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.