TERMS AND CONDITIONS OF SALE
Atlantic South Power Critical Systems is herein referred to as the “Seller” and the customer or person or entity purchasing goods and/or services (“Goods”) and/or licensing software and/or firmware, which are preloaded, or to be used with Goods (“Software”) from Seller is referred to as the “Buyer.” These Terms and Conditions, any price list or schedule, quotation, acknowledgment, Seller’s scope of work, or invoice from Seller relevant to the sale of the Goods and licensing of Software and all documents incorporated by specific reference herein or therein, constitute the complete and exclusive statement of the terms of the agreement governing the sale of Goods and/or license of Software by Seller to Buyer. Seller’s acceptance of Buyer’s purchase order is expressly conditional on Buyer’s assent to all of Seller’s terms and conditions of sale, including terms and conditions that are different from or additional to the terms and conditions of Buyer’s purchase order. Buyer’s acceptance of the Goods and/or Software will manifest Buyer’s assent to these Terms and Conditions. Seller reserves the right in its sole discretion to refuse orders.
1. PRICES: Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Goods and/or Software shall remain in effect for thirty (30) days after the date of Seller’s quotation provided an unconditional authorization from Buyer for the shipment of the Goods and/or Software is received and accepted by Seller within such time period. If such authorization is not received by Seller within such thirty (30) day period, Seller shall have the right to change the price for the Goods and/or Software to Seller’s price for the Goods and/or Software at the time of shipment. All prices and licensee fees are exclusive of taxes, transportation and insurance, which are to be borne by Buyer.
2. TAXES: Any current or future tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods and/or Software, shall be for Buyer’s account and shall be added to the price or billed to Buyer separately, at Seller’s election..
3. TERMS OF PAYMENT: Unless otherwise specified by Seller, terms are net thirty (30) days from date of Seller’s invoice in U.S. currency. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due, which other agreements Buyer and Seller hereby amend accordingly. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries of Goods and/or Software. If such cash payment or security is not provided, in addition to Seller’s other rights and remedies, Seller may discontinue deliveries. Buyer hereby grants Seller a security interest in all Goods and/or Software sold to Buyer by Seller, which security interest shall continue until all such Goods and/or Software are fully paid for, and Buyer, upon Seller’s demand, will execute and deliver to Seller such instruments as Seller requests to protect and perfect such security interest.
4. SHIPMENT AND DELIVERY: While Seller will use all reasonable commercial efforts to maintain the delivery date(s) and/or performance dates acknowledged or quoted by Seller, all shipping dates and/or performance dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Goods, Parts, and/or Software for which Buyer has not provided shipping instructions and other required information. If the shipment of the Goods, Parts, and/or Software is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. For sales in which Buyer’s ship to address for the Goods, Parts, and/or Software is outside of the United States, risk of loss and legal title to the Goods, Parts, and/or Software shall transfer to Buyer immediately after the Goods, Parts, and/or Software have passed beyond the territorial limits of the United States. In all other instances risk of loss and legal title to the Goods, Parts, and/or Software shall transfer from Seller to Buyer immediately upon shipment from the FCA Seller’s Shipping Point. All shipments of Goods, Parts, and/or Software are made on a Free Carrier (FCA) Seller’s Shipping Point basis, per Incoterms 2010, with Buyer responsible for all official export formalities, authorizations, risks and expenses as may be applicable for export from the country of shipment. Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be identified and signed for at the time of delivery.
5. LIMITED WARRANTY: Subject to the limitations of Section 6, Seller’s standard warranty that is applicable to the Goods and/or Software at the time of purchase is the only warranty applicable to the sale of Seller’s Goods and/or Software and its terms, conditions and limitations are incorporated by reference herein. THE WARRANTY SET FORTH IN THIS SECTION 5 AND THE WARRANTY SET FORTH IN SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND/OR SOFTWARE AND ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS, DRAWINGS OR OTHERWISE, AND WHETHER OR NOT SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
SELLER’S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, negligence (other than Seller’s), unauthorized modification or alteration, use beyond rated capacity, unsuitable power sources or environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the Goods and/or Software and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained herein that are affected by such conditions shall be null and void.
Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Goods and/or Software, either alone or in combination with other products/components.
6. LIMITATION OF REMEDY AND LIABILITY: THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER (OTHER THAN THE WARRANTY PROVIDED UNDER SECTION 7) SHALL BE LIMITED TO REPAIR, CORRECTION OR REPLACEMENT, OR REFUND OF THE PURCHASE PRICE UNDER SECTION 5.
SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS AND/OR SOFTWARE PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
BUYER AGREES THAT SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS SHALL NOT EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment.
Buyer expressly acknowledges and agrees that Seller has set its prices and entered into this Agreement in reliance upon the limitations of liability, insurance and other terms and conditions specified herein, which allocate the risk between Seller and Buyer and form a basis of this bargain between the parties.
It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods and/or Software is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer’s risk.
7. PATENTS AND COPYRIGHTS: Subject to the limitations of the second paragraph of Section 6, Seller warrants that the Goods and/or Software sold, except as are made specifically for Buyer according to Buyer’s specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. This warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperate fully with Seller and permit Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller’s warranty as to utility patents only applies to infringement arising solely out of the inherent operation according to Seller’s specifications and instructions of such Goods and/or Software. In the event (i) such Goods and/or Software are held to infringe such a U.S. patent or copyright in such suit, and the use of such Goods and/or Software is enjoined, or (ii)a compromise or settlement is made by Seller, Seller shall have the right, at its option and expense, to procure for Buyer the right to continue using such Goods and/or Software, or replace them with noninfringing Goods and/or Software, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and/or Software and accept return of them. In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Goods and/or Software, without liability.
8. INSURANCE: Seller shall maintain the following insurance or self-insurance coverage: Worker’s Compensation in accordance with the statutory requirements of the state in which work is performed. Employer’s Liability with a limit of liability of $2,000,000 per occurrence for bodily injury by accident or bodily injury by disease. Commercial General Liability (CGL) for bodily injury and property damage with a limit of $2,000,000 per occurrence and aggregate. CGL includes Contractual Liability. CGL does not include Products and Completed Operations coverage, which is self-insured. Automobile Liability insurance that covers usage of all owned, non-owned and leased vehicles and which is subject to a combined single limit per occurrence of $2,000,000. Automobile Liability insurance includes Contractual Liability and Cross Liability, but no special endorsements.
9. EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; epidemic; fire; flood; weather; sabotage; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supply the total demand for the Goods and/or Software, or to obtain material used directly or indirectly in the manufacture of the Goods and/or Software, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Goods, Software, and/or such material (without obligation to acquire other supplies of any such Goods, Software, or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
10. CANCELLATION/CHANGES: Buyer may cancel orders only upon reasonable advance written notice and upon payment to Seller of Seller’s cancellation charges which include, among other things, all costs and expenses incurred, and, to cover commitments made, by the Seller and a reasonable profit thereon. Seller’s determination of such cancellation charges shall be conclusive. Buyer may request changes or additions to the Goods and/or Software consistent with Seller’s specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees, and dates of delivery and/or performance dates. Seller reserves the right to change designs and specifications for the Goods and/or Software without prior notice to Buyer, except with respect to Goods and/or Software being made-to-order for Buyer. Seller shall have no obligation to install or make such change in any Goods and/or Software manufactured prior to the date of such change.
11. NUCLEAR/MEDICAL: GOODS AND SOFTWARE SOLD HEREUNDER ARE NOT FOR USE IN THE CONTROL AREA OR ANY REACTOR CONNECTED OR SAFETY APPLICATIONS OR WITHIN THE CONTAINMENT AREA OF A NUCLEAR FACILITY OR FOR INTEGRATION INTO MEDICAL DEVICES. Buyer accepts Goods and Software with the foregoing understanding, agrees to communicate the same in writing to any subsequent purchasers or users and to defend, indemnify and hold harmless Seller from any claims, losses, suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
12. SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or applicable third party licensor to Seller shall retain all rights of ownership and title in its respective Software, including without limitation all rights of ownership and title in its respective copies of such Software. Except as otherwise provided herein, Buyer is hereby granted a nonexclusive, non-transferable royalty free license to use the Software incorporated into the Goods solely for purposes of Buyer properly utilizing such Goods purchased from Seller. All other Software shall be furnished to, and used by, Buyer subject to Seller’s (or the licensor’s) applicable standard license agreement, the terms of which are incorporated herein by reference.
13. TOOLING: Tool, die, and pattern charges, if any, are in addition to the price of the Goods and are due and payable upon completion of the tooling. All such tools, dies and patterns shall be and remain the property of Seller. Charges for tools, dies, and patterns do not convey to Buyer, title, ownership interest in, or rights to possession or removal, or prevent their use by Seller for other purchasers, except as otherwise expressly provided by Seller and Buyer in writing with reference to this provision.
14. INSPECTION/TESTING/INSTALLATION: Buyer, at its option and expense, may observe the inspection and testing by Seller of the Goods and/or Software for compliance with Seller’s standard test procedures prior to shipment, which inspection and testing shall be conducted at Seller’s plant at such reasonable time as is specified by Seller. Any rejection of the Goods and/or Software must be made promptly by Buyer before shipment. Tests shall be deemed to be satisfactorily completed and the test fully met when the Goods and/or Software meet Seller’s criteria for such procedures. If Buyer does not inspect the Goods and/or Software at Seller’s plant as provided herein, Buyer shall have ten (10) days from (i) the date of delivery of goods and/or Software and (ii) from the date of completion of each portion of the services to inspect the Goods and/or Software, and in the event of any non-conformity, Buyer must give written notice to Seller within said period stating why the Goods and/or Software are not conforming. Failure by Buyer to give such notice constitutes unqualified acceptance of the Goods and/or Software. Buyer’s sole remedy for non-conforming services shall be correct performance of services incorrectly performed by Seller. Buyer shall be responsible for receiving, inspecting, testing, storing, installing, starting up (unless included in Seller’s proposal) and maintaining all Goods.
15. RETURNED GOODS: Advance written permission to return Goods and/or Software must be obtained from Seller in accordance with Seller’s then current Return Material Authorization (RMA) procedures and a return authorization number issued. Such Goods and/or Software must be (i) current, unused Goods and/or Software, (ii) free of all liens, encumbrances, or other claims, and (iii) shipped, transportation prepaid, to Seller’s specified location. Returns made without proper written permission will not be accepted by Seller. Seller reserves the right to inspect Goods and/or Software prior to authorizing return.
16. BILLABLE SERVICES: Additional charges will be billed to Buyer at Seller’s then prevailing labor rates for any of the following: (a) any services not specified in Seller’s quotation, Seller’s order acknowledgement, or other documents referenced herein and therein; (b) any services performed at times other than Seller’s normal service hours; (c) if reasonable site and/or equipment access is denied the Seller service representative; and (d) if it is necessary, due to local circumstances, to use union labor or hire an outside contractor, Seller service personnel will provide supervision only and the cost of such union or contract labor will be charged to Buyer.
17. DOCUMENTATION/BUYER SUPPLIED DATA: Seller shall provide Buyer with that data/documentation which is specifically identified in Seller’s quotation. If additional copies of data/documentation are to be provided by Seller, it shall be provided to Buyer at Seller’s applicable prices then in effect. Seller’s prints and drawings (including without limitation, the underlying technology) furnished by Seller to Buyer in connection with this agreement are the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing and sale. Possession of such prints or drawings does not convey to Buyer any rights or license, and Buyer shall return all copies (in whatever medium) of such prints or drawings to Seller immediately upon request therefor. To the extent that Seller has been provided by, or on behalf of, Buyer any specifications, description of operating conditions or other data and information in connection with the selection or design of the Goods and/or Software, and/or the provision of Services, and the actual operating conditions or other circumstances differ from those provided by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are affected by such conditions shall be null and void.
18. EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States, and the jurisdictions in which the Seller and Buyer are established or from which Goods, Software, and Services may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Goods or Software in violation of such applicable laws, regulations, orders or requirements.
19. GENERAL PROVISIONS: These terms and conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon the Seller unless made in writing and signed on its behalf by a duly authorized representative of Seller. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification or additional terms shall be applicable to this agreement by Seller’s receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. Any such modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the law of the state of New Jersey without regard to its conflict of laws principles. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in New Jersey and the parties agree to submit to such jurisdiction. No action, regardless of form, arising out of transactions relating to this contract, may be brought by either party more than two (2) years after the cause of action has accrued. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to this agreement. Buyer shall not solicit, directly or indirectly, or employ any employee of Seller during the period any Goods are being provided to Buyer and for a period of one (1) year after the last provision of Goods.
20. INDEMNITY: Each party shall indemnify and hold the other party harmless from loss, damage, liability or expense resulting from damage to personal property of a third party, or injuries, including death, to third parties to the extent caused by a negligent act or omission of the party providing indemnification or a party’s subcontractors, agents or employees during performance of services hereunder. Such indemnification shall be reduced to the extent damage or injuries are attributable to others. The indemnifying party shall defend the other party in accordance with and to the extent of the above indemnification, provided that the indemnifying party is: (i) promptly notified by the other party, in writing, of any claims, demands or suits for such damages or injuries; (ii) given all reasonable information and assistance by the other party; (iii) given full control over any resulting negotiation, arbitration or litigation, including the right to choose counsel and settle claims, or the indemnifying party’s obligations herein shall be deemed waived.
DEHN PRODUCTS
TERMS AND CONDITIONS OF SALE
SCOPE OF AGREEMENT. All shipments, services, sales and quotations between Atlantic South Power and the purchaser (“Purchaser”) are subject to the terms and conditions of sale contained herein (“Terms and Conditions”), and receipt by Purchaser of the Terms and Conditions without immediate written objection thereto and/or acceptance by Purchaser of an order of Merchandise, as hereunder defined, which is confirmed or accompanied by the Terms and Conditions, shall constitute an acceptance by Purchaser of the Terms and Conditions. The Terms and Conditions shall govern any such order and all future business transactions between ASP and Purchaser relating to the design, manufacture, purchase and sale of goods even in cases where the Terms and Conditions are not expressly re-agreed upon.
ACCEPTANCE. All orders become effective only when accepted by Atlantic South Power and written acknowledgment.
SCHEDULING. The shipping date specified herein is approximate and is based upon prompt receipt of all necessary information. Atlantic South Power shall not be liable for any delay in the performance of orders or contracts or in the delivery of shipment of Merchandise or for any damages suffered by Purchaser by reason of such delay when such delay is, directly or indirectly, caused by, or in any manner, arising from fires, floods, accidents, riots, acts of God, war, governmental interference or, embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these herein before specified) beyond the control of Atlantic South Power.
CANCELLATIONS. An order placed with and accepted by Atlantic South Power can be cancelled by Purchaser only with the prior written consent of Atlantic South Power and only upon terms that will indemnify Atlantic South Power for all losses incurred by Atlantic South Power associated with Purchaser’s cancellation, including but not limited to, the costs already incurred by Atlantic South Power in performance of its contractual duties, any profits which Atlantic South Power would have received had the contract been completed. If Purchaser makes an assignment for the benefit of creditors, if a petition or other proceeding, voluntary or involuntary, is filed by or against Purchaser under applicable bankruptcy, reorganization or other insolvency laws, if Purchaser generally becomes unable to pay its debts as they become due, or if Purchaser fails to remit payment to Atlantic South Power for the Merchandise in accordance with the terms hereof, Atlantic South Power may, at its option, cancel a delivery of undelivered Merchandise or any confirmed orders effective immediately by giving Purchaser written notice of such cancellation.
DELIVERY. Unless otherwise agreed to in writing, delivery of the Merchandise hereunder shall be made F.O.B. Atlantic South Power’s dock, freight collect. Risk of loss shall pass to Purchaser when Merchandise is delivered to carrier. If shipment is deferred at the request of Purchaser, Purchaser agrees to pay a delayed delivery storage fee at the rate of 1 ½% of the net invoice value of the shipment per month beyond the normal shipping date.
ACCEPTANCE. Purchaser shall have a reasonable time, not to exceed ten (10) days following receipt of the Merchandise by Purchaser, to give written notice to Atlantic South Power of any claim that the Merchandise is defective or nonconforming, provided that a reasonable inspection should have revealed such defect or nonconformity. If Purchaser shall fail to give such notice within such time period, the Merchandise shall be deemed to conform to the terms of the order, and Purchaser shall be deemed to have accepted the Merchandise.
TAXES. Any and all sales, manufacturer’s taxes and or charges levied or imposed by governmental authority, foreign or domestic, upon any merchandise sold or contracted to be sold shall be paid by Purchaser and added to the purchase price unless appropriate tax exemption certificates are supplied to Atlantic South Power in form satisfactory to Atlantic South Power.
PAYMENTS. Terms of payment are as specified in our offer and are subject to approval by our credit department at the time of receipt of order. Delinquent payments are subject to service charge on the unpaid balance equal to the lower of 1 ½% per month or the maximum rate permitted by law until all amounts are paid in full. If the financial responsibility of Purchaser becomes unsatisfactory to ASP, or Purchaser is in default to Atlantic South Power under any order, ASP may require payment in cash before shipment of goods. Please note: We do NOT accept credit card payments on term accounts.
Payment must be made by check, wire transfer or ACH payment. Credit Card payments may be subject to a 3% surcharge.
PATENTS. On Merchandise manufactured to Purchaser’s specifications, Purchaser shall indemnify and hold harmless Atlantic South Power against any claims, damages, liabilities, costs and expenses (including attorney’s fees) arising out of or resulting from actual or alleged infringement of patent, copyright, trademark or other proprietary rights, or claim of unfair trade or unfair competition arising from or occasioned by the use, possession, sale or delivery of any Merchandise sold by Atlantic South Power.
CONFIDENTIALITY. All specifications, drawings, sketches, models, samples, designs, technical information or data, written, oral or otherwise furnished by or on behalf of Atlantic South Power shall remain the property of Atlantic South Power and shall be returned (together with all copies) promptly upon Atlantic South Power’s request. Such information shall be treated as confidential and shall not be used disclosed or reproduced by Purchaser, except as required in the course of performance hereunder. Purchaser’s obligations of confidentiality hereunder with respect to each item of confidential information shall extend for a period of five (5) years from the date of Atlantic South Power’s acceptance of the order to which the items of confidential information in question pertain; provided, however that Purchaser’s obligations of confidentiality hereunder with respect to any such items of information which rise to the level of a trade secret (as defined under applicable law) shall remain in full force and effect for so long as such information remains a trade secret under applicable law. For purposes hereof, the confidentiality obligations embodied herein do not extend to any information which, at the time of disclosure, (i) is already known or independently developed by Purchaser; (ii) is in the public domain through no wrongful act of Purchaser; or (iii) is received by Purchaser from a third party who was free to disclose such information. The parties acknowledge that the rights of Atlantic South Power hereunder are in addition to those rights Atlantic South Power may have under common law or applicable statutes for the protection of trade secrets.
INTELLECTUAL PROPERTY. All rights in all designs, drawings, models, sketches, copyrightable works, trademarks, service marks, trade dress, trade secrets, patents, information, inventions, ideas, processes and materials developed by Atlantic South Power prior to or independently of Purchaser’s accepted order for the Merchandise shall remain the sole property of Atlantic South Power, whether or not presented, disclosed or delivered by Atlantic South Power to Purchaser.
DEFAULTS, TERMINATION. If Purchaser should default in the fulfillment of any obligation or condition hereunder, and such default is not cured within thirty (30) days after written notice from Atlantic South Power specifying the nature of such default, then Atlantic South Power shall have the right to terminate an accepted order by giving notice of termination to Purchaser. Such right of termination shall be in addition to, but not in lieu of, any other remedies that may be available to Atlantic South Power at law or in equity.
WARRANTY. ASP warrants to the original Purchaser of any new Merchandise that the Merchandise is free from defects in material and workmanship under normal use and service for a period of five (5) years from the date of delivery. The obligation of Atlantic South Power under this Warranty is limited, in its exclusive option to repair, replace or issue credit for parts or materials which prove to be defective. All costs incurred by Purchaser, including labor and shipping costs, shall be the sole responsibility of Purchaser. Atlantic South Power shall not be responsible for any damage or lack of performance resulting from: (a) defects due to accident, negligence, alteration, modification, faulty installation, abuse or misuse by Purchaser or Purchaser’s agents or employees; (b) attempted or actual dismantling, disassembling, service or repair by any person, firm or corporation not specifically authorized in writing by ASP, (c) defects caused by or due to handling by carrier, or incurred during shipment, transshipment or other moves. Any claim of defect must be reported promptly in writing to Atlantic South Power.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED ON THE PART OF ASP, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE, AND ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES ARISING FROM ANY BREACH THEREOF. ASP NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON, FIRM OR CORPORATION TO ASSUME ANY LIABILITY OR OBLIGATION IN CONNECTION WITH THIS SALE ON ITS BEHALF AND PURCHASER ACKNOWLEDGES THAT NO REPRESENTATIONS EXCEPT THOSE MADE HEREIN HAVE BEEN MADE TO PURCHASER.
RETURNS. No Merchandise may be returned to Atlantic South Power without prior written permission, which permission may be withheld by Atlantic South Power in its sole discretion. Custom order parts are nonreturnable. All return shipments are to be via prepaid freight. Returns are subject to a 20% restocking fee. Product must be returned in new and unused condition and is subject to inspection by Atlantic South Power SECURITY TITLE. Security title and right of possession to the Merchandise sold hereunder shall remain with Atlantic South Power until all payments hereunder (including deferred payments whether evidenced by notes or otherwise) shall have been made in cash, and the Purchaser agrees to do all acts necessary to perfect and maintain such security rights and title to ASP.
INDEMNIFICATION. Purchaser shall defend, indemnify and hold Atlantic South Power harmless from and against all claims, liabilities, costs and expenses including, but not limited to, those related to any personal injury or property damage, arising from in connection with the possession, handling, processing or use of the Merchandise by Purchaser or others. Atlantic South Power may participate in the defense of any such claim for the further protection of its own interests.
Order Confirmation from Atlantic South Power for all products including, but not limited to lightning rods, earthing components, SPDs and/or safety products constitutes acceptance by the buyer of all responsibility to use, install and operate the product as described in all printed and electronic instructions. The buyer acknowledges they have read and understand the proper use and installation of the product including but not limited to dissimilar metal effects, fastener torque values, voltage ratings, calibration, cleaning and industry compliance. ASP to be held harmless for any damages incurred from the misuse or improper application of the product from either natural or man-made causes. Order Confirmation from Atlantic South Power to the buyer takes contractual precedence in any further legal proceedings.”
ASSIGNABILITY. Purchaser may not assign these Terms and Conditions, by operation of law or otherwise, without express prior written consent of Atlantic South Power
ARBITRATION. All controversies or claims arising out of or relating to the sale contemplated hereby or the performance or breach thereof shall be settled by Arbitration in the State of Florida in accordance with the Commercial Arbitration Rules of the American Arbitration Association, unless otherwise specified in writing by the parties.
LIMITATION OF LIABILITY. Atlantic South Power WILL NOT UNDER ANY CIRCUMSTANCES, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF OR DAMAGE TO ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF PURCHASER’S CUSTOMERS. IF FOR ANY REASON THE FOREGOING PROVISIONS SHALL BE INEFFECTIVE, ASP’S LIABILITY FOR DAMAGES ARISING OUT OF ITS MANUFACTURE OR SALE OF MERCHANDISE, OR USE THEREOF, SHALL NOT IN ANY EVENT EXCEED THE FULL PURCHASE PRICE. GENERAL. This order shall be governed by the laws of the State of Florida. If any part hereof is contrary to, prohibited by, or deemed invalid under applicable laws or regulations, such provision shall be inapplicable and deemed omitted to the extend so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated and shall be given effect so far as possible. The waiver by either party of any breach of any of the terms and conditions contained herein shall not be construed as a waiver of any subsequent breach of the same or any other term or condition.