As used herein the term “Seller” refers to GAE EXPERTISE INC. whether acting as reseller of Products or as sales agent or in any other capacity as intermediary. Seller’s legal capacity with respect to a specific transaction shall be determined by the contract, agreement or other writing executed by Seller and Customer. The term “Customer” refers to any person placing an order for Products. The term “Products” means goods manufactured by third party suppliers now or hereinafter offered for sale by or through Seller.
By submitting an order for Products, Customer acknowledges and agrees to the applicability of these General Terms and Conditions of Sale to such order except to the extent the same may from time to time be modified by contract or other writing signed by Seller (“Written Agreement”) Unless Seller shall expressly consent in a Written Agreement to their applicability in whole or in part, any other conditions or terms of sale or purchase, or any conditions or terms of sale or purchase contrary to those set forth herein are hereby expressly rejected by Seller. The provisions of any Written Agreement shall prevail over, and shall govern and control in all respects with regard to, any conflicting or inconsistent provisions in the present General Terms and Conditions of Sale.
All of Seller’s offers are subject to change without notice and no order shall give rise to a contract or any other obligation on the part of Seller until such time as Seller has accepted such order by issuance of a written order confirmation or delivery of the Products ordered. In addition, no diagrams, models, illustrations, specifications or other information or documentation provided by Customer in connection with any order shall be binding upon Seller unless and until the same are confirmed and accepted in Seller’s written order confirmation or are incorporated in the Products. Seller reserves the right to reject individual orders, in whole or in part, and (i) to make its acceptance of an order contingent upon the issuance in Seller’s favor of an irrevocable and divisible documentary letter of credit in such amount and subject to such additional terms as Seller, in its sole discretion, deems necessary and/or (ii) to require such other and/or additional instruments, including but not limited to, UCC financing and continuation statements,or similar documents used in any other domestic or foreign jurisdiction, as from time to time appear to Seller to be advisable.
Unless otherwise specifically provided in a Written Agreement executed by Seller and Customer, all transactions governed by Seller’s General Terms and Conditions shall be governed by and interpreted in accordance with the substantive law of the State of Florida, United States of America, and no transactions to which Seller is a party shall be governed by the United Nations Convention for the International Sale of Goods.
Except as otherwise provided in any Written Agreement, all deliveries of Products shall ensue pursuant to Seller’s terms and prices in effect as of the date of shipment of such Products. Seller reserves the right to make partial shipments. Any time periods applicable to Seller’s delivery of Products shall commence, subject to Customer’s obligation to provide Seller with such documents, approvals, deposits and/or other items required by Seller to effect delivery, with Seller’s issuance of a written order confirmation, and compliance by Seller with any delivery time frame shall be deemed to have occurred when the Products have left Seller’s or manufacturer’s facility or, in the event shipment is delayed at the request of Customer or for any reason attributable to Customer, upon the availability of such Products for shipment. In the event a price increase should take effect during the pendency of a transaction or in the event of an amendment to these General Terms and Conditions of Sale during the pendency of a transaction, such increased price or change in these General Terms and Conditions of Sale shall be applicable to all Products which have not yet been shipped and any other aspect of the transaction as to which performance has not yet been rendered. Seller’s acceptance of any order is subject to the right to amend any credit terms which may be in effect at the time of such acceptance.
All sales of Products shall be governed the the specific Incoterms (2000) term indicated in a Written Agreement. Seller’s prices shall be as individually set forth in Seller’s order confirmations and invoices. In general, unless otherwise specified in a Written Agreement, Seller’s prices shall be exclusive of shipping charges, the cost of containers or other packing material, insurance and any and all taxes and/or duties arising from the sale and/or shipment or delivery of the Products, all such excluded items to be for the account of the Customer. All invoices shall be payable in full without any deduction or set-off whatsoever, within such payment period as is indicated in a Written Agreement or invoice. In the event payment in full is not received by Seller within the aforementioned payment period, interest shall be payable on the amount outstanding at a rate of ten percent (10%) per annum. Without prejudice to Seller’s right to enforce payment or seek redress pursuant to any security interest or applicable law, any such interest and any other amounts due to Seller but not yet paid shall be due and payable in full upon receipt of Seller’s debit notice.
To the extent not expressly assumed by Seller herein, Customer shall bear responsibility for all charges relating to the Products or their shipment, including specifically, but without limitation, any surcharges relating to express shipments and any and all duties, sales, value added or other taxes or any other assessment or levy imposed under the laws of any jurisdiction.
Customer shall notify Seller in writing of any defects or discrepancies alleged to exist with respect to the Products, setting forth in detail the nature of the alleged defect or discrepancy no later than ten days after Customer’s receipt of the Products in question or discovery of the defect or discrepancy, whichever occurs first; provided, however, that no such claims shall be asserted more than six (6) months from Customer’s receipt of the Products, and provided further that Seller shall bear no responsibility for defects, discrepancies or damages arising out of or in connection with any utilization of the Products which is not in conformity with the instructions for Product use promulgated by Seller, incorrect assembly or installation of any Product or component thereof on the part of Customer or third parties, negligence or willful misconduct on the part of Customer or any third parties, normal wear and tear, or any other cause other than fault on the part of the Seller. Seller’s sole responsibility for defects or deficiencies arising with respect to components manufactured or supplied by parties other than Seller or for damage to Products arising from their shipment to Customer shall be limited to an assignment to Customer of any claims Seller may have against such other party. Where a claim is made that Products are defective, the Customer shall make such Products available for inspection by Seller or its authorized agents and shall comply with all instructions or directions which Seller, pending repair of the defects or deficiencies alleged to exist or other disposition of a Customer claim as hereinafter provided, may from time to time impart with regard to the storage, transportation or other disposition of the Products. Seller assumes no responsibility for repair of alleged defects or deficiencies or damages alleged to exist or damages alleged to be suffered by a Customer, where the Customer has not complied with Seller’s directives. Should Seller, in its discretion, determine such a claim to be justified, Seller shall have the option either to (i) repair or replace the Products or component thereof at Seller’s expense, in which case Seller shall be permitted a reasonable period of time to effect such repair or replacement, or to (ii) reimburse to Customer the purchase price therefor. Seller shall in both instances be entitled to take back any Products or components thereof alleged to be defective or otherwise non-conforming. Any other or additional claims or remedies on the part of the Customer, including specifically, but without limitation, any claim for damages (whether incidental, consequential (including loss of profits) or otherwise) or diminution of the purchase price are expressly excluded.
SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. There shall be no implied warranties that extend beyond any express warranties contained in a Written Agreement. Customer affirms that it has not relied upon the Seller’s skill nor judgment to select or furnish the Products for any particular purpose beyond the specific express warranties in a Written Agreement. Seller specifically does not warrant the Products will comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other domestic or foreign jurisdiction whatsoever beyond the specific express warranties in a Written Agreement.
All Products shall remain the property of the Seller until such time as all obligations on the part of the Customer relating to the order, including but not limited to payment in full of all sums owing to Seller in connection with such order, have been discharged in full, and Seller shall have the right to cause such Products to be insured, at Customer’s expense, until discharge of all such obligations. Customer hereby grants to Seller a continuing first-priority security interest in and to all Products from time to time purchased by Customer and all proceeds there from, and authorizes Seller to file in the name of and on behalf of Customer such UCC financing statements (including continuation and/or amendatory statements) or other security instruments in such jurisdictions as Seller, in its sole discretion, deems appropriate. Until discharge of all of Customer’s obligations to Seller, Products shall not be re-sold, pledged as collateral to third parties or otherwise utilized as security. Customer shall be obligated to oppose and to inform Seller without delay of any attempt on the part of third parties to enforce any claim against the Products.
Absent Seller’s express written authorization, all patents, trademarks, copyrights and/or other intellectual property rights on the part of Seller or manufacturer in and to the Products, any component thereof, methodology utilized therein and/or any samples, prototypes, plans, models, brochures, drawings, advertisements or other documentation or objects relating to the Products shall remain the sole and exclusive property of Seller (or manufacturer as the case may be) notwithstanding any sale, promotion or other disposition of the Products, and Customer shall refrain from divulging, licensing or otherwise disposing over such property right to any person other than Customer.
For such time period as the event giving rise to an event of forcemajeure exists, Seller shall be relieved of any obligation to make delivery of any Products and/or otherwise perform any obligation incumbent upon it in the event such delivery or other performance is rendered impossible or disproportionately difficult on account of forcemajeure. As used herein, the term “forcemajeure” shall include, but not be limited to, fire, floods, storms, hurricanes, earthquakes, strikes, lockouts, acts of the public enemy, acts of terrorism, war declared or undeclared, blockade, revolution, riot, insurrection, civil commotion, inability to obtain or delay in obtaining equipment or transport not attributable to fault on the part of the Seller, inability to obtain or delay in obtaining any governmental approvals not attributable to fault on the part of Seller and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of Seller or any of Seller’s suppliers or agents.
Seller may, in its discretion, waive any non-compliance on the part of the Customer of the terms and conditions contained herein, provided, however, that any such waiver must be express and in writing and no such waiver shall affect or impair the right of the Seller to require compliance with such term or condition on any subsequent occasion or effect a waiver of any other term or condition.
In the event any term or condition set forth herein is determined in any applicable jurisdiction to be invalid or unenforceable, such invalid or unenforceable term or condition shall be deemed to be stricken here from in such (but not in any other) jurisdiction and shall thereupon be replaced by that valid and enforceable term or condition most nearly equivalent in economic effect to the provision so stricken. In no event shall such invalid or unenforceable term or condition affect the validity or enforceability of any other term or condition set forth herein.