Standard Terms and Conditions of Sale
- Acceptance of Terms: Capitalized terms are defined below. Unless other terms are specified in Seller’s Quotation or Invoice, the following Terms and Conditions of Sale (“Terms”) will govern the offer and sale of all Goods and Services provided by Seller to Buyer. Any terms and conditions of sale (other than the economic terms of the Order) that may be contained in any purchase order or other form provided by Buyer will be without force and effect, regardless of when received by Seller. By placing an Order, Buyer accepts these Terms, and the sale and delivery by Seller of Goods and Services will be conclusively presumed to be subject to these
- “Buyer” and “Seller” are identified on the Quotation or Invoice. “Goods” are all equipment, products, goods, or materials listed on a Quotation or Invoice. “Services” are services listed on a Quotation or Invoice. A “Quotation” is issued by Seller to Buyer to offer the sale of Goods and any Services and is valid for a period of 30 days from the date of issue. “Order” means Buyer’s commitment to purchase Goods from Seller. An “Invoice” is a written invoice for Goods and/or Services provided by Seller to Buyer for Orders accepted by Seller in writing or by performance.
- Orders. Seller will have the right to accept or reject an Order in its sole Seller’s acceptance of an Order from Buyer may be subject to Buyer’s credit approval and other conditions required by Seller. Buyer will not have the right to cancel an Order without Seller’s prior written consent.
- Prices and Taxes. Prices will be set forth in the Quotation or Seller’s published price schedules. Prices and these Terms are subject to change without Unless specifically stated, prices do not include sales, use, excise or other similar taxes or duties (“Taxes”). Buyer will pay any and all clearance charges, broker’s fees, Taxes and other amounts payable in connection with Seller’s delivery of Goods and provision of Services. If Seller is required to pay any Taxes on the Goods or Services furnished hereunder, Buyer will promptly reimburse Seller for such Taxes.
- Payment. Buyer will pay all Invoices within 30 days from date of Invoice in U.S. dollars (or the currency indicated in the Invoice) in immediately available funds via wire transfer to an account designated by Seller or by check payable to Seller. Payment will not be deemed to have been received until Seller has received cleared funds. If Seller delivers Goods to Buyer in lots, Seller has the right to invoice Buyer for each lot and Buyer will pay all such Invoices as provided herein. Buyer will make all payments due in full without any deduction, whether by way of set-off, counter-claim, discount, abatement or otherwise. If Buyer fails to pay Seller any sum due, Buyer will be liable to pay interest at an annual rate equal to the lesser of (a) 18% per annum, accruing on a daily basis until payment is made; or (b) the maximum amount permitted by
- Delivery and Acceptance. Seller will deliver the Goods. Buyer will pay all freight, insurance, and other shipping expenses, as well as any special packing expenses. Seller will use commercially reasonable efforts to meet the quoted delivery dates and will have the right to deliver partial shipments of Goods. Buyer is deemed to have accepted the Goods upon delivery unless Buyer notifies Seller at time of delivery of any loss, damage, shortage or other non-conformity. In the absence of receipt of such notice, Buyer will have no right to reject the Goods or Services and will be required to pay the Invoice price for such Goods. Buyer will have no right to suspend or delay delivery of Goods. If Buyer fails to accept delivery of Goods, Seller will have the right to store or arrange storage of the Goods at Buyer’s risk and expense. Buyer will promptly pay for the reasonable costs of storage and insurance of the Goods until Seller will not accept any returns of Goods without Seller’s prior written authorization.
- Risk and Title. The risk of loss or damage to the Goods will pass to Buyer when the Goods are delivered to Buyer or its agents. Title to the Goods will pass to Buyer when Seller has received payment in full of the Invoice price of the Goods. Until title has passed to Buyer, Buyer will hold the Goods on a fiduciary basis as Seller’s Bailee. Buyer represents that it has adequate insurance to cover the risk of loss or damage described in this paragraph. Seller warrants that title to the Goods passes to Buyer upon Seller’s receipt of payment in full for such Goods.
- Security Interest. Buyer grants Seller a security interest in the Goods in the amount of the unpaid balance of the price until paid in full. Seller will have the right to file a financing statement for such security interest and Buyer will sign any such statement or other documentation that Seller deems necessary to protect Seller’s security interest upon request by Seller.
- Limited Warranty. a. New Equipment and Parts. Unless stated otherwise in the Quotation the warranty is limited to the terms and conditions set forth by the manufacturer. b. Exclusions. The foregoing limited warranties do not apply if Buyer has not paid for the Goods or Services in full, and do not extend or apply to (i) any defects or losses due to misuse, accident, abuse, neglect, normal wear and tear, improper installation, failure to maintain or improper application or matters caused by the negligence misconduct of Buyer or any third party; (ii) equipment that is sold “AS IS.’; (iii) any cost not covered by the manufacturer for warranty will be the at the sole expense of the Buyer.
- DISCLAIMER EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THESE TERMS, SELLER AND ITS SUPPLIERS MAKE NO AND HEREBY DISCLAIM ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL SELLER OR ITS SUPPLIERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION OR ANY OTHER LOSS), AS A RESULT OF THE OFFER, SALE OR USE OF GOODS OR SERVICES, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, NEGLIGENCE, TORT, WARRANTY OR OTHER WRONGFUL ACT OR OMISSION OF SELLER AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) SELLER’S TOTAL LIABILITY FOR ALL CLAIMS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PRICE PAID TO SELLER PURSUANT TO THE ORDER UNDER WHICH LIABILITY AROSE.
- Indemnification. To the fullest extent permitted by applicable law, Buyer will defend, indemnify and hold harmless Seller, its subsidiaries, affiliates, parents, partners, their successors and assigns and each of their respective past and present directors, officers, employees and agents (collectively “Seller Indemnitees”) from and against any and all losses, damages, liabilities, demands, claims, actions, judgments, charges, court costs, and legal or other expenses, including, without limitation, reasonable attorneys’ fees (“Liabilities”), which Seller Indemnitees may sustain, incur or become liable for in defending or compromising any suit, action, or other proceeding arising out of, related to, or in any way connected with Buyer’s purchase, sale, or use of the Goods or Services, including, but not limited to, Buyer’s misuse of such Goods or Services, environmental claims resulting from Buyer’s use of the Goods or Services, or any other acts or omissions, willful misconduct or negligence, whether active or passive, on the part of Buyer; provided, however, Buyer will have no indemnity obligations under this paragraph for any Liabilities caused solely by the willful misconduct or negligence of a Seller Indemnitee or covered by Seller’s infringement indemnification obligations set forth in these Terms.
- Privacy Notice: Seller, acting as controller, collects certain personal data regarding Buyer, its employees and its representatives as required for the purposes described below, including name, title, email address, phone number and mailing address (“Personal Data”). Such Personal Data will need to be provided in order for Seller to be able to manage Seller’s supply of Goods to Buyer. Seller may share Personal Data with its affiliates around the world. Seller and its affiliates will collect and use Personal Data in accordance with applicable privacy and data protection laws, solely to communicate with Buyer regarding pending and potential supply activities, for customer management purposes and other legitimate business purposes concerning Buyer’s and Seller’s business relationship.
- Attorney’s Fees. If either party brings any legal action against the other party to enforce these Terms, the prevailing party will be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing party.
- Force Majeure. Seller will not be liable for failures or delays caused by events or circumstances beyond its reasonable control.
- Assignment. Buyer will not have the right to assign or transfer Quotations or Orders, in whole or in part, except with Seller’s prior written Seller has the right to assign its rights, or to delegate or subcontract its obligations or any portion thereof, to any affiliate or successor to its business or the assets to which these Terms relate. Seller does not owe warranty to any third party.
- Dispute Resolution and Governing Law. a. If both parties are S. residents, (i) these Terms will be governed by the laws of the State of Virginia, and the United States without reference to its conflicts of laws’ provisions; (ii) exclusive jurisdiction and venue for any action, suit or proceeding concerning these Terms will be in the federal or state courts located in the City and County of Norfolk, Virginia, U.S.A.; and (iii) each party submits to exclusive personal jurisdiction in the State of Colorado for any such action, suit, or proceeding.
- Language. These Terms are written in the English language. Should these Terms be translated into any other language for convenience or legal requirements, the English language version will control in the event of any conflict to the fullest extent allowed by applicable law.
- Miscellaneous. Time for payment is of the essence. Buyer acknowledges that it has not been induced to purchase any Goods or Services from Seller by any representation or warranty not expressly set forth herein. These Terms constitute the entire agreement of the parties and supersede all existing agreements and all other oral or written communications between the parties concerning the subject matter contained herein. None of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered except by a written document signed by an authorized representative of Seller. Any waiver or failure to enforce any provision herein on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Section headings contained herein are intended for convenience of reference only and will not affect the interpretation of any provision. If any provision of these Terms is held to be prohibited or unenforceable, the parties will promptly substitute for the invalid provision a valid and enforceable provision which most closely approximates the intent and economic effect of the invalid provision and the remaining provisions will continue in full force and effect. Sections 10-12, 14, 15, and 17-25 will survive termination of these Terms.
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Sales Terms and Conditions last updated June 2021
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