GENERAL TERMS AND CONDITIONS OF SALE OF PRODUCTS AND SERVICES
The following terms and conditons (the “General Conditions” of this Agreement) apply to any sale of products and/or services rendered (engineering, design, reports, specifications) (the “Products”) by TotalShield, LLC, (“TotalShield”).
- GENERAL. THESE GENERAL CONDITIONS, TOGETHER WITH ANY NONCONFLICTING PROVISION IN TOTALSHIELD’S QUOTATION, ARE INTENDED BY THE PARTIES AS THE FINAL EXPRESSION, AND CONTAIN THE COMPLETE AND EXCLUSIVE STATEMENT, OF THE TERMS AND CONDITIONS OF THIS AGREEMENT SUPERSEDING ALL PREVIOUS OR SIMULTANEOUS COMMUNICATIONS EITHER ORAL OR WRITTEN. Any quotation by TotalShield is an offer which may only be accepted in full by Purchaser. In the event the Purchaser’s purchase order or other form states terms additional to or different from those set forth in this document, this writing shall be deemed notification of objection to such additional or different terms. Accordingly, this Agreement is expressly made conditional on Purchaser’s acceptance and assent to the conditions contained on the face and reverse side hereof. Acceptance of the condition contained herein shall be deemed to have occurred at the earlier of (i) seven calendar days from the date specified on TotalShield’s Acknowledgment Form unless written notice of objection is received by TotalShield prior to lapse of such seven day period, (ii) TotalShield’s identification of existing goods as goods to which this Agreement refers, or (iii) onset of TotalShield’s manufacturer of future goods. This Agreement cannot be waived, varied, modified, or amended, except in a writing signed by authorized representative of TotalShield, nor shall this Agreement be waived, varied, modified, or amended by any subsequent course of conduct between the parties.
- PRICE. Unless otherwise stated, applicable prices for the Products sold hereunder are net FCA (INCOTERMS 2020) TotalShield’s corporate office in Gainesville, Virginia (USA) (“FCA”), with freight and insurance for Purchaser’s account, and shall be those prices in effect at the time TotalShield accepts Purchaser’s order except as provided below. Because TotalShield’s prices are based upon costs and conditions existing on the date of acceptance, prices are subject to change as those conditions change. Accordingly, all orders are subject to increase in price of materials and labor while completing the work hereunder.
- TAXES. Prices exclude all duties, taxes, tariffs, or other governmental charges which now are, or hereafter may be, imposed upon the sale or use of the Products. TotalShield will add duties, taxes, tariffs, or other governmental charges to the sales price where TotalShield is required by law to pay or collect them and will be paid by Purchaser together with the price. Any exemption claimed from the application of such duties, taxes, tariffs, or other charges should be plainly designated on the face of orders placed with TotalShield and accompanied by exemption certificates where required.
- PAYMENT. Payment for Products is due as specified on the first page of TotalShield’s order acknowledgment. TotalShield may require payment to be made through an irrevocable letter of credit in favor of and acceptable to TotalShield and established by Purchaser at its expense. Credit card payments will be accepted up to an amount of seven thousand five hundred dollars per transaction. Amounts over this must be made through check or ACH.
- DELINQUENT PAYMENTS. In the event Purchaser fails to make any payment when due, in addition to all other sums payable hereunder, Purchaser shall pay to TotalShield the reasonable costs and expenses incurred by TotalShield in connection with all actions taken to enforce collection or to preserve and protect TotalShield’s rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys’ fees, court costs and other expenses. In addition, to the extent permitted by Purchaser’s local law, interest on all amounts unpaid after fifteen (15) days may be charged at the annual rate of 15 percent or the highest rate permitted by law, whichever is lower. If any invoice is not paid when due, TotalShield may suspend delivery of Products or other performance with respect to Purchaser without liability or penalty.
- TITLE AND SECURITY INTEREST. TotalShield reserves, and Purchaser hereby grants to and creates in favor of TotalShield, a first priority purchase money security interest in each Product (or the equivalent under Purchaser’s local law), including all component parts added by modification or repair, and all proceeds from the sale thereof, until full payment is received. Purchaser agrees to sign upon request, and hereby authorizes TotalShield to sign on its behalf and as its attorney in fact, any documents necessary to perfect TotalShield’s security interest. Upon resale, Purchaser agrees to take, and immediately assign to TotalShield, a perfected security interest in each Product.
- COMMENCEMENT OF FABRICATION. TotalShield will not, and is under no obligation to, commence fabrication of any Products ordered hereunder until:
(a) All complete contract plans, drawings and specifications have been delivered to TotalShield;
(b) All detail drawings submitted by TotalShield have been finally approved by all authorities whose approval is required;
(c) TotalShield has received all necessary information from other trades which affect or are related to our work or Products;
(d) TotalShield shall have received after completion of (a), (b) and (c), reasonable notice to commence fabrication of such Products; and
(e) All credits or debits for changes in quantity or design of material furnished shall have been accepted in writing by Purchaser.
- SHIPMENT: DELIVERY: CLAIMS. Unless otherwise agreed in writing by the parties, shipment and delivery of the Products shall be made FCA. Accordingly, costs for shipment, insurance or similar charges shall be borne by the Purchaser. Delivery of the Products to the first carrier shall constitute delivery to Purchaser. As of delivery to the first carrier, risk of loss is transferred to Purchaser, and all claims for loss or damage in transit or for non-delivery shall be made by Purchaser against the carrier. Notwithstanding the FCA designation, TotalShield reserves the right to select any mode of transportation. At TotalShield’s option, Products may be shipped in advance of requested shipment date or in installments or partial lots. Any delivery information (including time for shipment) is approximate. TotalShield’s sole responsibility will be to use reasonable commercial efforts to meet specified shipment dates. Purchaser expressly acknowledges that TotalShield shall not be liable for any loss or damage resulting from a failure to deliver or delays in delivery caused by a labor dispute (including a strike, slowdown or lockout), fire, flood, or governmental act or regulation, riot, inability to obtain supplies, materials or shipping space, plant breakdown, power failure, pandemic, delay or interruption of carriers, accidents, government regulations, including without limitation, failure to obtain export licenses, acts of God or other causes beyond TotalShield’s control. NOTWITHSTANDING THE ABOVE, TOTALSHIELD SHALL NOT BE LIABLE FOR ANY DAMAGE OR PENALTIES WHATSOEVER, WHETHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, RESULTING FROM TOTALSHIELD’S FAILURE TO DELIVER OR DELAY IN DELIVERY FOR ANY REASON.
- INSPECTION. Within five business days of receipt of the Products, Purchaser shall inspect the Products to check for shortages or any other nonconformity. Unless Purchaser notifies TotalShield in writing of any nonconformity (other than that relating to loss or damage in transit, which claims shall be made directly to the carrier) within seven business days of inspection, Purchaser shall be deemed to have accepted the Products without any qualifications and cannot, thereafter, reject the Products for any reason. In any event, Products accepted and used shall be deemed to have been accepted in good condition and in compliance with the specification and order therefore.
- CANCELLATION. This Agreement cannot be canceled or postponed by the Purchaser except with TotalShield’s consent and upon terms that will indemnify TotalShield against loss. Accordingly, Purchaser shall pay TotalShield the greater of (i) a charge equal to 15% of its total price or (ii) reasonable cancellation changes, TotalShield’s anticipated profit, and expenses already incurred by TotalShield in performing or preparing to perform the work required by Purchaser’s order, as invoiced by TotalShield.
- WARRANTY. Subject to the warranty limitation set forth in Section 12 below, TotalShield warrants that the Products sold hereunder will substantially conform to the applicable specifications and will be free from defects in material and workmanship for one year after shipment FCA, under normal and proper use and service. Shop drawings prepared by TotalShield and approved by Purchaser shall be deemed the correct interpretation of the work to be performed even when not consistent with the plans and specifications.
- WARRANTY LIMITATION. The Warranty and remedies for breach of warranty provided for in these General Conditions extend only to the original installation and do not cover, and TotalShield shall not be liable for, (i) abnormal wear and tear or damage caused by improper installation, maintenance or use contrary to the instructions published by TotalShield, (ii) storage of Products in a wet or damp area or unprotected from weather and other job conditions, (iii) any cause beyond the control of TotalShield, including without limitation conditions caused by movement, settlement or structural defects of the building in which the Products are installed, fire, wind, hail, flood, lightening or other acts of God, international acts, accidents, negligence or exposure to harmful chemical pollutants or other foreign matter or energy, (iv) repair or damage caused by anyone except personnel authorized by TotalShield, or (v) any scratches, abrasions or other damage to the finish of painted items after they leave TotalShield’s factory. Items repaired or replaced and designs corrected under warranty are warranted only for the remainder of the original warranty period. Any general Product literature is for illustrative purposes only and does not constitute a warranty of any kind. Purchaser accepts full responsibility for the selection of the Products to achieve intended results. THE WARRANTY SET FORTH IN SECTION 11 IS STRICTLY LIMITED TO ITS TERMS AND IS IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- REMEDY. Purchaser’s sole and exclusive remedy, and TotalShield’s only obligation for breach of warranty for Products furnished hereunder, shall be, at TotalShield’s option, to repair or replace the defective item or part that fails within the one year warranty period in Section 11, free of charge, provided that Purchaser promptly give notice to TotalShield of such failure, returns such item or part to TotalShield, freight prepaid, and upon examination TotalShield finds such to have been defective. Purchaser must pay for related costs of making the repair or replacement, including the costs of removal, installation or reinstallation of the Products. In the event Purchaser claims that the Products are defective, it must allow TotalShield’s personnel access and permission to inspect the Products at the site of installation or use.
- DISCLAIMER: LIMITATION OF LIABILITY. Purchaser understands and agrees that TotalShield shall not be liable for INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL OR OTHER SIMILAR DAMAGES including but not limited to loss of profit or revenues, damage for loss of the misuse of the Products, damage to property, claims of third parties, including personal injury or death suffered as a result of misuse of Products or failure of the purchaser to properly maintain the integrity of the products in use as instructed in the product accompanying letter report. TotalShield’s limitation of liability applies to the products, and their use thereof, as described in the product accompanying letter report, which details the information obtained from the purchaser on the scenario for which the products are designed, their design, and the proper and intended use and maintenance of the products. TotalShield is not liable for damages incurred from scenarios or situations of product use unknown to TotalShield at the time of product design and implementation.
- RESALE OF PRODUCTS. Upon resale of any Products sold hereunder, Purchaser agrees to extend to its customers no greater warranties than those contained herein and limit its liability and remedies to the same extent as those set forth herein.
- PURCHASER SPECIFICATION. TotalShield assumes no liability for any errors or omissions in any specifications provided by Purchaser, including any errors or omissions made by TotalShield in the interpretation of any such specifications. Any items included in any specifications provided by Purchaser and not listed and priced on TotalShield’s proposal or invoice are not part of this Agreement. Purchaser agrees, at its own expense, to defend, indemnify and hold harmless TotalShield against any and all losses, costs, damages, claims, liabilities or expenses of any kind, including without limitation reasonable attorneys’ fees, arising out of or resulting from, directly or indirectly, any injury or death to persons or damage to property caused by the designs, or specifications or instructions provided by or required for Purchaser which are incorporated by TotalShield into the Products.
- CONFIDENTIALITY. Except for non-confidential documentation provided to Purchaser for distribution with corresponding Products, Purchaser acknowledges that all technical, commercial and financial information disclosed to Purchaser by TotalShield is the confidential information of TotalShield. Purchaser shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.
- INFRINGEMENT WARRANTY. If a claim is made that any Product sold hereunder infringes any product rights of another, TotalShield will be responsible only for claims based on a valid U.S. Patent or copyright. TotalShield will defend the claim and hold Purchaser harmless from any final award of damages in such a patent or copyright infringement claim, provided that Purchaser gives TotalShield prompt notice of the claim and information, reasonable assistance and authority to defend and settle the claim. In the defense or settlement of the claim TotalShield may: (i) obtain for Purchaser the right to continue using the Product; (ii) replace or modify the Product to be non-infringing; or (iii) recall the Product and refund the purchase price. The warranty shall not apply to claims based solely on any third-party parts incorporated in the Products, or to Products manufactured to Purchaser’s designs, specifications or instructions, or to claims of infringement based on claimed rights other than patent or copyright, except that as to such other claims, TotalShield at its option may elect to defend against such claims without warranty as to award of damages. INFRINGEMENT WARRANTIES OR OBLIGATIONS NOT SPECIFICALLY STATED IN THIS SECTION ARE SPECIFICALLY DISCLAIMED.
- GOVERNMENTAL AUTHORIZATIONS. If the destination of any shipment made by TotalShield hereunder is outside to the United States, TotalShield will be responsible for applying, in its own name, for any required U.S. export license, and Purchaser will be responsible for timely obtaining and maintaining any required import license, exchange permit or any other governmental authorization required for the import of the Products and the remittance of payments to TotalShield. TotalShield and Purchaser will assist each other when such help is reasonably possible.
- EXPORT CONTROLS. Purchaser shall not export or allow the export or re-export the Products, any components thereof or any Confidential Information of ours without our express, prior, written consent and except in compliance with all export Laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, and, if applicable, relevant foreign Laws and regulations.
- SEPARABILITY: INVALIDITY. If any portion of this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid and unenforceable, the valid and enforceable provisions will continue to be given effect and bind the parties hereto.
- GOVERNING LAW. This instrument shall be deemed an agreement made under the laws of the State of Virginia, and for all purposes shall be construed and enforced in accordance with and governed by the laws of the State of Virginia without regard to its conflict of laws provisions and excluding the United Nations Convention for the International Sale of Goods. All actions arising hereunder shall be instituted in the State of Virginia.
- SUCCESSION. The provisions of this Agreement shall bind and inure to the benefit of the successors and assigns of the parties hereto.