TERMS & CONDITIONS OF SALE
1. The customer listed on the face of the accompanying quote or order verification form/proforma (the “Order”) is referred to as “Buyer” and Garrett Electronics, Inc. is referred to as “Seller.” These Terms and Conditions of Sale (these “Terms”), the accompanying Order and any invoice issued by Seller are collectively a binding contract (the “Contract”) between Buyer and Seller and supersede all prior and contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
2. All Quotes shall expire and shall be void 30 days from the date of the Quote unless otherwise expressly provided in the Quote orotherwise agreed to in writing by Seller. The Quote may be modified or withdrawn by Seller at any time before Seller’s receipt of Buyer’s confirming acceptance.
3. Buyer shall indicate its acceptance of Seller’s Quote by returning to Seller an Order or signing and returning the Order to Seller. Anyperson who access Garrett.com and places an electronic order on the website or places an order electronically through an authorized Seller agent has expressly accepted and agree to be bound by all the terms and conditions of this Terms and Conditions of Sale Agreement. Buyer’s Order is not effective unless and until it is approved at Seller’s office in Garland, Texas, by an authorized officer or agent of Seller. Neither the Order, nor any online submission shall be binding on Seller until the Order Form is both received and approved in writing by Seller in accordance with these Terms. Seller reserves the right to deny any Order for any reason. Seller shall not be liable to Buyer with respect to Orders that are not accepted. Upon receipt and approval of Order or electronic submission relating to an Order, it will become a part of the Contract between Buyer and Seller.
4. Unless otherwise agreed in writing on the Order: all deliveries will be EXW Seller’s premises; Buyer is responsible for all loading, shipping, and insurance charges and associated liabilities. Seller’s responsibility ceases upon delivery of shipments to delivery carrier for shipment. Buyer obtains title and risk of loss upon Seller’s delivery at point of shipment. Seller shall not be liable for any delays, loss or damage in transit. Buyer shall inspect all goods and other material, equipment and property shipped pursuant to the Contract (collectively, the “Goods”) upon arrival and shall immediately notify carrier in writing of any loss or damage to such Goods in transit. Buyer hereby assumes the risk of loss from any hazards occurring after delivery by Seller to carrier for shipment to Buyer. Buyer shall assert all claims for damages or losses to Goods in shipment transit directly against carrier.
5. As collateral security for the payment of the purchase price of all Goods purchased under the Contract, until Buyer has completed payment of the purchase price and fully performed all of the terms and conditions of the Contract, Buyer hereby grants to Seller a first and prior security interest in and to all of Buyer’s right, title, and interest in, to, and under all Goods covered hereby, wherever located, including additions and substitutions, and any and all proceeds therefrom (including insurance proceeds). Buyer shall keep such Goods in good working condition and free of liens. Buyer shall maintain such insurance on said Goods as required by Seller. The security interest granted by Buyer under this provision constitutes a purchase money security interest under the Uniform Commercial Code as adopted in the State of Texas (“UCC”). Seller may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect Seller’s security interest in such Goods. Buyer authorizes Seller to execute, on Buyer’s behalf, such statements or other documentation necessary to perfect Seller’s security interest in such Goods. The Goods covered hereby shall at all times be deemed personal property regardless of any attachment to realty. Unless otherwise agreed in writing on the Order, Buyer shall pay Seller at its principal office at Garland, Texas in U.S. dollars the cash balance, if any, for all Goods covered hereby upon presentation to Buyer of an invoice for such Goods and/or a bill of lading showing the shipment of such Goods. Seller specifically reserves the right to ship under reservation for payment against documents of title and Seller, at its option, and may withhold delivery of a bill of lading to the Buyer until Buyer has completed payment of the purchase price and fully performed all of the terms and conditions of the Contract. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or any disputes arising out of contract or tort.
6. If Buyer fails to make payments required under the Contract, or otherwise defaults, Seller shall have all the rights and remedies available under the Contract or as provided by the UCC or other applicable federal, state, or local laws, regulations, ordinances, or codes (“Laws”).
7. Buyer shall be responsible for any excises, levies or taxes which the Seller may be required to pay or collect, under any existing or future Laws, upon or with respect to the sale, purchase, ownership, shipment, delivery, storage, processing, use, consumption or transportation of any of the Goods covered herein, and Buyer agrees to pay the amount thereof to the Seller upon request.
8. Buyer shall pay interest on all balances due to Seller over 30 days old at the lesser of the rate of 1-1/2% per month or the highest rate permissible under applicable Law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs and fees incurred in collecting any late payments, including without limitation, attorneys’ fees.
9. LIMITED WARRANTY. Seller guarantees its newly manufactured equipment and equipment certified by the Seller against material defects in workmanship and material, excluding defects as a result of ordinary wear and tear, neglect by Buyer or shipping carrier, misuse, accident and excessive deterioration due to corrosion from any cause for a period of three years from the date of shipment. Seller’s liability for materially defective parts shall in no event exceed, at Seller’s option, the repairing of such parts or the furnishing of replacement parts delivered at Buyer’s premises. Buyer agrees that Seller shall determine in its sole discretion the existence of any material defect in equipment, the cause thereof, the necessity for repair or replacement of such equipment and the method and manner therefor. Buyer purchased repairs and parts from Seller made outside of the three-year warranty period will carry a guarantee of 90 days from the date of shipment similar against material defects in workmanship and material. Seller shall not be liable for a breach of the warranty set forth in this paragraph unless Buyer immediately notifies Seller in writing of any material defect in workmanship or materials of any Goods subject to the limited warranty herein provided. The limited warranty of Seller set forth herein is subject to and contingent upon the strict compliance by Buyer of all installation and use instructions given by Seller to Buyer with respect to the Goods. Seller shall not be liable for a breach of the warranty set forth in this paragraph if Buyer alters or repairs the equipment without the prior written consent of Seller. No warranty of any kind exists either express or implied with respect to equipment sold by Seller which was not manufactured or reconditioned by Seller. Seller may use commercially reasonable efforts to pass on to Buyer the benefits of the original manufacturer’s warranty applicable to such equipment and extend reasonable cooperation to Buyer in the enforcement of such warranty claims.
EXCEPT FOR THE GUARANTEE AND WARRANTY EXPRESSLY SET FORTH ABOVE, THERE ARE NO UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS, OR WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ANY WARRANTY REGARDING THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY), NOT SPECIFIED HEREIN, RESPECTING THE CONTRACT OR PERTAINING TO THE GOODS COVERED BY THE CONTRACT, AND BUYER HEREBY WAIVES ALL SUCH UNDERSTANDINGS, AGREEMENTS, REPRESENTATIONS, AND WARRANTIES. THE CONTRACT EXPRESSES THE ENTIRE UNDERSTANDING OF BUYER AND SELLER WITH REFERENCE TO THE SUBJECT MATTER OF THE CONTRACT AND THERE ARE NO UNDERSTANDINGS OR AGREEMENTS IN ANY WAY LIMITING, EXTENDING, DEFINING OR RELATING TO THE PROVISIONS OF THE CONTRACT.
10. LIMITED LIABILITY. NOTWITHSTANDING ANYTHING IN THE PURCHASE ORDER OR THESE TERMS TO THE CONTRARY, SELLER SHALL NOT BE LIABLE FOR ANY CLAIM, LIABILITY, DAMAGE, DEATH OR BODILY INJURY, LOSS OR EXPENSE, WHETHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHERWISE, (INCLUDING WITHOUT LIMITATION LOSS OF USE OR LOSS OF PRODUCTION), CAUSED BY, ARISING OUT OF, OR CONNECTED WITH ANY FAILURE OR USE OF THE GOODS, WHETHER OR NOT RESULTING FROM THE NEGLIGENCE, GROSS NEGLIGENCE, OR STRICT LIABILITY OF SELLER AND/OR ANY OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS. SELLER’S LIABILITY HEREUNDER IS EXPRESSLY AND EXCLUSIVELY LIMITED TO THE COST OF UP TO, BUT NOT EXCEEDING, THE PURCHASE PRICE OF THE PRODUCTS FOR REPAIRS TO CORRECT OR REPLACE DEFECTS TO THE PRODUCTS’ PARTS OR REPAIR DEFECTS IN WORKMANSHIP EXISTING AT THE TIME OF THE PRODUCTS’ INSTALLATION.
11. TO THE MAXIMUM EXTENT OF AND UNDER THE CONDITIONS ALLOWED BY APPLICABLE LAW, CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER (AND ITS OWNERS, OFFICERS, EMPLOYEES, AGENTS, AND SUBCONTRACTORS) FROM AND AGAINST ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, EXPENSES, PENALTIES, FINES, AND LITIGATION COSTS (INCLUDING ATTORNEYS’ FEES) THAT ARISE OUT OF, ARE RELATED TO, OR CONNECTED WITH IN ANY WAY CUSTOMER’S PURCHASE, OWNERSHIP, POSSESSION, INSTALLATION, REPAIR OR REPLACEMENT, MAINTENANCE AND/OR FAILURE TO MAINTAIN, AND USE AND/OR MISUSE OF THE PRODUCTS. THIS INDEMNIFICATION PROVISION SHALL BE ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS BASED ON PAST, PRESENT, OR FUTURE ACTS, CLAIMS, OR LEGAL REQUIREMENTS (INCLUDING ANY PAST, PRESENT, OR FUTURE COMMON LAW, STATUTE, REGULATION, RULE, ORDINANCE, SALES LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT, OCCUPATIONAL SAFETY AND HEALTH LAW, OR PRODUCTS LIABLITY OR OTHER LEGAL REQUIREMENT), AND REGARDLESS OF WHETHER ANY PARTY ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY, OR COMPARATIVE NEGLIGENCE OF SELLER. THIS OBLIGATION TO INDEMNIFY SPECIFICALLY INCLUDES BUT IS NOT LIMITED TO CLAIMS FOR: PERSONAL INJURY; BODILY INJURY; EMOTIONAL INJURY; DISEASE; DISMEMBERMENT; DEATH; PERSONAL PROPERTY DAMAGE; REAL PROPERTY DAMAGE; LOST USE OR PRODUCTION; LOST SALES OR PROFITS; PENALTIES OR FINES RESULTING FROM ANY VIOALTION OF COMMON LAW, STATUTE, REGULATION, RULE, ORDINANCE, SALES LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT, OCCUPATIONAL SAFETY AND HEALTH LAW, OR PRODUCTS LIABLITY OR OTHER LEGAL REQUIREMENT.
12. If Seller’s performance of its obligations under the Contract is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under the Contract or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Seller shall not be liable to Buyer for any loss or damage suffered by Buyer, directly or indirectly, as a result of Seller’s failure to perform, or delay in performing, any terms or conditions of the Contract. Delivery dates given are approximate and while every effort will be made to meet such delivery dates, Seller will not be liable for damages on account of any delays.
13. Buyer shall at all times comply with all Laws applicable to (i) the Contract and Buyer’s performance hereunder; and (ii) Buyer’s purchase, ownership, installation, operation, storage, and maintenance of the Goods, including without limitation, any applicable emissions standards, magnetic field safety requirements, medical and or physical safety requirements, and any applicable electrical, utility, or building codes. Without limiting the generality of the foregoing, Buyer shall, at its own expenses, maintain in effect all licenses, permissions, authorizations, consents, certifications, credentials, insurance, and permits necessary to conduct its business related to the purchase, ownership, installation, configuration, operation, storage, and maintenance of the Goods, and shall not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any Law. In addition, Buyer acknowledge and agrees that Buyer shall be solely responsible for ensuring that the Goods purchased by Buyer meet all applicable standards and comply with all applicable Laws in connection with the anticipated use of the Goods in Buyer’s business (including without limitation, any applicable emissions standards and applicable electrical or other utilities, electrical, or building codes) and Buyer hereby represents that Buyer has conducted the necessary research and verified that the Goods identified in the Quote are adequate and sufficient to meet any such applicable standard and comply with all such Laws applicable to Buyer’s business and its use of the Goods.
14. Seller shall retain the right to make necessary and essential changes to the Goods, or any material or equipment used or specified for use in, the Goods, in accordance with the design intent of the Goods, or as necessary to manufacture the Goods consistent with other like items in Seller’s product line, in each case, as determined by Seller in its sole discretion, provided that these Terms shall continue to be applicable thereto, the same as if such additional or substituted material and equipment had been originally purchased under the Contract for safety and reliability.
15. Buyer shall ensure that all persons using Goods are properly trained for the Good’s use. Seller is not responsible to ensure that Buyer’s employees have been trained properly to use Goods purchased. Buyer shall provide its agents, employees, and other persons responsible to use the Goods with access to all provided owner’s manuals, user manuals, instruction manuals, and other information available regarding calibration settings, sensitivity adjustments, working positions, assembly, installation, configuration relating to other Goods, and general use of the Goods. Seller is not responsible for training related to use of the Goods and cannot be held liable for any misuse by Buyer, Buyer’s agents, or Buyer’s employees.
16. Waiver by Seller of any default or breach of Buyer shall not be construed as a waiver of any subsequent default or breach, and the acceptance by Seller of overdue payments shall not constitute a waiver of any default or breach except with respect to the payments so accepted. An extension of time of payment or other indulgence granted to Buyer shall not operate as a waiver of any of Seller’s rights under the Contract.
17. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. These Terms supersede any of Buyers general terms and conditions without regard to purchase date or inquiry. In the event that the terms or conditions stipulated in Buyer’s Order (or other purchase order) are inconsistent with these Terms, these Terms shall govern. Seller’s fulfillment of Buyer’s Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Subject to Paragraph 14 above, the Contract may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. All orders from Seller are subject to the provisions herein set forth.
18. The Contract and all matters relating to or arising out of the Contract shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract. The International Chamber of Commerce’s Incoterms Rules shall apply but where they conflict with these Terms, these Terms shall prevail. Any legal suit, action or proceeding arising out of or relating to the Contract shall be institutedin the federal courts of the United States of America or the courts of the State of Texas, in each case located in the City of Dallas and County of Dallas, and Buyer and Seller irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE CONTRACT OR ANY PART THEREOF, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE CONTRACT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
In addition to any remedies that may be provided under the Contract, Seller may terminate the Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under the Contract and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with the Contract, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
19. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached the Contract, for any failure or delay in fulfilling or performing any term of the Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic (whether or not there is any governmental or other response to such epidemic or pandemic or such epidemic or pandemic is declared a public health emergency), lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
20. Buyer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this paragraph is null and void. An attempted assignment or delegation does not relieve Buyer of any of its obligations under the Contract.
21. The relationship between Buyer and Seller is that of independent contractors. Nothing contained in the Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between Buyer and Seller, and neither Buyer nor Seller shall have authority to contract for or bind the other in any manner whatsoever.
22. The Contract is for the sole benefit of Buyer and Seller and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
23. All notices, requests, consents, claims, demands, waivers and other communications under the Contract (each, a “Notice”) shall be in writing and addressed to Buyer or Seller, as applicable, at the addresses set forth on the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Contract, a Notice is effective (a) upon three (3) business days after notice is mailed, and (b) if the party giving the Notice has complied with the requirements of this paragraph.
24. If any term or provision of the Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Buyer shall have no right to cancel any Order without the prior written consent of Seller, which may be withheld in its sole discretion. If Buyer desires to cancel an order, Seller shall be entitled to charge Buyer a restocking and cancellation fee in Seller’s sole discretion. Seller reserves the right to charge a cancellation fee between 25% and 50%. Such restocking and cancellation fee is designed to compensate Seller for its damages from such cancellation and as such shall be deemed to be liquidated damages and not a penalty. Seller’s election to charge Buyer a restocking and cancellation fee shall not be deemed to be an exclusive remedy, and Seller’s election of that remedy shall not preclude other remedies at law or in equity that may be available to Seller. The following restocking and cancellation fees are minimum fees and may be increased by Seller if special circumstances cause such restocking and cancellation fee to be an insufficient measure of Seller’s damages arising in connection with such cancellation.
26. Restocking fees will be deducted from all monies paid to Seller by Buyer to date. Seller reserves the right to charge a restocking fee between 15% and 30%. Should monies paid not cover the total amount of restocking fee, and invoice will be issued for remaining monies due and that invoice shall be due upon receipt. Failure to pay monies due for restocking fees constitutes a breach of Contract and Seller reserves all remedies available to proceed with recovery attempt.
27. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Contract, including without limitation, the following provisions: Paragraphs 5, 6, 7, 9, 10, 11, 12, 13, 16, 17, 18, and 27.
28. To initiate a return, Buyer must contact Seller to obtain a Return Merchandise Authorization (RMA) number. Failure to obtain and notate a Return Merchandise Authorization number on the outside of the return shipment carton(s) may result in refusal of delivery.
29. Returned merchandise by Buyer should be received by Seller in the same condition: unused, undamaged, saleable, with original equipment. Seller reserves the right, at its sole discretion, to determine if returned merchandise is in saleable condition. No returns by Buyer are permitted after thirty (30) days from receipt of Order.