GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES
- 1.1 Generally. These General Terms and Conditions for the Sale of Goods and Services (these “Terms“) are the only terms which govern the sale of the goods (“Goods“) and services (“Services“) by Centranz, Inc., Buckner, Missouri (“Seller“) to you, the buyer (“Buyer“). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- 1.2 Entire Agreement. Accompanying Quotation(s), Confirmation of Sale, and/or invoice(s), if any, (the “Sales Confirmation”), Transmission Warranty, Transmission Core Return Policy if applicable, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2.0 DELIVERY OF GOODS AND PERFORMANCE OF SERVICES
- 2.1 Time. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods and performance of any payment arrangements. Seller shall not be liable for any delays, loss or damage in transit.
- 2.2 Delivery Point. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to freight carrier in Buckner, Missouri (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods.
- 2.3 Partial Shipments. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
- 2.4 Buyer’s Failure to Accept Delivery. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations:
- 2.4.1 risk of loss to the Goods shall pass to Buyer;
- 2.4.2 the Goods shall be deemed to have been delivered; and
- 2.4.3 Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- 2.5 Services Generally. With respect to the Services, Buyer shall:
- 2.5.1 cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services;
- 2.5.2 respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement;
- 2.5.3 provide such customer materials or information as Seller may reasonably request and Buyer considers reasonably necessary to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and
- 2.5.4 obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
- 2.6 Timeliness for Performance of Services. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Confirmation of Sale, and any such dates shall be estimates only.
- 3.1 Disputes as to Quantity Delivered. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- 3.2 Notice of Non-delivery. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within seven (7) days of the date when the Goods would in the ordinary course of events have been received.
- 3.3 Seller’s Liability for Non-delivery. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
- 3.4 Buyer’s Remedies for Non-delivery. Buyer acknowledges and agrees that the remedies set forth in Section 3.0 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 3.3, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
4.0 SHIPPING TERMS
Delivery of the Goods shall be made FOB Centranz, Inc., Buckner, Missouri or Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation.
5.0 TITLE AND RISK OF LOSS
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Missouri Uniform Commercial Code.
6.0 BUYER’S ACTS OR OMISSIONS
If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay
7.0 INSPECTION AND REJECTION OF NONCONFORMING GOODS
- 7.1 Generally. Buyer shall inspect the Goods within two (2) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means the following:
- 7.1.1 product shipped is different than identified in Buyer’s purchase order; or
- 7.1.2 product shipped is in non-satisfactory condition; or
- 7.1.3 product is missing; or
- 7.1.4 product’s label or packaging incorrectly identifies its contents.
- 7.2 Return Policy. Goods covered under Seller’s Transmission Warranty notwithstanding, Nonconforming Goods may be eligible for replacement or refund, subject to a Restocking Charge upon receipt of such Nonconforming Goods by Seller. The “Restocking Charge” is equal to 20% of the amount invoiced for Nonconforming Goods. The following goods are NOT eligible for return:
- 7.2.1 those received more than 30 calendar days past the Inspection Period;
- 7.2.2 those damaged or with damaged and/or missing components;
- 7.2.3 repair manuals, parts manuals, CD’s, DVD’s, or any product capable of uploading/downloading as electronic file;
- 7.2.4 electrical parts including, but not limited to Electronic Control Units (or “ECU”), wire harnesses, shifters, solenoids, proportional valves, sensors, inductive transmitters, speed sensors, pressure sensors, presser monitors, and fluid level sensors;
- 7.2.5 custom-made and Special Order Goods; “Special Order” means Goods that are received or imported on a per-order basis and not the type, group, class, or kind of items that Seller would order or keep in stock on a reasonably recurring basis; and
- 7.2.6 Goods that have been installed, welded, machined, modified, cut, molded, or mounted.
- 7.3 Disposal of Ineligible Returns. Seller will hold ineligible Goods for thirty (30) days only, after its initial attempt to resolve any disputes over returned Goods. Seller reserves the right to dispose of any and all ineligible returns after this time has elapsed unless Buyer has made arrangements for return shipping. Buyer is responsible for shipping charges to recover ineligible returns.
- 7.4 No Incidental Damages. Seller does not cover miscellaneous expenses including labor costs for removal and installation of defective Goods, materials, lost time or wages, towing, lift, dock or storage fees. Seller shall not be liable for any incidental or consequential damages including without limitation, indirect or special damages as a result of Nonconforming Goods.
- 7.5 Core Returns. Some Goods carry a core deposit. Cores returned to Seller are subject to inspection and/or evaluation to determine whether the core is acceptable. Unacceptable means Seller, in its sole discretion, has determined the cost of materials and labor to restore the core to a reasonably marketable condition, meets or exceeds, or is likely to meet or exceed the actual market value of the Good(s). Buyer is responsible for the cost of returning its core(s) to Seller.
- 7.6 Buyer’s Remedies for Delivery of Nonconforming Goods. Buyer acknowledges and agrees that the remedies set forth in Sections 7.2 through 7.5 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Sections 7.2 through 7.5, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
- 8.1 Generally. Buyer shall purchase the Goods and Services from Seller at the price(s) (the “Price(s)”) set forth in Seller’s published price list in force as of the date of Buyer’s purchase order or as otherwise stated in writing by the Seller.
- 8.2 Expenses. Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
- 8.3 Exclusions. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9.0 PAYMENT TERMS
- 9.1 C.O.D. Buyer shall pay all invoiced amounts due to Seller in advance of shipping Goods or rendering Services unless other payment terms have been accepted by Seller. Buyer shall make all payments hereunder by wire transfer, certified check, or credit card and in US dollars.
- 9.2 Late Payments. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for twenty (20) days following written notice thereof.
- 9.3 Set-off not Permitted. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
10.0 LIMITED WARRANTY
- 10.1 Goods. Seller’s Transmission Warranty notwithstanding, Seller warrants to Buyer that for a period of twelve (12) months from the date of shipment of the Goods (“Warranty Period”), that such Goods will conform to the Original Equipment Manufacturers’ (“OEM”) specifications as set forth in the most current OEM specifications published as of the date of shipment and will be free from overt defects in material and workmanship.
- 10.2 Services. Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
- 10.3 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 10.1, 10.2, AND SELLER’S TRANSMISSION WARRANTY, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- 10.4 Third Party Products. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 10.1. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- 10.5 Notice Required. The Seller shall not be liable for a breach of the warranties set forth in Section 10.1 and Section 10.2 unless:
- 10.5.1 Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within seven (7) days of the time when Buyer discovers or ought to have discovered the defect;
- 10.5.2 if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 10.1 to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and
- 10.5.3 Seller reasonably verifies Buyer’s claim that the Goods or Services are defective.
- 10.6 Exclusions. The Seller shall not be liable for a breach of the warranty set forth in Section 10.1 or Section 10.2 if:
- Buyer makes any further use of such Goods after giving such notice;
- the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or
- Buyer alters or repairs such Goods without the prior written consent of Seller.
- 10.7 Remedies for Warranty on Goods. Subject to Section 10.5 and Section 10.6 above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either:
- 10.7.1 repair or replace such Goods (or the defective part); or
- 10.7.2 credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
- 10.8 Remedies for Warranty on Service. Subject to Section 10.5 and Section 10.6 above, with respect to any Services subject to a claim under the warranty set forth in Section 10.2, Seller shall, in its sole discretion:
- 10.8.1 repair or re-perform the applicable Services; or
- 10.8.2 credit or refund the price of such Services at the pro rata contract rate.
11.0 LIMITATION OF LIABILITY
- 11.1 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- 11.2 IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
12.0 MISCELLANEOUS PROVISIONS
- 12.1 Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
- 12.2 Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer:
- fails to pay any amount when due under this Agreement;
- has not otherwise performed or complied with any of these Terms, in whole or in part; or
- becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- 12.3 Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 12.4 Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is:
- in the public domain;
- known to Buyer at the time of disclosure; or
- rightfully obtained by Buyer on a non-confidential basis from a third party.
- 12.5 Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
- 12.6 Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
- 12.7 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- 12.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- 12.9 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Missouri.
- 12.10 Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Missouri in each case located in the City of Buckner and County of Jackson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- 12.11 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only:
- upon receipt of the receiving party; and
- if the party giving the Notice has complied with the requirements of this Section.
- 12.12 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- 12.13 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.
- 12.14 Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.