General Terms and Conditions of Sale and Delivery of DAP America, Inc.
1. Acceptance of Terms and Conditions:
These Terms and Conditions of Sale and Delivery (the “Agreement“) shall exclusively govern all sales and deliveries by DAP America, Inc. (“Seller”) to its customers (“Buyer”). Buyer accepts the terms and conditions of the Agreement at the time of receipt of the Seller’s confirmation and/or the acceptance of the ordered goods or services. Terms and conditions, including, without limitation, those terms and conditions contained in Buyer’s purchase order(s) or elsewhere which are different from, in addition to, conflict with, or that vary the terms hereof are hereby objected to, rejected and shall not be binding on Seller nor will they have any application to any purchase between Buyer and Seller unless specifically accepted in writing by Seller. Such deviating terms and conditions do not become part of the contract, either by acceptance of the order or implicitly by another act. Neither the fact that the Seller does not expressly object to Buyer’s terms and conditions, nor the Seller’s acceptance of payment for goods or services shall be construed as an acknowledgment of Buyer's terms and conditions.
2. Price and Payment Terms:
(a) All prices set forth herein are EXW (INCOTERMS 2000) from a location designated by the Seller and are payable without setoff or deduction upon invoicing. All accounts not paid within thirty (30) days of invoice date will bear interest at the monthly rate of 1.5 % (18 % per annum) of the amount due hereunder. Buyer shall further be liable to Seller for the costs of collection plus reasonable attorney’s fees.
(b) Prices on the goods are exclusive of all local, state, and federal excise taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Whenever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Buyer. (c) In addition to the purchase price for the goods, Buyer shall pay and be liable for all expenses incurred by Seller for insurance, freight, cartage, warehousing, and all other charges in connection with loading and shipping the goods to Buyer. (d) Buyer shall pay all amounts payable to Seller hereunder when due, time being of the essence.
(e) Payment for the goods shall, if Seller so requires, be made in full prior to delivery, and Seller shall be entitled to withhold delivery until such payment has been made and any check or other negotiable instrument given in payment has cleared. Seller shall have the additional right at any time to limit or cancel any credit extended or to be extended hereunder. Upon failure by Buyer to make payment to Seller within ten (10) days after notice from Seller limiting or cancelling any credit extended or requiring Buyer to make payment before delivery, Seller shall have the option to cancel this and other contracts between Seller and Buyer. In such event, in addition to its other remedies, Seller may resell all or any part of the goods undelivered under the contract without notice at public or private sale and Buyer shall be liable to Seller for the difference between the resale price and the price at which Buyer agreed to buy the goods, together with incidental damages.
3. Title to and Reservation of Security Interest in the Goods:
(a) Until Buyer has completed payment for the goods, title to and ownership of said goods shall remain with Seller and its assigns, and Seller hereby reserves a purchase money security interest in the goods. Until payment is received, the goods shall at all times be located at the place where delivery is made as indicated on the confirmation of order unless written approval is obtained from Seller for removal to some other place. Said goods shall not become a part of the realty.
(b) If Buyer defaults in making payment in full pursuant to the invoice, fails to comply with or defaults in any of the material provisions of this Agreement, files any petition or answer seeking to adjudicate it as bankrupt or insolvent or seeking for itself any liquidation, winding up, reorganization, arrangement, adjustment protection, relief or composition of Buyer or its debts under any law relating to bankruptcy, insolvency, or reorganization or relief of debtors, or seeking, consenting to or acquiescing in the entry of an order for relief or for the appointment of a receiver, trustee, custodian or other similar official for Buyer, or whenever Seller or its assigns deem themselves insecure, the full amount of the purchase price remaining unpaid shall become immediately due and payable at the option of Seller or its assigns, and Buyer agrees to return said goods on demand to Seller, and Seller or its assigns may, without notice or demand and without any legal process, enter onto any premises where the goods are located to take immediate possession thereof and to make any such disposition as Seller or its assigns deems desirable. All payments made shall be retained as liquidated damages for the use of the goods and not as a penalty. The goods may be sold with or without notice at public or private sale at which Seller or its assigns may bid, and the proceeds thereof less expenses shall be credited to the amount unpaid. Buyer agrees to pay the balance forthwith as liquidated damages for the breach of this contract.
(c) Until payment for the goods has been completed, Buyer may not sell, transfer, convey, pledge, hypothecate or otherwise use the goods as security for any borrowing or for any other purpose.
Buyer shall specifically insure the goods against "all risks", subject to normal exclusions, from the time that goods are delivered to a carrier or shipper for delivery, during transit, during unloading, and continuously thereafter until all amounts payable by Buyer to Seller are paid in full for no less than the total amount owing to Seller, with loss first payable to Seller. Buyer shall furnish a certificate showing compliance with this requirement or certified copies of the applicable insurance policy prior to shipment. In the event Buyer does not provide Seller with such evidence, Seller may procure such insurance at Buyer's expense.
(a) Seller warrants the goods to be free from defects in workmanship and/or materials for a period of one (1) year from date of shipment. Seller shall replace or repair, at its sole option and expense, any defective goods or portions thereof.
(b) All specifications, performance figures, drawings and particulars of weights and dimensions made available by Seller and not included in this Agreement are approximate only and the descriptions and illustrations contained in SeIler's catalogs, price lists or sales material are intended only to present a general idea of their subject matter, and none of the items referred to above shall form part of this Agreement. Recommendations for the use of the goods are suggestions only, not directions, and Seller makes no express or implied warranties with respect thereto.
(c) THE PARTIES AGREE THAT THERE IS NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY BY SELLER, EITHER EXPRESS OR IMPLIED, OR ANY AFFIRMATION OF FACT OR REPRESENTATION WHICH EXTENDS BEYOND THE DESCRIPTION ON THE FACE HEREOF.
(d) The sole and exclusive remedy available to Buyer in the event of breach of any warranty by SelIer, express or implied, or of this Agreement shall be limited, at Seller's election, to repair or replacement of any defective goods or damages in a maximum amount equal to the purchase price for the goods.
(e) In no event shall Seller be liable for any incidental or consequential damages (including, but not limited to incidental or consequential damages for lost profits, lost sales, or any other incidental or consequential loss) in connection with the purchase, operation or use of the goods.
(f) Claims for defects are subject to a limitation period of 12 months beginning with the shipment of the goods unless applicable mandatory law provides for a longer limitation time.
(g) All warranties shall be void if goods have been repaired, or repairs attempted, by any person without the prior written approval of Seller.
(h) All goods to be repaired under warranty shall be shipped to Seller at: 5875 Peachtree Industrial Blvd., Suite 220, Norcross, GA 30092. No goods may be returned to Seller for warranty repairs without prior written authorization from Seller. Buyer shall prepay and be liable for all charges in connection with loading and shipping goods to Seller, including applicable insurance and taxes.
Buyer must examine goods fully upon delivery and notify Seller of any defects after discovery without undue delay. With respect to any goods that Buyer has notified Seller are defective, Buyer must keep such goods and make them available for inspection by Seller. Seller will bear the costs of shipment of defective goods back to the Seller only if such shipment takes place at Seller’s request.
7. Use of Software:
To the extent the scope of delivery includes software, Seller hereby grants to the Buyer a non-exclusive, non-transferable license, that is limited to a definite time period pursuant to the provisions of the particular delivery, to use the software and its accompanying documentation in connection with the relevant delivered item. The software may not be used in connection with more than one delivered item. The granting of sublicenses is not permitted. Buyer shall not reproduce, revise, translate or modify the software from object code to source code. Buyer may not remove manufacturer information, in particular copyright labels or notices, or make any other modifications without the prior written expressed consent of Seller. Seller reserves all other rights to the software and the accompanying documentation, including all copies in any form.
8. Delay or Nonperformance:
Seller shall not be liable for delay in shipment for any cause beyond its reasonable control, nor shall such delay entitle Buyer to cancel any order or refuse to accept delivery. SelIer shall not be liable for failure or delay in shipment or other performance hereunder if such failure is due in whole or in part to strikes, fires, accidents, wars, rebellions, civil commotion or public strike, acts of any government, whether legal or otherwise, acts of public enemies, force majeure, inability to secure or obtain, or delay in securing or obtaining, transportation, machinery, materials or sufficient qualified labor, or any other cause beyond Seller's reasonable control.
This Agreement constitutes the entire agreement of the parties with respect to the terms and conditions of sale of the goods delivered. No modification of this Agreement shall be binding upon the parties unless in writing and signed by an authorized agent or officer of Seller and of Buyer. This Agreement shall be deemed to be an offer by Buyer in accordance with the terms and conditions hereof. The terms and conditions of this Agreement shall apply to and govern Buyer's orders and, in the case of any inconsistency between said terms and conditions and the provisions of Buyer's order, the said terms and conditions of this Agreement shall prevail. The acceptance of good and services and/or payment for goods or services hereunder shall be construed as acceptance of the terms and conditions of this Agreement and the sale and shipment by Seller of the goods shall be conclusively deemed to be subject to the terms and conditions hereof. No agent, employee or representative of Seller other than its officers has any authority to bind Seller to any affirmation, representation or warranty concerning the goods sold under this Agreement and unless an affirmation, representation or warranty made by an agent, employee, or representative is specifically included within this Agreement, it has not formed a part of the basis of this bargain and shall not in any way be enforceable.
Buyer will keep confidential all information received from the Seller. This provision shall survive the termination or expiration of any purchase order. This confidentiality obligation does not apply to: (i) Information that is already publicly known at the time of its disclosure by Buyer; (ii) Information that Buyer can establish by written documentation was legitimately in its possession prior to receipt of such information from Seller; or (iii) Information that Buyer later obtains independently and legitimately without being obligated to keep such information confidential. Seller retains title and all rights to all documents or other media made available to Buyer. Such documents or other media may only be reproduced, replicated or transferred to third parties with the express written consent of the Seller. Following the termination or completion of any order, upon Seller's request, Buyer will promptly deliver to Buyer any and all documents or other media that contain or relate to Seller's confidential information, including any copies thereof.
Waiver by Seller of a breach by Buyer of any provision of this Agreement shall not be deemed a waiver of future compliance with any of the provisions of this Agreement.
No right or interest in this Agreement shall be assigned by Buyer without the written consent of Seller, and no delegation of any obligation by Buyer shall be made without the written permission of Seller. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.
13. Controlling Law:
The laws of the State of Georgia shall govern the validity and interpretation of this Agreement.
Buyer, to the extent it may lawfully do so, hereby submits to the jurisdiction of any state or federal court located in Fulton County, Georgia, as well as to the jurisdiction of all courts from which an appeal may be taken from the aforesaid courts for the purpose of any suit, action or other proceeding arising out of any of Buyer's obligations under or with respect to this Agreement, and Buyer expressly waives any and all objections that Buyer may have as to jurisdiction and/or venue in any of such courts. Buyer further agrees that it may be validly served with any legal process in connection with the foregoing by the mailing of a copy thereof by registered or certified mail at its address shown on its purchase order or similar document. Buyer expressly waives any right to jury trial. Any and all costs and fees, including attorneys' fees, shall be reimbursed to the prevailing party by the other party upon demand by the prevailing party.
15. Sales Contract:
This Agreement constitutes a contract for the sale of goods. It does not constitute a de facto company, joint venture, agency, foundation or any other association of any nature whatsoever between Seller and Buyer.
This Agreement shall be subject to final acceptance by Seller's authorized representative in Atlanta, Georgia, and if such approval is not obtained, Seller shall refund any monies paid by Buyer, which refund shall discharge any and all liability of Seller.
Should any provision of this Agreement be determined to be illegal, invalid or unenforceable, the remaining provisions shall not be affected by this illegal, invalid or unenforceable provision. In the event any such provision is illegal, invalid or unenforceable, Seller and Buyer shall undertake to renegotiate, modify, amend or delete the said illegal, invalid or unenforceable provision in order to give the fullest effect to the purposes of the parties to this Agreement in accordance with the governing laws.
DAP America, Inc.
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