TERMS AND CONDITIONS OF SALE

TERMS AND CONDITIONS OF SALE
TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale and the provisions in
Seller’s quotation (if any), acknowledgement or invoice from
Seller (collectively, the “Agreement”) govern in all respects
all sales of any Products (“Products”) and services (the
“Services”) from the Nortek legal entity selling Products and
Services (“Seller”) to purchaser (“Buyer”). In the event of
any inconsistency between these Terms and Conditions and
any quotation, acknowledgment or invoice, the provisions of
these Terms and Conditions shall prevail. Buyer
acknowledges that Seller, through its affiliates (i.e., parents,
subsidiaries and other affiliates) offers expanded
manufacturing capability, and Seller may in its sole
discretion manufacture, supply or deliver from any location
or source, including any of its affiliates, any Products or
Services and such manufacture, supply or delivery from such
affiliates shall also be subject to these Terms and Conditions.
The application of Buyer’s terms and conditions is expressly
excluded
1. Prices and Taxes. Prices are those in effect when Seller
accepts a purchase order. Seller may accept or reject
purchase orders in its sole discretion. Buyer must pay or
promptly reimburse Seller for any sales, use or any other
local or federal taxes, including VAT, arising from the sale
or delivery of the Products and Services or provide an
exemption certificate. All prices, models and material
specifications are subject to change or withdrawal by Seller
until the Seller’s offer has been accepted by Buyer.
2. Payment. Terms of payment are net 30 days from date
of invoice. Buyer must pay all amounts by wire transfer to
the account designated by Seller. All prices are quoted, and
must be paid, in euros, or as otherwise specified on the
quotation. If Buyer fails to make any payment or pay any
invoice according to its terms, or upon such credit terms as
expressly agreed to in writing by Seller, then, in addition to
all other rights and remedies available to Seller: (a) Buyer is
responsible for any and all commercially reasonable charges,
expenses or commissions incurred by Seller in stopping
delivery, transportation and storage of Products, and in
connection with the return or resale of Products; (b) Seller
has the right to terminate the Agreement or suspend further
performance under the Agreement and other agreements
with Buyer; and (c) Buyer shall be liable to Seller for all
reasonable costs of collection, including reasonable
attorneys’ fees. Past due amounts are subject to late payment
interests of 12 %/year (or the maximum amount permitted
by law) without prior formal notice and, if credit terms have
been agreed to in writing, Seller reserves the right to charge
lawful rates of interest upon any outstanding balance,
whether past due or not. Buyer shall have no right to offset
any amounts due or to become due to Seller against any
claims or other payments of any kind whatsoever under any
circumstances..
3. Changes. Seller may revise prices, dates of delivery,
and warranties upon acceptance of requests by Buyer for
modifications to Products or Services. If Buyer rejects
proposed changes to made-to-order Products deemed
necessary by Seller to conform to the applicable
specification, Seller is relieved of its obligation to conform
Terms and Conditions of Sale – Confidential v1.1
to such specification to the extent that conformance may be
affected by such objection in the reasonable opinion of
Seller.
4. Shipment and Delivery. Deliveries of Products and
risk of loss pass to Buyer EXW per INCOTERMS 2010
Seller’s facility. Buyer is responsible for all demurrage or
detention charges. Title to the Products only passes to Buyer
once Buyer has paid all amounts due to Seller, including
interest and costs, in relation with the concerned Products.
Title to any software provided with Products remains with
Seller or its supplier. Any claims for shortages or damages
suffered in transit must be submitted directly to the carrier.
All shipping dates are approximate and not guaranteed.
Seller reserves the right to make partial shipments. Seller is
not bound to tender delivery of any Products for which Buyer
has not provided shipping instructions. If shipment of
Products is postponed or delayed by Buyer for any reason,
including a Force Majeure Event (defined in Section 9),
Seller may move Products to storage for the account of and
at the risk of Buyer and the Products will be deemed
delivered. Products may not be returned except with the
prior written consent of Seller, which may include additional
terms.
5. Inspection and Acceptance. Seller must give prior
consent to pre-delivery inspection or factory acceptance
testing, which will be at a time acceptable to Seller. Buyer
has until the earlier of two days prior to shipping or 10 days
following factory acceptance testing to notify Seller in
writing of any specific objections, and failure to so notify
constitutes acceptance of and authorization to deliver
Products. If the Agreement provides for site acceptance
testing, Seller must verify that Products were delivered
without physical damage and are in good operating
condition. Completion of any site acceptance testing
constitutes full and final acceptance of Products. Acceptance
testing is deemed completed and Products accepted by the
earlier of the 30th day following delivery of Products and the
use or resale of the Products, unless the parties otherwise
agree in writing.
6. Limited Warranty. (a) Seller warrants: (i) All
Products (excluding software and spare parts) manufactured
by Seller will conform to the specifications provided by
Seller and will be free of defects in material and
workmanship (“Defects”) for 12 months following
installation or 18 months following ship date, whichever
occurs first, under normal use and regular service and
maintenance, if installed pursuant to Seller’s instructions.
New spare parts will be free of Defects for 12 months
following ship date. Buyer must notify Seller of any Defect
promptly upon discovery and if such notification occurs
within the applicable warranty period, Seller shall remedy
such Defect by, at Seller’s option, adjustment, repair or
replacement of Products or any affected portion of Products,
or providing a refund of the portion of the purchase price
attributable to the defective portion of the Product. Buyer
assumes all responsibility and expense for removal,
reinstallation and freight charges (both for return and
delivery of new parts). Buyer must grant Seller access to the
premises at which Products are located at all reasonable
times so that Seller can evaluate any Defect and make repairs
or replacements on site. Repaired or replaced portions of
Products are warranted until the later of the end of the
warranty period applicable to the defective portion of
Products repaired or replaced; or 30 days following the
completion of the repair or ship date of the replacement parts;
and (ii) Services will be of workmanlike quality. If Buyer
notifies Seller of any nonconforming Services within 30 days
after Services are completed, Seller shall re-perform, if able
to be cured, those Services directly affected by such failure,
at its sole expense. Buyer’s sole remedy for such
nonconforming Services is limited to the cost of reperforming the Services.
(b) Buyer is responsible for disassembly and reassembly of non-Seller supplied products. Seller does not
warrant and shall have no obligation with respect to any
Products that: (i) have been repaired or altered by someone
other than Seller; (ii) have been subject to misuse, abuse,
neglect, intentional misconduct, accident, Buyer or third
party negligence, unauthorized modification or alteration,
use beyond rated capacity, a Force Majeure Event, or
improper, or a lack of, maintenance; (iii) are comprised of
materials provided by, or designed pursuant to instructions
from, Buyer; (iv) have failed due to ordinary wear and tear;
or (v) have been exposed to adverse operating or
environmental conditions. Products and third party software
supplied by Seller, but manufactured or created by third
parties are warranted only to the extent of the manufacturer’s
warranty and to the extent such manufacturer permits Seller
to pass any third-party warranty through to Buyer. If Seller
has relied upon any specifications, information,
representations or descriptions of operating conditions or
other data supplied by Buyer or its agents to Seller in the
selection or design of Products, and actual operating
conditions or other conditions differ, any warranties or other
provisions contained herein that are affected by such
conditions will be null and void.
(c) Buyer is solely responsible for determining the
fitness and suitability of Products for the use contemplated
by Buyer. Buyer shall ensure that (i) the Products are used
only for the purposes and in the manner for which they were
designed and supplied, (ii) all persons likely to use or come
into contact with the Products receive appropriate training
and copies of applicable instructions and documentation
supplied by Seller, (iii) all third parties who use or may be
affected by or rely upon the Products are given full and clear
warning of any hazards associated with them or limitations
of their effectiveness and that safe working practices are
adopted and complied with, (iv) any warning notices
displayed on the Products are not removed or obscured, (v)
any third party to whom the Products are supplied agrees not
to remove or obscure such warning notices. Buyer assumes
all responsibility for any loss, damage, or injury to persons
or property arising out of, connected with, or resulting from
the use of Products, either alone or in combination with other
Products or components.
(d) THE WARRANTIES SET FORTH IN THIS
SECTION 6 ARE SELLER’S SOLE AND EXCLUSIVE
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WARRANTIES WITH RESPECT TO PRODUCTS AND
SERVICES, AND ARE IN LIEU OF AND EXCLUDE ALL
OTHER WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY AGAINST INFRINGEMENT; AND ALL
IMPLIED WARRANTIES OF MERCHANTABILITY,
USAGE OF TRADE, AND FITNESS FOR A
PARTICULAR PURPOSE. THE REMEDIES PROVIDED
IN THIS SECTION 6 ARE BUYER’S SOLE REMEDIES
FOR ANY AND ALL CLAIMS ARISING FROM OR
RELATED TO PRODUCTS AND SERVICES.
All
warranty claims must be received by Seller on or before the
end of the applicable warranty period.
7. Limitation of Remedy and Liability. Seller’s total
liability under the Agreement, whether in law, contract,
infringement, negligence, strict liability or other otherwise,
shall not exceed the price paid by Buyer under the
Agreement for the Product or Services giving rise to the
claim. Under no circumstances shall Seller be liable for
special, incidental, indirect, punitive or consequential
damages for any reason. “Consequential damages”
includes, without limitation, loss of anticipated profits;
business interruption; loss of use, revenue, reputation or data;
costs incurred, including without limitation, costs for capital,
fuel or power; loss or damage to property or equipment; and
environmental clean-up. Any action arising under or relating
to the Agreement, (whether based in law, equity, contract,
infringement, negligence, strict liability, other tort or
otherwise), must be commenced with one year after the date
of shipment or delivery of Services. Seller assumes no
obligation or liability for technical advice given or not given,
or results obtained. Seller has set its prices and entered into
the Agreement in reliance upon the limitations of liability
and other terms and conditions specified herein..
8. Excuse of Performance. Seller has no liability for nonperformance due to acts of God; acts of Buyer; war (declared
or undeclared); terrorism or other criminal conduct; fire;
flood; weather; sabotage; strikes, or labor or civil
disturbances; governmental requests, restrictions, laws,
regulations, orders, omissions or actions; unavailability of,
or delays in, utilities or transportation; default of suppliers or
other inability to obtain necessary materials; embargoes or
any other events or causes beyond Seller's reasonable control
(each, a “Force Majeure Event”). Deliveries or other
performance may be suspended for an appropriate period of
time or canceled by Seller upon notice to Buyer in the event
of a Force Majeure Event, but the remainder of the
Agreement will otherwise remain unaffected as a result of
the Force Majeure Event. If Seller determines that its ability
to perform the Services or the total demand for Products is
hindered, limited or made impracticable due to a Force
Majeure Event, Seller may delay delivery of Products and
Services and allocate its available supply of Products
(without obligation to acquire other supplies of any such
Products) among its customers on such basis as Seller
determines to be equitable without liability for any failure of
performance. In the event of a Force Majeure Event, the date
of delivery will be extended by a period equal to the delay
plus a reasonable time to train and resume production, and
the price will be equitably adjusted to compensate Seller for
such delay and related costs and expenses.
9. Laws and Regulations. Compliance with any
applicable laws, regulations and directives (“Laws”) relating
to the installation, operation or use of Products or Services is
the sole responsibility of Buyer. In addition, Buyer shall
comply with all applicable laws, rules, regulations and orders
related to anti-bribery or anti-corruption legislation
(including without limitation the U.S. Foreign Corrupt
Practices Act of 1977, the UK Bribery Act as well as all
national anti-bribery and anti-corruption statutes) and, as
such, will make no offer, payment or gift, will not promise
to pay or give, and will not authorize, directly or indirectly,
the promise or payment of, any money or anything of value
to any government official, any political party or its officials,
or any person while knowing or having reason to know that
all or a portion of such money or item of value will be
offered, given or promised for the purpose of influencing any
decision or act to assist Seller or Buyer or otherwise
obtaining any improper advantage or benefit.
The
Agreement is governed by Belgian law, without giving effect
to its conflict of laws rules, and the parties consent to the
exclusive jurisdiction of the courts of Kortrijk. The
application of the United Nations Convention on Contracts
for the International Sale of Goods does not apply.
10. Drawings. Any designs, manufacturing drawings or
other information submitted to Buyer remain the exclusive
property of Seller. Buyer shall not, without Seller’s prior
written consent, copy such information or disclose such
information to a third party.
11. Cancellation. Buyer may not cancel orders unless
cancellation charges are paid by Buyer to Seller which will
include: (a) all costs and expenses incurred by Seller, and (b)
a fixed sum amounting to a minimum of 10% up to the total
price of the Products to compensate for disruption in
scheduling, planned production and other indirect and
administrative costs.
12. Export Control. Certain Products may be subject to
export controls under the Laws of the US and other countries
or under European Law. Buyer must comply with all such
Laws and not export, re-export or transfer, directly or
indirectly, any such Product except in compliance with such
Laws.
13. General Provisions. The Agreement constitutes the
entire agreement between the parties and supersedes all other
communications between the parties relating to the subject
matter of the Agreement. Seller’s quotations are offers that
may only be accepted in full. No conditions, usage or trade,
course of dealing or performance, understanding or
agreement purporting to modify, vary, explain, reject, or
supplement the Agreement shall be binding unless made in
writing and signed by both parties, expressly and specifically
referencing the Agreement, and no modification or objection
shall be caused by Seller's receipt, acknowledgment, or
acceptance of purchase orders, shipping instruction forms, or
other documentation containing different or additional terms
to those set forth herein. No waiver by either party with
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respect to any breach or default or of any right or remedy and
no course of dealing, shall be deemed to constitute a
continuing waiver of any other breach or default or of any
other right or remedy, unless such waiver is expressed in a
writing signed by both parties, specifically referencing the
Agreement. Nothing in the Agreement confers upon any
person other than Seller and Buyer any right or remedy under
or by reason of this Agreement. All typographical or clerical
errors made by Seller in any quotation, acknowledgment or
publication are subject to correction.
The French (français) and Dutch (Nederlands) versions
of the Terms and Conditions of Sale can be consulted at
http://www.reznor.eu/en/be/downloads/otherfiles and are available upon request.
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