ERNIE GREEN INDUSTRIES, INC. GENERAL TERMS AND CONDITIONS
FOR THE SALE OF GOODS AND SERVICES
Effective as of September 10, 2020
Acceptance of Terms and Conditions
ERNIE GREEN INDUSTRIES, INC. AND ANY AFFILIATES, SUBSIDIARIES, SUCCESSORS OR ASSIGNS (“EGI”) ACCEPTANCE OF ANY PURCHASE ORDER (“Order”) IS EXPRESSLY LIMITED TO, AND EXPLICITLY MADE CONDITIONAL ON, BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS (“Terms”). EGI OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS APART FROM WHAT ARE SPECIFIED BELOW.
1. Quotations, Credit, and Order Acceptance
Written quotations automatically expire on the 30th day from the date of issuance. All quotations are non-binding, and any Buyer order based upon a quotation is subject to acceptance by EGI, in its sole discretion. All descriptions, items, totals and quantities set forth in a quotation are listed for Buyer’s convenience only, and it is EGI’s sole responsibility to verify the accuracy before accepting an Order. EGI is not bound by any specifications, drawings, notes, instructions, engineering notices, technical data or any other document referred to in an Order, and any such information shall not be deemed to be incorporated by reference in any Order.
EGI’s acceptance of an Order is contingent upon Buyer meeting the financial qualifications established by EGI. Buyer shall supply EGI with such credit information as EGI may reasonably request to qualify.
2. Prices and Taxes
Prices for goods and services and other related information shown in any EGI or manufacturer product publication including, but not limited to catalogs, brochures, and websites, are subject to change without notice. Prices do not include freight charges, insurance, or any applicable use tax, sales tax, excise tax, value-added tax, or similar taxes, duty, customs, inspection or testing fees, or charge of any nature whatsoever imposed by any governmental authority (collectively, “Taxes”) unless otherwise agreed to in a signed writing by EGI. In the event EGI is required to pay Taxes on the goods, Buyer shall reimburse EGI therefore or, in lieu of such payment, Buyer shall provide EGI at the time the Order is submitted an exemption certificate or other document acceptable to any applicable taxing authority. Prices are quoted using the material cost in effect at time of quote EGI will adjust pricing when material costs have changed at time of order.
3. Shipping, Insurance, and Delivery
Shipment of goods will be made F.O.B. EGI’s facility. Title and risk of loss pass upon delivery to the carrier. Buyer shall pay all freight and insurance costs. Shipping dates are estimates only. Delay in shipment shall not relieve Buyer of its obligation to accept remaining shipments. EGI reserves the right to make partial shipments and invoice accordingly.
4. Inspection / Non – Conforming Shipments
Seller grants Purchaser the right to inspect Products for a period of 10 business days immediately following delivery (“Inspection Period”). Purchaser must notify Seller in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period.
Purchaser must afford Seller a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Seller with such written notice of nonconformity within the Inspection Period, Purchaser shall be deemed to have accepted the Products.
Purchaser shall not return any Product without Seller’s prior written authorization. Any return authorized by Seller must be made in accordance with Seller’s return policies then in effect and must be accompanied by a Returned Goods Authorization (“RGA”) from Seller. Purchaser will be responsible for all costs and expenses associated with any returns of Products and will bear the risk of loss or damage of such Products unless Seller agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Seller, in its sole discretion may reject any return of Product not approved by Seller in accordance with this paragraph or otherwise not returned in accordance with Seller’s then current-return policies.
Seller must approve in writing, any charges levied by Purchaser for sorting/inspecting fees.
5. Returns and Change Orders
All sales are final, unless otherwise agreed to by EGI, in its sole discretion and in a signed writing. In the event EGI chooses to accept a return, goods may only be returned for credit and a restocking charge shall be charged to Buyer. In the event EGI chooses to allow Buyer to change (including deferring an Order) or cancel an Order, EGI shall invoice Buyer a change order charge or cancellation charge, as applicable.
EGI warrants that for a period of one (1) year from the date of shipment of the Goods or the completion of any services (the “Warranty Period”), (i) that the Goods will conform to the specifications and will be free from significant defects in material and workmanship and Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind and (ii) that EGI performed the services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
The warranties set forth above do not apply where the Goods have been (a) subjected to abuse, misuse, neglect, negligence, improper testing, improper installation (but only if installation was not by EGI or its authorized representative), improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller; (b) reconstructed, repaired or altered by persons other than EGI or its authorized representative; or (c) used with any third-party product, hardware or other product that has not been previously approved in writing by EGI.
If EGI’s inspection and testing reveals that such Goods or services are defective and any such defect has not been caused or contributed to by any of the factors described under the preceding paragraph, EGI shall, at its expense and Buyer’s sole remedy (i) repair or replace such defective Goods or services within a reasonable amount of time, or (ii) credit or refund the price of such defective Goods or services less any applicable discounts, rebates or credits within a reasonable amount of time.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, EGI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
Payment shall be net 30 days from the date of EGI’s invoice without discount for early payment, unless otherwise agreed to by EGI in a signed writing. Late payments are subject to a service charge equal to 1 1/2 % per month (18% per annum), or the maximum amount permitted under law, if less, from the due date of the invoice until paid in full.
EGI reserves the right at any time to suspend credit, change credit terms or terminate any Order, when, in EGI’s sole discretion, Buyer’s financial condition so warrants. Buyer shall have no right to offset any amounts due or to become due to EGI against any claims, charges, expenses, fees, or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of these Terms. All NSF checks returned to EGI will be subject to a $50.00 NSF fee. EGI may assign and/or sell any receivables or indebtedness owed by Buyer without notice. Acceptance of late payments, partial payments or any payment marked as being payment in full or as being a settlement of a dispute will not affect any of EGI’s rights to payment in full. Upon prior approval of EGI, If Buyer fails to make any payment when due, EGI may, without prejudice to other any other remedy available at law or in equity, immediately place the account on hold (including other Orders) and defer further performance until payment is made; require cash payment for any Order; treat all Orders as being in breach. Buyer shall indemnify EGI for all costs of collection including, without limitation, attorneys’ fees and court costs.
8. Limitation of Liability
IN NO EVENT SHALL EGI BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE SALE OF THE GOODS OR SERVICES, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL EGI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO AN ORDER EXCEED THE TOTAL AMOUNT PAID TO EGI FOR THE GOODS OR SERVICES SOLD UNDER THE ORDER IN DISPUTE. NO ACTION, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY BUYER MORE THAN ONE YEAR AFTER DELIVERY OF THE GOODS OR SERVICES.
9. Suitability and Compliance with Laws
Goods sold by EGI are designed to meet stated U.S. safety standards and regulations. Because local safety standards and regulations may vary significantly, EGI cannot guarantee that the goods meet all applicable requirements in each locality. Buyer assumes responsibility for compliance with such safety standards and regulations in the localities in which the goods will be shipped, sold, and used. Before purchase and use of any goods, Buyer should review the product application, and national and local codes and regulations, and verify that the use and installation of the goods will comply with them. Buyer shall comply with all applicable laws, regulations, and ordinances, including, without limitation, any applicable import and export laws. Buyer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations hereunder.
10. Amendment and Modification
These Terms can be modified, altered, or added to only by a subsequent written instrument signed by EGI. Regardless of how many times Buyer purchases, or has purchased, goods or services from EGI by whatever means, Buyer accepts these Terms for each and every Order, and course of dealing between the parties shall not considered when interpreting these Terms.
11. Force Majeure
EGI shall not be responsible or liable for any delays or failures in manufacture or delivery due to any cause or condition beyond the control of the Company, including without limitation, acts of God or nature, government intervention, power failure, communications failure, unauthorized access or theft, strikes or other labor difficulties, fire, floods, inability to secure transportation facilities, actions of the elements, shortage of goods, epidemics, riots or other civil commotion, war, and acts of terror.
In addition to any remedies that may be provided under these Terms, EGI may terminate any Order (including other Orders) immediately, if Buyer: (i) fails to pay any amount when due; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.
13. Waiver; Assignment
No waiver by EGI of any of the provision of these Terms is effective unless explicitly set forth in writing and signed by EGI. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Buyer shall not assign any of its rights or delegate any of its obligations under an Order without the prior written consent of EGI. Any purported assignment or delegation in violation of this Section is null and void.
14. Governing Law and Venue
All matters arising out of or relating to an Order are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or relating to an Order shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in or serving the City of Dayton and County of Montgomery, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
If any of these Terms are held to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.