| AGREEMENT OF SALE:
Acceptance by TRIATEK™. Inc., (hereinafter "Seller") of any order, placed for
the goods described on the Acknowledgment. Invoice or Sales Contract hereof shall
be subject to Sellers Standard Terms and Conditions of Sale and is conditioned upon the
Buyer's acceptance of these Standard Terms and Conditions of sale as stated on this
Sales Contract.
TERMS OF CONTRACT: Any terms or conditions of the Buyer's
older which are inconsistent with these Standard Terms and Conditions shall not be binding
on the Setter and shall not be considered applicable to the sale or shipment of goods
covered by this Acknowledgment, invoice, or Sales Contract.
PRICES: Prices are subject to change to the extent
permissible under applicable federal law. Sales contracts which call for delivery in the
future will be billed at prices m effect at the time of shipment. Shipping weights shown
are approximate and subject to change without notice. Seller shall notify buyer of any
significant changes in weight.
SHIPMENT and PAYMENTS: All prices are F.O.B. Seller's plant
in Norcross, Georgia. No freight is allowed on any shipments. Shipments and deliveries
hereunder shall at all times be subject to the approval of Seller's Credit Department.
Seller may, at any time, require payment in advance or satisfactory security or guarantee
that invoices will be promptly paid when due. If Buyer fails to comply with any terms of
payment. Seller, in addition to its rights and remedies but not in limitation thereof
reserves the right to withhold further deliveries or terminate this Agreement, and any
unpaid amount thereon shall become due immediately. Terms of payment shall be as set forth
on the face hereof. Unless approved by Seller, all overseas shipments shall require
prepayment by wire transfer or an irevocable letter of credit from the Buyer.
FORCE MAJEURE: Delays or defaults in delivery by Seller of
the goods covered by this Sales Contract shall be excused as Force Majeure so far
as the same is caused by fire. strikes, accident, war, natural disasters, acts of God,
terrorism, explosions, death, vandalism. aimed robbery, theft, breakage of machinery,
governmental regulation. or any other events which were unavoidable or caused by events
which are beyond the reasonable control of Seller. In no event shall Seller be liable for
any
consequential, special, or contingent damages on account of any default or delay in
delivery from any Force Majeure event. If any Force Majeure event occurs which may affect
Buyer's goods. Seller shall give prompt oral and written notice of its Force
Majeure decimation to Buyer within 7 days or as soon as is practicable.
NON-CANCELLATION: Orders are not subject to suspension,
reduction, or cancellation, except on terms that will indemnify Seller against loss.
SPECIFICATIONS: Setter relies on specifications and other
data furnished by the Buyer, architect, contractors, and/or consulting engineer in alt
phases of the work covered by this Acknowledgment. Invoice or Sales Contract. Seller shall
be responsible to check quantities only. Alterations, changes in specifications, approval
of samples and/or changes jn delivery shall not be binding upon Seller unless approved by
Seller in advance. In the event Buyer asks Seller to perform design or engineering work
for any and all phases of the work covered by this Acknowledgment. Invoice or Sales
Contract. Seller shall not be responsible for any damages claimed by the Buyer as a result
of alleged errors or defects in such design or engineering work except for gross
negligence on the part of Seller.
WARRANTY AND LIMITATION OF LIABILITY: Seller warrants that
the goods supplied by it have been manufactured in accordance with its standard
manufacturing practices and conform to the contract or catalog description for such goods.
Seller further warrants that the goods supplied by it are fit for the ordinary
purpose or recommended installation procedures. Except as stated herein. Seller makes no
express warranty with respect to goods supplied by it and Seller makes no warranty
that the goods are fit for any particular purpose and shall be indemnified by Buyer for
any costs, expenses, and liability arising out of unauthorised, unapproved, and/or unsafe
use (as defined by OSHA and other applicable federal, state and municipal safety
regulations) of its goods. Unauthorized and/or unapproved modifications or
alterations of such goods without the express written approval of Seller, shall annul all
warranties granted herein. When the use of materials not manufactured by Seller is
suggested by Seller's recommended installation procedures, Seller makes no express
warranty with respect to such materials. Seller will, at Its sole option, credit. repair
or replace, any goods supplied by it which its examination shall disclose to its
satisfaction m detective in workmanship or material, and are returned to it within
one year from the date of shipment and any claim not made within Ms period shall be
conclusively deemed waived by Buyer. Credit, repair or replacement will be preconditioned
upon examination of the goods by Seller, and. if requested by Seller, return of the goods
to Setter. No goods are to be returned to Seller without its written consent.
Seller shalI not be liable for any expense incurred by Buyer in order to remedy any defect
in its goods. Seller shall not be liable for any consequential, special, or contingent
damage or expense, arising directly or indirectly from any defect in to goods or
from the use of any defective goods. The remedies set forth herein shall constitute
the exclusive remedies available to Buyer and are in lieu of all other remedies
that would otherwise be available to Buyer.
Warranty and technical support on TRIATEK products are
only available alter payment has been received in tun.
.RETURNS: Material returned for credit is subject to a25%
restocking charge. Freight or other costs incurred in restocking will be added. Returns
resulting from errors by the Seller will not be subject to the charge. Returned materials
shall be received in condition for resale as new equipment to qualify for credit.
SELLER RESERVES THE RIGHT TO SUBSTITUTE MATERIALS USED IN
THE CONSTRUCTION OR EQUIPMENT SOLD PROVIDED SAID SUBSTITUTE DOES NOT MODIFY THE
OPERATIONAL CHARACTERISTICS OF THE EQUIPMENT SOLD.
THESE TERMS OF SALE MAY BE MODIFIED WITHOUT NOTICE. THE
TERMS OF SALE IN EFFECT AT -WE TIME OF SALE SHALL. APPLY. THE SELLER AS
REFERRED TO IN THE TERMS OF SALE IS TRIATEK, INC.
CLAIMS: Claims for shortages of goods or for
mistakes or errors in billing must be presented within Forty-five (45) days from the date
of goods, and must state the packing slip number and container number
applicable to the claim. Any claim not so presented shall be conclusively deemed waived.
TAXES: Any federal, state, local or government tax or
charge on the sale. shipment, or installation of the goods covered by the
Acknowledgment. Invoice or Sales
Contract, shall be added to the price and paid by Buyer or in lieu thereof, the Buyer
shall furnish Seller with tax-exemption certificates acceptable to the taxing authority.
Buyer agrees to reimburse and save Seller harmless from all Such state and local
taxes, including interest and penalties thereon, which may at any time be payable to any
governmental unit with respect to the sale of any goods covered by this
Acknowledgment, Invoice or Sales Contract.
CREDIT BALANCE: Any credit memos granted to Buyer arising
from arising out of returned goods or other circumstances, which are not
subsequently requested or applied to the purchase of other goods from Seller within twelve
months from the date credit was granted, shall become the property of Seller.
APPLICABLE LAW: All questions arising out of this
Acknowledgment. Invoice or Sales Contract, which shall be deemed a Georgia contract, shall
be governed by the laws of the State of Georgia. Venue for any disputes arising out of
this agreement shall be in Georgia. All disputes arising out of this agreement shall be
resolved in the following fashion: the parties shall first engage in good-faith
negotiation. If the parties are unable to settle their claims through good-faith
negotiation, the parties shall attempt to resolve their dispute through mediation by an
agreed upon mediator. Lastly, if mediation fails, the parties shall be subject to binding
arbitration by an agreed upon arbitrator who is a member of the American Arbitration
Association. The prevailing party in any arbitration or other legal action arising out of
this agreement and/or these terms and conditions of sale shall be entitled to
indemnification of all its attorneys' fees, litigation expenses, and costs from the losing
party.
EXCLUSIVE TERMS: This Acknowledgment. Invoice or Sales
Contract, which includes these Standard Terms and Conditions, shall constitute the final
and binding contract between the parties and shall take precedence over any other terms
and conditions from the Buyer. Any changes or deviations from this Acknowledgement.
Invoice or Sales Contract must be in writing and mutually agreed to by Buyer and Seller.
LIMITATION FOR SUITS: Any controversy or claim arising out
of, or relating to, this Acknowledgment, Invoice or Sales Contract, or the breach thereof,
must be commenced within one (1) year after the cause of action accrued. |
