CONDITIONS OF SALE
A purchase order for the items purchased shall constitute an acceptance of North American Green’s quotation and is limited to the terms and conditions stated on the quotation. Any proposal for additional or different terms or any attempt by Purchaser to vary in any degree any of the terms of this offer in Purchaser’s purchase order is hereby objected to and rejected, but such proposals shall not operate as a rejection of this offer unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by the purchaser without said additional or different terms. If this quotation shall be deemed and acceptance of a prior offer by Purchaser, such acceptance is expressly conditional on Purchaser’s assent to any additional or different terms contained herein.
The Purchaser accepts that these Conditions as listed here shall govern relations between Purchaser and the Seller to the exclusion of any other terms and conditions and warranties whether written or oral, express or implied, even if contained in any of the Purchaser’s documents which purport to provide the Purchaser’s own terms shall prevail. NO EMPLOYEE OF THE SELLER IS AUTHORIZED TO MAKE AND THE PURCHASER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY STATEMENT. WARRANTY OR REPRESENTATION AS TO THE USE. FUNCTIONING OR STATE OF THE PRODUCT. NOR HAS ANY PURCHASER RELIED ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS FOR ANY PARTICULAR PURPOSE. No variation of qualification of these Conditions shall be valid unless made in writing by the Seller.
On approval of the Seller, credit may be granted for thirty (30) days from date of invoice or such terms may be approved. In the absence of such approval, terms shall be cash on delivery. Seller reserves the right to revise or withdraw Credit terms at any time. Purchaser agrees to pay a monthly service charge on overdue accounts. Current rate is 1 3/4 % per month (21 % per year compounded monthly) and Seller may revise this rate at any time, provided that if this exceeds the legal rate, then said change shall be the maximum rate allowed by law. Purchaser agrees that all funds owed to Seller from anyone or received by Purchaser to the extent those funds result from the labor or materials supplied by Seller shall be held in trust for the benefit of Seller. Purchaser agrees it has no interest in Trust Funds held by anyone and to promptly account for and pay to Seller all such Trust Funds. Purchaser irrevocably assigns to Seller any interest it may have in it’s Trust Fund account receivable.
Unless otherwise specified, all prices are F.O.B. Seller’s warehouse or facility. Where delivered prices are quoted, they are subject to increase or decrease to the extent of any change in existing freight rates. The Seller reserves the right to choose the method of delivery. Unless otherwise specified, the prices quoted are exclusive of all taxes, duties, levies or other charges. Where prices are quoted inclusive of any tax, duty, levy or other charge, they are subject to increase or decrease to the extent of any change in such tax, duty, levy, or other charge. If any price or change in price provided in this Agreement or Tensar’s quotation ceases to be effective or cannot become effective by reason of any laws, rules, regulations, or Order of any Governmental authority, the Seller may at its option terminate this Agreement as of the date the price or price increase ceased to be effective or the price change would come into effect, as the case may be. Special pricing and/or discounts apply to specified sales orders only and must have prior approval of the Vice President of Marketing or his designate.
Any time stated for delivery by the Seller is an estimate only and shall not form part of the contract and any failure by the Seller to deliver the Product by such time shall not be a breach or repudiation and the Seller shall not be liable for any loss or damage suffered by the Purchaser as a result of such failure. Delivery shall be deemed to occur and title and risk of loss or damage of any kind to the Product shall pass to the Purchaser on receipt by a carrier for delivery to the Purchaser (whether or not such carrier be the Seller’s agent or servant) or fourteen (14) days from the date of notice from the Seller that the Product is ready for delivery, whichever is the earlier. The Seller shall arrange for the product to be delivered to the Purchaser as agent of the Purchaser and subject to these conditions. Where delivery of the Product is delayed for any reason outside the reasonable control of the Seller, the seller reserves the right to amend the price for the Product to those current at the date when delivery is made. Where the Seller’s Quotation provides that the Product is to be delivered by installments, each installment shall be deemed to be a separate contract upon these Conditions and the term “Product” shall be construed as meaning that part of the Product contained in each installment.
Tensar will accept the return for credit of currently marketed products, i.e. products of the latest engineering design currently being marketed by Tensar subject to the following conditions. All returns require the approval of Tensar’s Vice President of Marketing. Such approval shall be in the form of Customer Service Department. No returned stock will be accepted without an authorization number. The products must be shipped prepaid to Tensar in Morrow, Georgia and be accompanied by the authorization number. Tensar reserves the right to return or refuse shipment of returned products at Customer’s expense if the above procedures are not strictly adhered to. Upon the inspection and return by Tensar’s Customer Service Department, credit will be issued at the original invoice price less a 20% restocking charge. Customer shall not deduct any credit for the returned products from outstanding invoices or statements.
7. INSPECTION AND CONDITION OF THE PRODUCT
The Purchaser shall carefully examine the Product on receipt of same and shall be telegram or telex to be received by the Seller within two (2) days of receipt of the Products and before the Product shall have been covered up or put out of view on Site, notify the Seller and provide Seller with an opportunity to inspect any short delivery, over delivery or any defects reasonably discoverable on careful examination. If no such notice is received by the Seller, the Seller shall be discharged from all liability in respect of such defects or short or over delivery. Seller’s liability shall in no event exceed the difference between the purchase price and the value as delivered.
The Seller warrants that the Product supplied thereunder will be of good and workmanlike quality manufactured in accordance with applicable specifications. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS, AND INCLUDING BUT NOT LIMITED TO ANY ORAL OR WRITTEN DESCRIPTION OF THE PRODUCT SUPPLIED THEREUNDER, ITS CHARACTERISTICS OR PROPERTIES.
The Seller shall not be liable in any circumstances whatsoever for loss or damage of any kind suffered to or by any third party howsoever caused unless the same shall relate to personal injury or death arising out of the Seller’s negligence and the Purchaser shall indemnify and keep safe and harmless the Seller from and against all claims for damage, loss or expense of whatsoever nature by any person, or entity other than the Purchaser howsoever arising whether in negligence or otherwise.
The Seller shall not be liable for incidental or consequential damages, including but not limited to any losses or expenses or other damages directly or indirectly arising from the sale, handling or use of the Product or from any other cause relating to the sale, handling or use of the Product.
In the event the Product does not conform to the provisions of the foregoing limited warranty or, if for any other reason the Seller may be liable as a result of the sale, handling or use of the Product, the Purchaser’s exclusive remedy shall be and is expressly limited to repayment of the purchase price of the Product or, at the Seller’s option, replacement of the nonconforming Product with a conforming Product.
9. FORCE MAJEURE
Neither party shall be liable in damages or otherwise for failure to carry out the terms of the agreement in whole or in part where caused directly or indirectly by or in consequence of fire, storm, flood, war, rebellion, insurrection, riot, civil commotion, strike, difference with workman or others, failure of carriers to transport or furnish facilities for transportation, perils of navigation, impairment of supplies of Seller, or its facilities of production, manufacture, transportation or distribution, governmental or other authority whether pretended or real by any cause whatsoever beyond the control of either party whether similar to or dissimilar from the causes enumerated herein. If the delay or failure has continued for a period of three (3) months, then either party may give written notice to the other terminating the agreement, provided the nothing herein contained shall relieve the Purchaser of the obligation to pay for goods sold and delivered.
10. DRAWINGS MANUALS
All descriptions, drawings, illustrations, particulars of weights and measures, ratings, standards, statements, details or other descriptive matter contained in any of the Seller’s promotional materials, brochures, operating manuals recommendations and instructions whether oral or in writing or other matte are approximate only and shall not form part of the description of the Product to be supplied and the Seller shallnot be under any liablity in respect thereof. All plans, drawings, specifications and other written technical material supplied in connection with the Product shall remain the property of the Seller and shall not be copied or disclosed to third parties without the prior written consent of the Seller.
The sale by the Seller of the Product shall not convey to the Purchaser any license or right to use any invention, letters, patent, copyright, industrial design or trademark owned or controlled by the Seller except to the extent that one or more of the same is embodied in the Product at the time of the sale.
If the Purchaser shall make default in or commit a breach of the Agreement or any of its obligations to the Seller or if any distress or execution shall be levied upon the Purchaser, its property or assets or if the Purchaser becomes bankrupt or insolvent or any resolution or petition to wind up the Purchaser’s business shall be passed or if a receiver of the Purchaser’s undertakings, property or assets or any part thereof shall be appointed, the Seller shall have the right forthwith to terminate the agreement and the Seller shall be entitled to recover from the Purchaser all losses and expenses hereby arising.
13. LAW AND INTERPRETATION
This agreement shall be governed by the laws of the State of Georgia and the Purchaser shall submit to the non-exclusive jurisdiction of its courts. If any of these Conditions or any part thereof is rendered void or unenforceable by any legislation to which it is subject or by any rule of law it shall be void or unenforceable to that extent and no further.
Any written notice under these Conditions may be given by telegram, telex, or sent by prepaid first class post to the addresses stated herein and if sent by post shall be deemed to be made or given seven (7) days after the date when posted.
The agreement shall enure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of the parties, but it is not assignable except with prior written consent of the Seller.
16. BUYER’S RIGHT OF TERMINATION
Buyer may terminate this contract in whole or in part upon notice in writing to the Seller. The Seller shall thereupon, as directed, cease work and transfer to Buyer title to all completed and partially completed products and to any raw materials or supplies acquired by Seller especially for the purpose of performing this contract and Buyer shall pay Seller the sum of the following: (1) the contract price for all products which have been completed prior to termination; (2) the cost to Seller of the material or work in process as shown on the books of Seller in accordance with the accounting practice consistently maintained by Seller plus a reasonable profit thereon, but in no event more than the contract price; (3) the cost F.O.B. Seller’s plant of materials and supplies acquired especially for the purpose of performing this contract; and (4) reasonable cancellation charges, if any paid by Seller on account of any commitment(s) made hereunder. The provisions of this paragraph shall be without prejudice to the rights of either party for failure on the part of the other party to comply with the provisions of this contract.
17. ATTORNEY’S FEES
Should it become necessary for Sellar to employ an attorney to enforce any of the provisions of the Quotation and or contract or to recover any sum of money due hereunder, Sellar shall be entitled to recover from Purchaser any and all such reasonable attorney’s fees and expenses as shall be incurred in connection therewith. This provision specifically includes, but is not limited to, fees and expenses associated with legal actions filed in any state or federal court including any and all appeals arising out of such actions.