Terms and Conditions of Sale
- APPLICABILITY. These Terms and Conditions of Sale (“Terms”) are the only terms which govern the sale of the goods and services by Global Vacuum Press North America, LLC (“GVPNA”) to a customer (“Buyer”). GVPNA’s sales confirmation documents (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. 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.
- DELIVERY. Delivery of the goods shall be made F.O.B. origin. Unless expressly agreed to by the parties in writing, GVPNA shall select the method of shipment of, and the carrier for, the goods. Title and risk of loss passes to Buyer upon delivery of the goods to the carrier. Any date quoted by GVPNA for delivery is an estimate only and subject to change. GVPNA shall exercise commercially reasonable efforts to meet any delivery date, but GVPNA shall not be liable for any loss or damage arising from any delay in filling any purchase order or delay in delivery, regardless of the cause of such delay. No delay in the shipment or delivery of any goods relieves Buyer of its obligations under this Agreement.
- PRICE. Unless otherwise stated on the face of the Sales Confirmation, Buyer shall purchase the goods and services from GVPNA at the prices set forth in GVPNA’s published price list in force as of the date that GVPNA accepts Buyer’s purchase order. Buyer agrees to reimburse GVPNA for all reasonable travel and out-of-pocket expenses incurred by GVPNA in connection with the performance of the services. All prices are inclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall not be responsible for any taxes imposed on, or with respect to, GVPNA’s income, revenues, gross receipts, personal or real property, or other assets.
- PAYMENT TERMS. Buyer shall pay all invoiced amounts due to GVPNA in such installments and at such times as provided in the Sales Confirmation, or, if not otherwise stated in the Sales Confirmation, within 30 days from Buyer’s receipt of such invoice. Buyer shall make all payments hereunder by check, credit card, or wire transfer and in U.S. dollars. Credit card payments are subject to a 2.5%–3.5% fee based on the card used. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly, from the due date of the payment until paid in full, plus all costs of collection, including reasonable attorneys’ fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with GVPNA, whether relating to GVPNA’s breach, bankruptcy or otherwise.
- SECURITY INTEREST. As collateral security for the payment of the purchase price of the goods, Buyer hereby grants to GVPNA a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof. Buyer acknowledges that the security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of the State of Nebraska. GVPNA may file a financing statement for such security interest and Buyer shall execute any such statements or other documentation necessary to perfect GVPNA’s security interest in such goods.
- LIMITED WARRANTY. GVPNA warrants to Buyer that for a period of 2 years from the date of shipment of the goods (“Warranty Period”) that such goods will be free from material defects in material and workmanship. GVPNA warrants to Buyer that it shall perform 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 and shall devote adequate resources to meet its obligations under this Agreement. GVPNA shall not be liable for a breach of the warranties set forth in this Section unless Buyer gives written notice of the defective goods or services, as the case may be, reasonably described, to GVPNA within 30 days of the time when Buyer discovers or ought to have discovered the defect. The Warranty Period that applies to any repairs or replacements shall be limited to that portion of the original Warranty Period, if any, which remains in effect after the date on which such repairs or replacements are completed. This limited warranty is not transferable and is only applicable to the first customer who purchased the good or services from GVPNA.
- EXCEPTIONS AND EXCLUSIONS. The warranties set forth in Section 6 do not apply if: (a) Buyer makes any further use of such goods after giving such notice; (b) the goods have been subjected to abuse, misuse, neglect, negligence, accident, theft, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to GVPNA’s oral or written instructions; (c) Buyer or any third party alters, modifies or repairs such goods without the prior written consent of GVPNA; or (d) the goods have been used with any third-party product, hardware or product that has not been previously approved in writing by GVPNA. The warranties set forth in Section 6 do not apply to vacuum membranes and HPL vacuum table surfaces or any goods (or parts or components thereof) expressly excluded from such coverage in the Sales Confirmation.
- RESOLUTION OF WARRANTY CLAIMS. In the event that GVPNA is notified of a warranty claim during the Warranty Period, GVPNA shall, with the full cooperation of Buyer, immediately undertake an investigation to verify Buyer’s claim that the goods or services are defective. To the extent that GVPNA shall determine, in its reasonable discretion, that the warranty claim is covered by the foregoing limited warranty, GVPNA will, as soon as is reasonably possible, at GVPNA’s option and as Buyer’s sole and exclusive remedy, either: (a) with respect to any goods, either: (i) repair or replace such goods (or the defective part or component) or (ii) credit or refund the price of such goods at the pro rata contract rate, provided that, if GVPNA so requests, Buyer shall, at Buyer’s expense, return such goods to GVPNA for credit or refund; or (b) with respect to any services, either (i) repair or re-perform the applicable services or (ii) credit or refund the price of such services at the pro rata contract rate. Only GVPNA’s labor required to repair and replace the goods is covered, and any other labor charges incurred by Buyer are the sole responsibility of Buyer.
- WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6, GVPNA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL GVPNA BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GVPNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL GVPNA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO GVPNA FOR THE GOODS AND SERVICES SOLD HEREUNDER.
- CANCELLATION. Cancellations or changes to all or part of Buyer’s purchase order are subject to GVPNA’s prior written consent. If GVPNA consents to such request, Buyer agrees to reimburse GVPNA for all expenses incurred by GVPNA up to and including the date of consent.
- AMENDMENT. This Agreement may not be countermanded by Buyer and may not be modified, expanded, supplemented or otherwise amended in any way whatsoever except in a writing stating specifically that it amends this Agreement that is signed by an authorized representative of both parties.
- GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Nebraska, without regard to conflicts of laws principles. Any legal suit, action, or proceeding arising out of or relating this Agreement shall be brought exclusively in the appropriate state or federal courts located in Lincoln, Lancaster County, Nebraska, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- SEVERABILITY. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- ASSIGNMENT. Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of GVPNA.
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