TERMS OF SALE
These Terms and Conditions of Sale (the “Terms”) establish the rights, obligations, and remedies of Lindon Group, Inc., and/or its wholly owned affiliates (“Seller”) and the buyer (“Buyer”), form the entire agreement between Seller and Buyer, and apply to all sales transactions between Seller and Buyer unless otherwise specifically agreed to in writing by both parties. All prior oral or written agreements, including, but not limited to, terms in Buyer’s purchase order, which are different from or in addition to these Terms are not binding on Seller unless expressly accepted in writing by Seller’s duly authorized representative, and in the event of any conflict, these Terms shall prevail.
Risk of loss will transfer to Buyer upon tender of products and/or parts (“Goods”) to Buyer, Buyer’s representative or common carrier. The cost of any special packaging or handling caused by Buyer’s requirements or requests will be added to the amount of Buyer’s order. If Buyer causes or requests a delay of shipment, or if Seller ships or delivers an order erroneously as a result of inaccurate, incomplete, or misleading information supplied by Buyer or Buyer’s agents or employees, all storage and other additional costs and risk will be borne by Buyer.
All prices are subject to change unless otherwise noted on Seller’s applicable quotation. Buyer will be invoiced at prices in effect at the time of shipment. All taxes, transportation costs, duties and other charges are in addition to quoted prices. The amount of any sales, excise or other taxes, if any, applicable to the goods shall be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with a valid tax exemption certificate. Due to ongoing market volatility, pricing is subject to change and should be confirmed prior to release of order. Seller reserves the right to refuse an order in the event of unreasonable price increases to the seller.
Seller will make a good faith effort to deliver Goods in accordance with Buyer’s schedule. Seller will pay for expedited shipping of delayed Goods if the delay in delivery is solely caused by Seller. Seller assumes no responsibility or liability for Seller’s non-performance caused by a force majeure event including, but not limited to an act of God, war, labor disputes, civil unrest, accidents, pandemics, a reasonably unforeseeable inability to obtain materials or Goods, delays of carriers, contractors or suppliers, or any other causes beyond Seller’s control.
Buyer may not cancel or modify an order without the written consent of Seller and payment by Buyer of all applicable cancellation or re-stocking fees.
Buyer shall pay for the Goods Net 30 from date of Seller’s invoice. In the event of a late payment, Seller is entitled to treat Buyer’s entire account(s) as immediately due and payable without notice or demand. All past due amounts will be subject to a service charge accruing at a rate of up to 1.5% per month. Buyer shall not be allowed to retain or holdback payment and Buyer’s payment obligations are not contingent on any event other than Seller’s performance. Buyer’s receipt of payment or funds from any third party shall in no way relieve Buyer’s obligations to pay Seller. Buyer is not entitled to set-off any amounts due to Seller by Buyer in connection with any transaction governed by these Terms. Buyer’s credit application to Seller is hereby incorporated by reference.
INSPECTION AND ACCEPTANCE:
Buyer shall examine all Goods upon receipt and prior to installation. All claims for damage, shortage, and errors in shipment or improper delivery must be made to Seller in writing within two (2) business days of delivery, after which date Buyer will be deemed to have accepted the Goods and will have no right to reject the Goods or to revoke acceptance. Buyer must make any claims for billing errors or adjustments to Seller in writing within ten (10) business days from the invoice date. Claims not received in writing within such period of time will be waived by Buyer.
Within 30 days of purchase, Buyer may return any Goods which Seller stocks and which are not special order items if: (i) the Goods are in new condition, suitable for resale in undamaged original packaging and with all original parts; and (ii) the Goods have not been used, installed, modified, rebuilt, reconditioned, repaired, altered, or damaged. All returns are subject to a re-stocking fee, unless otherwise agreed to by Seller. Special orders or non-stock Goods may be returned if the manufacturer is willing to accept the return and Buyer agrees to reimburse Seller for any restocking or cancellation fees charged by the manufacturer.
COMPLIANCE WITH EXPORT CONTROL LAWS:
Buyer warrants that it is not subject to U.S., EU, or UN sanctions, including, but not limited to, being identified on the U.S. Specially Designated Nationals (SDN) List, or more than 50 percent owned by an SDN. Buyer further acknowledges that Goods are subject to U.S. import and export control laws and regulations and cannot be imported, exported, reexported, or transferred except in compliance with such laws and regulations. If Seller delivers Goods to Buyer within the United States, Buyer expressly assumes any and all duties and liability associated with subsequent export of the Goods, including but not limited to determining export licensing requirements, obtaining all required authorizations, and submitting Electronic Export Information, if required. In such case, Seller shall not be named as the Exporter of Record with respect to the Goods.
All Other Goods: Seller warrants only title to the Goods sold to Buyer. All other warranties are those extended by the product manufacturer. Seller assigns to Buyer any and all manufacturer warranties and will assist Buyer to obtain repair, replacement, or other applicable remedy for a breach of warranty made known to Seller during the warranty period.
Seller warrants that all services provided by Seller shall be performed in a professional and workmanlike manner with qualified personnel.
These warranties shall be void if there has been misuse, accident, modiﬁcations, unsuitable physical or operating environment, improper maintenance, storage, or installation of the goods. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR USE OR A PARTICULAR PURPOSE EVEN IF KNOWN BY SELLER. SELLER MAKES NO REPRESENTATION, WARRANTY, OR PROMISE THAT THE PRODUCTS OR SERVICES WILL CONFORM TO ANY APPLICABLE LAWS, ORDINANCES, REGULATIONS, CODES OR STANDARDS, INCLUDING BUT NOT LIMITED TO LOW LEAD OR LEAD FREE LAWS OR REGULATIONS, EXCEPT AS SPECIFIED AND AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
Each party (“Indemnitor”) shall indemnify, defend and hold harmless the other party and its employees, officers, directors, and agents (each an “Indemnitee”) from any suit, cause of action, arbitration/mediation proceeding, judgment, or claim (“Claim”) for damages to property or bodily injury, loss of life, infringement, liability of any nature, costs, fines, penalties, and expenses, including reasonable attorney fees and any other cost of litigation (“Damages”) to the extent caused directly by the negligent act or omission or intentional misconduct of the Indemnitor. Indemnification shall not apply to Damages proximately caused by the negligence of Indemnitee.
Seller shall maintain the following insurance coverages:
Commercial General Liability with limits of $1,000,000 per occurrence and $2,000,000 aggregate, including products liability coverage. Business Automobile Liability with $1,000,000 combined single limit. Worker’s Compensation covering statutory benefits and Employers Liability limits of $1,000,000 each accident for bodily injury, $1,000,000 policy limit for bodily injury by disease, $1,000,000 each employee for bodily injury by disease. Commercial Umbrella Liability with a $5,000,000 limit. Seller is not bound to pay any premiums or other fees to an Owner Controlled Insurance Program (“OCIP”) or Contractor Controlled Insurance Program (“CCIP”) type insurance program. Unless expressly provided in Seller’s quotation to Buyer, payment and performance bonds are not to be provided by Seller.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY, LIQUIDATED, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUES, CAPITAL, BUSINESS OPPORTUNITY OR DOWNTIME COSTS, ARISING OUT OF THE SALE OF
GOODS AND/OR SERVICES TO BUYER. This limitation shall apply regardless if the claimed damages arise from breach of contract, breach of warranty, tort, strict liability, or any other legal theory. The maximum liability of Seller shall be limited to the maximum amount payable by Buyer to Seller.
These Terms will be construed as if prepared jointly by the parties hereto and any uncertainty or ambiguity will not be interpreted against any one party. If any provision contained in these Terms is held to be unenforceable then such provision will be given effect in such reduced form as may be decided by a court of competent jurisdiction, provided that, if any provision should be declared unenforceable or invalid for any reason, such unenforceable or invalid provision will be severed from the remainder of these Terms without affecting the enforceability or validity of the remaining provisions.
The failure of Seller to insist upon the strict performance of any of these Terms will not be deemed to be a waiver of any of the rights or remedies of Seller, nor of its right to insist upon strict performance of such term or of any other term in the future. No waiver of any of these Terms will be valid unless in writing signed by a duly authorized representative of Seller.
The parties shall attempt in good faith to resolve promptly any dispute arising out of or relating to these Terms by negotiation between executives who have authority to settle the dispute. The executives must be at a higher level of management than the persons with direct responsibility for administration of these Terms. If a dispute cannot be resolved by negotiation, then either party may bring a legal action in accordance with these Terms.
For Goods and/or services delivered within the United States, all disputes related to or arising out of a Buyer’s order shall be governed by the laws of the jurisdiction where the applicable Goods are delivered and/or services are performed, excluding the rules on the conflict of laws. For Goods and/or services delivered outside of the United States, all disputes related to or arising out of Buyer’s order shall be governed by the laws of the State of Rhode Island, excluding the rules on the conflict of laws. Any legal action related to or arising out of Buyer’s order shall be brought in the relevant state or federal court in such jurisdiction.
Rev. January 2022