Terms of sale
- PURCHASE OF PRODUCTS
1.1 Except to the extent otherwise agreed upon in writing, the terms set forth herein shall govern the sale and delivery of the products and services hereof ("Products") by DEV America LP ("DEV") and purchased by the purchaser named on the purchase order hereof ("Purchaser").
1.2 All dealings between the parties shall be in writing and no order of Purchaser shall be binding on DEV until approved in writing by DEV.
1.3 Prices of Products are subject to change without notice, and all references in sales brochures, technical data sheets and offers as to size, weight, and other details of the Products are approximate only. No such term shall be binding on DEV unless expressly incorporated in a purchase order which is approved and accepted by DEV in accordance with the terms hereof.
1.4 Except as provided in subsection (5) of this Section 1, a purchase contract hereunder shall become effective upon the mailing of a written acceptance of Purchaserís order by DEV.
1.5 If the terms stated in Purchaserís order are not acceptable to DEV, DEV may amend, delete or alter such terms and submit a counter-offer incorporating such amendments, dele¨tions or alterations to Purchaser, it being understood and agreed that such counter-offer shall be deemed accepted by Purchaser and shall become binding on the parties if and in case DEV does not receive notice to the contrary from Purchaser within FIFE (5) days after DEV has sent such counter-offer to Purchaser.
1.6 Purchaser acknowledges that DEVís acceptance of any purchase order is dependent on DEVís prior approval of Purchas-erís credit. Purchaser agrees that DEV may demand assurances of Purchaserís ability to pay by requesting such trade or banking references or such other information as deemed adequate by DEV.
2.1 Unless expressly agreed upon in writing to the contrary, the terms of delivery are FCA DEV America LP, Newport Beach, California (Incoterms 2010) to the delivery address of the customer. DEV shall be entitled to make partial deliveries and render partial services to an extent which is reasonably acceptable to the customer. The periods for payment under no. 4 shall apply accordingly. Insofar as it has been agreed that certain products shall be installed at the customer and put in an operable condition, these shall be deemed to be operable unless faults are determined in the course of a functional test and DEV gives the customer notification of operability. Otherwise, DEV shall carry out the functional test at the DEV works in the course of the final inspection. The risk and costs associated with dispatching products ex works DEV, as well as the customs duties and taxes shall be borne by the customer. This shall apply even if DEV chooses the carrier. Any transport damage shall be notified by the customer to DEV without undue delay, but no later than within one week of receipt of the products. The costs for the transportation insurance for the whole transport distance are completely covered by DEV.
2.2 If Purchaser should request any modification of the order after DEVís acceptance, DEV shall have the right to extend the delivery time period as reasonably needed to complete Purchaserís change order.
- FORCE MAJEURE
Notwithstanding anything to the contrary, DEV shall not be liable for any delay or failure to perform hereunder when such failure or delay is, directly or indirectly, caused by, or in any manner arises from fire, floods, accidents, civil unrest, acts of God, war, terrorism, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, breakage of machinery or apparatus, transportation delays, or any other cause or causes (whether or not similar in nature to any of those hereinbefore specified) beyond its control.
- WARRANTIES AND CLAIMS
4.1 DEV warrants that the Products when delivered shall comply with standards and limitations set forth with the respective performance specification and product specification. The warranty period for new products shall be 12 months. The warranty period for exchanged parts shall be 3 months The costs and risk associated with transportation to DEV shall be borne by the customer.
4.2 Purchaser shall within five (5) working days after its receipt of the Products, and in any event no later than thirty (30) days from the FCA shipping date, give written notice to DEV of any claim that the Products do not conform with the terms of the order or have material defects which a casual inspection would disclose. If Purchaser fails to give such notice, the Products shall be deemed to conform with the terms of the order, and Purchaser shall be deemed to have accepted and shall pay for the Products in accordance with the terms of this order. Purchaser expressly waives any right Purchaser may have to revoke acceptance or claim a breach of warranty with respect to such obvious or material defects, a casual inspection should have disclosed after such five-day period.
Except as set forth expressly in DEVís standard written warranty with respect to those items manufactured by dev, dev makes no representations or warranties of any kind, express or implied, written or oral, with respect to the products, including, without limitation, its merchantability or fitness for a particular purpose.
Purchaser acknowledges that purchaser is not relying on DEVís skill or judgment to select or furnish products suitable for any particular purpose or job, or to determine the feasibility of the products for any particular applications. Purchaser acknowledges that there are no warranties which extend beyond the description herein. Neither dev nor any of its affiliates shall be liable for, and purchaser waives any claim against dev and its affiliates for, multiple, incidental, special or consequential damages, including, but not limited to, damage or loss of other property or products, loss of profits or revenue, loss of use of machinery or parts thereof, inability to perform specific projects, cost of capital, injuries to or death of persons or damage to property or claims resulting from contracts and/or agreements between purchaser, its customers and/or suppliers, in each case which in any way relate to the purchase of products by purchaser or the use of the products.
All prices quoted by DEV are in U.S. funds and shall be on a net basis packaged goods, FCA DEV America LP, Newport Beach, California (Incoterms 2010). DEV shall choose the carrier of the goods and pass on the costs to the customer. All prices stated are understood to be subject to addition of statutory VAT, Sales Tax, disbursements, travel expenses, out-of-pocket expenses and incidental expenses. The travel, subsistence and overnight accommodation expenses shall be charged according to actual outlay.
6.1 Unless otherwise expressly agreed upon in writing, payment shall be made in full within 30 days after the invoice was issued if not otherwise expressed in the quotation of DEV in writing.
6.2 Purchaser shall not withhold or reduce payments on account of complaints, claims, or counterclaims not acknowledged and accepted by DEV.
7.1 Purchaser shall be in default (hereinafter "Default") under this Agreement and DEV may terminate this Agreement and exercise all other remedies in law or in equity if Purchaser:
(i) fails to make payment hereunder to DEV when due; or
(ii) breaches any other term, provision or condition contained in this Agreement; or
(iii) is declared to be in default under any other agreement between Purchaser and DEV, and if in any of the foregoing cases set out in (i), (ii) or (iii), Purchaser fails to cure any said breach or default within ten (10) days following written notice thereof from DEV.
7.2 Upon the occurrence of a Default, DEV may terminate this Agreement.
8.1 Purchaser may not assign this contract without the express prior written consent of DEV.
8.2 Except as otherwise expressly provided in Section 1 (5) hereof or in a written document, signed by DEV and Purchaser, documents concerning this contract are valid in the following order:
2. Order acknowledgement
3. these Terms of Sale
4. other Documents signed by DEV and Purchaser
8.3 No modification, limitation, waiver or discharge of this Agreement or of any of its terms shall bind DEV unless in writing and signed by a duly authorized employee of DEV. The failure of DEV to insist, in one or more instances, on performance by Purchaser in strict compliance with the terms and conditions hereof shall not be deemed a waiver or relinquishment of any right granted hereunder with respect to any succeeding breach of the same or other provision hereof.
8.4 In this Terms of Sale the headings are inserted for conveni-ence only and shall not affect the interpretation of this Terms of Sale.
8.5 All notices required hereunder shall be in writing and sent by first class mail or by fax or written confirmation to such addresses as stated on the reverse side hereof.
8.6 This Agreement shall be governed by, and construed, interpreted and enforced under the laws of the State of Georgia without giving effect to the conflict of laws principles. Exclusive place of venue for all disputes arising out of contracts based on this Terms of Sale shall be Atlanta.
8.7 In connection with any litigation, including appellate proceedings, arising out of or pertaining to any of the contractual relationships between DEV and Purchaser or the breach thereof, as contemplated herein, all costs and expenses, including reasonable attorneys fees, shall be borne by the losing party or, as the case may be, shall be prorated to properly reflect any partial losing or prevailing of the parties to such litigation.
8.8 In case any conditions of this Agreement should be or become unenforceable under applicable law, the remaining provisions, stipulations and conditions of this Agreement shall not be affected thereby.
Update: November 2011
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