Terms and Conditions of Sale
Engineered Parts Sourcing Inc.
(hereafter referred to as “EPS”)
TERMS AND CONDITIONS OF SALE
THE TERMS AND CONDITIONS SET FORTH HEREIN GOVERN THE QUOTATION, CONFIRMATION OF ORDER OR INVOICE FOR THE SALE OF PRODUCTS (“PRODUCTS”)
AND/OR RELATED SERVICES (“SERVICES”) FROM EPS, INC. (“EPS”) TO BUYER (“BUYER”) (COLLECTIVELY THE “AGREEMENT’). EPS WILL NOT BE BOUND BY ANY TERMS OF A PURCHASE ORDER FROM BUYER OR OTHER DOCUMENT THAT ARE INCONSISTENT WITH THE TERMS HEREIN, AND ALL SUCH TERMS ARE
HEREBY REJECTED. ACCEPTANCE BY BUYER OF THESE TERMS SHALL BE DEEMED TO HAVE OCCURRED UPON THE EARLIER OF (I) ISSUANCE OF A PURCHASE ORDER FOR THE PRODUCTS OR SERVICES, IRRESPECTIVE OF WHETHER SUCH PURCHASE ORDER INCLUDES CONFLICTING TERMS, (2) PAYMENT OF ANY PORTION OF THE PURCHASE PRICE FOR THE PRODUCTS OR SERVICES, (3) RECEIPT OF THE PRODUCTS BY BUYER, OR (4) USAGE OF THE PRODUCTS BY BUYER IN ANY MANNER.
1. General: The terms and conditions of sale contained herein apply to all quotations made by EPS, all purchase orders accepted by EPS, and all confirmation orders and invoices issued by EPS, irrespective of whether such quotations, purchase orders and confirmation orders and invoices are made on EPS’s form or the Buyer’s form, and whether or not such quotations, purchase orders or confirmation orders or invoices include terms which conflict with the terms set forth herein. Acceptance of Buyer’s order by EPS will be made only on the express understanding and condition that insofar as the terms and conditions in this Agreement conflict with any terms and conditions in any document provided by Buyer, the terms and conditions of this Agreement shall govern and shall constitute the sole, and exclusive statement of the terms and conditions of the contract between EPS and Buyer.
2. Prices, Taxes, Payment: All purchase orders submitted by Buyer shall be in multiples of standard quantities as specified by EPS from time to time. Any written price quotation shall become void at EPS’s discretion unless accepted by Buyer within thirty (30) days, unless sooner revoked by EPS. All prices quoted, all orders accepted, and all billings rendered are exclusive of all federal, state and local withholding, excise, sales, use and similar taxes, tariffs, duties, fees, or charges imposed by any governmental authority on this transaction. Buyer will reimburse EPS for any such tax, tariff, duty, fee or charge, at the time of sale or thereafter, that EPS is required to pay. Unless otherwise specified by EPS, terms of payment are net thirty (30) days from the invoice date. In the event that payment is not received when due, any unpaid balance shall bear interest at the rate of 1.5% per month, or the maximum amount allowed by law, if lower. The amount of credit may be changed or withdrawn completely by EPS at any time. On any order for which credit is not extended by EPS, shipment or delivery shall require, at EPS’s election, cash with order (in whole or in part), or COD, or site draft attached to the bill of lading or other shipping documents, and all costs of collection shall be paid by Buyer. If any proceeding is brought by or against Buyer under applicable bankruptcy or, insolvency laws, EPS shall be entitled to cancel any order by Buyer then outstanding.
3. Delivery Date(s): EPS will use commercially reasonable efforts to meet the delivery date(s) agreed upon by Buyer and EPS.
4. Title and Delivery: All products that are shipped to a destination inside the U.S. will be shipped FOB Origin at EPS’s location to an agent of the Buyer, including a common carrier, notwithstanding any prepayment of freight by EPS. All production that is shipped to a destination outside the U.S. will be shipped Ex Works at EPS’s location to an Agent of the Buyer, including a common carrier, notwithstanding any prepayment of freight by EPS. Buyer will be responsible for all shipping charges, and will reimburse EPS for all shipping costs EPS incurs. Risk of loss shall pass to Buyer upon the earlier of the delivery of the Products to (i) such common carrier or (ii) the Buyer, and Buyer shall provide whatever insurance against loss or damage it considers necessary once the Products leave EPS. In the event of any default by Buyer, EPS may decline to make further shipments without in any way affecting its rights under this Agreement.
5. Notification of Shipment Errors: Buyer shall have ten (10) days after delivery to notify EPS of any shipping error, including, without limitation, shortages in the shipment, incorrect parts or other inconsistencies between the shipment and the enclosed packing slip or invoice. In the event of any such shipment error, Buyer must request and obtain EPS’s Return Goods Authorization (RGA) prior to shipping items back to EPS, and ship such Products in accordance with EPS’s then-current policies with respect to Products shipped in error. Buyer’s sole remedy and EPS’s sole liability with respect to nonconforming Products is limited to the remedy, if any, specified in Section 10. Except with respect to the foregoing shipping inconsistencies, all Products will be deemed accepted upon the earlier of delivery to (i) EPS’s carrier or (ii) the Buyer.
6. Security Interest: EPS reserves, until full payment has been received, a purchase money security interest in the Products sold. Buyer agrees to execute any document appropriate or necessary to perfect the security interest of EPS, or in the alternative, EPS may file this Agreement as a financing statement and/or chattel mortgage.
7. Assignment: Buyer shall not assign or transfer any of its rights hereunder, whether voluntary or by operation of law, without the prior written consent of EPS.
8. Buyer’s Specifications: Buyer acknowledges that EPS may supply the Products pursuant to Buyer’s specifications, or in the absence of specifications, to applicable industry standards for the Products. Buyer agrees to indemnify, defend and hold harmless EPS and its officers, directors, employees, agents, successors and customers, from and against any and all claims, suits, allegations, judgments, actions, liabilities, losses, damages, costs and expenses (“Claims”) for injury, loss or damage of any kind claimed by a third party, and caused by or arising from, or alleged to have been caused by or arise from, EPS’s compliance with Buyer’s specifications, or in the absence of such specifications, with applicable industry standards for the Products.
9. Intellectual Property: Any Intellectual Property owned or licensed by EPS and used by EPS in connection with the performance of its obligations hereunder shall remain the exclusive property of EPS and its licensors, as the case may be. Nothing in this Agreement shall be deemed to grant Buyer any license or any other rights in such Intellectual Property. The term “Intellectual Property” shall include without limitation all of the following: (i) inventions, discoveries, patents, patent applications and all related continuations, divisional, reissue, utility model, design patents, applications and registrations thereof, certificates of invention; (ii) works, copyrights, registrations and application for registration thereof; (iii) computer software programs, data and documentation;.(iv) trade secrets, confidential information, know-how, techniques, designs, prototypes, enhancements, improvements, work-in progress, research and development information; and (v) all other proprietary rights relating to the foregoing.
10. Warranty: EPS warrants that the Products shall conform in all material respects to the specifications provided by Buyer to EPS and accepted by EPS, or in the absence of such specifications, to applicable industry standards for the Products. If EPS and Buyer mutually agree that the Products do not satisfy the foregoing warranty, EPS shall promptly correct or replace such Products or credit Buyer for the price of any such Products for which Buyer has already paid the purchase price. THE REMEDIES SET FORTH IN THIS SECTION 10 CONSTITUTE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST IT RELATING IN ANY MANNER TO THE PRODUCTS OR SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, EPS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS SOLD OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. BUYER IS SOLELY RESPONSIBLE FOR DETERMINING THE PROPER APPLICATION AND USE OF THE PRODUCTS. Nothing herein shall be construed as providing or intending to provide EPS’s warranty to Buyer set forth above to any customers of Buyer. Buyers or Buyer’s customers’ storage, handling or use of the Product in a manner, which is not approved by EPS, shall void the aforementioned warranty.
11. Tooling: EPS shall retain all title, right and ownership in any tooling used by EPS in connection with the production of the Products. Nothing in this Agreement shall be deemed to grant Buyer any license or any other rights in such tooling.
12. Marking: Unless expressly agreed by EPS in writing, Buyer shall not remove, obscure or obliterate any of the patent, trademark or other proprietary notices incorporated in, marked on or affixed to the Products.
13. Governing Law and Venue: This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of Georgia, U.S.A., without regard to provisions on the conflicts of laws. Buyer and EPS consent to the exclusive jurisdiction of, and venue in, the state and federal Courts located in Forsyth County, Georgia, U.S.A.
14. Limitation of Liability: EPS SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOT FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF EPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST BUYER. EPS’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM RELATING TO A SPECIFIC ITEM OR ITEMS INCLUDED WITHIN THE PRODUCTS SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC ITEM OR ITEMS TO WHICH THE CLAIM RELATES WITHIN THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
15. Obsolescence. In the event of any modification to this Agreement which causes finished Products or unfinished Products to become obsolete, Buyer agrees to pay to EPS the purchase price for the finished Products, and to reimburse EPS for all costs incurred by EPS in connection with the production of the unfinished Products upon receipt of any invoice for such amounts from EPS. Upon receipt of such payment, EPS shall offer to deliver all such finished Products to Buyer, and Buyer may accept or reject such offer. If Buyer accepts such offer, such finished and unfinished Products will be shipped by EPS to Buyer pursuant to the terms of this Agreement
16. Insurance: Buyer shall maintain insurance coverage in amounts and types reasonably acceptable to EPS. Upon EPS’s request, Buyer shall provide Certificates of Insurance to EPS and shall have EPS named as an additional insured.
17. Severability: If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provision shall continue in full force and effect.
18. Force Majeure: Except for the payment of money, neither party will be liable for any failure or delay in performance under this Agreement due to any event beyond the reasonable control of the party whose performance is to be excused, including fire, explosion, earthquake, flood, or other weather, unavailability of necessary utilities or raw materials, labor dispute, strike, war, insurrection, riot, act of God or the public enemy, law, act, order, proclamation decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement).
19. Relationship of the Parties: The parties to this Agreement are independent contractors. There is no relationship of agency, partnerships, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
20. Entire Agreement: This Agreement between Buyer and EPS in connection with the Products or parts thereof and/or Services constitutes the entire agreement between EPS and Buyer and supersedes all previous communications, representations and agreements ether oral or written between the Buyer and EPS with respect to the subject matter hereof. This Agreement may not be modified, supplemented, qualified or interpreted except in writing signed by Buyer and EPS. The failure by EPS to enforce at any time all of the provisions in this Agreement will in no way be construed as a waiver of such provisions.