Element Grow Terms and Conditions of Sale
TERMS AND CONDITIONS OF SALE
1. Terms and Conditions. These Terms and Conditions of Sale (these “Terms”) apply to the sale and delivery by Seller (“Element Grow”) to Buyer of the Product as set forth in the Agreement to which these Terms are attached. These Terms are incorporated into the Agreement and, in combination therewith, constitute the entire agreement between the parties with respect to the sale and delivery of the Product. The Agreement is expressly limited to these Terms, and any and all terms or provisions submitted by Buyer which add to, conflict with, or otherwise modify these Terms or the Agreement are expressly rejected.
2. Price. The price for the Product shall be as set forth in the Agreement (the “Price”). Unless otherwise stated, the Price is for delivery by the appropriate shipper or courier service and exclusive of all taxes, customs, duties and insurance. Any and all current or future taxes, fees, or governmental charges applicable to the sale, delivery or shipment of the Product that Seller is required to pay or collect shall be shall be payable by Buyer.
3. Invoices; Payment. Buyer shall be responsible for and pay, if applicable, (a) all taxes (excluding income taxes) arising out of the sale of the Product, including, without limitation, all federal, state, or local property, license, privilege, sales, use, excise or gross receipts taxes or other like taxes and tariffs, and (b) all fees and expenses incurred by Seller in connection with the delivery of Product. Product will not be shipped until payment for the Product and shipping is made in full. Seller will extend to customers on account, terms of (30) thirty days net from date of invoice unless otherwise stated and full payment is expected on the due date. A service charge of .05% per day (1.5% per month, 18% annually) will be imposed on all past due accounts. Payments smaller than $35,000 USD may be made via check, payments larger than $35,000 require electronic/wire transfer. Credit card and other methods of payment are also available, however processing fees may apply. All prices are F.O.B. Seller. Failure to comply with payment terms may result in penalties and Seller may withhold further
4. Title. Notwithstanding delivery of the Product or any other provision of these Terms, title to the Product shall not pass to Buyer until Seller has received payment in full for the invoiced amount for the Product and payment of all other monies then due or owing to Seller.
5. Product Warranty. In addition to any other express or implied warranties, Seller warrants that (a) all Products delivered hereunder will be merchantable, new, suitable for the uses intended, of the grade and quality specified, and free from all defects in design, material, and workmanship, will conform to all samples, drawings, descriptions and specifications furnished, and will be free of liens and encumbrances and claims; (b) all Products have been designed, manufactured and delivered, and all Services have been provided, in compliance with all applicable laws (including labor and environmental compliance laws), regulations (including EC Directive 2001/95 on General Product Safety); and (c) where the Products or Services contain chemicals or dangerous hazardous goods or substances, such goods or substances shall comply with all applicable laws, regulations and requirements (in particular the REACH Regulation) and detailed specifications shall be provided by Seller to enable Buyer to transport, store, use and dispose of them in a safe manner. Seller warrants that software Products provided hereunder will perform substantially in accordance with applicable product specifications in effect at the time of delivery. Seller’s representatives are not authorized to enter into agreements outside these Terms or to make any warranties or representations of any kind with respect to the Product.
6. Consequential Damages; Limitation of Liability. Notwithstanding anything to the contrary contained in this Agreement, Buyer waives all claims against Seller’s (and against Seller’s parent buyer, affiliates, contractors, subcontractors, consultants, agents and vendors) for any consequential, incidental, indirect, special, exemplary or punitive damages (including but not limited to, loss of actual or anticipated profits, revenues or product; or loss of use), and regardless of whether any such claim arises out of breach of contract, tort, product liability, indemnity, contribution, strict liability or any other legal theory. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S CUMULATIVE LIABILITY TO BUYER EXCEED THE PRICE FOR THE PRODUCT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
7. Indemnification. Buyer covenants and agrees to indemnify, defend and hold harmless Seller and its affiliates, subcontractors, vendors, officers, directors, employees, agents, consultants and representatives (collectively, the “Indemnitees”) from and against any and all claims, demands, suits, liabilities, injuries (personal or bodily), causes of action, proceedings, losses, expenses, damages or penalties, including without limitation court costs and reasonable attorneys’ fees (collectively, “Claims”), arising or resulting from its use of the Product.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oregon.
9. Notices. All notices required hereunder shall be in writing and shall be deemed properly served if delivered in person or by reputable overnight courier service, or if sent by registered or certified mail, with postage prepaid and return receipt requested, to the addresses in the Agreement or to such addresses as a party may designate from time to time pursuant to this Section 13. All notices shall be deemed received on the date of delivery or attempted delivery, if delivered in person, or if mailed, on the date which is two (2) days after the date such notice is deposited in the mail.
10. Severability/No Waiver/Counterparts. Whenever possible each provision and term of the Agreement and these Terms will be interpreted in a manner to be effective and valid, but if any provision or term of the Agreement or these Terms are held to be prohibited, invalid or unenforceable, then such provision or term will be ineffective only to the extent of such prohibition or unenforceability without invalidating or affecting in any manner whatsoever the remainder of such provision or term or remaining provisions hereof. No course of dealing or failure of Seller or Buyer to strictly enforce any term, right or conditions of this Agreement shall be construed as a waiver of such term, right or condition. No express waiver of any term, right or condition of this Agreement shall operate as a waiver of any other term, right or condition. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement.
11. Compliance with Laws and Regulations. Buyer is responsible for complying with any and all applicable federal, state and local laws, codes, ordinances, rules, regulations, and administrative orders, including, without limitation, export and import laws, rules and regulations and any and all other product safety laws, rules and regulations
12. Warranties. Seller warrants that all the Equipment sold under this Agreement will be free any of any lien, claim or encumbrance of any nature by any third person and that the Seller will convey to Buyer clear title to the Equipment as provided for in this Agreement. THE WARRANTIES PROVIDED HEREIN ARE THE ONLY WARRANTIES, EXPRESS OR IMPLIED, THAT SELLER MAKES WITH RESPECT TO THE EQUIPMENT. SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES.
13. Confidential Information. Each party acknowledges that for the purpose of the performance of this Agreement, one party may disclose to the other confidential and/or sensitive information. The Receiving Party agrees at all times that it shall maintain the Disclosing Party’s Confidential Information in confidence and not disclose the Confidential Information, or any portion thereof, to any third party without the prior written consent of the Disclosing Party. The Receiving Party shall remain responsible for breaches of this provision arising from the acts of its employees, agents and representatives. As used herein, “Confidential Information” shall mean all the information disclosed by the Disclosing Party to the Receiving Party during the term of this Agreement, whether presented in oral, tangible, electronic or other form, which is non-public and either proprietary or confidential in nature. The obligations in this provision shall survive for two (2) years beyond the termination or expiration of this Agreement.
14. Termination. Termination by Either Party. This Agreement may be terminated by either party in the event of any of the following: (a) failure to comply with any material obligation or provision of this Agreement, if such failure is not cured within thirty (30) days of receiving notice from the other party of the material breach; (b) any violation of the applicable laws, regulations or statutes of any country or state in which a party does business; (c) any violation of the other party’s trademarks, copyrights, proprietary data, or other intellectual property rights; (d) in the event either party is required by law to terminate its arrangement under this Agreement with the other party; (e) either party submits fraudulent or intentionally erroneous reports or information to the other party; or (f) the other party’s unauthorized disclosure or unauthorized use of its Confidential Information.
15. Product Guarantee. Company warrants the Equipment manufactured by Company for a period of 24 months from date of shipment against failure due to defects in material and manufacture and that it has the capacities and ratings set forth in Company’s catalogs and bulletins (“Warranty”). Equipment manufactured by Company that includes required start-up and sold in North America will not be warranted by Company unless Company performs the Equipment startup. Exclusions from this Warranty include damage or failure arising from: wear and tear; corrosion, erosion, deterioration; modifications made by others to the Equipment; repairs or alterations by a party other than Company that adversely affects the stability or reliability of the Equipment; vandalism; neglect; accident; adverse weather or environmental conditions; abuse or improper use; improper installation; commissioning by a party other than Company; unusual physical or electrical or mechanical stress; operation with any accessory, equipment or part not specifically approved by Company; and/or lack of proper maintenance as recommended by Company. Company’s obligations and liabilities under this Warranty are limited to furnishing replacement equipment or parts, at its option, FCA (Incoterms 2000) factory or warehouse (f.o.b. factory or warehouse for US domestic purposes) at Company-designated shipping point, freight-allowed to Company’s warranty agent’s stock location, for all non-conforming Company-manufactured Equipment (which have been returned by Customer to Company. Returns must have prior written approval by Company and are subject to restocking charge where applicable. Equipment, material and/or parts that are not manufactured by Company are not warranted by Company and have such warranties as may be extended by the respective manufacturer. COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING PREVENTION OF MOLD/MOULD, FUNGUS, BACTERIA, MICROBIAL GROWTH, OR ANY OTHER CONTAMINANTS. No warranty liability whatsoever shall attach to Company until Customer’s complete order has been paid for in full and Company’s liability under this Warranty shall be limited to the purchase price of the Equipment shown to be defective. Additional warranty protection is available on an extra-cost basis and must be in writing and agreed to by an authorized signatory of the Company. EXCEPT FOR COMPANY’S WARRANTY EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESS OR IMPLIED CONCERNING ITS PRODUCTS, EQUIPMENT OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF DESIGN, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, OR OTHERS THAT ARE ALLEGED TO ARISE FROM COURSE OF DEALING OR TRADE
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL ELEMENT GROW LLC BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF CROPS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF, OR RELATED TO YOUR USE OR INABILITY TO USE THE ELEMENT GROW PRODUCTS, OR ARISING OUT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Limits of Liability. Seller is not responsible for damage to its product through improper installation, maintenance, unauthorized repair, use, or attempts to operate it beyond its mechanical, chemical, thermal, or electrical capacity intentionally or otherwise. Failure to immediately notify Seller of the above shall terminate this guarantee and shall relieve Seller from any further responsibility thereunder. It is the user’s responsibility to determine the application, degree of reliability, and safety of Seller products for their applications. Risk of loss of the Product shall transfer to Buyer on the Shipment Date.
17. Returns. Orders cannot be cancelled, reinstated, or returned, without Seller’s written consent. All quoted delivery dates are estimates only, and are in no case a condition for cancellation of an order. Custom designed, modified, or large quantities of product are in no case subject to return, cancellation, change in specification, change shipping release, or alteration of other conditions set forth at time of order. Shortages, deductions, or corrections must be reported within (10) ten working days from receipt of shipment. If not reported within this period it will not be honored. Goods can be returned to Seller only after proper written approval and return procedures are followed. All product returned for credit must be in unused saleable condition. Credit will be issued, less a 20% restocking and handling charge, at original invoice or current price, whichever is lower. Product return for service, whether under warranty or not, will not be accepted unless thoroughly cleaned and free of chemical contaminants. All products to be returned are assigned a Return Goods Authorization Number which must be clearly displayed on the exterior of all shipping cartons. Any damages or costs incurred in the process of shipping returned goods, or as a consequence thereof, are the sole responsibility of the customer. Failure to follow the foregoing will result in refusal of the incoming shipment by Seller.
18. Subject to Change. Designs, specifications, and pricing shown in Seller literature are subject to change without notice. Dimensions are as close to actual as possible, but are not guaranteed. Therefore, claims based on discrepancy between actual dimensions of product versus listed data in literature will not be accepted.
19. Entire Agreement. This Agreement and any Exhibits hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written or oral.