ETK INTERNATIONAL, INC.
TERMS AND CONDITIONS OF SALE
APPLICABLE TERMS: THIS TRANSACTION AND ANY INTERNET OR SITE SALES AND ALL DOCUMENTS PERTAINING TO EITHER, INCLUDING ANY INFORMATION CONTAINED IN ANY INTERNET OR SITE SALES DOCUMENT, OFFER, PURCHASE ORDER, QUOTATION, PROPOSAL, ORDER CONFIRMATION, ORDER ACCEPTANCE OR INVOICE (COLLECTIVELY, “SALES DOCUMENTS”) IS SUBJECT TO AND CONDITIONED UPON ACCEPTANCE BY BUYER OF THESE TERMS AND CONDITIONS OF SALE (THESE “TERMS”), AND ETK INTERNATIONAL, INC. (“SELLER”) OBJECTS TO AND REJECTS ANY DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY BUYER CORRESPONDENCE OR ANY SALES DOCUMENT ISSUED BY BUYER. DESCRIPTIONS, SPECIFICATIONS, INFORMATION AND OTHER DATA CONCERNING SELLER’S PRODUCTS CONTAINED IN SELLER’S CATALOGS, CIRCULARS, ADVERTISEMENTS, PRICE LISTS, OR SIMILAR PROMOTIONAL MATERIALS OR REPRESENTATIONS OR STATEMENTS THEREOF MADE BY SELLER’S REPRESENTATIVES OR SALES AGENTS ARE THE SELLER’S ESTIMATES AND APPROXIMATIONS ONLY, AND SHALL NOT BE BINDING EXCEPT TO THE EXTENT EXPRESSLY AGREED TO BY SELLER. NO TERM CONTAINED IN ANY BUYER CORRESPONDENCE OR ANY SALES DOCUMENTS ISSUED BY BUYER, OTHER THAN BUYER'S ACCEPTANCE OF THESE TERMS, SHALL BECOME A PART OF THE TRANSACTION BETWEEN THE PARTIES OR BIND SELLER.
ENFORCEABILITY: BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THESE TERMS CONSTITUTE A LEGAL, BINDING AGREEMENT BETWEEN BUYER AND SELLER. IF BUYER DOES NOT AGREE TO THESE TERMS, THEN BUYER MUST AFFIRMATIVELY CLICK THAT IT REJECTS THE TERMS AND BUYER MUST NOT PURCHASE, ACCEPT OR OTHERWISE USE THE PRODUCTS. BUYER FURTHER ACKNOWLEDGES THAT SELLER MAY MODIFY THESE TERMS AT ANY TIME AND SUCH MODIFIED TERMS WILL BECOME EFFECTIVE IMMEDIATELY AFTER SELLER POSTS THEM ON ITS WEBSITE (THE “SITE”). BUYER AGREES TO REVIEW THE TERMS EACH TIME IT PLACES AN ORDER OR OTHERWISE PERIODICALLY SO THAT BUYER IS AWARE OF ANY MODIFICATIONS MADE TO THESE TERMS. BUYER’S FAILURE TO COMPLY WITH THESE TERMS AS THEY MAY BE MODIFIED FROM TIME TO TIME WILL CONSTITUTE A BREACH OF CONTRACT.
1. Acceptance; Cancellation.
b. If Buyer notifies Seller within the Inspection Period of a material nonconformity with respect to the Products, Seller may, in its sole discretion, either (i) replace such nonconforming Products or (ii) provide Buyer with a credit or refund of the purchase price Buyer paid for such nonconforming Products, provided that no such nonconformity or defect is in any way arising out of or caused by Buyer’s or any third party’s acts, omissions, negligence, misrepresentation or fraud and further provided, that such Products have not been used in any way by Buyer. Buyer must ship the nonconforming Products to Seller at the following address: ETK International, Inc., 1005 Andrea Place, Indian Trail, North Carolina 28079. In addition, Buyer must include the RAN received from Seller on the packing slip with such number being clearly marked on two sides of the package. No Product can be returned without a RAN provided by Seller. Buyer should also include in the package, a document detailing the purchase date, the original invoice number and the item number for the Product. Any and all returned shipments shall be at Buyer’s sole cost and expense and Buyer shall bear any and all risk of loss of such shipment. Buyer acknowledges and agrees that the remedies set forth in this section 1b are Buyer’s exclusive remedy for nonconforming Products.
c. Unless Seller otherwise consents, which consent shall be in Seller’s sole discretion, Buyer may cancel an order for Products (but not any Specially Manufactured Products (as defined below) or other Products which are not Specially Manufactured Products but are Products that for any reason are out of stock at such time when the order is placed) only if: (i) Buyer gives Seller written notice of cancellation within three (3) days after placing the order and before Products have been shipped to Buyer, (ii) Seller receives and consents to such written notice of cancellation of the particular order before Seller has shipped such items to Buyer, and (iii) Buyer pays Seller any and all restocking fees and a separate cancellation charge of 10% of the purchase price of such Products concurrently with the notice. If Seller manufactures the Products in whole or in part pursuant to Buyer’s specifications (“Specially Manufactured Products”) or if the ordered Products are for any reason out of stock at such time when the order is placed, Buyer may not cancel any such order. Seller may change an order at any time to correct mathematical or clerical errors. Except as otherwise provided in this section 1, Buyer has no right to return any Products or cancel any orders purchased from Seller.
2. Price; Payment.
b. Prices do not include packing, handling, shipping, transportation or in-transit insurance costs or any sales, use, revenue, excise, privilege or other taxes or governmental charges. Buyer shall be responsible for all such costs, charges and taxes and Buyer shall reimburse Seller to the extent Seller pays such costs, charges or any and all taxes. Unless otherwise indicated in a Sales Document issued by Seller, all prices are payable in U.S. Dollars. Seller’s quotations are not binding upon Seller unless expressly stated as such in writing.
c. Standard payment terms are Buyer’s payment in full by credit or debit card upon placing any order on the Site unless expressly provided otherwise in an order confirmation issued by Seller.
d. To the extent applicable, if Buyer defaults in making any required payment, Buyer shall also be liable for interest that will accrue on the date which the payment was due at a rate equal to the lesser of (i) one and one-half percent (1.5%) per month; or (ii) the maximum allowed by law. If any invoice or payment is not paid when due, then Seller may take any of the following actions: suspend performance; terminate the contract for default; require Buyer to pay the full contract price; and take any other actions or pursue any other remedies under applicable law. Buyer’s partial payment of any amount due will not constitute an accord and satisfaction or otherwise satisfy the entire outstanding balance of any order, notwithstanding any notation or statement accompanying that payment. Buyer will not for any reason withhold payment of any amount it owes Seller or set-off against any amount Seller owes Buyer.
b. Prior to delivery of the Products, Buyer shall prepare the site. Buyer shall perform the installation and set-up of the Products in accordance with all written specifications, requirements, recommendations or instructions that Seller may provide, if any. Unless expressly stated in a Sales Document issued by Seller or in a separate written agreement between the parties, Seller shall not be responsible for the setup or installation of the Products or for providing any training; provided however, that nothing in these Terms or any Sales Document shall obligate Seller to enter into any such agreement with Buyer except upon terms and conditions acceptable to Seller. Additionally, prices do not include Product erection, installation or training which shall be Buyer’s expense.
4. Acceptance Testing. The Products will be subject to an acceptance process, which if applicable, will be described in a Sales Documents issued by Seller.
5. Limited Warranty.
b. Services. Although Seller strives to provide quality services, Seller does not have direct involvement or control over the use or condition of the machines or components it services. Therefore, Seller makes no warranty with respect to services, and ALL services are provided “AS IS” and without warranty.
c. Used Machinery. Seller makes no warranty with respect to used Products and ALL USED Products are sold “AS IS” and without warranty.
d. SELLER DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES OF ANY KIND AS TO THE PRODUCTS AND SERVICES, INCLUDING THOSE ARISING BY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING ALL REPRESENTATIONS AND WARRANTIES AS TO MERCHANTABILITY, FITNESS OF THE PRODUCTS OR SERVICES FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, THE SUITABILITY OF THE PRODUCTS OR SERVICES FOR BUYER'S PURPOSES, AND THE IMPACT OF THE PRODUCTS OR SERVICES ON BUYER'S OPERATIONS. Dealers, distributors, sales representatives and employees are not authorized to offer different or additional warranties or remedies, and descriptions, representations and other information or claims made by dealers, distributors, sales representatives or employees are not binding on Seller unless in writing signed by an officer of Seller.
e. The limited warranty provided herein shall apply only to Products erected or installed by Seller. Seller accepts no responsibility for the acts of persons furnished by Buyer.
f. No agent, sales representative or employee of Seller will have any authority to modify or expand this warranty any way. This warranty is limited to the original Buyer and may not be transferred.
6. Limitation of Liability; Exclusion of Damages. IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVER EXCEED THE PURCHASE PRICE OF THE PRODUCT OR THE PART OF THE PRODUCT AT ISSUE OR THE AMOUNT CHARGED BY SELLER FOR THE PERFORMANCE OF SERVICES. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, OR FOR COSTS INCURRED IN DISMANTLING, ALTERING OR MOVING EQUIPMENT, WALLS OR OTHER OBSTACLES TO ALLOW FOR THE REMOVAL OF NON-CONFORMING PRODUCT OR THE PART OF THE PRODUCT AT ISSUE, WHETHER ARISING FROM THE SALE OF PRODUCTS, THE INSTALLATION AND/OR SETUP OF ANY PRODUCTS, ANY TRAINING, ANY DEFECT IN THE PRODUCTS OR SERVICES, ANY NON-CONFORMITY WITH WARRANTIES, ANY USE OR INABILITY TO USE THE PRODUCTS OR OTHERWISE. SELLER SHALL HAVE NO LIABILITY FOR DAMAGES TO GOODS OR MATERIALS PROCESSED IN OR HANDLED WITH THE PRODUCTS. These Terms contain Buyer's sole and exclusive remedies relating to these Terms, a breach of these Terms, any Sales Document, the Products or the services, regardless of the theory of recovery.
7. Insurance. Each Buyer of Specially Manufactured Products and such other Buyers as may be directed by Seller in its order confirmation, shall maintain commercial general liability, personal injury and property damage insurance policies, including wrongful death coverage, with a nationally recognized insurance company in an amount reasonable to cover all Products purchased for each order. In the event of Buyer’s written request as detailed in an order confirmation, Buyer shall provide Seller with a certificate of such coverage that shall name Seller as an additional insured.
8. Indemnity. Buyer shall indemnify and hold Seller harmless from and against all damages, liabilities, claims or expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) improper selection, application, installation, setup, use or incorporation of the Products or services; (b) Products damaged during or after delivery; (c) damage caused by normal wear and tear; (d) use under circumstances exceeding specifications or limitations; (e) abuse or accident; (f) unauthorized repair or alteration; (g) improper storage or maintenance; (h) damage caused by natural calamities; or (i) claims of infringement of any patent, trademark, copyright or other third party interest arising out of Seller’s compliance with any of Buyer’s instructions, recommendations, specifications or limitations. At Seller’s request, Buyer shall defend Seller at Buyer’s expense against any such claim made against Seller.
9. Security Agreement. Buyer grants Seller a continuing purchase money security interest in all Products sold or delivered to it and to the proceeds of those Products (collectively, the “Collateral”) to secure the full payment of the purchase price of the Products and all other obligations of Buyer arising out of this transaction. Buyer authorizes Seller to execute, authenticate or file, or at Seller’s option, Buyer shall execute and deliver to Seller all financing statements, continuation statements and other documents necessary or desirable to establish, perfect, maintain, preserve and enforce Seller’s security interest in the Collateral.
10. Confidentiality. All confidential or proprietary information (“Confidential Information”) provided by Seller to Buyer shall not be disclosed by Buyer to any person unless the disclosure is agreed to in writing by Seller or the Confidential Information is otherwise generally available to the public. Seller retains ownership and control over all intellectual property including patents, trademarks, and copyrights applicable to or arising out of the Products and services, as well as the exclusive right to manufacture the Products. No license is granted or implied by these Terms, and Buyer shall not name or designate any Seller product information or Products in any process patent application.
11. Safety Requirements. Buyer acknowledges and agrees that it shall use and shall require its employees and agents to use all safety devices and guards on the Products and will otherwise employ safe operating procedures. Buyer acknowledges and agrees that it shall not remove or modify any such devices, guards or warning signs. Buyer acknowledges and agrees that if it fails to observe any such safety requirements, Buyer will indemnify and save Seller harmless from any and all risk, liability, or obligation to persons injured directly or indirectly in connection with the operation of the Products. In addition to the foregoing, Buyer assumes full responsibility for any damage to the Products arising out of or related to the use of qualities, grades, or quantities of materials which in any way adversely affect the construction and operation of the Products. Buyer further acknowledges and agrees that it assumes full responsibility for training, warning, and protecting all operating personnel and for keeping others away from any and all dangers in connection with operation of the Products. If any additional safety devices or guards are specified by Buyer, or by federal, state or local laws and regulations, these safety devices or guards must be identified by Buyer and Seller will then provide a quotation for such additional products at an additional cost.
12. Termination. Without limiting Seller’s other rights and remedies available under applicable law, Seller may suspend performance and delivery, or terminate performance and delivery, if Buyer:
b. becomes insolvent or files for bankruptcy or has a bankruptcy proceeding filed against it; or
c. fails to perform or observe any of its obligations to Seller under any applicable Sales Document issued by Seller or under other existing or future contracts between Seller and Buyer or otherwise, including payment of any purchase price, fees or charges when due.
13. No Setoff. Buyer shall not have any right of set-off with regard to any amounts owed to Seller, regardless of any dispute that may arise between the parties.
14. Choice of Law, Venue and Consent to Jurisdiction. Any dispute or claim relating to the Products or services shall be governed by and construed in accordance with the laws of the State of North Carolina, excluding its conflict of laws principles. The United Nations Convention on the International Sale of Goods (“CISG”) shall not apply. Except with respect to any action instituted by Seller for equitable or comparable relief, including an action for temporary or permanent injunctive relief, or for an action instituted by Seller for recovery of possession of the Products, such as replevin, claim and delivery, attachment or the like, the North Carolina State Courts and the United States District Court for the Western District of North Carolina shall constitute the exclusive forums for the adjudication of all disputes arising out of or relating to any dispute under any Sales Document or these Terms, or any Product or service.
15. Limitation on Actions. Any action or proceeding by Buyer arising out of or relating to these Terms, any Sales Document, the Products or the services will be forever barred unless it is commenced by Buyer within the earlier of: (a) one year after the claim or cause of action has accrued; or (b) the period prescribed by applicable statute of limitation or repose.
16. Laws and Regulations. Buyer shall be responsible for the compliance with any and all laws, regulations, orders and the like applicable to the Products or services and Buyer’s use of the Products. Buyer shall bear any and all additional responsibilities and costs arising from any such laws, regulations, orders and the like. Seller is not responsible for any impact existing or future laws, regulations, orders and the like may have on the Products or services or the use or inability to use the Products.
17. Force Majeure. Seller shall have no liability for any non-performance or delay in performance caused by circumstances beyond Seller’s control, including, but not limited to, acts of God, fire, flood, war, government action, accident, labor trouble or shortage, inability to obtain material, equipment or transportation, or failure of Seller’s suppliers to furnish the Products.
18. Notices. Any notices delivered under these Terms must be in writing and shall be effective when delivered to a party or when that party refuses delivery.
19. Assignment. Buyer may not assign its rights or obligations under these Terms or any Sales Document without the prior written consent of Seller and any purported assignment without that consent shall be void and of no effect. Buyer acknowledges and agrees that these Terms or any Sales Document shall continue to be binding on Buyer regardless of any type of financing utilized by Buyer and/or any assignment of these Terms or any Sales Document by either party.
20. No Waiver. Any failure by Seller to exercise any of its rights under these Terms or any Sales Document shall not be construed as a waiver of such rights.
21. Severability. In the event any of the provisions of these Terms or any Sales Document are held to be invalid by any court of competent jurisdiction, such provision(s) shall be deemed to be severable and these Terms and any Sales Document shall then be construed and enforced in accordance with the remaining provisions.
22. Survival. Sections 5, 6, 9, 10, 14, 15, 16, 18, 20, 22 and 24 will survive the expiration or termination of these Terms or any Sales Document for any reason.
23. Modifications. These Terms may be modified only in writing signed by an officer of Seller expressly modifying these Terms.
24. Entire Agreement. These Terms and any Sales Document issued by Seller contain the entire agreement and understanding of the parties with respect to the subject matter and supersede all previous and contemporaneous agreements between the parties as well as all proposals, oral or written, and all negotiations or discussions between the parties.