freight prepaid, or (b) credit Buyer for the purchase price of the Product. All warranty claims shall be made in writing. Company shall respond to all warranty claims within ten (10) business days and the Parties shall agree on a mutually agreeable schedule for service or repairs. In the event a Product requires replacement, Company requires 120 days for full Product replacement (“Replacement Period”).
Warranty Process for Repairs
For the first year only of the Warranty Period, warranty coverage will include the direct cost of transporting the Product to and from the place of repair, provided such costs are no more than 15% of the original purchase price of the Product, and shall not include costs of de-installation, decontamination, loading, offloading, re-installation, providing temporary power, or removing other apparatus or structures. All testing must be completed by Buyer to verify that the repair and reinstallation of the defective equipment has been completed correctly and/or to meet all mutually agreed specifications.
Conditions of Warranty
The warranty and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, and (b) modification or repair of Products or Services only as authorized by Vendor in writing. Failure to meet any such conditions renders the warranty null and void. Vendor is not responsible for normal wear and tear. This Section defines the exclusive remedies for all claims based on failure of or defect in Products, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided are exclusive and are in lieu of all other warranties, conditions, and guarantees whether written, oral, implied, or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLIES.
Transfer of Warranty
Upon notification to Vendor that Buyer desires to transfer the Warranty of the Equipment to an end user (“End User”) and Buyer provides Vendor with such Equipment’s identification information and End User’s contact information, the then-unexpired portion of the Warranty will transfer from Buyer to End User (“Permitted Transfer”). With the exception of this Permitted Transfer, the Warranty may not be sold or transferred to any other party. The Warranty will not apply until an authorized party has completed installation of the Equipment, if applicable. All obligations regarding damages or indemnification by Vendor to Buyer will cease as of the Effective Date of this Transfer.
COMPLIANCE WITH LAWS
Fair Labor Standards Act
All Products are manufactured in compliance with the Fair Labor Standards Act of 1938 as amended and applicable. Vendor shall comply with applicable Federal, State, and local laws and regulations (“Laws”). Vendor certifies that no portion of the Products (including components or materials) were extracted, mined, produced, manufactured, assembled, or processed using any form of convict, indentured, or forced labor, including indentured or forced child labor (“Forced Labor”). Without limiting any other obligation of Vendor hereunder, Vendor and its affiliates shall use commercially reasonable efforts to ensure that Vendor and its affiliates, along with all suppliers, subcontractors, and business partners involved in any tier of the extraction, mining, production, processing, assembly, or manufacturing of the Products delivered within the United States or globally, comply with all applicable Laws related to Forced Labor. Vendor shall maintain effective procedures and internal controls necessary to comply with this Section.
U.S. Foreign Corrupt Practices Act; U.K. Bribery Act
Vendor shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries, to the extent applicable. Vendor hereby represents and warrants that, in its performance under this Agreement, Vendor has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give, or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any government officials and/or employees of state-owned enterprises.
Either Party may terminate this Agreement and any outstanding Purchase Order upon written notice if the other Party materially breaches any of the Terms and fails to cure such breach within ten (10) days or as agreed upon by both Parties (or immediately if such breach is not capable of being remedied).
MUTUAL CONFIDENTIALITY; NON-CIRCUMVENTION
Confidential Information (“Confidential Information”) refers to non-public, proprietary information, or information not contained in marketing materials including, without limitation, trade secrets, business models, methods and practices, and other information that is not generally known to the public such as personnel, products, marketing strategies, future business plans, client lists, and prospective clients, and all documents and information pertaining to the services and other lines of its business and all Intellectual Property. The terms and existence of this Agreement and all information arising from or relating to this Agreement or a Purchase Order shall also be considered Confidential Information. The Parties may use the Confidential Information only for the purpose of performing its obligations under this Agreement and shall not otherwise disclose Confidential Information to any third party without the other Party’s prior written consent. Upon completion of providing Products, or at Buyer’s request, Vendor shall promptly return all documents and other materials that contain or relate to the Confidential Information. Each Party shall make reasonable efforts to keep the Confidential Information reasonably inaccessible to persons not otherwise authorized to view the Confidential Information.
During the term of this Agreement, the Parties agree not to pursue or engage in any transaction or contact directly or indirectly any party-in-interest relating to the other Party’s business or pursue any introduction of any party of interest without such Party’s prior written consent. The Parties agree that all communications regarding this Agreement, the Products, Quotes for Products, requests for additional information, and discussions or questions regarding procedures will be submitted or directed to the other Party and not directly with any other party.
All drawings, schematics, and material property produced, created, invented, or conceived by either Party before and during their involvement shall become and remain the sole and exclusive Intellectual Property (“Intellectual Property”) of that creating Party, which shall own all right, title, and interest in and to the Intellectual Property as well as any copyrights, moral rights, trade secrets, rights of reproduction, rights of priority, publicity rights, and other proprietary rights as recognized in any country or jurisdiction in the world.
Use of Confidential Information
Each Party agrees on behalf of its directors, officers, brokers, employees, and other agents (collectively, “Representatives”), that it will not use the other’s Intellectual Property for any purpose other than in connection with the performance of its obligations under this Agreement. The obligations set forth here shall survive the termination of this Agreement in perpetuity.
Vendor will defend Customer against any claim, suit, demand, or action made or brought against Buyer by a third party (“Third-Party Claim”) alleging that a Product infringes any intellectual property rights of such third party and will indemnify and hold harmless Buyer from any damages, losses, liabilities, costs, and fees (including reasonable attorney’s fees) finally awarded against Buyer in connection with or in settlement of any such claim, suit, demand, or action. This indemnification shall not apply and Vendor shall have no obligation or liability with respect to any Claim based upon (a) Products that have been modified or revised, (b) the combination of any Products with other products or services when such combination is the basis of the alleged infringement, or (c) unauthorized use of Products. Should any Product or, or any portion thereof, become the subject of a Claim, Vendor may at its option (a) procure for BUYER the right to continue using the Product, or applicable portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back infringing Products and refund the price received by Vendor attributable to the infringing Products. This remedy states Vendor’s exclusive liability for intellectual property infringement by Products.
Products sold by Vendor are not intended for use in connection with any nuclear facility or activity, and Buyer warrants that it shall not use or permit others to use Products for such purposes, without the advance written consent of Vendor. If, in breach of this, any such use occurs, Vendor (and its parent, affiliates, suppliers, and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Vendor, Buyer shall indemnify and hold Vendor (and its parent, affiliates, suppliers, and subcontractors) harmless against all such liability. Consent of Vendor to any such use, if any, will be conditioned upon additional terms and conditions that Vendor determines to be acceptable for protection against nuclear liability.
Each Party (“Indemnifying Party”) agrees to indemnify and hold harmless the other Party (“Indemnified Party”), its licensees, successors, and assigns harmless from and against any and all claims, damages, costs, expenses, losses, or liabilities (including, without limitation, attorneys’ fees and costs, whether or not litigation is commenced) that may be asserted against or incurred by or imposed upon them at any time arising out of (i) any breach of any of the representations, warranties, agreements, and/or covenants in this Agreement, (ii) fraud, negligence, or intentional misconduct, or (iii) personal injury or damage to such third party’s tangible property to the extent caused by the negligence of the Indemnifying Party in connection with this Agreement. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Vendor, the loss or expense shall be borne by each Party in proportion to its degree of negligence. For purposes of Vendor’s indemnity obligation, no part of the Products is considered third party property.
Each Party represents and warrants that in its performance of any obligations contemplated under this Agreement that such Party shall comply with all applicable laws, rules, and regulations. OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR TO ANY PERSON OR ENTITY WITH RESPECT TO THE PRODUCT OFFERING OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, TITLE, NON-INFRINGEMENT, AND QUALITY OF SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, VENDOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE PRODUCTS THAT VENDOR MAY DEVELOP OR PROVIDE TO BUYER OR ANY THIRD PARTIES.
LIMITS OF LIABILITY
EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR FOR NEGLIGENCE OR WILLFUL MISCONDUCT, (i) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST BUSINESS, OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF, AND (ii) THE AGGREGATE LIABILITY OF VENDOR TO BUYER UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF THE ACTION SHALL BE LIMITED TO THE LESSER OF THE TOTAL AMOUNT PAID UNDER THE PURCHASE ORDER GIVING RISE TO SUCH LIABILITY.
GOVERNING LAW; DISPUTE RESOLUTION
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Florida without reference to conflicts of laws principles. The Parties hereto irrevocably (a) agree that any suit, action, or other legal proceeding arising out of this Agreement shall be brought in arbitration before the American Arbitration Association and shall proceed according to the commercial rules of the American Arbitration Association in Palm Beach County, Florida.
Relationship of Parties.
Vendor is, and will at all times act as, an independent contractor. No partnership, joint venture, agency, or employment relationship is created by this Agreement or any Purchase Order. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party. Vendor shall be at all times the sole responsible Party for the performance of Vendor’s obligations under this Agreement and any Purchase Order. All persons employed by Vendor in connection with its obligations under this Agreement shall be the sole and exclusive employees of, and paid by, Vendor.
Third Party Beneficiaries
This Agreement is entered into for the exclusive benefit of the Parties. This Agreement and transactions contemplated hereby are not intended to benefit any person or entity other than Buyer and Vendor, nor create any rights, powers, or interest in any third person whatsoever.
All provisions of this Agreement that by their terms extend beyond the termination of this Agreement shall survive the termination of this Agreement.
All notices required or permitted under this Agreement shall be in writing and shall be delivered in person or sent, postage prepaid, by (i) a nationally recognized overnight delivery service, or (ii) United States Postal Service certified mail. All notices shall be sent to the address for each Party as set forth in the Preamble of this Agreement. Each Party may change its mailing address or email address by giving notice of such change to the other Party.
Neither the waiver by either of the Parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of either of the Parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any provisions, rights or privileges hereunder.
Should any provision(s) of this Agreement for any reason be declared invalid, void, or unenforceable by arbitration or a court of competent jurisdiction, such adjudication shall in no way affect any other provision(s) of this Agreement or the validity or enforcement of the remainder of this Agreement, and the provision(s) affected shall be curtailed only to the extent necessary to bring the Agreement within the applicable requirements of the law.
In the event that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to any (a) acts of nature; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) requirements of Law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority (whether or not having the effect of Law); (g) national or regional emergency (including viruses/pandemics); or (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (each, a “Force Majeure Event”), or any other cause beyond the reasonable control of either Party, there shall be no termination of the Agreement or Cancellation of Purchase Order(s), and the date of delivery or performance shall be extended for a period equal to the time lost.
This Agreement and the Terms constitutes the entire and complete understanding between the Parties concerning the subject matter contained herein. All prior and contemporaneous representations, agreements, arrangements, and understandings between or among the Parties, whether oral or written, have been fully and completely merged herein and are fully superseded by this Agreement. No modification of this Agreement shall be valid unless such modification is signed by both Parties.