PDS HMI Solutions Corp.
General Terms and Conditions of Sale
1. Scope and Validity
These general terms and conditions of sale (these “Terms”) govern the sale and delivery of all products (the “Products”), and all transactions incidental thereto, by or on behalf of PDS HMI Solutions Corp. (“Seller”) to any of its customers (“Buyer”). No other terms or conditions shall be of any force or effect unless otherwise specifically agreed upon by Seller in a writing duly executed by an authorized officer of Seller. Any additional or different terms or conditions contained in Buyer’s Order (as defined below), response to Seller’s Order (as defined below) confirmation, or any other form or document supplied by Buyer are hereby expressly rejected and are of no effect. These Terms may not be modified, amended, waived, superseded, or rescinded, except by written agreement signed by an authorized officer of Seller. Delivery of the Products do not constitute acceptance of any of Buyer’s terms and conditions and do not serve to modify or amend these Terms.
2. Offers; Acceptance
Unless otherwise specified by Seller in writing, all offers made by Seller are valid only for ninety (90) days from the date of the offer and may be revoked by Seller at any time after such 90-day period.
Buyer shall issue to Seller orders for the purchase of Products via e-mail, fax, mail or as may be determined by Seller from time to time (each, an “Order”). By issuing an Order to Seller, Buyer makes an offer to purchase the Products pursuant to these Terms and the terms set forth on such Order.
Seller may refuse an Order for any or no reason, and without liability to Buyer. No Order is binding on Seller until Seller’s acceptance of the Order in writing (such Order, a “Confirmed Order”).
Each Confirmed Order shall be considered a separate agreement between the parties, and any failure to deliver the Products under any Confirmed Order shall have no consequences for other deliveries of Products.
These Terms together with the Confirmed Orders shall hereinafter be referred to as the “Agreement”.
3. Prices
The price of the Products shall be as set forth in the Seller’s price list, as such list may be amended by Seller unilaterally from time to time. The prices of the Products only become binding on Seller if such prices have been confirmed by Seller in writing in a Confirmed Order.
Notwithstanding a Confirmed Order, should any unforeseeable increases in Seller’s cost of materials or labor (such as a Force Majeure Event as defined below) occur after the date of any Confirmed Order, Seller shall, in its sole discretion be entitled to increase the agreed prices accordingly with written notice to you.
4. Payment
Except as otherwise agreed by the parties in a Confirmed Order, the purchase price for the Products and all other amounts due under a Confirmed Order shall be due and payable within 30 days following the date of Seller’s invoice for such Products without any discount, deduction, or offset whatsoever. In no event shall any loss, damage, injury, destruction, or Force Majeure Event or any other event beyond Buyer’s control release Buyer from its obligation to make the payments required herein. Payment of all amounts due hereunder shall be made by check, wire transfer, credit card, or in any other manner set forth on Seller’s invoice. Payment by credit card shall be subject to a surcharge which shall be determined by Seller from time to time. Buyer shall be solely responsible for any bank fees, or other fees, incurred due to the wire transfer or any other selected payment method. If Buyer makes payment and Seller receives such payment within 10 days of the date of invoice, Buyer may deduct a 2% discount from the invoice amount.
Time is of the essence for the payment of all amounts due to Seller under any Confirmed Order. If Buyer defaults on any payment when due under a Confirmed Order, Seller reserves the right, among other remedies, to suspend the delivery of any Products to Buyer and put the same into storage, at Buyer’s expense, or dispose of the Products as Seller, in its sole discretion, deems practicable under the circumstances. All overdue amounts will be subject to an interest rate that is the lesser of 1% monthly (12% annually) and the highest rate permissible under applicable law starting from the due date until payment to Seller of such amount in full. Such interest shall be added to Buyer‘s account after all payments and credits are deducted. Buyer’s failure to pay an invoice timely and fully shall operate to make all other outstanding invoices of Seller to Buyer immediately due and payable, and at the discretion of Seller, shall be grounds for cancellation of any further performance by Seller. All costs of collection, including legal fees, shall be borne by Buyer.
5. Buyer, Financial Condition
If Seller, in its reasonable discretion, shall determine that the financial condition of Buyer at any time jeopardizes Buyer’s ability to perform any of its obligations towards Seller, Seller may require cash payment, immediate payment of the entire balance and/or additional security satisfactory to Seller. Seller may, without any liability to Buyer, refuse the delivery of any Product in the event Buyer fails to make the payment as required under Section 4.
6. Taxes & Freight Charges
In addition to the purchase price of the Products, Buyer shall pay to Seller the amount of all governmental taxes, excises, duties, and other charges, including shipping and handling of the Products, that Seller may be required to pay with respect to the sale and transportation of the Products delivered hereunder.
7. Delivery Terms
Unless otherwise set forth in a Confirmed Order, all deliveries of Products shall be made FOB Seller‘s warehouse, freight collect, via any means of transportation Seller reasonably selects. Title to and risk of loss for the Products shall pass to Buyer upon delivery pursuant to this Section 7.
Any delivery times or dates communicated by or on behalf of Seller are estimates and shall not be binding on Seller. In no event shall Seller be liable for any delay in delivery of the Products, and no delay in delivery of any Products shall relieve Buyer of its obligation to accept the delivery and make payment of any amounts due in accordance with the Agreement.
Buyer’s failure to accept the delivery of Products pursuant to a Confirmed Order shall not release or excuse Buyer from its obligation to timely pay all amounts due in connection with such Confirmed Order. The Products shall be deemed delivered at the time the Products have been made available to Buyer. If Buyer rejects or revokes acceptance of Products, or fails to pay any amounts when due, Seller, in its sole and absolute discretion, may extend the period of delivery of Products by such period as Seller may deem reasonable, or withhold or cancel delivery of any Products, or cancel any or all Confirmed Orders without any further obligations to Buyer whatsoever. In such event Buyer shall be responsible for any and all costs and expenses incurred, or damages or losses suffered by Seller in connection with any such delay notwithstanding any action or inaction by Seller with regard to such delay.
8. Conditions for Seller’s Performance; Force Majeure Event
Buyer acknowledges and agrees that Seller’s performance of its obligations under the Agreement is contingent on the delivery of the necessary supplies, energy, materials, utilities, and/or labor by Seller’s vendors, suppliers, gas, energy, and utility companies to Seller.
Seller may, without any liability to Buyer, change the terms of a Confirmed Order as Seller deems necessary as a result of or in connection with the performance of, delay or failure to perform by Seller’s vendors, suppliers, gas, energy, and utility companies or a Force Majeure Event. In no event shall Seller be liable to Buyer, its affiliates and customers due to any delay in the Seller’s performance of its obligations due to or in connection with such circumstances.
A “Force Majeure Event” shall mean any act of God, disruptions of power supply, communications and transportation infrastructure, war, terrorist attacks, epidemics, pandemics, governmental measures, malware, hacker attacks, fire, extraordinary weather-related events, nuclear and chemical accidents, earthquakes, labor disputes, strikes, lockouts, other accidents, shortages of or inability to obtain labor, energy, materials, supplies or transportation, or any other causes of any kind beyond the control of Seller or its affiliates.
9. Warranties
Seller warrants to Buyer that at the time of delivery the Products delivered will substantially conform in all material respects to Seller’s standard specifications. Except as expressly set forth in THESE TERMS, SELLER does not make any express or implied representation or warranty whatsoever, including any warranties of merchantability, fitness for a particular purpose, or non-infringement, whether arising by law, course of dealing or performance, usage of trade, or otherwise, all of which are expressly disclaimed. BUYER acknowledges that it has not relied on any representation or warranty made by SELLER or any other individual or entity on SELLER's behalf.
In the event of an alleged breach of the foregoing limited warranty, Buyer shall, at Buyer’s sole expense and with Seller’s prior written approval, send the Product to Seller. Seller shall within a reasonable period conduct the necessary tests on such Product. If Seller confirms a breach of the Product’s limited warranty, Seller shall, at its sole option, replace the defective Product or issue a refund to Seller in the amount Seller deems adequate. Such replacement or refund shall be Seller’s sole liability and Buyer’s sole remedy with respect to a breach of the Product’s limited warranty.
10. Risk of Use of the Products
BUYER SHALL BE SOLELY LIABLE FOR ANY USE OF THE PRODUCTS OR THEIR DERIVATIVES, AND FOR ANY RECALL, LOSS, CLAIM, DAMAGE OR LIABILITY OF ANY KIND WHICH MAY ARISE FROM OR IN CONNECTION WITH THE USE, HANDLING OR STORAGE OF THE PRODUCTS OR THEIR DERIVATIVES ATER DELIVERY TO BUYER. IF SELLER ARRANGES FOR TRANSPORTATION OF THE PRODUCTS ON BUYER’S BEHALF, SELLER WILL NOT BE LIABLE FOR ANY DAMAGES THAT OCCUR DURING SUCH TRANSPORTATION.
11. Notification
Immediately upon receipt of any Products shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages, defects or noncompliance to the specifications. If Buyer shall fail to so notify Seller within 15 days after the Products have been received, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by Buyer. Such failure to notify shall be deemed an unqualified waiver by Buyer of any and all claims with respect to such Products.
12. Limitation of Liability
In no event: (a) is SELLER liable for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues, or diminution in value of BUYERS's business, arising out of or relating to any breach of thESE TERMS, regardless of: (i) whether the damages were foreseeable; (ii) whether or not SELLER was advised of the possibility of the damages; and (iii) the legal or equitable theory (contract, tort or otherwise) on which the claim is based; (b) shall SELLER's aggregate liability arising out of or related to THESE TERMS, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the total of the amounts paid and amounts accrued but not yet paid to SELLER under THESE TERMS in the year preceding the event giving rise to the claim.
In jurisdictions that limit or preclude limitations or exclusion of remedies, damages, or liability, such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth in these Terms are intended to apply to the maximum extent permitted by applicable law, and these Terms shall be deemed amended to comply with such limitations or exclusions. Buyer may also have other rights that vary by state, country, or other jurisdiction.
13. Governing Law; Jurisdiction
The Agreement shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or to any purchase or sale of Products.
Any dispute, controversy, or claim arising out of or relating to the Agreement, including but not limited to the execution, performance or termination thereof or to any issue of liability arising out of the performance of the Agreement, which the parties have not been able to settle amicably shall be submitted to the exclusive jurisdiction of the state or federal courts with jurisdiction in the State of New York, City of New York, Borough of Manhattan, provided that not-withstanding the foregoing, Seller shall be entitled to seek specific performance and injunctive relief in any court of competent jurisdiction. Each party hereby waives any and all claims, pleas, or defenses (including without limitation a plea for forum non conveniens) that would permit such party to seek the jurisdiction of any courts or arbitration tribunals other than those set forth in the preceding sentence.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS.
14. Title; Security Interest
To secure the payment of any amount due Seller by Buyer, Buyer hereby grants to Seller a first security interest in all current and future inventory of the Products, including any returned or repossessed Products, and in all proceeds thereof for as long as such Products shall not have been sold by Buyer in the ordinary course of business (the “Collateral”). Seller shall be entitled to file any and all financing, continuation or similar statements under the Uniform Commercial Code in any jurisdiction and take any and all other action necessary or desirable, in Seller’s sole and absolute discretion, to perfect its security interest in the Collateral and to establish, continue, preserve, and protect Seller’s security interest in the Collateral. Buyer agrees to take any and all actions and provide Seller with all information necessary to enable Seller to perfect and enforce its security interest in all jurisdictions and vis-à-vis any of Buyer’s creditors, and hereby irrevocably grants to Seller a power of attorney to execute all necessary statements or documents in Buyer’s name for the perfection and enforcement of such security interest. Buyer agrees to keep the insurable aspects of the Collateral fully insured against all risks and casualties customarily insured against and to protect the Collateral from the elements, theft and vandalism. Buyer shall not remove the inventory comprising part of the Collateral from its current facilities other than in conjunction with the sale of products to customers in the ordinary course of business. Seller’s security interest in the Products shall remain in force until payment in full of the entire purchase price for such Products, and any other amounts due to Seller by Buyer. Seller may, without notice, change or withdraw extensions of credit at any time.
15. Indemnification
Buyer hereby agrees to indemnify and hold Seller harmless from and against any and all losses, claims, damages, expenses (including, without limitation, reasonable attorneys‘ fees and court costs), or liabilities arising out of or connected with any claim related to any modification, integration, development, use, misuse, promotion, sale, manufacturing, disposition of the Products or their derivatives by Buyer or Buyer‘s employees, agents or customers, or misrepresentations provided by Buyer to third parties with respect to the Products, design, or labelling defects of Buyer’s products, or Buyer’s violation of applicable federal, state, or local laws, rules, and regulations.
16. Insurance
Buyer shall procure and maintain at its expense adequate insurance to fulfill its obligations under the Agreement with Seller including but not limited to its indemnification obligations under Section 15, and naming Seller, its successors and assigns as additional named insureds. Upon Seller's reasonable request, Buyer shall furnish to Seller a certificate evidencing Buyer's compliance with this provision.
17. Compliance with Applicable Laws, Rules, and Regulations
Buyer shall at all times comply with the applicable federal, state, and local laws, rules, and regulations with respect to the use and sale of the Products, including but not limited to the manufacturing of derivatives of the Products, and maintain the requisite permits, approvals, and authorizations for its activities in the respective jurisdictions.
18. Confidential Information
Any information furnished to Buyer relating to or as a result of an Order shall be considered strictly confidential and shall be held in strict confidence by Buyer. Such information shall not be reproduced, used, or disclosed to others by Buyer without Seller‘s prior written consent and shall be returned to Seller upon the earlier of Seller’s request or the fulfillment of the last Confirmed Order. In the event of a violation or threatened violation of Buyer’s obligations under this Section 18, Seller shall be entitled to seek equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance and any other relief that may be available from any court, without the requirement to secure or post any bond, or show actual monetary damages in connection with such relief. These remedies shall not be deemed to be exclusive but in addition to all other remedies available under these Terms, at law, or in equity.
19. Changes
No change by Buyer of any term or condition of the Agreement or any of Seller’s rights or remedies hereunder shall be binding on Seller, nor shall any Order hereby acknowledged be cancelled or changed by Buyer, unless Seller expressly consents thereto in writing.
Seller may amend or modify these Terms from time to time. Seller may, at its sole discretion, provide Buyer with written notice of any such changes, revisions, amendments, or modifications, provided, however that any such changes, revisions, amendments, or modifications shall become effective without any further action by any party and that they shall not apply to any Confirmed Order prior to the effective date of such changes, revisions, amendments, or modifications.
20. Severability
If any term or provision of these Terns is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. Entire Agreement; Conflicts
These Terms together with the applicable Confirmed Orders and the framework agreement, if parties entered into such agreement, constitute the entire and exclusive agreement of the parties regarding the subject matter hereof and supersede any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. In the event of a conflict between the provisions of these Terms and the provisions of a Confirmed Order or the framework agreement, the order of precedence shall be as follows: (1) the Confirmed Order, (2) framework agreement, (3) these Terms.
22. Assignment
Seller may assign its rights and/or delegate its liabilities under the Agreement at any time. Buyer may not assign its rights or delegate its responsibilities under a Confirmed Order without Seller’s prior written consent.
23. Waiver
Seller’s waiver of any breach or violation of the terms of the Agreement by Buyer shall not be construed as a waiver of any other present or future breach or breaches by Buyer.
24. Independent Contractors
The parties hereto are independent contractors and nothing in the Agreement will be construed as creating a joint venture, partnership, employment, or agency relationship between the parties.
