GENERAL TERMS AND CONDITIONS OF SALE
I. Scope of Application; Conclusion of the Contract
01 These general terms and conditions of sale (“Terms and Conditions”) shall apply to all sales and contracts for the sale of products and/or services of H-TEC, Inc. (“Seller”) and shall govern all contractual and commercial relations between Seller and his customer (“Buyer”) (jointly, “the Parties”).
02 These Terms and Conditions are exclusive and supersede any purchase terms and conditions of Buyer; any prior written or oral agreements or understandings between the Parties; and any previous course of dealing, performance, or usage of trade.
03 Unless one or more terms of these Terms and Conditions is expressly exempted or modified by written agreement between the Seller and the Buyer, Buyer accepts all of these Terms and Conditions as binding. A contract for the sale of Seller’s products and/or services is concluded upon the written acceptance by Seller of Buyer’s written order and these Terms and Conditions shall be incorporated into each contract by reference and made a part thereof (together, the “Contract”).
II.Offer; Right of Modification
01 All offers to sell are nonbinding unless Seller states expressly in writing that the offer is firm. No offer shall remain open for more than 90 days.
02 Graphic depictions and specifications included in Seller’s offer such as figures, drawings, models, diagrams, descriptions of dimensions and weights, and other representations of Seller’s products are only approximations and shall be regarded as such unless they are expressly identified as firm and binding.
03 Seller reserves the right to modify the technical design of the ordered products to the extent that such modifications do not materially impair the intended fit, form or function of the products.
04 Seller retains at all times the unrestricted title to all quotations, drawings, models, layouts and other representations of a tangible or intangible nature. Buyer agrees to keep all of the aforesaid information confidential and agrees not to disclose such information directly or indirectly to any third party. All drawings and other documentation related to an offer shall be returned promptly if a contract has not been effected or generally, upon demand by Seller, and if such information was transmitted by electronic means, it shall be deleted immediately.
III. Prices; Adjustments
01 Seller’s list prices are in US dollars and are subject to change without notice.
Firm price quotations will be honored for the period agreed to in writing by Seller.
02 In the event of a substantial increase in the prime cost of the ordered goods after the acceptance of Buyer’s order by Seller, Seller may make a reasonable adjustment to the contract price, provided that Seller delivers his products and renders his services not earlier than three months after the contract date. A rise in prime cost may be due, without limitation, to an increase in the cost of labor and materials, an increase in customs duties and tariffs, or a significant change in the parity of exchange. The Buyer is entitled to demand reasonable evidence in support of Seller’s price adjustment.
03 All price quotations are ex works Seller and do not include any state or municipal sales, use, excise or other similar tax now in effect or hereafter levied on the sale of Seller’s products or services to Buyer. Seller will add the applicable amount of taxes to the invoice as a separate item and Buyer agrees to pay such amounts that Seller is obligated by law to pay or collect from Buyer unless Buyer furnishes Seller with a written tax exemption certificate, resellers certificate or, if applicable, a direct payment permit.
IV. Terms of Payment
01 Payment terms are net thirty (30) days from the date of the invoice, subject to approval by Seller of amount and terms of credit.
02 Payments not received in full on or before their due date are subject to an interest charge of 1.5 percent of the outstanding amount for each month or part thereof in which there remains an unpaid balance in Buyer’s account.
03 If for any reason Buyer’s credit is or becomes exceptionable to Seller, either before or after the conclusion of the Contract, Seller reserves the right to modify credit terms, including making demand for additional securities; to deliver the goods COD; to require payment in advance; and to take any other appropriate steps to ensure Buyer’s performance.
04 After the goods have been delivered to Buyer and the satisfaction of Seller’s rights seems at risk (e.g., the Buyer suspends payments, an insolvency petition is filed, Buyer’s checks are not honored), Seller may demand the immediate settlement of all of his claims or the return of the goods.
05 Part deliveries shall be considered installment deliveries, with each installment being a separate sale and being invoiced separately. A failure to pay for an installment within the required time for payment is an anticipatory material breach of other installments by Buyer and Seller shall have the right to stop further deliveries.
06 Buyer agrees to pay all costs of collection, including reasonable attorney’s fees in the event it becomes necessary for Seller to enforce Buyer’s payment obligations under the Contract and in accordance with these Terms and Conditions.
V. Repurchase of Goods
01 Seller, in his sole discretion, may agree to repurchase part or all of his goods from Buyer. Goods can be repurchased only if they are in perfect and resalable condition and are returned with a copy of the original invoice or delivery note. Buyer is responsible for all return shipping costs and bears the risk of loss during shipment or delivery. Buyer will receive full credit for the invoice value minus a restocking fee of 25 percent. In the event that the returned goods require any reconditioning or Seller otherwise incurs additional costs as a consequence of the re-purchase, the Seller shall be entitled to deduct such costs directly from Buyer’s credit.
02 Special models and custom designed goods as well as products that no longer conform to the current edition of Seller’s sales catalog are excluded from repurchase.
VI.Delivery; Time of Delivery; Force Majeure
01 The Buyer shall promptly inform Seller of his exact delivery address. The Seller does not assume any liability for errors occurring in this context and any additional costs resulting from such errors shall be borne by Buyer.
02 The contractual delivery time is deemed to be complied with if, on the expiry thereof, the products to be delivered have left Seller’s premises or the Buyer has been informed that the goods are ready for dispatch. Deliveries ex works Seller are deemed to be executed as soon as the goods are ready for collection by Buyer. If goods are loaded to Buyer’s means of transportation by Seller’s employees, the latter are deemed to be persons employed by Buyer in the performance of his obligations.
03 All acknowledged shipping and delivery dates are approximate, based upon known conditions existing at the time of order placement. To the extent that delays are foreseeable or become foreseeable to Seller, the latter shall promptly inform the Buyer thereof; provided, however, that the failure of Seller to so inform the Buyer shall not be grounds for the cancellation of the Contract.
04 Unless otherwise agreed, the delivery time starts upon receipt of all documents required for processing the order and upon settlement of all technical and commercial details between the Parties including, without limitation, procurement of all required official certificates and approvals by Buyer and payment of any deposit demanded by Seller.
05 Seller shall be entitled to make part deliveries if this is commercially expedient and reasonable under the circumstances.
06 Delivery times shall be extended by periods during which Buyer is in default of his payment obligations or any other material contractual obligation.
07 The delivery time shall be reasonably extended upon an event of force majeure or other unforeseeable events arising after the conclusion of the Contract that are beyond the Seller’s control. Such events include, without limitation, fires, floods, earthquakes, riots, strikes and lockout, freight embargoes, terrorist acts, labor shortages, fuel and other energy shortages, inability to secure materials and supplies, changes in governmental policies and rules, orders and regulations inhibiting Seller’s ability to perform under the Contract, and any other cause beyond Seller’s reasonable control.
08 Buyer may demand a declaration from Seller whether he wants to withdraw from the Contract or intends to deliver within a reasonable period of time. If Seller fails to make such a declaration within 30 days, Buyer shall be entitled to withdraw from the Contract without further obligation to Seller.
09 In no event shall Seller be responsible for any delay or non-arrival of a timely shipped delivery which is caused by third parties and not by any intentional wrongful or grossly negligent act or omission of Seller.
VII. Passing of the Risk
01 In a shipment contract, all risks, title, and right to possession of the goods pass to the Buyer upon Seller’s delivery to the carrier at the point of shipment, subject to a security interest of Seller in the goods until payment in full is received. If the Contract provides for delivery FOB Buyer’s destination, the risk passes upon transfer of the goods to the latter. In the case of delivery FOB Seller’s premises the risk passes to Buyer as soon as the goods are ready for loading by Buyer. This shall also apply in cases where dispatch is delayed for circumstances beyond Seller’s control. Products ready for dispatch but held for Buyer after timely notice to Buyer or stored for Buyer upon Buyer’s request shall be at the risk and expense of Buyer.
02 In the absence of special agreement, all return consignments, regardless of the reason for the return, shall be at the Buyer’s risk and expense.
VIII. Acceptance; Duty to Inspect
01 Immediately after receipt of the delivery the Buyer shall inspect the goods for quantity, identity with the contract goods, and condition.
02 Buyer shall accept any tender of products which substantially conform to the description of the products set forth in the Contract. Buyer shall be deemed to have accepted drawings, specifications, technical documentation, samples, prototypes and products unless Buyer gives Seller written notice stating with specificity any and all defects and nonconforming characteristics which cause the Buyer to reject the goods. In the case of defects discoverable through inspection, said notice shall be given to Seller within five (5) business days after receipt of the goods. In the case of defects not discoverable through inspection, notice shall be given within thirty (30) days of receipt of the goods or such other period as is deemed reasonable by Seller at Seller’s sole discretion.
ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SPECIFIED IN SAID NOTICE ARE WAIVED.
IX. Seller’s Reservation of the Right to Terminate the Contract
01 In case of force majeure or other unforeseeable events beyond the Seller’s control (Sec. VI.07), Seller shall be entitled, after seasonable notice to Buyer, to terminate the contract if such event substantially changes the economic intent or the substance of the respective performances, substantially impacts the Seller’s enterprise, and/or entails the impracticability or impossibility to perform the contractually agreed services on the part of the Seller. The Buyer shall not be entitled to compensation because of such termination.
02 Seller may terminate the Contract if Buyer is in payment arrears under this Contract or any other agreement with Seller; if Buyer has misrepresented his credit standing to Seller; or if his assets have been subjected to insolvency or composition proceedings.
03 The foregoing events giving rise to Seller’s right to terminate the Contract are not inclusive.
X. Cancellation and Breach by Buyer; Seller’s Remedies
01 After the shipment(s) has been scheduled by Seller, Buyer may not cancel or postpone a scheduled shipment unless Buyer submits a request in writing and Seller consents in writing by issuing a new formal acknowledgment. Any request by Buyer to cancel or reschedule may be rejected by Seller as untimely or, at Seller’s option, may be accepted upon payment of an appropriate cancellation or rescheduling charge for resulting losses and expenses to Seller. In the alternative, at Seller’s sole discretion, Buyer may cancel its order for Seller’s products before they are shipped by immediate payment to Seller of liquidated damages in the sum of TWENTY-FIVE PERCENT (25%) of the invoice price.
02 If Buyer fails, with or without cause, to furnish Seller with instructions for, or refuses to accept delivery of any of the products sold under the Sales Contract, or is otherwise in default or repudiates all or any part of the Contract, or advises Seller that he will be in default in the performance of any of his obligations, or fails to pay when due any invoice under this Contract or any other agreement with Seller, or if any action is commenced by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, then, in addition to any and all remedies allowed by law, Seller, without notice,
(a) may bill and declare due and payable all undelivered products under the Contract and/or any other agreement between Seller and Buyer; and/or
(b) may cease performance of his obligations under any agreement between Seller and Buyer and postpone shipment until such default, breach, or repudiation is removed;
(c) may cancel any undelivered portions of the products in whole or in part; and/or
(d) may recover products in transit or delivered, repossess all products which may be stored by Seller for Buyer’s account and otherwise enforce its remedies for Buyer’s default.
XI. Liquidated Damages
Buyer and Seller agree that all provisions for liquidated damages for a party’s breach of his duties under the Contract, as set forth in these General Terms and Conditions, are reasonable in light of the anticipated or actual harm caused by the breach, the difficulties of proving the loss, and the inconvenience or infeasibility of otherwise obtaining an adequate remedy.
XII. Express Warranties
01 Subject to the limitations and disclaimers set forth elsewhere in these Terms and Conditions, Seller warrants to the Buyer as follows:
(a) Seller’s products, at the time of their delivery to Buyer, will conform in all material respects to the applicable drawings and specifications identified in the sales contract, as they may thereafter be amended or modified in accordance with these Terms and Conditions;
(b) Seller’s products shall be free from manufacturing defects in materials and workmanship under normal use and service; and
(c) the products will be free and clear of all liens, encumbrances, and other claims except for Seller’s reservation of a security interest in the products prior to receipt of payment in full.
02 The limited warranty period for Seller’s products is one (1) year from the date of shipment. Products or parts thereof which are replaced or repaired under Seller’s warranties are warranted only for the remaining unexpired portion of the original warranty period.
03 Seller’s express warranties are nontransferable and are conditioned upon (a) installation, maintenance and normal use in conformity with instructions furnished by the Seller, if any; and (b) the products not having been subjected to misuse, neglect, accident, inadequate storage, improper installation, alteration, repair, or improper testing which, in Seller’s judgment, would adversely affect the condition or operation of the products. Seller expressly excludes from his express warranty any condition caused by ordinary wear and tear or by chemical, electrochemical or electric influences beyond Seller’s control.
04 This express warranties excludes any responsibility or liability of company H-TEC, Inc., and its affiliated companies, for:
(a) damages or defects due to accident, abuse, misuse, abnormal operating conditions, negligence, accidental causes or improper maintenance or attributable to written specifications or instructions furnished by Buyer.
(b) defects in products manufactured by others than H-TEC, Inc. and its affiliated companies, and furnished by H-TEC, Inc. hereunder, it being understood and agreed by the parties that the only warranty provided for such products shall be the warranty provided by the manufacturer thereof which, if assignable, H-TEC, Inc. will assign to Buyer, if requested by Buyer.
(c) wear items (like strainers, filters, intake screens, mechanical seals, diaphragms, moving parts etc.).
05 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED AND IMPLIED INCLUDING, THE WARRANTY OF MERCHANTABILITY OF FITNESS OF PURPOSE. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER CAUSE OF ACTION, SHALL H-TECH, INC., AND ITS AFFILIATED COMPANIES, BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR PERSONAL INJURY OR PROPERTY DAMAGES.
XIII. General Limitation of Remedies and Seller’s Liability
01 Seller’s duty, and the sole and exclusive remedy of Buyer under Seller’s warranties, is, at Seller’s option and subject to the terms hereof, to repair, to replace without any additional charge and ship the products or parts to Buyer FOB Seller’s premises, or to keep the products and refund/credit Buyer’s account in the amount of the purchase price of the products which are returned, or offered to be returned by Buyer to Seller during the warranty period. All products or parts thereof replaced under warranty shall become the property of the Seller.
02 Seller’s duties under his warranties as described above shall be contingent upon:
(a) the Buyer notifying the Seller promptly within five (5) days after receipt of shipment in writing of any alleged defect or nonconformity with the Contract; and
(b) the Seller, upon examination of such products, being satisfied that the products are defective or nonconforming as claimed.
03 NOTWITHSTANDING ANYTHING SET FORTH IN THESE TERMS AND CONDITIONS, AND TO THE EXTENT PERMITTED BY LAW, SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, GENERAL, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES IN CONNECTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH OF SELLER’S OBLIGATIONS UNDER THE CONTRACT AND THESE GENERAL TERMS AND CONDITIONS OF SALE, INCLUDING, WITHOUT LIMITATION, DELAYS IN DELIVERY TIMES OR NONDELIVERY OF PRODUCTS AND SERVICES.
XIV. Statute of Limitations
Any action for an alleged breach of the Contract must be commenced within one (1) year after the cause of action has accrued. Any action not brought within the aforesaid time limit shall be barred, regardless of any statutory period of limitation that may otherwise apply under the laws of any applicable jurisdiction.
XV. Applicable Law, Place of Jurisdiction, Place of Performance
01 The Contract and all rights and obligations hereunder shall be governed, construed and enforced under the laws of the State of Georgia, without regard to its conflict of laws rules. To the extent that any rights and obligations of the Parties are not specifically described herein, those rights and obligations shall be inferred in accordance with the provisions of the Georgia Uniform Commercial Code. The United Nations Convention on the International Sale of Goods (CISG) shall not apply.
02 Any disputes and claims arising from the contractual relationship shall be settled exclusively by the state and federal courts within the jurisdiction of Seller’s principal place of business.
03 The place of performance for all products and services as well as for Buyer’s payments is the Seller’s principal place of business.
01 Severability. If one or several provisions of the Contract is held to be unenforceable or invalid, in whole or in part, the validity of the contract and all its remaining provisions shall not be affected and shall continue in full force and effect.
02 Assignment. Buyer may not assign any rights or obligations under the Contract, including these General Conditions of Sale, to any third person without the express written consent of Seller.