Terms & Conditions

NBB CONTROLS, INC.

GENERAL TERMS AND CONDITIONS (“GENERAL TERMS”)

Article 1.  Controlling Provisions.

1.1   All the provisions of these General Terms shall apply be­tween the Purchaser and the Sell­er, except where explic­itly agreed otherwise in writ­ing by both par­ties.  THE CONDI­TIONS CON­TAINED HEREIN SHALL TAKE PRE­CE­DENCE OVER ANY OTHER CONDI­TIONS, AND NO CON­TRARY, ADDI­TIONAL OR DIFFERENT PROVI­SIONS OR CONDITIONS SHALL BE BINDING ON THE SELLER UN­LESS EX­PRESSLY ACCEPTED BY THE SELL­ER IN WRIT­ING.

1.2   In the case of sales or services provided outside the Unit­ed States, the Pur­chaser and the Seller ex­pressly agree that the provisions of the U. N. Conven­tion on the Sale of Goods are ex­cluded.

1.3   These General Terms shall apply to all future transac­tions be­tween the Purchaser and the Seller.

 

Article 2.  Quotation.

A quotation furnished by the Seller is valid for a period of thirty (30) days unless otherwise specified in Seller’s written quota­tion.

 

Article 3.  Contract/Purchaser’s Responsibilities/Cooperation.

3.1           The Seller may reject any order from the Purchaser under these General Terms for any reason including the need to allocate products or services or Purchaser’s creditworthiness. Orders will be deemed acceptable by Seller upon Purchaser’s receipt of a confirmation of order (the “Confirmation of Order”). Any modifications to the Purchaser’s purchase order made by Seller in the Confirmation of Order will be the final agreement between Seller and Purchaser. After this order is accepted, Seller may revoke its acceptance without any liability to Purchaser if credit approval is denied within sixty (60) days or a letter of credit required by Seller is not received within thirty (30) days after the estimated shipment date specified by the Seller.

3.2   The Seller shall be enti­tled to charge separately and the Purchaser agrees to pay for any ser­vices re­quired and any item of equipment de­livered and/or in­stalled by the Seller in excess of the servic­es and items of equipment explicitly set forth in the confir­ma­tion of order.  In addition, at Purchaser’s request, the Seller may install custom software for Purchaser, including enhancements or add-ons to the Seller’s standard software or third party software, including documentation.

             3.3   Successful completion of any services depends on Purchaser’s reasonable and timely cooperation with Seller or its agents. This includes, but is not limited to, providing the following items at no additional cost to Seller: knowledgeable and skilled personnel of Purchaser, delivery acceptance and payment, preparation of Purchaser’s premises for the services, provision of any necessary governmental licenses and permits, if applicable.  Seller shall not be held liable for any service delays and costs associated with the non-cooperation of Purchaser, or anything outside of the control of Seller. Burden of proof of cooperation shall rest with Purchaser.

 

Article 4.  Price.

4.1   Unless otherwise stated in the confir­ma­tion of order, the prices quot­ed by the Seller are for delivery F.O.B., Richmond, Vir­ginia.

4.2   If, because of special cir­cumstances, Seller advanc­es shipping costs on behalf of Pur­chaser, Pur­chaser agrees to repay any and all such ad­vanced costs.

4.3   Any installation services pro­vided by the Seller are charge­able at Seller’s custom­ary rates, as set forth in Seller’s confirmation of or­der.

 

Article 5.  Responsibility for Taxes.

5.1   All sales, use and excise taxes imposed or incurred as a result of the sale of the equip­ment shall be paid by the Pur­chaser.

5.2   All personal property and simi­lar tax­es imposed upon or as­sessed against the equipment after delivery shall be paid by the Pur­chaser.

 

Article 6.  Drawings, Descrip­tions, Literature, Etc.

6.1   Any data contained in cata­logues, illustrations, draw­ings, state­ments of weights and measures, literature, etc., shall not be bind­ing, unless explicitly inserted in a con­tract signed by the parties, or in a confir­ma­tion of order signed by the Seller.

6.2   The Purchaser agrees that data con­cerning the design of the Sel­ler’s equip­ment, methods of fabrication and/or con­struction are confi­dential and shall not be made public or oth­erwise used without the Seller’s pri­or, writ­ten permis­sion.

 

Article 7.  Time of Delivery.

7.1   The period allowed for deliv­ery shall begin to run from the latest of:

7.1.1  The date of the mailing or deliv­ery by the Seller of the confir­mation of or­der, or

7.1.2  The date upon which the Seller receives any pay­ment or down pay­ment spec­ified in the quotation.

7.2   Unless otherwise agreed in the confirmation of order, items of equip­ment shall be consid­ered as de­livered when they are shipped, F.O.B­., Rich­mond, Virginia.

7.3   Any delay in delivery time, regardless of cause, shall not entitle the Purchaser to an offset against the purchase price or excuse any other pay­ment or performance required by these General Terms and the Sel­ler’s confir­mation of order.

7.4   The Seller shall not be lia­ble under any circum­stances for spe­cial, incidental or conse­quen­tial dam­ages resulting from delay in the time of delivery.

 

Article 8.  Inspection and Accep­tance.

All orders are accepted based on in­spection and accep­tance at the Purchaser’s premises.  Failure by the Purchaser to inspect the equip­ment at the Purchaser’s premises within five (5) working days of arriv­al at the Pur­chas­er’s premises consti­tutes a waiver of the right to inspect.  Once the Purchaser has in­spected the equip­ment or waives inspection, the Pur­chas­er shall have no right to revoke acceptance or reject the equip­ment.  Further claims, if any, are limited to those covered by the Sel­ler’s war­ran­ty.

 

Article 9.  Risk of Loss/Passage of Title.

9.1   Immediately after the equip­ment or the principal compo­nents thereof are delivered F.O.B. Richmond, Virginia, the Purchas­er shall bear the risk with regard to any and all direct and indi­rect damages that may be caused to or by such equipment.

9.2   Notwithstanding the pro­vi­sions of the preceding para­graph, ti­tle to the equipment shall not pass to the Purchaser until all the amounts due to the Seller in re­spect of the deliv­ery, whe­ther or not including instal­la­tion, of the equipment, in­cluding any interest and costs, have been paid.  The Pur­chaser shall be fully responsi­ble for the care and safe­keeping of the equip­ment, and un­til all amounts due to the Seller as agreed in the confir­mation of order are paid in full.

9.3   At such time or times as the Seller may reasonably re­quest, the Pur­chaser shall execute and deliver to the Seller, for filing in such juris­dictions and with such filing offi­cers as may be necessary or desir­able in the Seller’s dis­cretion, such fi­nanc­ing statements or other ap­propri­ate instru­ments or docu­ments pursu­ant to the Uniform Com­mer­cial Code or other applicable law of any jurisdic­tion in which the Pur­chaser of the equipment may be locat­ed, which may be neces­sary or desirable in the Sel­ler’s dis­cre­tion to evidence, record and/or perfect the Seller’s title to the equip­ment and/or the Seller’s secu­rity interest created hereby in the equipment (and all proceeds there­from), which shall contin­ue un­til pay­ment in full to the Seller by the Purchas­er of any and all amounts due to the Seller in re­spect of the sale of equip­ment to the Purchas­er, the deliv­ery and/or installation thereof, and the transactions contem­plat­ed hereun­der.

9.4   At Seller’s option and without prejudice to the Seller’s other rights, the Seller is irrevo­cably authorized by the Purchas­er to dis­man­tle and recov­er all items of equipment deliv­ered pursuant to this con­tract, on demand, if the Purchaser should default re­garding the pay­ment obliga­tions stated in the confir­ma­tion of or­der, without any no­tice of default or judicial intervention be­ing required.

9.5   In the event of a default re­garding payment, at Seller’s op­tion, it shall also have the right to ren­der the equipment unus­able and to dis­pose of the equip­ment in any com­mer­cially reason­able manner.

 

Article 10.  Payment.

10.1 Payment terms shall be as stat­ed in the confirma­tion of order is­sued by the Seller upon final accep­tance of the Purchas­er’s or­der or, if not stated therein, within thirty (30) days after delivery of the equipment.

10.2 Unless otherwise stated in con­firmation of order, The costs of any addi­tional items of equipment or ser­vices shall be due and payable as soon as they are charged to the Pur­chaser.

10.3 In the event that the Pur­chaser fails to pay as stated in the confir­ma­tion of order, the Seller shall be entitled, without notice of de­fault being required, to charge in­terest at the rate of two percent (2%) above the prime lending rate as quoted from time to time by Crestar Bank in Richmond, Vir­ginia.  The Seller shall also be enti­tled to recoup the costs of recover­ing any unpaid amount, in­cluding its legal fees.

 

Article 11.  Warranty.

11.1 Unless otherwise explic­itly agreed in the confirma­tion of order, for a period of twelve (12) months after delivery the Seller warrants to the Pur­chaser that the materi­als and work­manship of the equipment are free from defects.  In the event that Sell­er elects to replace an item of equip­ment in lieu of making warran­ty re­pairs, the exchange unit provided shall be warranted through the end of the original warranty period.

11.2 In the event of the fail­ure of an item of equipment, the Pur­chas­er must notify the Seller in writing at the address indicat­ed in Article 15 below within five (5) days after dis­covery of the claimed defect.  With­in a reason­able time after such notifica­tion, the Seller will perform rea­son­able repairs to the items of equip­ment, limited to either repairing or replac­ing, at its discre­tion, the non­con­forming parts or components.  Any part or compo­nent re­placed pursu­ant to this warran­ty shall become the proper­ty of the Seller.  The remedies con­tained in this Article 11 are the Pur­chas­er’s exclusive remedies for breach of the warranty contained in this Ar­ticle 11 (the “Warranty”).

11.3 In the event that the item of equipment is returned to Seller for re­pairs, all shipping expenses are to be borne by the Purchaser.

11.4 The Seller does not war­rant:

11.4.1  Any component or part not manufactured by the Seller;

11.4.2  Damage caused by improper installation or connec­tion when the installation or connection is effected by any party other than the Seller;

11.4.3  Damage caused by use of the items of equipment for pur­poses other than those for which they were de­signed;

11.4.4  Damage to items of equip­ment caused by disasters such as fire, flood, wind and lightning;

11.4.5  Damage caused by exposure to electromechanical or electrical influences;

11.4.6  Damage caused by improper servicing and/or clean­ing (e.g., ex­posure to high pressure cleaning sprays);

11.4.7  Damage resulting from ex­posure to corrosive or hazardous chemical substances;

11.4.8  Damage caused by alter­a­tion or modifi­cation with­out the Sel­ler’s advice and prior, written con­sent;

11.4.9  Damage to any item of equipment resulting from use not in compli­ance with recom­mended proce­dures;

11.4.10 Damage resulting from the neglect, abuse or mis­use of items of equipment, including vandalism; or

11.4.11 Damage from any other cause beyond the control of Seller.

11.5         This limited warranty does not cover normal maintenance or items consumed during normal operation, nor normal wear and tear, misuse, abuse, unauthorized repair or alteration, lack of proper maintenance or damage caused by natural causes such as fire, storm, or flood.  The Seller shall not be liable for transportation, labor or other charges for adjustments, repairs, replacement of parts, installation, or other work which may be done upon or in connection with the equipment sold. No allowance will be made for repairs made by Purchaser.  Except as herein provided, the Seller shall not be liable to Purchaser in any manner with respect to the equipment sold.  THE ABOVE ARE LIMITED WARRANTIES AND THEY ARE THE ONLY WARRANTIES MADE BY THE SELLER WITH RESPECT TO THE EQUIPMENT SOLD, EXCEPT THAT THE SELLER  AGREES TO PASS THROUGH ANY WARRANTIES EXTENDED FOR THIRD-PARTY PRODUCTS INCORPORATED INTO THE EQUIPMENT, IF ANY.  THE SELLER MAKES AND PURCHASER RECEIVES NO OTHER WARRANTY WITH RESPECT TO THE EQUIPMENT SOLD OR SERVICES RENDERED, EXPRESS OR IMPLIED AND THE SELLER DISCLAIMS ALL WAR­RANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO WARRANTY IS MADE REGARDING THE RESULTS OBTAINED BY THE USE OF THE EQUIPMENT, THAT ALL ERRORS IN THE EQUIPMENT WILL BE CORRECTED, OR THAT THE EQUIPMENTS’ FUNCTIONALITY WILL MEET ALL OF PURCHASER’S REQUIREMENTS.  THE SELLER SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THESE GENERAL TERMS FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAM­AGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STAT­ED EXPRESS WARRANTY IS IN LIEU OF ALL LIABIL­ITIES OR OBLIGATIONS OF THE SELLER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE EQUIPMENT. PURCHASER AGREES THAT THE SELLER’S LIABILITY IN CONNECTION WITH THE EQUIPMENT, WHETHER ARISING IN CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OR ANY OTHER LEGAL THEORY SHALL NOT EXCEED THE AMOUNT PAID BY PURCHASER TO THE SELLER FOR THE NONCONFORMING EQUIPMENT. NO ACTION OR PROCEEDINGS UNDER THESE GENERAL TERMS, REGARDLESS OF FORM, MAY BE COMMENCED BY PURCHASER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.

 

11.6 Notwithstanding that the Seller may consult with and pro­vide advice to the Purchaser in connec­tion with the selection or manu­fac­ture of a particu­lar item or items of equip­ment, the Seller does not warrant or guarantee such advice; the Purchaser in all cases bears final respon­sibil­i­ty for ensuring that the equip­ment is suitable to its require­ments.  In no case shall the Seller be lia­ble for any spe­cial, inci­dental or conse­quen­tial dam­ages based upon breach of war­ran­ty, breach of contract, negli­gence, strict tort liability or any other legal theory.  Such damages in­clude, but are not limited to, loss of profits, loss of revenue, loss of use of the items of equip­ment, cost of capital, cost of any substi­tute items of equip­ment, facili­ties or services, down­time, claims of third parties in­cluding custom­ers, and injury to prop­er­ty.

11.7 Unless modified by provi­sions contained in the confir­mation of order, this Warranty is under­stood to be the complete and exclu­sive agreement  between the parties, super­seding all prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Warran­ty.  No employee or representative of the Sel­ler is autho­rized to make any war­ranty in addition to those made herein.

11.8 This Warranty allocates the risk of equipment failure be­tween the Seller and the Pur­chas­er.  This allo­ca­tion is recog­nized by both parties and is reflected in the price of the equip­ment.  By placing an order with the Seller, the Purchaser ac­knowl­edges that it has read this Warranty, under­stands it, and is bound by its terms.

 

Article 12.  Indemnification.

The Purchaser shall indemnify the Seller for all costs, damag­es and in­ter­est that may be incurred by the latter as a direct or indi­rect conse­quence of any actions brought against it by third par­ties in respect of the perfor­mance of the contract; the Pur­chas­er shall be bound, by virtue of the con­tract, to comply with a third party notice.

 

Article 13.  Force Majeure.

13.1 For purposes of these General Terms, the term “force majeure” is defined as any and all circumstanc­es beyond the Sel­ler’s reasonable con­trol, that perma­nent­ly or temporarily prevent delivery and/or instal­la­tion of the equip­ment, including fire, flood, war, civil unrest, riots, strikes, lock­outs, trans­portation de­lays, fail­ure or curtail­ment in the Seller’s usual sources of supply, govern­ment decree or order, act of God and other material interrup­tions in the business activities of the Seller or of the Seller’s suppliers.

13.2 In the event of the Seller’s inability to perform the contract as a result of a force majeure, the Sel­ler shall be enti­tled to suspend the perfor­mance of the contract for no more than six (6) months, or to can­cel the contract in full or in part, with­out being liable in damages and without judicial intervention being required.  During the period of sus­pension, the Seller shall be en­titled, and at the end of such period shall be obliged, to decide on per­for­mance or on full or partial can­cellation of the contract.

13.3 In the event of cancellation in accordance with Para­graph 13.2, the Seller shall refund to the Pur­chaser all amounts paid to the Seller pursuant to the contract, plus any interest that has accrued with re­spect thereto.

 

Article 14.  Governing Law; Succes­sors and Assigns.

14.1 All contracts to which these General Terms apply shall be con­strued and performed in ac­cordance with the substan­tive laws of Virgin­ia, without giving any effect to this state’s or any other jurisdiction’s conflict of laws principles.  The benefits and burdens of the parties shall bind and inure to their respec­tive suc­cessors and assigns.

14.2 The Purchaser and the Seller stipulate and agree that the Cir­cuit Court of the City of Rich­mond, Vir­ginia and/or the United States Dis­trict Court for the East­ern District of Virgin­ia, Rich­mond Division, shall have jurisdiction over the parties and that venue is prop­er in such courts for all ac­tions or proceed­ings with re­spect to these General Terms.

14.3 If the Seller prevails in an action or suit to enforce these General Terms, Sell­er shall be entitled to recov­er from the Purchaser its costs, in­clud­ing attorney’s fees, incurred in such connec­tion.

 

Article 15.  Notices.

Any warranty claim or other communi­cation relating to items of equip­ment purchased from the Seller by the Pur­chaser shall be ad­dressed to the Sell­er as follows:  NBB Controls, Inc., 5909 School Avenue, Richmond, Virginia 23228,

 

Article 16.  Entire Agreement.

The confirmation of order sent by the Seller, together with these General Terms, constitute the entire agree­ment between the par­ties, and no rep­resen­tation, state­ment or understand­ing made by or be­tween the parties that is not contained herein or there­in is valid or binding.

 

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