1. Definitions and Interpretation.
As used herein, “Agreement” means these Sales Order Terms and Conditions for Sales (the “Terms”), together with the applicable Purchase Order setting forth the applicable Products and quantities thereof (“PO”) and the applicable Sales Order Acknowledgment (“SOA”); “Carrier” means Buyer or the third party carrier engaged by Buyer to deliver the Products to Buyer’s site, except as otherwise specified in the SOA, “Delivery” means partial or full delivery of the Products to Buyer in accordance with the Terms; “Laws” means all applicable federal, state, and local laws, codes, rules, regulations, and orders of any governmental authority; “Prices” means the prices set forth in the Quotation, which are valid for thirty (30) days after the date of such Quotation]; “Products” means the goods and materials specified in the PO and confirmed in the SOA; “Quotation” means the quotation submitted by Seller for the sale and delivery of the Products to Buyer; “Services” means installation and maintenance advice provided by Seller to Buyer at Buyer’s site or a location designated by Buyer; and “Shipping Site” means Seller’s plant where the Products are received by the Carrier for transportation to Buyer’s site, as specified in the SOA. In interpreting the Agreement: (a) the singular includes the plural and vice versa; (b) reference to a document or Law means such document or Law as amended from time to time; (c) the term “or” is not exclusive; (d) “include” or “including” means including without limiting the generality of any description preceding such term; (e) headings are for convenience only and do not constitute a part of the Agreement; (f) all references to money refer to United States currency unless otherwise indicated on the SOA; (g) the terms “herein,” “hereunder,” “hereby,” and derivatives or similar words refer to the entire Agreement; and (h) references to Seller are deemed to include affiliates of Seller that provide Products or Services to Buyer.
2. Entire Agreement.
All Deliveries of Products are subject to the Terms, regardless of whether the Terms are attached to a Quotation, PO, SOA, or shipping document or are delivered separately. Buyer shall be deemed to have irrevocably accepted the Terms upon the earliest of (a) delivery of the PO to Seller, (b) acceptance of Delivery of a Product, or (c) payment of any amount due for a Product. A PO is accepted by Seller only upon Seller’s issuance of an SOA. If there are inconsistencies (i) between the Terms and the terms of a PO or an SOA, the Terms shall control, or (ii) between the terms of a PO and the terms of an SOA, the terms of the SOA shall control. If any additional or different terms are contained in the PO or other documentation issued by Buyer (“Proposed Terms”), the Terms shall govern regardless of when the Proposed Terms are received by Seller, unless Seller agrees in writing to the Proposed Terms; otherwise, Seller rejects all Proposed Terms. If the parties have entered into another agreement identified in the SOA (the “Other Agreement Terms”), the Terms and the Other Agreement Terms shall both be applicable where they are not inconsistent with each other; however, to the extent a conflict exists, the Other Agreement Terms shall control.
3. Payment Terms; Late Payments; Security Interest.
Buyer shall pay the amount set forth on each invoice within 30 days after the date thereof. Prices exclude all federal, state, provincial, and local taxes (including sales and use tax), all of which shall be timely paid by Buyer to the applicable governmental entity. Buyer shall not deduct any taxes from any payment unless Seller has accepted a valid resale or tax exemption certificate from Buyer. To the full extent permitted by Law: (a) Seller will not accept or honor any resale or tax exemption certificate unless Buyer provides such certificate to Seller prior to, or together with, the PO to which it applies; and, (b) Seller reserves the right, at any time and in its sole discretion, to refuse to accept or honor any such certificate provided by Buyer. Past due amounts shall bear interest at the rate of 1‑1/2 percent, compounded monthly. Seller may require Buyer to pay all or a portion of the Price, or to provide adequate security for payment of the Price, prior to Delivery of the Products. If Seller makes a Delivery of any Products before Buyer’s payment in full of the Price therefor, then (a) if permitted by Law, Buyer grants to Seller a purchase money security interest in the Products and authorizes Seller to file Uniform Commercial Code financing statements, amendments, and continuation statements or filings under the Canadian Personal Property Security Act in connection therewith and to take all other actions Seller deems necessary or desirable to perfect, maintain, protect, and foreclose on the security interest granted herein, or (b) if Buyer is prohibited by Law from granting a purchase money security interest to Seller, Buyer shall issue to Seller a payment bond in the amount of the unpaid Price promptly upon Delivery of the Products and maintain the bond in full force and effect until the Price is paid in full. Buyer shall perform its obligations hereunder without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Buyer.
4. Change Orders.
Buyer may modify the quantity or types of Products requested in a PO by the issuance of a change order, so long as the change order is received by Seller prior to shipment of the Products. Seller shall confirm acceptance of a change order by notice to Buyer, which notice may include equitable adjustments in the Prices and Delivery Dates for the affected Products.
5. Shipment; Title; Risk of Loss.
Unless otherwise specified on an SOA, Products shall be delivered Ex-Works Shipping Site, with Buyer responsible for transportation insurance. Buyer shall assume risk of loss of the Products at the Shipping Site, but title to the Products shall remain with Seller until Buyer’s payment of the Price for the Products in full. Seller shall notify Buyer when the Products, or any portion thereof, are available for Delivery. Buyer shall, or shall cause its Carrier to, receive the Products at the Shipping Site within five (5) business days after Seller notifies Buyer that the Products, or any portion thereof, are available for Delivery. Buyer shall inventory all Products within 10 business days after Delivery, and Buyer shall note any shortages found on the shipping list and on the Bill of Lading. Any shortages shall be claimed by Buyer and addressed by Seller in accordance with the Limited Warranty.
Delivery dates are estimates only. Seller shall attempt to notify Buyer of anticipated Delivery delays, but Seller shall not be in default due to any such delays. Any right of Buyer, or its Carrier, to visit the Shipping Site for Delivery is conditioned on (a) such visit occurring on, or within a reasonable period after, the Products are available for Delivery, and (b) such visitors (i) not interfering with Seller’s activities at the Shipping Site and (ii) complying with all rules and regulations of Seller applicable to persons at the Shipping Site. Buyer shall be responsible for any damage to the Shipping Site to the extent caused by Buyer or its Carrier.
7. Installation; Safety; Insurance.
Except for Services acknowledged in the SOA, Seller shall not install or supervise or otherwise assist Buyer with the installation of Products. Buyer shall be solely responsible for (a) investigating installers and determining the qualifications of installers for particular Products, and (b) compliance by Buyer and any installer with all Laws and standard industry practices during installation, including OSHA standards and requirements and installation codes. Buyer shall carry adequate insurance coverage, including liability and errors and omissions, for risks of loss, damage, and injury before, during, and after installation.
8. Limited Warranty.
Seller warrants that upon Delivery and for a period of one year thereafter (the “Limited Warranty Period”), the Products shall be free of defects in material and workmanship and meet the specifications agreed upon in writing by Seller and Buyer (the “Limited Warranty”). The Limited Warranty shall not cover (a) Products or parts thereof manufactured by third parties or (b) noncompliance with the specifications that results from (i) use of Products in other than their normal and customary manner or not in compliance with the instruction materials provided by Seller, (ii) neglect, abuse, or misuse, (iii) accident, fire, flood, lightening or other acts of God, war, or other events beyond Seller’s reasonable control, (iv) improper handling, operation, transport, storage, or environmental conditions, (v) unauthorized alterations or repairs, (vi) improper or faulty installation, maintenance, service, or cleaning, including installation, service, cleaning or maintenance not in compliance with standard industry practices or the instruction manuals provided by Seller; (vii) damage that occurs during shipment, (viii) cosmetic damage, including scratches to exposed parts of the Products, or (ix) use of the Product parts that are not Seller parts or parts from Seller-approved vendors. Effective upon Delivery of the Products, Seller hereby assigns to Buyer all assignable warranties on the Products provided by third-party manufacturers of the Products or any parts thereof. Except for the Limited Warranty, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, INCLUDING COMPLIANCE WITH BUYER’S OR END-USER’S SPECIFICATIONS AND INDUSTRY STANDARDS; ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND DESIGN ARE DISCLAIMED AND EXCLUDED.
Seller shall perform the Services (a) substantially in compliance with all permits, licenses, and third party approvals necessary or desirable for the performance of the Services, all of which shall be obtained by Buyer, Laws, and policies of Buyer regarding safety measures to be taken at the location where the Services are performed, and (b) in a professional manner with the standard of care, skill, and diligence normally provided by a person in the performance of services similar to the Services.
With regard to Products, if, within the Limited Warranty Period, Buyer notifies Seller of any Products that do not comply with the Limited Warranty (“Defective Products”), Seller shall, at its sole option and at no charge to Buyer, repair or replace the Defective Products within a reasonable time after notification. At the sole discretion of Seller, (a) Buyer shall ship, at Buyer’s expense, all Defective Products to the location designated by Seller and (b)all replaced parts and Products may become the property of Seller upon replacement. With regard to Services, Buyer shall promptly notify Seller of any Services that fail to satisfy the standards set forth in Section 9 (“Defective Services”) and, as Buyer’s sole remedy for Defective Services, at Buyer’s option and at no cost to Buyer, Seller shall correct, re-perform, or refund all payments made by Buyer for Defective Services. The remedies set out in this Section 10 are Buyer’s exclusive remedies and Seller’s sole liability for Defective Products and Defective Services. Except as provided in this Section, Buyer has no right to return Products. EXCEPT AS PROVIDED IN THIS SECTION 10, SELLER SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR (a) ANY LOSS, INCONVENIENCE, OR DAMAGE, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHERWISE, INCLUDING LOSS, INCONVENIENCE, OR DAMAGE RESULTING FROM THE INSTALLATION OF REPLACEMENT PRODUCTS, REMOVAL OF DEFECTIVE PRODUCTS, AND TRANSPORTATION OF REPLACEMENT OR DEFECTIVE PRODUCTS, RESULTING FROM ANY BREACH OF THE LIMITED WARRANTY, (b) THE FAILURE OF THE PRODUCTS TO PERFORM TO THE SPECIFICATIONS OR STANDARDS FOR SELLER’S PRODUCTS OR BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, OR (c) DEFECTIVE SERVICES.
11. Compliance with Laws.
Buyer shall comply with all Laws in effect from time to time relating to the use, handling, transportation, installation, service, maintenance, cleaning, and disposal of the Products.
12. No Liens.
Buyer shall not allow the creation of any lien or security interest on any Products until Seller’s Delivery of the Products and Buyer’s payment in full of the Price for the Products.
Buyer shall indemnify, hold harmless, and defend Seller and its affiliates and their respective employees, officers, directors, shareholders, members, partners, contractors, and consultants, and the successors and assigns of all of the foregoing (each an “Indemnified Party”) from and against all losses, costs, expenses, liabilities, damages, fines, or penalties, including court costs, reasonable attorneys’ and professionals’ fees and expenses and other litigation or settlement expenses sustained or incurred by the Indemnified Party, arising from, or related to, a claim, demand, or action (a “Claim”) made by a third party against an Indemnified Party, if such Claim: (a) arises from or is related to Buyer’s breach of this agreement; (b) alleges defects in Products, and such defects were arose from or were related to an Excluded Scenario; (c) alleges environmental harm caused by Products; or, (d) arises from or relates to Buyer’s provision to a third party transferee or user of Products or Services of any warranty greater in scope than that provided by Seller to Buyer, or Buyer’s failure to disclaim liability to a third party transferee or user of Products or Services to at least the same extent as Seller disclaims liability to Buyer.
14. Reciprocal Disclaimer of Consequential Damages.
Limitation on Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS REPRESENTING THE OTHER PARTY’S LOSS OF PROFITS, LOSS OF BUSINESS, OR OTHER INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING FROM THE PERFORMANCE OR NONPERFORMANCE OF THE AGREEMENT. IN NO EVENT SHALL SELLER BE LIABLE FOR DAMAGES ARISING OUT OF OR RELATING TO ANY PO THAT EXCEED THE TOTAL PRICES PAID BY BUYER TO SELLER UNDER SUCH PO AS OF THE DATE SUCH DAMAGES ARISE.
15. Intellectual Property Rights.
Seller’s Intellectual Property Rights are the sole and exclusive property of Seller. Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights hereunder. All rights not expressly granted by Seller hereunder are expressly reserved to Seller. Seller shall not (a) take any action that may interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights; (b) challenge any right, title, or interest of Seller in or to Seller’s Intellectual Property Rights; or (c) engage in any action that disparages, dilutes the value of, or reflects negatively on the Products or any of Seller’s trademarks. As used herein: “Intellectual Property Rights” means all current and future rights in copyrights, trade secrets, trademarks, domain names, patents, design rights, and any other intellectual property rights that may exist anywhere in the world; and “Seller’s Intellectual Property Rights” means all Intellectual Property Rights owned by or licensed to Seller.
Seller may, without liability or penalty and without limiting its other rights available hereunder, at law, or in equity, cancel any PO placed by Buyer and accepted by Seller, in whole or in part, if Seller (a) discontinues its sale of the applicable Products or reduces or allocates its inventory of Products, or (b) determines that Buyer is in violation of its payment obligations hereunder or has breached or is in breach of its obligations hereunder.
Buyer shall not disclose to any person or entity any (a) non-public documents and information designated by Seller (orally or in writing) as “proprietary” or “confidential” or that Buyer knows or has reason to know Seller treats as confidential, (b) business and investment opportunities disclosed by Seller, or (c) business plans and methods, customer information, financial, engineering, operating, and technical data of Seller. Buyer’s obligation to keep the foregoing confidential is perpetual and survives the expiration or termination of the PO and the Terms.
All notices, consents, approvals, change orders, and other communications that are required or permitted to be given under the Agreement shall be sufficient in all respects if given in writing and delivered in person or by electronic mail, facsimile, overnight courier, or certified mail, postage prepaid, return receipt requested, to the receiving party at the address shown on the SOA, or to such other address as such party may have given to the other by notice pursuant to this Section. Notices, consents, approvals, change orders, and other communications shall be deemed delivered, given, and received on the date of delivery, in the case of personal delivery, electronic mail, or facsimile, or on the delivery or refusal date, as specified on the return receipt in the case of certified mail or on the tracking report in the case of overnight courier.
19. Governing Law and Forum.
The Laws of the State of Wyoming, excluding choice of law rules, shall govern any action related to the Agreement. Any litigation with respect to the Agreement shall be brought in the courts of the State of Wyoming, County of Laramie, and Buyer irrevocably submits to such personal jurisdiction and venue.
20. Attorney's Fees.
If Seller is required to take any action to enforce the terms of the Agreement, Seller shall be entitled to reasonable attorneys’, consultants’, expert witnesses’, and other professionals’ fees and costs, costs of collection, and interest at the statutory rate on any unpaid amount from the date due.
21. Force Majeure.
21.1 Definition. Under the Agreement, “Force Majeure Event” means any event beyond the control of Seller: (a) that could not have been reasonably foreseen at the time Seller entered into this Purchase Order as having the potential to affect; and, (b) from which Seller could not reasonably have protected itself to an extent sufficient to enable; Seller’s performance under this Purchase Order; or (c) that causes Seller’s performance under this Purchase Order to become commercially unreasonable or impossible; whether such event takes the form of: (i) any natural disaster or act of God, including, without limitation, fire, flood, earthquake, unusually severe storm, lightning strike, tornado, volcanic eruption or other natural explosion, or hurricane; (ii) epidemic or pandemic; (iii) act of terrorism or war, whether such war was declared or not; (iv) insurrection or riot; (v) wildcat strike, spontaneous work stoppage or slowdown, or lock-out; (vii) act of government in its sovereign capacity, or intervention by civil or military authorities, whether or not such intervention was lawful; or, (viii) declaration by a third party that occurrence of any of the foregoing events has limited in whole or in part its ability to supply goods and services that Seller intended to form the basis for, or incorporate or utilize in the manufacture or performance of, Goods and Services that are the subject matter of this Purchase Order (and such declaration will be deemed to make Seller’s performance of the Agreement commercially unreasonable or impossible).
21.1.1 Event in Process. Notwithstanding Section 21.1(a), or anything else in the Agreement to the contrary, if, at the time at which a party entered into the Agreement: (a) an event described in Section 21.1 was in the process of occurring; and, (b) it was not reasonably possible for such party to know or estimate with reasonable certainty the ultimate duration, full scale, or future impact of such event on such party’s performance under this Purchase Order; then such event will be deemed a Force Majeure Event despite Section 21.1(a).
21.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER WILL NOT HAVE COMMITTED A BREACH OF THE AGREEMENT OR BE LIABLE FOR ANY DAMAGE, OR DELAY, IF SUCH BREACH, DAMAGE, OR DELAY ARISES FROM OR RELATES TO A FORCE MAJEURE EVENT.
22. No Waiver; Amendments; No Assignment; Severability.
No delay in exercising or failure to exercise a right of remedy shall impair that or any other right or remedy or be construed as a waiver of any such right or remedy. The Agreement (a) may be amended or cancelled only in writing signed by both parties, and (b) may not be assigned by Buyer without Seller’s prior consent, and any attempt to assign it without such consent shall be absolutely void. If any of the provisions herein shall for any reason be held void or unenforceable, the remaining provisions shall remain in full force and effect.