Terms and Conditions
1.Definitions
A “document” or a “contract” means this document including any attached pages and the terms ad conditions contained herein. “Seller”, “us”, or “we” means Dwight W. Prouty Co., Inc., including any successor or predecessor companies. “Buyer” or “you” means the buyer identified by this agreement. “Goods” means the goods, equipment, materials, parts, supplies and/or services supplied by Seller to Buyer as described in this agreement.
2. Entire agreement
This document contains the entire and exclusive agreement between Seller and Buyer regarding the terms of the sale of the Goods by Seller to Buyer. This document supersedes and replaces all previous requests, quotations, orders or agreements regarding the goods.
3. Acceptance of contract
Buyer shall be bound by this document, and its terms and conditions when it executes an order after any quotation of which this document is a part.
4. Modifications; Changes in Order
No change in, addition to, or waiver of terms, conditions and specifications contained herein shall be a binding obligation on Seller, unless agreed to in writing by Seller and Buyer.
5. Prices
All prices quoted by Seller are valid for 30 days and are subject to change without notice until such time as an order is accepted by the Seller. Unless otherwise specified, prices do not include freight, shipping, handling fees and/or taxes and duties. All prices and/or discounts are based on receiving an order for the quantities specified for such price and/or discount.
6. Payment
All payments must be made in U.S. dollars. Full payment is due within 30 days after the invoice date, unless otherwise agreed in writing. If Buyer delays order processing, partial payment based on the portion of the order completed shall then be paid. In the event Buyer delays shipment, payment shall be made within 30 days of the date Seller could have otherwise shipped the goods. If Buyer does not make timely payment, Seller shall charge Buyer interest in the amount of 1.5% monthly until the unpaid balance is paid by Buyer. For customers with no established credit, cash or credit card payment must be made in advance of delivery.
7. Risk of Loss; Title to Goods
Unless otherwise specified, delivery points shall be F.O.B. point specified by Seller. Title and Risk of Loss shall pass to Buyer upon Seller’s delivery of the Goods to a common carrier for shipment. Shipment dates are not guaranteed by Seller.
8. Defective Good; Short Goods
Claims for Goods delivered short, damaged or defective (not due to the fault of carrier) shall be given to Seller within 10 days after the date for shipment.
9. Force Majeure
Seller shall not be liable for delay in performance or non-performance, caused by circumstances not within the control of the Seller, including but not limited to, Acts of God, fires, explosions, floods, war, act of any authorized government, labor troubles or inability to obtain materials, equipment or transportation. In the event of such delay, performance shall be extended for a reasonable period of time as required by the circumstances.
10. Limited Warranty/Disclaimer
Seller warrants only to you that it has good title to the Goods sold hereunder and/or used to perform services, and will use its reasonable commercial efforts to obtain from each manufacturer, in accordance with the manufacturer’s warranty, the repair or replacement of Goods that may prove defective in material or workmanship. Except as stated in the previous sentence, seller makes no other warranties concerning the Goods whatsoever. SELLER DECLAIMS AND EXCLUDES ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Not withstanding the foregoing to the extent we are permitted and able, we will pass on and make available to you any warranties made by the suppliers and manufacturers of such Goods. In addition, we warrant our labor and workmanship for a period of 90 days after substantial completion of the services. Our obligations under this warranty are conditioned upon you notifying us of any alleged defect, in our labor and workmanship promptly after discovery and in any event not later than 90 days after substantial completion of the services and our satisfaction upon inspection that the warranty has been breached. In the event of a breach of this warranty, we will correct the defective labor or workmanship at our expense or, at our discretion, give you a credit in a reasonable amount on account of the defect but in no event in an amount greater than the paid price of the services hereunder.
11. Limited Liability
You agree that our obligation described in the preceding paragraph is your sole and exclusive remedy, and that our total liability to you, your customer or to any other person relating to this document, its performance of non-performance, or from the use of Goods furnished, is limited to the price of the Goods and/or services giving rise to the claim Except as to title, such obligation and liability shall terminate at the end of the manufacturer’s warranty period for the applicable Goods. Seller and its supplier will not, in any event, be liable for any special incidental, consequential or penal damages incurred in connection with the Goods, negligence, tort (including strict liability) or otherwise, including but not limited to back charges; labor costs; costs of removal, replacement, testing or installation; loss of efficiency; loss of profits or revenues; loss of use of the Goods or any associated products; damages to associated products; lateness or delays in delivery; unavailability of Goods; cost of capital; cost of substitute Goods, facilities of Service; downtime; or claims from your customers or other parties to you or directly to us for such damages.
12. Intellectual Property
Unless otherwise agreed in writing, all right, title, and interest in any inventions, developments, improvements or modifications of or for any equipment and services shall remain with the Seller. Any intellectual property, trade secrets, designs, drawings, or other proprietary information owned by Seller prior to this agreement shall remain owned by Seller subsequent to this transaction. Buyer shall not disclose any of such information belonging to Seller to any third parties.
13. Cancellation
Any order or contract may be canceled by Buyer, only upon prior written notice and payment of terminations charges, including but not limited to, all costs identified to the order or contract incurred prior to the effective date of notice of cancellation and all expenses incurred by Seller attributable to the cancellation, plus a fixed sum equal to ten (10) percent of the final total selling price.
14. Termination
Seller may terminate this contract by providing notice to Buyer of same at any time prior to 15 days before the shipment date for the goods.
15. Laws and Regulations
Compliance with any laws and regulations pertaining to the operation or use of the goods is solely the responsibility of the Buyer. Nothing contained herein shall be construed as requiring or imposing liability or Seller to obtain permits, licenses, or approvals of any agency required in connection with the supply, erection or operation of goods provided herein. Seller does not warrant in any way compliance with any laws or regulation regarding the operation and use of the goods, unless specifically provided for by this agreement.
16. Export
If Buyer exports any of the goods sold hereunder, it is the sole responsibility of the Buyer to comply with all Untied States export rules and regulations. Seller shall not be named as shipper or exporter of record for such goods.
17. Assignment
Buyer shall not assign or transfer this agreement to any other party without the written consent of Seller, which may be withheld in the sole discretion of Seller. Any assignment or transfer shall be null and void.
18. Choice of Law; Jurisdiction
This agreement shall be governed and construed in accordance with the laws of the State of Alabama. Buyer hereby consents to the jurisdiction and venue of the courts of Mobile County, State of Alabama, for the purpose of resolving any dispute that arises hereunder.
19. Severability
If any of the terms and conditions provided herein are determined to be invalid by a valid judicial body, the remaining terms shall remain valid and in force against all parties hereto.
20. Interpretation
It is Buyer’s responsibility to ensure that Sellers interpretation of any plans, specifications, or modifications are correct and to the satisfaction of the Buyer. Seller is not responsible for any claims regarding Seller’s interpretation of the above sentence if Buyer has not ensured that Sellers interpretation is correct.
21. Waiver
Any waiver or inaction by Seller or Sellers breach of performances under this agreement shall not be deemed a waiver of Buyer’s future compliance with the terms and conditions of this agreement.