As used herein, the italicized words have the following meanings ascribed thereto:
Order — shall mean the written purchase order or quotation for Goods or Services to be purchased by the Buyer from the Seller.
Seller — shall mean Goessling USA, Inc.
Buyer — shall mean the party identified in the Order as the purchaser of Goods and/or Services from the Seller.
Party — shall mean either the Seller or the Buyer depending on the context in which the word is used, with the plural (i.e., “Parties”) meaning both the Seller and the Buyer.
Goods — shall mean all things having physical characteristics (including but not limited to stock products, and specially manufactured products) identified in the Order.
Services — shall mean all things (e.g., installation), other than Goods, that are identified in the Order.
Specifications — shall mean the detailed statements, listings, drawings, calculations, measurements, materials, and other requirements of the Goods or Services to which they pertain.
Ex Works — shall mean that the Buyer incurs the risks and costs for bringing the Goods to the destination specified in the Order.
These General Terms and Conditions apply to every Order for Goods and/or Services between the Buyer and the Seller. These General Terms and Conditions are in addition to the terms and conditions specified in each Order.
Unless the Seller and the Buyer expressly agree otherwise in a signed writing, then the entire agreement between the Seller and the Buyer shall consist of the terms and conditions set forth in the Order as accepted by the Seller and in these General Terms and Conditions.
Should any term or condition of the Order or these General Terms and Conditions be found to be legally invalid or unenforceable, it shall not affect the validity or enforceability of any other term or condition of the Order or these General Terms and Conditions.
The Order and these General Terms and Conditions shall inure to the benefit of, and be binding upon, the respective legal representatives, successors, and assigns of the Buyer and the Seller.
- Order Acceptance by the Seller.
The Seller’s written acknowledgment of the Order, or the Seller’s shipment of Goods and/or performance of Services in response to the Order, are all forms of acceptance by the Seller of the Order; provided however, that the Seller’s acceptance is expressly limited to the terms and conditions set forth in the Order as accepted by the Seller and in these General Terms and Conditions.
Any additional or different terms and conditions in any form submitted to the Seller by the Buyer are hereby deemed to be material alterations, and notice by the Seller to the Buyer of the Seller’s objection to such additional or different terms and conditions, as well as the Seller’s rejection of those terms and conditions, is hereby given.
The prices for Goods and Services shall be as agreed by the Seller in the accepted Order; provided however, that those prices do not include, unless otherwise noted — transportation costs; freight costs; handling costs; overtime costs; special handling costs; delivery costs; insurance costs; optional installation costs; service or equipment costs (such as the costs of optional service kits or any other additional Goods); or any of the federal, state, provincial and local taxes (including sales, use, value-added and excise taxes), assessments, tariffs, duties and any similar fiscal contribution related to the Goods and Services — all of which shall be the sole responsibility of the Buyer and payable by the Buyer in addition to the prices set forth in the Order.
Prior to the Order being accepted by the Seller, the prices for Goods and Services in the Order are subject to change. Circumstances that shall warrant a change in those prices include but are not limited to: an increase in the Seller’s costs (including raw material costs); the limited or unavailability of raw materials or component parts from the Seller’s vendors; or other circumstances beyond the Seller’s reasonable control.
At no time shall the Buyer ever have the right to access the Seller’s cost or pricing data or other books and records.
The Seller shall furnish all stock Goods as specified in the Order accepted by the Seller. Any and all made-to-order Goods, and the Services, in the Order shall be furnished in accordance with the specifications supplied by the Buyer, or prepared by the Seller at the Buyer’s direction, that have been incorporated by reference into, and/or otherwise made a part of, the Order.
Unless otherwise specifically provided in the Order, the delivery terms shall be Ex Works the Seller’s plant of manufacture or to the address specified by the Buyer. The Buyer shall pay all shipping costs when due and bear the risk of loss after the Seller places the Goods in the possession of the carrier.
The shipping dates identified in the Order are estimates only, are not guaranteed by the Seller, and are based upon conditions at the Seller’s factory at the date that the Order is accepted by the Seller. The Seller shall use reasonable efforts to meet the estimated shipping date(s), provided that the Buyer timely supplies all necessary specifications and/or deposits required by the Order.
- Damage in Transit / Risk of Loss.
All packing of the Goods will be in accordance with the requirements of the carrier with whom the Goods are shipped. Title and risk of loss shall pass to the Buyer at the time the Seller places the Goods in the possession of the carrier at the Seller’s facility. The Seller shall not be responsible for damage to, or loss of, the Goods while in transit, and all claims shall be made by Buyer directly to or with the carrier of the Goods.
Accordingly, the Buyer should, for its own protection, examine the packing carefully before accepting any shipment from the carrier. Should the Buyer give the delivering carrier a clear receipt for a shipment in which there are damaged Goods or shortages, then the carrier may be relieved of further responsibility.
If, however, the Buyer believes that there is evidence of packing damage or shortages, then the Buyer shall insist that the delivering carrier make suitable notation to that effect on the freight bill before that bill is signed by the Buyer. If, after receipt of shipment, concealed damage is discovered, then the Buyer must immediately notify the delivering carrier, requesting an immediate inspection by the carrier. An inspection report can be used to support the Buyer’s claim against the carrier.
Any claim for damaged Goods or shortages must be timely filed by the Buyer with the delivering carrier. The Seller will not accept the return of Goods damaged or lost in transit. The Buyer’s only recourse is with the delivering carrier.
- Installation Services.
If installation Services are purchased by the Buyer in the Order, then those Services will be performed as accepted by the Seller in the Order; provided however, that the Buyer, at its own cost, shall be solely responsible for:
(i) Clearing the installation site for the performance of the installation Services by the Seller;
(ii) Making ready for the Seller the installation site in accordance with the specifications of the Order;
(iii) Keeping the installation site free from water, debris, obstructions or hazards that might impair the installation Services from being performed in a safe, workmanlike and expeditious manner;
(iv) Furnishing an adequate bench, working space, and a convenient storage room for the employees, agents or contractors of the Seller performing the installation Services;
(v) Providing a watchman or other suitable protection system to safeguard the welfare of the employees, agents or contractors of the Seller performing the installation Services, as well as the tools, materials, machinery and equipment being used to perform those Services;
(vi) Supplying at the installation site such electric current, compressed air, water, heating and cooling, gas, illumination, and other utilities as may be required to perform the installation Services; and
(vii) Permitting the use by the Seller of any elevator or crane service available on the premises wherein the installation site is located to aid the Seller in the performance of the installation Services in the Order.
If the Buyer fails to perform these responsibilities in a timely manner, as determined by the sole discretion of the Seller, then the Buyer shall reimburse the Seller for all costs incurred by the Seller in performing those responsibilities for the Buyer.
Additionally, near or upon the completion of the installation Services, and on such date and time as reasonably designated by the Seller, the Buyer at its sole cost shall have the site in a state of operational readiness — to include but not be limited to, the supply of the electric wiring (if any) or other power source, along with all other requisite utilities, personnel and other necessary connections — to permit the Seller to conduct an initial start-up examination and test of the Goods that were installed by the Seller in accordance with the Order. Should the Buyer fail to have the site in such a state of operational readiness, thereby requiring the initial start-up examination and test by the Seller to be delayed, then the Buyer shall reimburse the Seller for all costs incurred by the Seller as a result of that delay.
If the Order, as accepted by the Seller, permits an inspection by the Buyer or a third party designated by the Buyer, then all costs associated with that inspection shall be the sole responsibility of the Buyer.
- Modifications / Change Orders.
Once an Order has been accepted by the Seller, it can only be changed, modified or added to by a writing signed by both the Seller and the Buyer.
After the Order has been accepted by the Seller, the procedure for the Buyer to request a change, modification or addition to the Goods and/or Services of that Order, is for the Buyer to timely submit to the Seller a written request for a change, modification or addition in those Goods and/or Services. Upon receipt by the Seller of such a written request from the Buyer, the Seller may provide the Buyer with a written proposal for the requested change, modification or addition, which may include but not be limited to any adjustment to the prices of the original Order. In response to any such written proposal from the Seller, the Buyer may sign that proposal and deliver it back to the Seller. That proposal, as signed by the Buyer, shall become effective upon return receipt by the Seller. Provided, however, that if a written proposal to make a change, modification or addition requested by the Buyer is either not signed or accepted by either the Buyer or the Seller, then the Order, as originally accepted by the Seller, remains in full force and effect.
The Buyer shall pay, in United States currency, for the Goods and Services in the Order without setoff, recoupment or deduction of any kind. Unless otherwise agreed to in the Order as accepted by the Seller, payment for the Goods and Services will be due and payable thirty (30) days following the earlier of: (i) The Buyer’s receipt of the Seller’s invoice, or (ii) The Buyer’s receipt of the Goods or Services. The Buyer will not be entitled to any discount for early payment.
When the Goods are shipped prepaid with freight to be billed, the freight charges are net and subject to payment by the Buyer on presentation of the invoice for such freight charges.
All amounts due to the Seller but not paid by the Buyer on the due date will bear interest on the unpaid balance of amounts due at a rate that is equal to 1.5% per month until paid.
The Seller may offset, deduct or recoup the amounts owed under the Order by the Buyer to the Seller, against any and all other amounts of any nature whatsoever owed by the Buyer, or any of its affiliates or subsidiaries, to the Seller.
If deliveries of Goods and Services are to be made in installments, the payment of the purchase price of each installment shall, at the Seller’s option, be recoverable as a separate sale.
- Order Cancellation.
The Buyer cannot cancel the Order, in whole or in part, after the Seller’s acceptance of the Order, except upon the express written consent of the Seller and upon such terms and conditions as required by the Seller in that written consent.
If the Buyer cancels the Order without the Seller’s express written consent, then the Buyer shall be liable to the Seller for all damages suffered by the Seller because of that cancellation. It is understood and agreed that those damages of the Seller shall include, but not be limited to, all engineering, design, labor, material and manufacturing costs incurred or committed by the Seller up to the time that the Seller receives notice from the Buyer of the Buyer’s cancellation, as well as all costs which are reasonably necessary for the Seller to incur in order to mitigate its damages. The Buyer shall also be liable to the Seller for lost profits in an additional amount equal to twenty-five percent (25%) of the total price of the Order.
The Seller does not insure any Goods or Services for the Buyer’s account, unless the Order expressly indicates otherwise.
- Operational Use and Safety.
It is the Buyer’s sole responsibility to provide, at its own cost, the proper safety devices and equipment to safeguard the Buyer’s operator/s, as well as third parties, from harm or any particular use, operation, or set up, and to adequately safeguard the Goods to conform to all federal, state, and local government safety standards, and all industry safety standards.
- Limited Warranty.
As expressly provided for herein, the Seller warrants the Goods identified in the Order against defects and workmanship for a period of six (6) months (the “Limited Warranty Term”), commencing on the date of original purchase via the Order.
Under this limited warranty, and except as otherwise provided herein, the Seller shall, at its option, repair or replace for the original Buyer only, free of charge, F.O.B. the Seller’s facility, all Goods, or component parts thereof, found to be defective in material or workmanship during the Limited Warranty Term. The Seller shall have the option to replace any defective part(s) of the Goods with new part(s) or with serviceable used parts that are equivalent to new parts in performance. The Seller shall have the option to replace any defective Goods with functionally equivalent Goods.
This limited warranty does not, however, provide coverage on component parts of the Goods that carry a separate manufacturer’s warranty or damage caused by said component parts. Please refer to the applicable manufacturer’s warranty on these items.
This limited warranty also does not provide coverage on wear and tear parts of the Goods.
This limited warranty shall only apply if the Goods have been operated, maintained and assembled in accordance with the Technical & Assembly Instruction Manual and/or other instructions or specifications furnished with the Goods, and has not been subject to misuse, abuse, neglect, accident, improper maintenance, alteration, vandalism, theft, fire, water or damage because of other peril or natural disaster.
The Seller shall have no liability hereunder for claims made under this limited warranty which are not in writing from the Buyer and which have not been delivered to the Seller within the Limited Warranty Term.
To the maximum extent allowed by law, the Buyer will defend, indemnify and hold harmless the Seller and its present and future directors, officers, shareholders, members, employees, attorneys, agents, representatives, parents, affiliates and subsidiaries from and against any and all claims, costs, demands, losses, indirect and direct damages (including lost profits, incidental, consequential and punitive damages), liabilities, causes of action, judgments, settlements, awards, fines, penalties, assessments and expenses (including costs of defense, mediation, settlement and reasonable attorneys’ and other professionals’ fees and costs), however described or denominated, brought by any third party (including, the Buyer’s employees, subcontractors, laborers, agents and assigns) arising out of or, incidental to, or resulting from: (a) the Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Goods; (b) injury to person or property caused by or resulting from the absence of any safety device on the Goods; (c) injury to person or property caused by or resulting from the use of the Goods to handle any materials of a hazardous nature or with hazardous characteristics, including, but not limited to, materials that are or may become flammable, explosive, toxic, radioactive or constitute a danger to health; (d) any infringement or alleged infringement of the industrial and intellectual property rights of others arising from the Buyer’s plans, specifications (including the Buyer’s trademarks and brand names) or production of the Goods ordered by the Buyer; (e) the Buyer’s violation or alleged violation of any federal, state, county or local laws or regulations; (f) any negligent or willful act or omission of the Seller or its respective subcontractors, agents, employees or other representatives; or (g) the Buyer’s breach of the Order or these General Terms and Conditions.
The Buyer shall also indemnify and hold harmless the Seller from any and all legal fees (including but not limited to attorneys’ fees) and costs that may be required and/or incurred by the Seller to collect any overdue balances owed on the Order by the Buyer to the Seller.
- Limitation of Liability.
THE SELLER SHALL IN NO EVENT BE LIABLE TO THE BUYER, ANY PERSON WHO SHALL PURCHASE FROM THE BUYER, OR ANY PERSON THAT USES ANY GOODS SOLD PURSUANT TO THE ORDER, FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PRODUCTION OR LOSS OF PROFITS RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY DELAY, ACT, ERROR, OR OMISSION OF THE SELLER, OR ANY DEFECT, FAILURE, OR MALFUNCTION OF THE GOODS, WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; EXCEPT THAT THE SELLER’S SOLE LIABILITY SHALL BE TO REPAIR OR REPLACE ANY GOODS COVERED BY THIS ORDER F.O.B. THE SELLER’S FACILITY IN ACCORDANCE WITH THE LIMITED WARRANTY PROVISION HEREIN.
- Non-Disclosure of Confidential Information.
The Parties acknowledge that any and all oral, written, or electronically stored information disclosed by one party (the “Disclosing Party”) to the other party (the “Recipient”) or known by the Recipient as a consequence of the Parties’ relationship which relates to the Disclosing Party’s business, products, drawings, data, costs, customers, methods of doing business, operating procedures, processes, or services, including, but not limited to, information relating to research, development, inventions, manufacturing, purchasing, accounting, engineering, marketing, selling, customer lists, employee information, customer requirements, and the documentation thereof (“Confidential Information”) shall at all times remain the property of the Disclosing Party.
The Recipient shall not, during the Parties’ relationship or thereafter, directly or indirectly use or divulge any Confidential Information without having first obtained written permission from the Disclosing Party to do so.
- Seller’s Intellectual Property.
Except to the extent provided in the Order accepted by the Seller, the Order does not transfer, assign or license, and the Seller shall retain all rights, title and interests in and to, any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark, trade secret, know-how, formula, design, engineering drawing, device, compilations of information, manufacturing methods or processes, tooling or other intellectual property embodied, used in or otherwise related to the Goods and/or Services to which the Order pertains (collectively “Seller’s Intellectual Property”).
Seller’s Intellectual Property shall be kept confidential by the Buyer in accordance with the Non-Disclosure of Confidential Information provision herein, and shall not be disclosed to third parties without the Seller’s express written consent. The Buyer shall not use any of the Seller’s Intellectual Property, in whole or in part, or the Goods and/or Services, to copy, redesign, reverse engineer, replicate or manufacture (or enable manufacture by itself or any third party) all or any portion of the Goods and/or Services, products similar to the Goods and/or Services, or products derived from the Goods and/or Services without the Seller’s express written consent.
- Force Majeure.
The Seller shall not be held responsible for failure or delay in delivering to the Buyer the Goods and Services in the Order, nor the Buyer for failure or delay in accepting Goods and Services described in the Order, if such failure or delay is due to: an act of God; natural disaster; war; federal or state legislation or any regulations or orders thereunder; fire; terrorism; strike; inability by the Seller to obtain containers or raw materials needed to fill the Order; or other similar causes that are beyond the Seller and/or the Buyer’s reasonable control; provided, however, that any shipments of Goods and/or Services under the Order made by the Seller before receipt of written notice from the Buyer that the latter cannot accept delivery because of any such force majeure cause, shall be accepted and paid for by the Buyer.
- No Waiver.
No exercise by the Seller of its rights hereunder shall constitute a waiver of any rights it may have for breach of contract. The Seller’s waiver of or failure to enforce its rights on account of the Buyer’s failure or delay in performing any obligation of the Buyer in the Order or these General Terms and Conditions, or on account of the Buyer’s breach of contract in any respect, shall not constitute a waiver of any subsequent failure, delay or breach.
- Exportation of Technical Data.
Any United States source technical data which may be provided by the Seller under this Order, and direct Goods and/or Services of such data, may be controlled by the United States export regulations. No license, implied license, or other approval for export or re-export, directly or indirectly, of such data, Goods and/or Services is hereunder provided. It is the sole responsibility of the Buyer to comply with whatever requirement the United States government may make for such export or re-export at the time thereof.
- Electronic Transactions.
If the Buyer and the Seller choose to transmit the Order, and/or information, payment or any other data pertaining to the Order, through an electronic medium, then the Buyer and the Seller agree that the terms and conditions of the Order and these General Terms and Condition shall apply to all such electronic transactions, unless the Buyer and the Seller have agreed in a signed writing to other terms and conditions, in which case the other terms and conditions shall apply only to the electronic transactions specifically identified in that signed writing. The Buyer and the Seller further agree that the Uniform Electronic Transactions Act as adopted in any form shall not apply to transactions pursuant to the Order.
- Governing Law.
The terms and conditions set forth in the Order and in these General Terms and Conditions shall be construed subject to the laws of the State of Tennessee, including, to the extent applicable, the provisions of the Uniform Commercial Code as codified under Tennessee law; and not by the Convention for the International Sale of Goods.
- Venue and Jurisdiction for Dispute Resolution.
All disputes relating to or arising out of the execution, interpretation, construction, performance, or enforcement of the Order, these General Terms and Conditions, and the rights and obligations of the parties shall be brought in the state courts for Sullivan County, Tennessee. The Buyer hereby consents to and waives any objection to venue and jurisdiction in such courts.