STANDARD TERMS & CONDITIONS
1. Applicability. These terms and conditions are incorporated into Seller’s Order Form (collectively, “Contract”). With the exception of the Terms & Conditions contained in any Application for Business Credit, the Contract comprises the entire agreement between the parties, and supersedes all prior or contemporaneous communications, understandings, agreements, negotiations, representations, and warranties. The Contract prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer may have submitted a purchase order or contract
2. Sale of Equipment. Buyer hereby agrees to purchase from Seller such equipment, products and/or accessories described in the Order Form (collectively, the "Equipment"), which Seller agree to sell to Buyer, all upon the terms and subject to the conditions set forth in the Contract. If applicable, late payments shall accrue a finance charge of one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is less. Seller shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, arising out of Buyer’s failure to make all payments due under this Contract in a timely manner.
3. Taxes. Buyer is responsible for payment of all taxes and duties in addition to the purchase price of the Equipment. Buyer agrees to defend, indemnify and hold Seller harmless from any and all damages and expenses related to any levy or attempted levy of any other taxes or other fees on Seller.
4. Delivery, Title and Risk of Loss. Seller shall use reasonable efforts to deliver the Equipment to Buyer on the delivery date, if any, agreed to in the Contract. Buyer understands and agrees that this is only a forecasted delivery date and may be adjusted or revised for reasons beyond the control of Seller, including but not limited to, supply issues with Seller’s suppliers or delays related to transportation or related issues. Risk of loss passes to Buyer at the time the Equipment is delivered to the Buyer.
5. Manufacturer’s Warranties and Disclaimers. Seller does not manufacture or control the Equipment. The availability of the Equipment through Seller’s site does not indicate an affiliation with or endorsement of the Equipment. Accordingly, Seller does not provide any warranties with respect to Equipment. However, the Equipment is covered by the manufacturer's warranty. To obtain warranty service for defective products, please follow the instructions included in the manufacturer's warranty. THE EQUIPMENT IS PROVIDED "AS IS" AND SELLER MAKE NO WARRANTIES WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER AFFIRMS THAT SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO BUYER.
6. Modification. No amendment or modification of this Contract shall be valid or enforceable unless in writing and signed by the party sought to be charged, and no prior or current course of dealing between the parties, or any usage of trade or custom of the industry shall modify or supplement the terms and conditions of this Contract.
7. No Waiver. The failure of Seller to exercise any right granted hereunder shall not impair or waive Seller’s privilege of exercising such right to any subsequent time or times.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES WITH REGARD TO ANY CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE EQUIPMENT.
9. Indemnity. To the maximum extent permitted by applicable law, Buyer shall defend, indemnify and hold Seller, its officers, employees, agents, insurers, sureties, and affiliates, harmless from any and all losses, damages, expenses (including attorneys' fees), claims, suits, liabilities, fines and costs arising out of or in any way related to: (i) Buyer’s breach of this Agreement; or (ii) any act or omission by or on behalf of Buyer, its employees, contractors and/or agents.
10. Inspection. Buyer shall inspect the Equipment delivered to Buyer for conformity and notify Seller in writing of any non-conforming element within fifteen (15) days of the date of delivery, failing which Buyer shall be deemed to be satisfied thereof. Under no circumstances will any Equipment be replaced, nor will any credit be granted, if such Equipment has been altered, modified or transformed in any way since the date of delivery.
11. Use of Products. Buyer shall be solely responsible for the use of the Equipment. Buyer will use and maintain the Equipment in a reasonably competent manner and in accordance with this Contract and all Documentation made available to Buyer. Buyer shall comply with this Contract and all rules, laws, regulations and by-laws relating to the use of the Equipment. For the purposes hereof, the term "Documentation" means any user manual, maintenance guide, user policy, support material, training material and other technical documentation relating to the Equipment, as updated from time to time by the manufacturer and made available to its customers using the Equipment.
12. Applicable Law. This Contract, and the rights, duties, obligations, and remedies of the parties shall be governed by or construed in accordance with the laws of the State of Georgia.
13. MANDATORY BINDING ARBITRATION: ALL CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATED TO THIS CONTRACT SHALL BE SUBMITTED TO AND RESOLVED BY BINDING ARBITRATION BY A SINGLE ARBITRATOR IN COBB COUNTY, GEORGIA. THE AMERICAN ARBITRATION ASSOCIATION SHALL CONDUCT THE ARBITRATION AND THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES.