PRABHAT INDUSTRIES, LLC General Terms and Conditions of Sale
1. SALE OF PRODUCTS (a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of all products (the “Products”) by Prabhat Industries, LLC, a Georgia limited liability company (the “Company”) to you as a purchaser (the “Purchaser”).
(b) The purchase order and invoice (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous agreements, both written and oral. Purchaser acknowledges receipt and accepts these Terms. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS CONTAINED IN ANY RESPONSE HERETO BY PURCHASER OR IN PURCHASER’S INITIAL PURCHASE ORDER ARE HEREBY REJECTED BY THE COMPANY WITHOUT NEED OF FURTHER NOTICE OF REJECTION AND ARE OF NO EFFECT NOR IN ANY CIRCUMSTANCES BINDING ON THE COMPANY. The Company’s acceptance of any purchase order offered by Purchaser is EXPRESSLY MADE CONDITIONAL on Purchaser’s assent to these Terms, and under no circumstances will any terms or conditions other than these Terms apply to the Company’s sale of the Products, except if such other terms or conditions have been expressly accepted in writing by the Company.
(c) The Company’s quotations are not binding on the Company. Each purchase order of the Products shall be in writing and no purchase order of Purchaser shall be binding on the Company until the earlier of (i) shipment to Purchaser of the Products or (ii) transmittal to Purchaser of a written acceptance by the Company. The Company’s failure to respond to Purchaser’s purchase order within four (4) weeks after receipt of the purchaser order constitutes a rejection of the Purchaser’s Order.
(d) Purchaser may not cancel any purchase order after it has become binding pursuant to Subsection (c) above. The Company may cancel all accepted purchase orders and deliveries of Products if Purchaser (i) makes an assignment for the benefit of creditors; (ii) becomes party to a voluntary or involuntary proceeding of insolvency, bankruptcy or reorganization; (iii) generally becomes unable to pay its debts as they become due; (iv) fails to remit payment to the Company in accordance with these Terms or under any other agreement between the Company and Purchaser; and/or (v) breaches any other term, provision, and/or condition contained in these Terms.
(e) Purchaser acknowledges that the Company’s acceptance of any purchase order is dependent on the Company’s prior approval of Purchaser’s credit. Purchaser acknowledges that the Company may demand assurances of Purchaser’s ability to pay by requesting such trade or banking references or a letter of credit or such other information as deemed adequate by the Company..
2. DELIVERY
(a) The Company will deliver the Products within a reasonable amount of time after the receipt of Purchaser’s purchase order. The Company shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, the Company will ship the Products FOB Duluth, GA (the “Delivery Point”) or any future Company warehouse using the Company’s standard methods for packaging and shipping such Products.
(c) The Company may, in its sole discretion, without liability or penalty, make partial shipments of Products to Purchaser. Each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s purchase order.
3. SHIPPING TERMS
Delivery shall be made FOB Duluth, Georgia.
4. TITLE AND RISK OF LOSS
Title and risk of loss passes to Purchaser upon shipment of the Products from the Delivery Point. As collateral security for the payment of the purchase price of the Products, Purchaser hereby grants to the Company a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code.
5. PURCHASE PRICE
Purchaser shall purchase the Products from the Company at the agreed upon prices set forth in the Company’s quote as confirmed in final Purchaser’s Order. All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs and taxes. The company reserves the right to make changes to the product pricing as necessary.
6. PAYMENT TERMS (a) Purchaser shall pay all invoiced amounts due to the Company within net thirty (30) days from the date of the Company’s invoice, unless otherwise agreed upon in writing. Purchaser shall make all payments hereunder by ACH, check or wire transfer in U.S. dollars.
(b) Purchaser shall pay interest on all late payments at the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse the Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to suspend the delivery of any Products if Purchaser fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(c) Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off or any claim or dispute with the Company, whether relating to the Company’s breach, bankruptcy or otherwise. .
7. MANUFACTURER’S LIMITED REFUND OR REPLACEMENT WARRANTY
(a) It is the Company’s experience that if a Product contains a defect in materials or workmanship, such defect will be readily apparent upon installation of the Product. The Company therefore warrants (the “Limited Refund or Replacement Warranty”) that for a period of one (1) year from the date of purchase (the “Warranty Period”), the Company will address any claims regarding defects in materials or workmanship in the Product; provided, however, that Purchaser (i) complies with the installation procedure set forth in Subsection (b) of this Section and provided that Purchaser has complied with the storage guidelines of ISO 4633 (4th Edition or the most recent edition issued prior to date of sale); (ii) maintains the photographic evidence and other documentation required to be obtained by Subsection (b) of this Section (collectively, the “Installation Records”); (iii) discovers the alleged Product defect within the Warranty Period; and (iv) within fourteen (14) days of such discovery, provides to the Company (x) written notice describing the alleged Product defect, (y) original copies of the Installation Records, and (z) photographs of the Product in its defective condition. If the foregoing conditions are met, the Company will, at its sole option, replace the defective Product or issue a refund for the purchase price thereof. Under no circumstances will the Company have any liability for any product defect (materials or workmanship) that is not reported to the Company within one (1) year from the date of purchase.
(b) For the Limited Refund or Replacement Warranty to apply, the Purchaser must strictly follow the installation instructions for each Product as per the standard process. (i) photograph the properly seated/installed Product; (ii) perform testing after the entire pipeline has been properly filled, flushed and purged of all air; (iii) record the pressure ratings observed during testing; (iv) photograph and record any leakages observed during testing; and (v) retain and present the records and photographs required by this paragraph to the Company with any warranty claim. The Company may, in its sole discretion, deny any warranty claim for failure to follow these instructions or present the required documentation.
(c) The Limited Refund or Replacement Warranty provided in this Section shall not apply to, and the Company shall have no obligations with respect to: (i) Products that have been altered or repaired by anyone other the Company’s approved personnel; (ii) Products that have been damaged by circumstances beyond the reasonable control of the Company; (iii) Products that have been incorrectly installed or improperly used or maintained by purchaser; (iv) Products that have been subjected to conditions of use and or maintenance not in conformity with the Company’s instructions regarding the Products; (v) Products used in connection with any hardware not approved by the Company for such purpose; (vi) defects in the Products that merely constitute immaterial deviations from specifications stated by the Company; and/or (vii) defects in the Products that do not substantially limit the suitability of the Products for their intended use.
(d) THE FOREGOING LIMITED REFUND OR REPLACEMENT WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
(e) PURCHASER ACKNOWLEDGES AND AGREES THAT IF PURCHASER RECEIVES A DEFECTIVE PRODUCT, PURCHASER’S WARRANTY REMEDIES ARE LIMITED TO THE EXCLUSIVE REMEDIES OF (i) RETURN OF THE PRODUCT AND REPAYMENT OF THE PURCHASE PRICE THEREOF OR (ii) THE REPLACEMENT OF THE DEFECTIVE PRODUCT, AND PURCHASER ACKNOWLEDGES AND AGREES THAT IT SHALL BE AT THE EXCLUSIVE DISCRETION OF THE COMPANY AS TO WHICH REMEDY SHALL BE AVAILABLE TO PURCHASER IF A DISPUTE ARISES
(f) Once an order has been accepted by the Company, THAT SALE IS FINAL AND NO REFUNDS OR CANCELLATIONS ARE ALLOWED ONCE THE COMPANY ACCEPTS AN ORDER. PURCHASER ACKNOWLEDGES AND AGREES THAT THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES AND THAT THEY SHALL APPLY EVEN IF THE CIRCUMSTANCES CAUSE THEM TO FAIL OF THEIR ESSENTIAL PURPOSE.
8. LIMITATION OF LIABILITY
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN ALL EVENTS, THE LIABILITY OF THE COMPANY HEREUNDER, WHETHER BASED IN TORT, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE PRODUCT IN QUESTION FOR THE AMOUNT OF ALLEGEDLY DEFECTIVE PRODUCT SOLD (e.g. if the purchase price of the defective Product is $500.00, such is the limit of the Company’s liability).
(b) TO THE MAXIMUM EXTENT PROVIDED BY LAW, THE COMPANY SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF ANY CONTRACT OR OF THESE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGE OR LOSS OF OTHER PROPERTY OR PRODUCTS, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF MACHINERY OR PARTS THEREOF, INABILITY TO PERFORM SPECIFIC PROJECTS, COST OF CAPITAL, COSTS OF DELAY OR OTHER SOFT COSTS, LOSS OF CONTRACT OR CUSTOMER, LOSS ARISING OUT OF A PRODUCT RECALL, DAMAGE TO PROPERTY OR CLAIMS RESULTING FROM A BREACH OF THE LIMITED REFUND OR REPLACEMENT WARRANTY PROVIDED HEREIN OR CLAIMS RESULTING FROM A DEFECT IN THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY CLAIMS FOR BODILY INJURY OR DEATH, PERSONAL INJURY, ADVERTISING INJURY, LOSS OF USE, DAMAGE TO THE ENVIRONMENT OR ANY ACTUAL ALLEGED OR THREATENED DISCHARGE, DISPERSAL SEEPAGE, MIGRATION, RELEASE OR ESCAPE OF ANY POLLUTANT AT ANY TIME.
(c) Purchaser acknowledges and agrees that the limitations of liability in Subsections (a) and (b) of this Section function and apply independently from the terms of the Limited Refund or Replacement warranty provided by these Terms and that those limitations of liability shall apply even if the Limited Refund or Replacement Warranty fails of its essential purpose. (d) Some states do not allow the exclusion or limitation of incidental or consequential damages. Therefore, the above limitations or exclusions may not apply to Purchaser.
9. INDEMNIFICATION
To the full extent permitted by applicable law, Purchaser shall indemnify, defend, and hold harmless the Company and the Company’s subsidiaries, affiliates, authorized distributors, successors, and/or assigns and their respective directors, officers, employees, equity holders, and employees (collectively, the “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost and/or expense, including attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, the “Losses”) caused by Purchaser’s negligence, strict liability, breach of warranty, breach of these Terms, fault, omissions or willful conduct arising, without limitation, from the handling, transportation, modification, storage and/or installation or use of the Products.
10. INTELLECTUAL PROPERTY
All rights, title, and interest to any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity or any other intellectual property or proprietary right arising under the laws of any jurisdiction, associated with the Products sold by the Company shall remain vested in the Company, together with any improvements, modifications, and derivative works of the Products. Purchaser acknowledges such ownership, whether Purchaser paid for or otherwise handled a Product or not. Purchaser will not take any action to jeopardize, limit, copy, sublicense, reverse engineer, and/or interfere with the Company’s rights, in part or in whole, to the Products. Purchaser assumes all risk of patent infringement by reason of any use Purchaser makes of the Products in combination with any other material or in operation of any process.
11. AMENDMENT AND MODIFICATION
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of the Company and Purchaser.
12. TERMINATION
In addition to any remedies that may be provided under these Terms, the Company may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Purchaser’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part and/or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditor.
13. WAIVER
No waiver by the Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Company. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14. FORCE MAJEURE
The Company shall not be liable or responsible to Purchaser, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage; provided, however, that if the event in question continues for a continuous period in excess of thirty (30) days, Purchaser shall be entitled to give notice in writing to the Company to terminate this Agreement.
15. ASSIGNMENT
Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
16. RELATIONSHIP OF PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17. GOVERNING LAW AND VENUE
This Agreement is made and entered into in the State of Georgia and shall in all respects be interpreted, enforced, and governed by and under the laws of the State of Georgia, without regard to its choice-of-law or conflict-of-law rules or principles.
18. ARBITRATION
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The arbitrator(s) shall be licensed to practice law. The place of arbitration shall be Atlanta, Georgia. The arbitration shall be governed by the laws of the State of Georgia. Leave the arbitration clause silent regarding the scope of exchange of electronic information. Leave the arbitration clause silent regarding in what manner hearings will be conducted, meaning hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The prevailing party shall be entitled to an award of reasonable attorney fees. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above. 19. NOTICES
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
20. SEVERABILITY
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
