THE TERMS AND CONDITIONS OF SALE CONTAINED HEREIN AND ANY PRICE LIST OR SCHEDULE, QUOTATION, ACKNOWLEDGEMENT, SELLER’S SCOPE OF WORK OR INVOICE FROM SELLER RELEVANT TO THE SALE OF GOODS (THE “SALE DOCUMENTS”) SHALL APPLY TO ALL QUOTATIONS AND OFFERS MADE BY AND PURCHASE ORDERS ACCEPTED BY VALET VAULT™, LLC (“SELLER”) AND SHALL CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENT GOVERNIG THE SALE OF GOODS BY SELLER. IF THESE TERMS AND CONDITIONS CONFLICT WITH TERMS AND CONDITIONS OF A PURCHASE ORDER OR PROCUREMENT DOCUMENT ISSUED BY A BUYER OF GOODS OR SERVICES FROM SELLER (“BUYER”), THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL GOVERN. SELLER’S ACCEPTANCE OF BUYER’S ORDER IS CONDITIONED UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS IRRESPECTIVE OF WHETHER BUYER ACCEPTS THEM IN WRITING, BY IMPLICATION OR BY ACCEPTANCE OF AND PAYMENT FOR PRODUCT SOLD HEREUNDER, AND IRRESPECTIVE OF WHEN BUYER’S PURCHASE ORDER OR PROCUREMENT DOCUMENT IS ISSUED OR OF WHETHER IT PRECEDES OR FOLLOWS ISSUANCE OF THIS AGREEMENT. SELLER OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS NOT AGREED TO IN WRITING BY SELLER, AND SELLER’S FAILURE TO OTHERWISE OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM BUYER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS HEREIN.
1. DELIVERY, TITLE AND RISK OF LOSS – Seller shall either ship to Buyer the PRODUCTS set forth in an accepted order from Buyer within a reasonable time after Seller’s acceptance of such order, or notify Buyer of the anticipated shipping date upon acceptance of the order, and ship within reasonable time thereof. No purchase order shall be binding on Seller until accepted in writing by a duly authorized officer or employee of Seller. Seller may refuse to accept any purchase order for any reason and in the event of nonperformance or breach of its obligations by Buyer, may suspend shipment or cancel any purchase order, in addition to and not in limitation of, any other remedies available to Seller. The PARTIES hereto understand and agree that any and all shipping dates shall be approximate and shall be computed from the date that the order is accepted by Seller. It is understood that lead-time will vary with manufacturing and other conditions and consequently, any and all delivery dates communicated by Seller are mere estimates and under no circumstances shall Seller be liable on account of late delivery or non-delivery to Buyer, its agents, sub-distributors, customers, or any other person or entity. Shipment will be made in a manner determined by Seller. Title (except as provided in Section 7, “RIGHTS IN INTELLECTUAL PROPERTY”) and risk of loss or damage to the product shall pass to Buyer at the time Seller delivers possession of the product to a carrier at Seller’s plant or warehouse or other facility without regard to notification of shipment or selection of carrier. Product held by Seller at Buyer’s request beyond the scheduled delivery date shall be at Buyer’s risk and expense. At Buyer’s request Seller may prepay the freight and invoice same back to Buyer. Buyer shall be responsible for expenses incurred by Seller where, at Buyer’s request Seller ships or packs product in other than its normal manner for domestic shipment. Any and all typographical and clerical errors contained in Seller’s shipping documents shall be subject to correction by Seller.
2. TERMS OF PAYMENT: For all standard orders (those without custom requests), Buyer shall pay 50% of the invoiced amount in U.S. currency at time of purchase, with the remaining 50% of the invoiced amount due prior to shipping. For all “Custom requests”, Buyer shall pay the full invoiced amount in U.S. currency within thirty (30) days of final approval of approved proofs prior to start of production of items purchased in the custom order. Failure to pay for custom order by Buyer, Seller will not produce custom order goods requests. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. Buyer hereby grants to Seller a purchase money security interest in the product to secure the purchase price of the product until the purchase price is paid in full. Buyer agrees to execute and deliver all documents requested by Seller to perfect and maintain Seller’s security interest. Orders are subject to a maximum outstanding credit limit (measured by counting all outstanding invoices, whether or not past due, combined with the value of all accepted orders) as reasonably determined by Seller. Seller may refuse to accept purchase orders if such acceptance would result in Buyer exceeding such credit limit. The amount of credit or terms of payment may be changed or credit withdrawn by Seller at any time. Each shipment shall constitute an independent transaction and Buyer shall pay for same in accordance with the specified payment terms. If shipments are delayed by Buyer, Seller may invoice Buyer when Seller is prepared to ship. Seller may from time to time advise Buyer of any deposit required to be made by Buyer or Buyer’s customer, prior to or at the time of Seller’s acceptance of any order for products. Such deposit may also be required for non-recurring engineering costs. Export orders may require payment by cash in advance or against an irrevocable letter of credit, in Seller’s sole and exclusive discretion. No deductions for warranty or any other claims against Seller shall be made, unless Buyer first receives from Seller prior written acknowledgment of the validity of the claim and approval for the deduction from Seller. Seller shall have the absolute right to set-off any and all amounts owed it by Buyer, its subsidiaries and affiliates, against any and all amounts then owed by Seller to Buyer. Time is of the essence with respect to all payment obligations of Buyer. If Buyer shall be prevented from making any payment due Seller for any order or other reason, because of any restriction imposed by any government, central bank or other authority, upon the remittance of funds to Seller or its assignees, then Buyer shall upon receiving instructions from Seller and subject to such restriction, pay the sum due into an account in Seller’s name in a bank selected by Seller within the country of payment and, upon presenting Seller with the documents evidencing such deposit, obtain from Seller a receipt for such payment.
3. TAXES – Any tax or related charge that Seller shall be required to pay to or collect for any government upon or with respect to services rendered or the sale, use or delivery of products shall be billed to Buyer as a separate item and paid by Buyer, unless a valid exemption certificate is furnished by Buyer to Seller.
4. PRODUCT CHANGES – Seller may at any time (a) make changes in the products that do not materially affect physical or functional interchangeability or performance or (b) make more substantial changes or discontinue delivery of the product when required for purposes of safety.
5. TERMINATION OR CHANGE – Buyer shall not terminate, suspend performance, reschedule or cancel delivery or issue a “hold’ order under this Agreement, in whole or in part without Seller’s prior written consent and upon terms that will compensate Seller for any loss or damage resulting from such action. Buyer’s liability shall include, but not be limited to, the price of product delivered or held for disposition and the price of services already performed, plus Seller’s loss of profits thereon, incurred costs and a reasonable allocation of general and administrative expenses. Any such termination shall be subject to a minimum termination charge of fifteen percent (15%) of the dollar amount of the sales terminated.
6. WARRANTY – Seller warrants to Buyer that products of its manufacture will be, on the date of shipment of the product, free from defects in material and workmanship and will substantially conform to Seller’s written specifications provided to Buyer or to the specifications, if any, identified in an order and agreed to in writing by Seller, other than specifications specifying performance for a period of time. Upon acceptance of product, Buyer assumes responsibility of proper maintenance of product, which shall include proper lubrication of parts such as wheels and hinges and any other parts or components that come into direct contact. Buyer shall inspect goods delivered to it by Seller immediately upon receipt and, any course of dealing to the contrary notwithstanding, failure of Buyer to give Seller notice of any claim within 30 days after receipt of such goods shall be an unqualified acceptance of such goods. If any defect in material or workmanship or failure to meet said published specifications (a “defect’) appears in the product Seller will, at its option, either repair or replace the defective product (FOB origin or FCA factory, appropriately) without charge at Seller’s manufacturing or repair facility or credit or refund the purchase price of the defective product provided: (i) Buyer notifies Seller in writing of the claimed defect within thirty (30) days after Buyer knows or reasonably should know of the claimed defect and within six (6) months from the date of shipment of the product, and (ii) Seller’s examination of the product discloses that Buyer’s claim is valid under the terms of this warranty. In no event shall Seller be responsible for de-installation or reinstallation of defective products or for the expenses thereof, or for any labor charges incurred by Buyer for replacement or repair of any goods, unless such charges are authorized in advance in writing by Seller. Any parts that are determined to be defective shall be shipped directly to Buyer for installation by Buyer. If Seller determines that the returned products were not defective, Buyer shall pay Seller all costs of handling, inspection, repairs and transportation at Seller’s then prevailing rates. Repairs and replacements covered by the above warranty are warranted to be free from defects as set forth above except that the defect must appear (i) within three (3) months from the date of repair or replacement or (ii) prior to the expiration of the above six (6) month period, whichever is later. All warrant claims are subject to review at the sole discretion of the Seller/Manufacturer. Any and all damages due to negligence, acts of nature and/or destruction from a third party are not considered valid for a warrant claim.
Buyer shall follow Seller’s instructions regarding return of defective product, and no product will be accepted for repair, replacement, credit, or refund without the written authorization of and in accordance with Seller’s instructions. Replaced products shall become Seller’s property. In the event that Seller does agree to accept returned products, other than products claimed to have been shipped in defective condition by Seller, twenty-five percent (25%) of the invoice price (inclusive of any and all costs and expenses incurred by Seller in packing, shipping, transporting or otherwise delivering the products to Buyer) shall be tendered to Seller by Buyer therefor. In addition, Buyer shall bear all costs and expenses of returning the products, as well as all risk of loss until the products are received at Seller’s address set forth above or at such other location as Seller shall have designated for such return. Unless Seller agrees otherwise, any and all returned products, other than those claimed to have been shipped in defective condition by Seller, must be received by Seller in an unused condition and in a condition for resale as new equipment.
With respect to products not manufactured by Seller, Seller’s only warranty to Buyer is that such goods are free of any rightful claims of their manufacturer. To the extent any warranties extended to Seller by their manufacturer are transferable, Seller shall transfer such warranties to Buyer.
This warranty applies to the goods only and not to any combination or assembly of the goods or any services of Seller. Seller makes no warranties with respect to experimental products or prototypes or to products which have been subjected to misuse, neglect, accident or abuse, have been altered by anyone other than Seller, have been improperly installed, stored, handled, maintained, repaired or altered, or had their serial numbers or month and year of manufacture or shipment removed, defaced or altered. Seller is not responsible for warranty claims of third party items used in manufacturing product, including but not limited to the lock used or lighting components. See manufacturer warranty for third party parts. EXCEPT AS STATED IN THESE TERMS AND CONDITIONS, SELLER, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND SUPPLIERS MAKE NO WARRANTIES EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AS WELL AS OTHER IMPLIED WARRANTIES, IN LAW OR EQUITY. BUYER’S SOLE AND EXCLUSIVE REMEDY SHALL BE SELLER’S OBLIGATION TO REPAIR OR REPLACE OR CREDIT OR REFUND AS SET FORTH ABOVE. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS AND CONDITIONS ARE MATERIAL BARGAINED-FOR BASES OF THESE TERMS AND CONDITIONS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY.
Seller reserves the right to change the terms and conditions of the aforementioned warranty at its sole and exclusive option and discretion. Any and all changes in and to the aforementioned warranty shall become effective immediately upon Seller communicating such changes to Buyer.
7. RIGHTS IN INTELLECTUAL PROPERTY – Seller exclusively shall own all right, title and interest in and to any inventions, discoveries, improvements, methods, ideas, computer and other apparatus programs and related documentation, other works of authorship fixed in any tangible medium of expression, mask works or other forms of intellectual property, whether or not patentable, copyrightable or subject to mask work rights or other forms of protection, which are made, created, developed, written, conceived or first reduced to practice by Seller solely, jointly or on its behalf, in the course of, arising out of or as a result of work done under this Agreement.
8. INTELLECTUAL PROPERTY INDEMNITY – Seller shall: (i) defend or settle, at its option and expense, any claim against Buyer alleging that any product furnished hereunder, in the form in which it is furnished by Seller, infringes any United States patent, copyright or trademark; (ii) reimburse Buyer for any costs incurred at Seller’s written request, and (iii) pay all damages and costs assessed by final judgment against Buyer and attributable to such claim. Seller shall have the right at any time and at its option and expense to: (i) procure for Buyer the right to continue using such product; (ii) replace or modify any such product provided or to be provided to be free of the infringement claim and/or discontinue further deliveries of the product; or (iii) require return of such product and refund the purchase price paid less a reasonable allowance for use, damage or obsolescence. Seller’s obligations hereunder are conditioned upon: (i) Buyer giving Seller prompt written notice of any such claim; (ii) Seller having complete control of the defense and settlement thereof, and (iii) Buyer cooperating fully with Seller to facilitate at the defense or settlement of such claim.
Notwithstanding the foregoing, Seller shall have no obligation to defend or settle any claim for any infringement or other violation of any patent or other intellectual property right: (i) arising from compliance with Buyer’s specifications, designs or instructions; or (ii) relating to use of any product furnished hereunder in combination with any other item(s), whether or not furnished by Seller, even if such use is the product’s necessary or inherent use or the use for which the product is purchased.
The sale of any product by Seller shall not in any way confer upon Buyer, or upon anyone claiming under Buyer, any license (express or implied, by estoppel or otherwise) under any patent claim of Seller or others covering or relating to any combination, machine or process in which such product is or might be used, or to any process or method of making such product.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDY AND OBLIGATION OF THE PARTIES HERETO FOR INFRINGEMENT OR OTHER VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN REGARD THERETO.
9. EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY:
FOR PURPOSES OF THE EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9, SELLER SHALL BE DEEMED TO INCLUDE VALET VAULT™, LLC, ITS PARENTS, SUBSIDIARIES AND OTHER AFFILIATES AND THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS AND SUPPLIERS OF EACH OF THEM; AND “DAMAGES” SHALL BE DEEMED TO REFER COLLECTIVELY TO ALL INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
SELLER’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDIES AGAINST SELLER FOR ANY DAMAGES CAUSED BY ANY PRODUCT DEFECT OR FAILURE, OR ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY WORK REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE:
FOR INFRINGEMENT: THE REMEDIES SET FORTH IN SECTION 8.
FOR FAILURE OF PRODUCT OR WORK PERFORMED: THE REMEDIES STATED IN SECTION 6.
FOR DELAYS IN DELIVERY: NONE UNLESS THE DELIVERY IS DELAYED BY MORE THAN THIRTY (30) DAYS BY CAUSES NOT ATTRIBUTABLE EITHER TO BUYER OR TO FORCE MAJEURE CONDITIONS, IN WHICH CASE BUYER SHALL HAVE THE RIGHT, AS ITS SOLE REMEDY, TO CANCEL THE ORDER WITHOUT INCURRING TERMINATION CHARGES.
FOR DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR FOR BODILY INJURY OR DEATH TO ANY PERSON PROXIMATELY CAUSED BY SELLER: CUSTOMER’S RIGHT TO PROVEN DIRECT DAMAGES.
FOR CLAIMS OTHER THAN SET FORTH ABOVE: SELLER’S LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES THAT ARE PROVEN, IN AN AMOUNT NOT TO EXCEED THE PRICE PAID FOR THE GOODS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SELLER SHALL NOT BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
10. FORCE MAJEURE – Except with respect to Buyer’s obligation to make timely payments when due, neither Party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, strike, civil commotion, embargo, government requirement, civil or military authority, act of God, inability to secure material or transportation facilities, inadequate yield of products despite Seller’s reasonable efforts, act or omission of carriers or any other causes beyond its reasonable control. Seller may, in the event of any such circumstances, allocate at its sole discretion its available production output among itself and its other customers, including at Seller’s option those not under contract.
11. CHOICE OF LAW AND VENUE – The construction, interpretation and performance of these terms and conditions shall be governed by the laws of the State of Georgia, USA. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to the sale of product hereunder. Seller and Buyer agree to submit to the exclusive jurisdiction and venue of the courts of the Counties of Fulton or Dekab, State of Georgia. If a federal claim or diversity action arises, venue shall exclusively be in the Northern District of Georgia.
12. ENTIRE AGREEMENT – Except for any written agreement between the parties relating to confidentiality of proprietary information, the terms and conditions contained in these terms and conditions and the other Sale Documents supersede all prior oral or written understandings between the parties and shall constitute the entire Agreement between the parties with respect to the subject matter of this Agreement. This Agreement shall not be modified or amended except by a written agreement signed by Buyer and Seller.
13. NON-WAIVER – No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition.
14. SEVERABILITY – If any provision of this Agreement or the application of such provision to any person, entity or circumstance shall be determined or held to be invalid or unenforceable, such provision shall be deemed to be severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement, but shall be given maximum effect permitted by applicable law and the application of such provision to any person, entity or circumstances other than those to which it is determined or held invalid or unenforceable, shall not be affected.