1. OFFER/ACCEPTING THESE TERMS AND CONDITIONS. These Purchase Order Terms and Conditions for Purchases of Equipment (“Terms”) apply to the purchase orders (“Purchase Orders”) issued by Sunbelt Solomon Services, LLC or one of its affiliate companies (“Company”) to the party selling (“Seller”) the equipment (“Equipment”). These Terms constitute an offer to Seller that can only be accepted by agreeing to every term and condition contained herein as evidenced by Seller’s signature below. Company hereby expressly notifies Seller that any term, provision, or condition in conflict with, in addition to, or in modification of these Terms (no matter if issued by Company or Seller (individually a “Party” and collectively the “Parties”) prior to or after the execution of these Term) are hereby rejected and shall not be binding upon Company unless such term, provision, or condition is accepted in a signed writing by an authorized officer of Company which references the specific provision of these Terms that is superseded or modified and specifically references how it supersedes or modifies that specific provision of these Terms, and Company’s failure to object to any term or condition contained in any communication or documents between the Parties shall not be deemed a waiver of any provision of these Terms.
2. PRICES. The price(s) set forth in the Purchase Order include all costs to be paid by Company for the Equipment, except for sales tax which shall be separately stated in Seller’s invoice and paid by Seller to the taxing authority. Unless otherwise specified on the Purchase Order, delivery costs (including transportation and insurance costs) are included in the price set forth on the Purchase Order
3. PAYMENT TERMS. Unless otherwise specified in the Purchase Order, the net amount due shall be paid in within one hundred twenty (120) days of Company’s receipt of a proper invoice.
4. CANCELLATION. Any Purchase Order (or portion thereof if there are multiple pieces of Equipment being sold) may be cancelled by Company without penalty if cancelled by Company within ten (10) days of Seller’s execution of this Purchase Order. If cancelled by Company after this period, Seller shall stop work on this Purchase Order and Company shall be liable to pay Seller for materials engineered or manufactured with special or unique qualities that Seller can reasonably prove cannot be used in other orders or cannot be sold to third parties, provided Seller takes all steps reasonably necessary to mitigate such costs. In no event shall Company’s obligation to Seller on account of a termination for convenience exceed the line-item price set forth in the Purchase Order. Seller may not cancel any portion of this Purchase Order without the prior written consent of Company.
5. TITLE, RISK OF LOSS AND DELIVERY. Unless otherwise specified in the Purchase Order, all domestic and international deliveries shall be Delivered Duty Paid (“DDP”) (Incoterms 2020) Company’s location or such other facility designated by Company in the applicable Purchase Order (“Delivery Point”). Seller shall comply with all applicable laws including those relating to the import (including the Uyghur Forced Labor Prevention Act (the “UFLPA”)), export, packaging, and labeling of the Equipment, and shall indemnify and defend Company for any breaches of such applicable laws. Further, Seller shall provide Company with all documents to ensure that Company is in compliance with the UFLPA, including: (a) the Bill of Materials listing the manufacturer(s) and supplier(s) for each component or material used in the manufacturing of the Equipment, (b) Certificates of Origin for each component or material used in the manufacturing of the Equipment, and (c) any other documents required by the UFLPA and requested by Company. Equipment shall be suitably packed to avoid damage during transportation. Company’s name and Purchase Order number must be plainly marked on all invoices, packages, bills of lading and shipping orders. A packing list shall accompany each shipment showing Company’s name and Purchase Order number, account number, and description of materials. Company’s count or weight shall be final and conclusive if shipment is not accompanied by a packing list. Risk of loss to all Equipment furnished by Company shall pass directly to Seller at the Delivery Point. Title to the Equipment shall pass to Company upon Company’s payment to Seller for the Equipment.
6. DELIVERY DATE. Time is of the essence in this Purchase Order. Seller shall immediately notify Company when it becomes aware that the due date designated on the Purchase Order (“Delivery Date”) will not be met. As part of this notice, Seller will give Company its best estimate as to the new Delivery Date. Seller shall be under a continuing obligation to give Company immediate notice every time that it has updated information that would change the estimated Delivery Date. If Seller does not deliver or gives notice that it will not deliver the Equipment by the original Delivery Date designated on the Purchase Order, Company shall be entitled at its option to either cancel this Purchase Order or, as liquidated damages, reduce the purchase price by the following for each seven (7) day period (or portion thereof if extending into the next seven (7) day period) (“Delay Week”) that such delivery is delayed: (a) one percent (1%) for the first Delay Week; (b) two percent (2%) for the second Delay Week; (c) three percent (3%) for the third Delay Week; (d) four percent (4%) for the fourth Delay Week; (e) five percent (5%) for the fifth Delay Week; and (f) five percent (5%) for the sixth Delay Week, thereby capping Company’s liquidated damages for Seller’s delayed delivery at twenty percent (20%) of the total purchase price. However, if Company incurs liquidated damages from its customer that directly result from Seller’s delayed delivery, Seller shall be entitled to reduce the purchase price (or reimbursement if it has already paid Seller) by the amount such liquidated damages Company owes its customer that exceed the amount of liquidated damages for which Seller is liable to Company as determined in the immediately preceding sentence. The Parties hereby acknowledge and agree that the amounts fixed as liquidated damages are reasonable, and that the amounts of these liquidated damages have been agreed upon and fixed hereunder because of the difficulty of ascertaining the exact amount of damages and costs that will be actually incurred by Company for a late delivery. While a Force Majeure event may excuse Seller’s obligations to timely deliver the Equipment, it will not relieve Seller from the obligations to pay these liquidated damages for such late delivery.
7. CONFORMING EQUIPMENT, INSPECTION AND ACCEPTANCE. There will be no substitutes or shipment of more or less than the quantity specified without the prior written approval of Company. Equipment purchased hereunder is subject to inspection and acceptance at the Delivery Point. Company may reject the Equipment pursuant to the terms and conditions of this Section 7; provided, however, that acceptance of any Equipment shall not be deemed to alter or affect Seller’s warranty obligations or Company’s rights. If Equipment received do not conform to those ordered or contain defective materials or workmanship, or if more or less than the quantity ordered are shipped, then Company may reject such shipment in whole or in part by giving notice thereof to Seller. Seller will remove any rejected Equipment at Seller’s expense within ten (10) days after notice. If any Equipment is rejected by Company, Seller will not ship any replacement Equipment without the prior written approval and directions of Company. For any defective, non-conforming, or rejected Equipment, Company may cancel this Purchase Order in whole or in part without any obligation to pay a cancellation fee or other fee or penalty. Payment for the Equipment shall not constitute acceptance.
(a) Warranty Period. “Equipment Warranty Period” means the period stated in the Purchase Order, or in the case no warranty period is stated in the Purchase Order, the longer of Seller’s standard warranty for such Equipment or twelve (12) months from the date of the delivery of the Equipment.
(b) Equipment Warranty. For the Equipment Warranty Period, Seller warrants the following: (i) merchantable title to such Equipment free from all liens and encumbrances; (ii) that the Equipment complies with the specifications as set forth in the applicable Purchase Order; (iii) that the Equipment complies with all applicable laws, ordinances, codes and regulation; (iv) that the Equipment is fit for the use intended by Company; and (v) that the Equipment will be free from defects in material and workmanship.
(c) Notice of Warranty Breach. Company shall provide timely, written notice to Seller of warranty defects.
(d) Remedies. Any Equipment which breaches this warranty shall promptly be repaired or replaced by Seller at Seller’s cost, including removal, reinstallation, access, shipping, and labor costs. If Seller fails to cure a defect within ten (10) days after receiving written notice of such defect (or longer period if agreed to by Company), Company may cure such defect directly or through a third party. In such case, Seller shall reimburse Company for the reasonable and documented costs incurred by Company for curing the defect within thirty (30) days after receipt of a written invoice from Company. Any Equipment cured shall have an Equipment Warranty Period for the longer of the remainder of the original Equipment Warranty Period or six (6) months from the completion of the warranty cure.
(e) Entire Warranty Remedies. THE WARRANTY REMEDIES SET FORTH HEREIN ARE THE SOLE WARRANTY REMEDIES AVAILABLE TO COMPANY FOR A BREACH OF WARRANTY CLAIM.
9. INDEMNITY. Each Party shall be liable for and shall fully indemnify the other Party for any injury or death to any person or any damage to or loss of any property to the extent of the indemnifying Party’s negligence or willful misconduct.
10. LIMITATION OF LIABILITY. EXCEPT FOR THE DUTIES TO INDEMNIFY SET FORTH HEREIN AND FOR THE LIQUIDATED DAMAGES SET FORTH IN SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, LIQUIDATED, RELIANCE, ECONOMIC, CONSEQUENTIAL, CONTINGENT, CIRCUMSTANTIAL OR ENHANCED DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGE FOR DELAY, LOSS OF PRODUCT, LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION AND LOSS OF GOOD WILL REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (d) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. INTELLECTUAL PROPERTY. Seller shall indemnify Company and any of its customers from any third-party claims that Company’s or its customers’ use of the Equipment infringes, directly or indirectly, upon any copyright, trademark, patent, or other intellectual property or proprietary rights of any third party. Unless the Equipment is work for hire, Company gets no intellectual property rights in such Equipment, and Seller hereby grants Company and its customers a license to use such Equipment.
12. CONFIDENTIALITY. “Confidential Information” means all non-public, confidential, trade secret and/or proprietary information disclosed, orally or in writing, or made available by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), including but not limited to, business information; technical information, including materials, drawings, designs, specifications, techniques, manuals, photographs, processes and other intellectual property and know-how; the terms of this Purchase Order including pricing; and any other information that a reasonable person would consider to be confidential. Receiving Party: (a) may only disclose the Confidential Information to any of its representatives who need to know of the existence of the Confidential Information for the purpose of this Purchase Order; and (b) will use the same degree of care to protect the Confidential Information from unauthorized use or disclosure as it would use to protect its own confidential information, but in no event will use less than reasonable care. Receiving Party acknowledges that Disclosing Party would suffer serious and irreparable damage and would not have an adequate remedy at law if Receiving Party or any of its representatives breach any of its obligations under this provision. Accordingly, Disclosing Party will be entitled to any injunction, specific performance or other remedy in law or equity in respect of any breach or threatened breach of this confidentiality provision.
13. NO ASSIGNMENT. Seller agrees not to assign or otherwise transfer its rights or obligations under these Terms without prior express written consent of Company. These Terms shall be binding on and inure to the benefit of the Parties to these Terms and their respective successors and permitted assigns.
14. FORCE MAJEURE. Except for the duty to pay the liquidated damages specified in Section 6, Seller shall not be liable for any delay in providing the Equipment due to acts beyond its control. Such acts shall include, but are not limited to, acts of God, embargo, riots, acts of war, fire, communication line failures, and acts of governmental or military authorities. Specifically excluded from the definition of Force Majeure is: (a) any labor strike, labor dispute, work stoppages, boycotts, walkouts and other labor difficulties or shortages resulting therefrom; (b) the inability to obtain materials or materials that meet the quality standards to fill the Purchase Order from Seller’s usual sources of supply if Seller can obtain replacement materials from other suppliers in a commercially reasonable manner; (c) changes in market conditions; (d) any act or event to the extent resulting from the fault or negligence of any person claiming Force Majeure, or (d) the financial inability of any person to perform its obligations under this Purchase Order. The Parties further acknowledge and agree that as of the date of this Purchase Order there is an ongoing event related to a coronavirus (commonly referred to as COVID-19) and that, notwithstanding any occurrence of such event prior to the date of this Purchase Order, such event or expansion thereof may be a Force Majeure event provided that such event otherwise qualifies as a Force Majeure event in accordance with the terms of this Section 14. If a Force Majeure event continues for a period in excess of thirty (30) consecutive calendar days, then in addition to the other rights and remedies set forth herein, Company may terminate this Purchase Order without any liability to Seller.
15. GOVERNING LAW, JURISDICTION AND VENUE. These Terms shall be governed and construed in accordance with the laws of the State of Texas, and any and all disputes hereunder shall be resolved in accordance with the laws of the State of Texas, except for any such law that would direct the application of the law of a different jurisdiction. The Parties consent to personal jurisdiction in any action brought in any court, federal or state, within Dallas County, Texas, having personal and subject matter jurisdiction arising under these Terms and with respect to any such claim the Parties irrevocably waive, to the fullest extent permitted by law, any claim, or any objection they may now or hereafter have, that venue is not proper with respect to any such suit, action, or proceeding brought in such a court in Dallas County, Texas, including any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient forum and any claim that a Party is not subject to personal jurisdiction or service of process in such Dallas County forum.
16. SEVERABILITY. Every provision of these Terms is intended to be severable. If any term or provision is illegal, invalid, or unenforceable, for any reason whatsoever, such illegality, invalidity, or unenforceability shall not affect the validity of the remainder. In lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of these Terms provisions similar in terms as necessary to render such provision legal, valid, and enforceable.
17. NON‐WAIVER. A Party’s failure to enforce any or all of these Terms shall not constitute a waiver of its rights with respect to the same or any subsequent breach.
18. RELATIONSHIP OF PARTIES. Nothing herein shall be construed to create a partnership, joint venture, agency, fiduciary or employment relationship between the Parties.
19. ATTORNEY’S FEES. If any action or proceeding shall be commenced to enforce these Terms, or any right arising in connection with these Terms, the prevailing Party in such action or proceeding shall be entitled to recover from the other Party, reasonable attorneys’ fees, costs, and expenses incurred by such prevailing Party in connection with such action or proceeding.
20. ENTIRE AGREEMENT. These Terms constitutes the entire understanding among the Parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and prior agreements and understandings relating to such subject matter. Further, no oral statements about the Equipment or Services not in writing in these Terms shall be binding on a Party.
By acceptance of the purchase order Seller acknowledges and agrees with the foregoing terms and conditions.