GENERAL TERMS AND CONDITIONS
FOR SALE OF AFTERMARKET PARTS AND COMPONENTS
THESE GENERAL TERMS AND CONDITIONS (this “Agreement”) shall govern the purchase and sale of aftermarket parts, components, services and small equipment (“Parts”) supplied by U. S. Bottlers Machinery Co., Inc. (“Seller”). The customer (“Buyer”) shall be deemed to have full knowledge of and accepts the terms of this Agreement by purchasing Parts from Seller. Seller rejects all additional or different terms in any of Buyer’s forms or documents sent to Seller in connection with the purchase of Parts.
ORDERS:
All orders received for Parts are subject to acceptance by Seller. Each order must identify the quantity, model, part number, applicable price, the requested delivery date, and the shipping information. Orders may not be canceled or rescheduled without Seller’s written approval and confirmation.
PRICE:
The price for a Part, whether specified in Seller’s price list, written quotation or
acknowledgement is subject to change without notice. The price invoiced will be the price in effect at the time of shipment of the Part. Unless otherwise stated, the price is exclusive of shipping costs, insurance costs, duties, and all taxes.
QUOTATIONS:
If Seller provides Buyer with a quotation for the sale of a Part, the quotation shall be null and void after thirty (30) days from the date of the quotation, unless expressly stated by Seller in the quotation.
TAXES:
Seller’s prices on all Parts are exclusive of all federal, state and local sales, use and excise taxes and other similar taxes (collectively, “Taxes”). All Taxes will be added to the invoice at the time of shipment, unless Buyer provides Seller with a tax-exemption certificate acceptable to the relevant taxing authorities and Seller.
PAYMENT TERMS:
Terms are net thirty (30) calendar days from the date of Seller’s invoice, unless stated differently on Seller’s quotation/proposal.
DELIVERY:
Delivery date(s) are approximate and not guaranteed. Under no circumstances will Seller be responsible for or have any liability for any damages caused by or resulting from any delays in shipment, including, but not limited to, any actual, incidental, consequential, indirect or special damages including, but not limited to, loss of use and/or loss of anticipated profits. Delivery shall be made F.O.B. Seller’s plant at Charlotte, North Carolina. Buyer shall bear the risk from and after the time the Part(s) are placed in the hands of the carrier.
FREIGHT CHARGES:
Unless otherwise specified by “Seller,” freight charges will be invoiced prepaid by Buyer.
ORDER CANCELLATION:
The cancellation of an order must be approved in writing by Seller. Restocking charges will be determined based on whether the Part is a stock versus non-stock/custom Part. A minimum restocking charge of twenty-five percent (25.0%) of the price of the Part shall apply if Seller approves the cancellation. Non-stock and custom items may not be canceled after either design or production has begun.
RETURNED PARTS:
No Part shall be returned to Seller without Seller’s prior written authorization. All approved returns, whether new and unused or for warranty consideration, must be packaged in accordance with methods designed to handle the normal rigors of transportation and handling. All delivery charges to return the Part will be at Buyer’s expense. A coded return authorization number issued by Seller MUST accompany any Part which is returned to Seller. If the Part being returned is not clearly marked with the authorization number, confusion is created, causing delay in the processing of a returned Part. Any Part being returned to the Seller without an approved return authorization number will be refused with the resultant shipping expenses being the
responsibility of the Buyer.
LIMITED WARRANTY:
Subject to these Terms and Conditions, Seller warrants all Parts manufactured by Seller to be free of defects in materials and workmanship under normal use and service for which the Part is intended for a period of twelve (12) months from the original date of installation or eighteen (18) months from the date of shipment from the Seller, whichever occurs first. Parts furnished as replacements for a non-warranty situation automatically acquire only the unexpired portion of the warranty applied to the original Part. The Part to be replaced must be returned to Seller when requested by Seller. If Seller requests the Buyer to return the Part to be replaced, Buyer must
return the Part to Seller at its Charlotte, North Carolina plant (F.O.B. Seller’s plant) shipping prepaid by Buyer, within fifteen (15) days after requested to do so by Seller. Reasonable proof of the original installation date or shipment date of the Part must be provided to Seller in order to establish the effective date of the warranty failing which, the effective date will be based upon the date of manufacture plus thirty (30) days. Any labor, materials, transportation, freight, equipment, outside services or any other charges incurred in connection with the performance of this warranty shall be the responsibility of the Buyer.
This limited warranty does not cover (a) damages caused by accident, abuse, negligence, misuse, riot, war, fire, flood or acts of God; (b) damages caused by operating the Part in a corrosive atmosphere; (c) damages caused by any unauthorized operation, use of non-approved third-party parts or components or repair of the system in which a Part is incorporated, by a third-party affecting the Part’s reliability or performance; (d) damages caused by improper matching or application of the Part or the Parts components; (e) damages caused by failing to provide routine and proper maintenance or service to the Part or equipment in which the Part is incorporated; (f) Part loss; (g) expenses incurred for the erecting, disconnecting or dismantling of the Part; (h) Parts used in connection with normal maintenance; (i) Parts installed or operated other than in
accordance with the Seller’s printed instructions, with local installation or building codes and with good trade practices; or (j) Parts lost or stolen.
The Seller’s warranty Part replacement will be made by Seller directly to Buyer. Only the Seller’s Parts are to be used for in warranty replacement of defective Parts supplied by Seller. All warranty Parts are shipped either freight collect or prepaid and charged via the most economical means as determined by the Seller. The Seller reserves the right to furnish refurbished Parts for service replacements. The Seller reserves the right to replace defective Part(s) on an assembly rather than replacing the assembly. All in-warranty Parts that are defective and not required to be returned to the Seller must NOT be scrapped until a warranty credit is issued by Seller. Special circumstances may dictate that a certain Part must be returned to the Seller for analysis. Care must be taken to avoid premature disposal of any Part(s) prior to
authorization or issuance of a credit.
LIMITATION OF LIABILITY:
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, SELLER SHALL
NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE
OR OTHER INDIRECT DAMAGES, AND SELLER’S TOTAL LIABILITY ARISING
AT ANY TIME FROM THE SALE OR USE OF THE PART SHALL NOT EXCEED
THE PURCHASE PRICE PAID FOR THE PART. THESE LIMITATIONS APPLY
WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY
OR ANY OTHER THEORY. THIS LIMITED WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
HEREBY EXCLUDED.
FORCE MAJEURE:
Neither Buyer nor Seller shall be liable for any delay or failure in performance (other than failure with respect to payment obligations) due to acts beyond their control including, but not limited to, acts of God, war, warlike conditions, blockade, embargos, riots, governmental restrictions, labor disturbances, resultant disruption in supplies, transportation or loading facilities, wrecks, epidemics, quarantine, fire, flood, earthquake, explosion or any other causes beyond its reasonable control.
ARBITRATION:
Any dispute, controversy or claim arising out of this Agreement and/or the payment of any amount due from Buyer to Seller (collectively, “Disputes”) shall be governed by and construed in accordance with the substantive laws of the State of North Carolina.
All Disputes shall first be submitted to mediation administered under the North Carolina Rules For Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. If mediation does not resolve the Dispute, then such Dispute shall be settled by arbitration administered under the North Carolina Revised Uniform Arbitration Act as set forth in Article 45C, Chapter 1 of the North Carolina General Statutes; provided, however, that Seller shall have the right to opt out of any obligation to arbitrate and to require that any claim or dispute be asserted and maintained in a court of law if Seller, in its sole discretion, deems it necessary or appropriate to add a party or parties to the Dispute in order to resolve all issues in
one proceeding.
Notice of demand for arbitration shall be in writing and delivered to the other party within a reasonable time after the Dispute arises. The parties shall have the right to demand a pre-arbitration hearing to specify the issues to be resolved, to stipulate to uncontested facts, to establish a schedule for delivery and hearings and to consider any other matters that will expedite the arbitration proceedings. The parties shall have the right to conduct reasonable discovery in accordance with the North Carolina Rules of Civil Procedure. Judgment of the award rendered by the arbitrator(s) may be entered in any court having jurisdiction hereof. The award shall fix the assessment of any damages, and the sharing of costs subject to the attorneys’ fee provision below.
Any arbitration hearing shall be held in Charlotte, Mecklenburg County, North Carolina. Subject to the foregoing arbitration provisions, any lawsuit filed by Seller or Buyer against the other must be filed in the General Courts of Justice of Mecklenburg County, North Carolina. Seller and Buyer each agree, consent and submit to the personal jurisdiction of the North Carolina General Courts of Justice and to venue in Mecklenburg County, North Carolina and waive any objections as to such venue or the convenience of such forum.
In the event any Dispute concerning amounts claimed due from Buyer to Seller is placed in the hands of an attorney for collection, or arbitration proceedings or if suit is instituted to collect the same or any portion thereof, Buyer agrees to pay Seller’s attorney fees of fifteen percent (15%) of all amounts, including interest, then due and owing, plus all costs of collection and court fees.