TERMS AND CONDITIONS
These "Terms and Conditions" govern the sale of product services by Great Development International USA, LLC and its divisions, subsidiaries and affiliates (collectively "Seller") as well as Seller's third-party vendors and/or service providers.
1. ORDERS: All orders placed by Buyer are subject to acceptance by Seller in accordance with these Terms and Conditions. Orders may not be canceled or rescheduled without Seller's written consent. All orders must include delivery dates, quantities and complete description of the goods requested for purchase. Seller may in its sole discretion allocate products to its customers. Seller may designate certain products as "non-cancelable" and/or "non-returnable" (NCNR) and the sale of such products can be subject to special terms and conditions stated on the invoice or such notice to Buyer.
2. PRICES: Unit pricing for all products and services ordered by Buyer are specified on each invoice. Price quotations, unless otherwise stated, shall automatically expire five (5) calendar days from the date issued and may be canceled or amended within that period upon notice to Buyer. Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added taxes, and similar taxes. Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer's place of business and any jurisdiction to which the purchased goods are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold harmless Seller for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller's invoice.
3. PAYMENT TERMS: Buyer shall, without set off, pay Seller in full in U.S. Dollars with terms that are agreed to both parties from date of invoice. Shipments shall be made upon credit approval and the condition that the Buyer account remains in good standing with Seller. Seller may invoice each shipment separately and each shipment can be considered a separate and individual contract. Buyer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction.
4. INTEREST/LATE FEES: Interest at the rate of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law, whichever is less, shall be imposed on all outstanding balances. Late charges not to exceed $100.00 per month shall also apply.
5. MODIFICATION OF PAYMENT/CREDIT TERMS: Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller's sole opinion, Buyer's financial condition or previous payment record warrants that action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer.
6. REJECTION OF ADDITIONAL OR INCONSISTENT TERMS: Any additional or inconsistent terms contained in a purchase order or other document are specifically rejected. These Terms and Conditions take precedence over Buyer's additional or different terms and conditions to which notice of objection is hereby given. Neither Seller's commencement of performance nor delivery shall be deemed or constituted as acceptance of Buyer's additional or different terms and conditions. Buyer's acceptance of the products and/or services shall be deemed to constitute acceptance of the Terms and Conditions contained herein.
7. SECURITY INTEREST: Seller retains a security interest in all products delivered to Buyer, and in such related accessories, replacements, accessions, proceeds and goods, including accounts receivable (collectively, the "Collateral") to secure payment of all amounts due under these Terms and Conditions. If Buyer fails to pay any amount when due, Seller shall have the right to repossess and remove all or any part of the Collateral from Buyer. Any repossession or removal shall be without prejudice to any other remedy of Seller hereunder, at law or in equity. Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Seller to transfer, create, perfect, preserve, protect and enforce this security interest.
8. DELIVERY: Delivery will be deemed complete and risk of loss or damage to any product will pass to Buyer upon incoterm to the carrier. Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty.
9. ACCEPTANCE/RETURNS: Shipments will be deemed to have been accepted by Buyer upon receipt of the said shipments at Buyer's facility. Buyer shall perform whatsoever inspection or tests Buyer deems necessary as promptly as possible but in no event later than five (5) days after delivery, at which time Buyer must either accept or reject the products by providing written notice to Seller. Any discrepancy in shipment quantity must be reported in writing within five (5) working days of receipt of the products. In the event of an over shipment, Buyer shall have the option to return the products to Seller at Seller's expense or alternatively, Buyer may elect to retain the products (subject to adjustment of the invoice price to account for additional items). Regardless of the reason for the return, any product returns shall be subject to Seller's prior written return merchandise authorization as well as a twenty-five (25%) percent restocking charges. Returned products must be in the original condition and packaging. Unless otherwise agreed by Seller in writing, return transportation costs must be prepaid by Buyer.
10. DISCLAIMER OF WARRANTIES: The only warranty on any goods sold to Buyer is the express written warranty, if any, granted by the manufacturer. Seller makes no representation or warranty, express or implied, including any implied warranties of merchantability or fitness for particular use with respect to the products, goods and/or services provided.
11. LIMITATION OF LIABILITY: Seller's maximum liability to Buyer shall be limited to the amount that Buyer paid to Seller for the merchandise received. IN NO EVENT WILL SELLER OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM ANTICIPATED OR LOST PROFIT, LOST DATA, BUSINESS INTERRUPTION, LOSS OF BUYERS, LOSS OF MARKET SHARE, LOSS OF GOODWILL OR MANUFACTURING EXPENSES AND ANY OTHER LOSS(ES) THAT MIGHT ARISE AS A DIRECT OR INDIRECT RESULT OF THE SALE OR USE OF THE PRODUCTS OR AS A RESULT OF SELLER'S NON-PERFORMANCE OR INADEQUATE PERFORMANCE OF ITS OBLIGATIONS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. ASSIGNMENTS: Purchaser's rights under these Terms and Conditions may not be assigned without Seller's prior written consent. However, the foregoing does not limit Buyer's right, upon making payment in full, from transferring title to the merchandise subject to written notice to and transfer of title on the records of Seller.
13. BINDING ON SUCCESSORS: These Terms and Conditions shall be binding on the heirs, executors, administrators, successors and assigns of the Buyer. Buyer further agrees that Seller may assign its rights under this agreement and that this agreement shall be binding upon and inure to the benefit of the successors and assigns of Seller.
14. ENTIRE AGREEMENT: These Terms and Conditions consist of all terms which have been agreed upon between the parties with the exception of any (i) credit application provided by Buyer, (ii) personal guarantee(s) submitted by Buyer, and/or (iii) such additional terms as provided on Seller's invoices. These Terms and Conditions replace all other discussions and agreements, whether oral or written, as relating to those goods and services. No subsequent discussion or agreements, whether oral or written, as relating to those goods and services. No subsequent discussion or agreement can change the terms of this contract unless it is written and signed by both parties.
15. CHOICE OF LAW/JURISDICTION: If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the remaining provisions will remain in full force and effect. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of Nevada, and the parties consent to personal jurisdiction and venue in the state courts located in Las Vegas, Nevada.
16. ATTORNEYS FEES: In any action at law or in equity to enforce any of the provisions or rights under these Terms and Conditions and/or for collection of amounts due, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses and reasonable attorney's fees incurred therein by the prevailing party (including, without limitation, such costs, expenses and fees on any appeals), and if such prevailing party shall recover judgment in any such action or proceeding, such costs, expenses, including those of expert witnesses and attorney's fees, shall be included as part of the judgment.
17. FORCE MAJEURE: If by reason of act of God or force majeure such as fire, war, earthquake, strike, lock-out, labor controversy, civil unrest, acts of any government or its agencies or officers, or any order, regulation or ruling thereof, Seller is prevented from making delivery, Seller shall have the right to extend the delivery time for a reasonable period.
18. PARTIAL INVALIDITY: If any provision these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
The terms and conditions hereof become the exclusive and binding agreement between the parties covering the purchase of goods or services ordered herein when this purchase order is accepted by acknowledgment or commencement of performance. This order may be accepted only on these terms and conditions. Additional or different terms proposed by seller will be applicable in writing by buyer. No change, modification or revision of this order shall be effective unless in writing and signed by buyer.
Seller will submit invoices in triplicate showing the following: purchase order number, item number, description of item, size of item, quantity of them, unit prices, applicable taxes, extended totals, and any other information specified elsewhere herein. A Bill of Lading or express receipt must accompany each invoice.
3. PAYMENT TERMS
All prices are to be quoted and paid in United States Dollars. Unless otherwise specified, the prices set forth in this purchase order include all applicable foreign, federal state, and local taxes and all shipping, freight, transportation, packing and handling charges. Payment terms are net sixty (60) days from the date of invoice, subject to any amounts subject to set-of or clarification or in good faith dispute. Payment of invoice will not constitute acceptance of goods and will be subject to adjustments for errors, shortages, and defect in the goods or other failure of seller to meet the requirements of the purchase order. Buyer may, in good faith, notify seller that buyer requires further clarification or documentation of an invoice or that Buyer believes that an invoice is in error or otherwise not payable hereunder. Buyer's delay in paying any disputed portion of any invoice in such circumstances shall not constitute a breach of default by Buyer. On a monthly basis, Seller shall provide Buyer with (1) a detailed monthly aging statement for invoices that are overdue, if any; (2) and for any known invoices which are in dispute, a detailed discrepancy statement specifying the following: (a) invoice number; (b) Buyer's purchase order number; (c) amount of discrepancy; (d) check number and date; and (e) reference debit memo number. Payments of invoices shall be deemed correct unless Seller notifies Buyer of any payment discrepancies within thirty (30) days. Buyer may at any time set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliated companies to Buyer.
Time in connection with any discount offered by seller will be computed from the latest of (1) the scheduled delivery date, (2) the date of actual delivery, or (3) the date an acceptable invoice is received. For the purpose of earning the discount, payment will be deemed to have been made on the date of mailing of Buyers payment.
5. OVER SHIPMENT
Buyers will pay only for maximum quantity ordered. Over shipments will be held by Buyer at Seller's risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Sellers expense.
6. PACKING AND SHIPMENT
Unless otherwise specified, when the price of this purchase order is based on the weight of the ordered goods, such price is to cover only the net weight of material ordered, and no charge will be allowed for packing, handling, transportation, storage or other packing expenses. All such expenses shall be solely by seller. Unless otherwise specified, Seller will package and pack all goods in a manner, which is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular goods, (iii) in accordance with I.C.C. regulations, and (iv) adequate to ensure safe arrival of the goods at the name destination. Seller will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment, and the names of the consignee and consignor. An itemized packing list must accompany each shipment.
Seller shall deliver the products order hereunder in accordance with the delivery date or dates specified by buyer. Seller acknowledges that time is of the essence in the fulfillment of buyer's orders hereunder. No partial or incomplete delivery will be made prior to the delivery date or dates specified unless Buyer has given prior written consent. Unless otherwise specifically provided on the face of this order, the product ordered hereunder will be delivered on an F.O.B. destination basis. In the event this purchase order includes the delivery of equipment, which requires installation. Sellers shall install such equipment at Buyers designated site upon request from Buyer at Sellers sole expense.
(A) Seller warrants that all good delivered (i) will be free from defects in workmanship, material, and manufacture, (ii) will comply with the requirements of this purchase order, including any drawings or specifications incorporated herein or samples furnished by Seller, (iii) when design is Sellers responsibility, will be free from defect in design and (iv) when equipment is installed by Seller, will be property installed and in good working order. Seller Further warrants that all goods purchase hereunder will be of merchantable quality and will be fit for the purpose intended by Buyer. The foregoing warranties constitute conditions to this purchase order. They are in addition to all others warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by buyer. All warranties run to the benefit of Buyer and its customers. (B) Buyer's approval of seller of any warranties. (C) If any goods delivered do not meet the warranties specified herein or otherwise applicable. Buyer may, at its option, (i) require Seller to correct any defective or nonconforming good by repair or replacement at no cost to Buyer, or (ii) return such defective or nonconforming goods to seller at seller's expense and recover from Seller and the order price thereof, or (iii) may require an appropriate reduction in price.
9. INSPECTION AND ACCEPTANCE
Notwithstanding any prior inspection or payment, all goods will be subject to final inspection and acceptance at buyer's plant within a reasonable time after delivery. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of this order, Buyer will have the right to reject it, to require its correction or to accept it with an adjustment in price. Any item that has been rejected or required to be corrected must be replaced or corrected by and at the expense of Seller promptly after notice. If, after being requested by Buyer, Seller fails to promptly replace or correct any defective item, then buyer. (i) may, by contract or otherwise, replace or correct such item and charge to Seller the cost occasioned thereby, (ii) may, without further notice, cancel this purchase order for default in accordance with item 11 below, or (iii) may require an appropriate reduction in price.
10. CHANGE ORDERS
(A) Buyer may at any time, by a written order, suspend performance hereunder, increase or decrease the order quantities, change the due date or make changes in any one or more of the following: (i) applicable drawings, designs or specification; (ii) method of shipment or packing; and/or (iii) place of delivery.(B) If the change causes an increase in the cost or the time required by seller for performance of the purchase order and seller so notifies Buyer, then an equitable adjustment will be made in order price or delivery schedule or both, and the purchase order will be modified accordingly in writing. No claims by seller for such an adjustment will be valid unless asserted within twenty (20) days from the date of receipt by seller of the notification of charge; provided, however that such period may be extended upon the written approval of Buyer. (C) Nothing in this item 10 is intended to excuse seller from proceeding with this purchase order as changed or amended.
11. CANCELLATION FOR DEFAULT
(A) It is understood and agreed that time is of the essence in the fulfillment of this order because the goods or services herein are needed for products of that have a very short, carefully timed market life; failure of seller to deliver on the due date could cause buyer's product to be unmarketable. Buyer may by written notice, cancel this order in whole or in part if, in Buyer's good faith opinion, Seller (i) has failed to make delivery of the items or to perform the services within the time specified herein, or any extension thereof written change order or amendment; or (ii) has failed to replace or correct defective items, in accordance with the provisions of items 8 or 9 above; or (iii) has failed to perform any of the other provisions of this purchase order; or (iv) has so failed to make progress under this purchase order as to endanger performance in accordance with its terms.(B) If this purchase order is cancelled for seller's default, Buyer may procure, upon such terms and in such manner, as buyer may deem appropriate. Substitute goods or services similar or substantially similar to those cancelled. Without limiting Buyer's remedies, Seller will then be liable to Buyer for any excess cost occasioned thereby. (C) Nothing in this item 11 is intended seller from proceeding with any unconcealed portion of this purchase order.
In addition to the right to reject delayed deliveries under section 7, Buyer may cancel all or any undelivered portion of this order (i) if seller does not make deliveries as provided on the face hereof or if Seller breaches any of the terms hereof, including the warranties of seller; (ii) if Buyer and Seller are unable to agree on the amount of any increased cost or time of performance of this purchase order as a result of changes requested by buyer pursuant to Section 8. Buyer shall also have the right to cancel this order or any part hereof in the event of the happening of any of the following: insolvency of seller; filing of a voluntary petition in bankruptcy; filing of an involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of filing; the appointment of a receiver or trustee for seller, provided it is not vacated within thirty (30) days from the date of such appointment; or the execution by seller of an assignment for the benefit of creditor. In the event that Buyer shall so cancel or reject, Buyer may be charged only for goods actually delivered and received and not rejected.
13. RISK OF LOSS OR DAMAGE
Notwithstanding any prior inspections, and irrespective of the F.O.B. point named herein, Seller will bear all risk of loss, damage or destruction to the ordered goods until final acceptance of the goods by Buyer at destination. Seller will bear the same risk with respect to any goods rejected by Buyer. Buyer, however, will be responsible for any loss occasioned by the gross negligence of its employee acting within the scope of their employment.
The failure of Buyer to enforce at any time of the provisions of this purchase order, to exercise any election or option provided herein, or to require at any time the performance by seller of any of the provisions herein will not in any way be a waiver of such provisions.
The remedies stated herein are in addition to all other remedies at law or in equity.
(A) Seller agrees to indemnify Buyer, its agents, customers, successors, and assigns against any loss, damage, and liability (including cost and expense) for actual or alleged infringement of any patent, copyright, trademark or trade secret arising out of the use or sale of the goods by buyer, its agents or customers provided; however, that buyer must notify seller of any such infringement, Seller agrees, at Buyer's option (i) refund to Buyer the amounts paid to seller for the goods covered by the injunction, or (ii) furnish Buyer with acceptable non-infringing goods. (B) Seller agrees to indemnify Buyer against any and all liability and expense resulting from any alleged defect in the goods to comply with specification.(C) The above indemnifications are in addition to all other rights of indemnification of Buyer against Seller.
17. NON-DISCLOSURE OR CONFIDENTIAL MATTER
Seller will not quote for sale to others, without Buyers written authorization, any goods purchased under Buyer's specification or drawings. All specifications, drawing, samples, and other data furnished by buyer will be treated by seller as confidential information, will remain Buyer's property, and will be returned to Buyer on request. Seller will not use Buyer's confidential information in any way other than Buyer's account or disclose to any third party any of Buyer's confidential information. Seller will take the same precautions to protect the confidentiality of Buyers confidential information that it takes to protect its own confidential information, which precautions shall constitute not less than reasonable care.
No right or obligation under this purchase order (including right to receive monies due) may be assigned by Seller without the prior written consent of Buyer, and any purported assignment without such consent will be void, Buyer may assign this purchase order at any time if such assignments is considered necessary by Buyer in connection with a sale of Buyer's assets or a transfer of its obligations.
19. NOTICE OF DELAYS
Whenever any event delays or threatens to delay the timely performance of this purchase order, Seller will immediately notify Buyer of such event and furnish all relevant details. Receipt of Buyer of such notice will not constitute a waiver of the due dates hereunder.
20. PATENT LICENSE
Seller, as part consideration for this purchase order and without further cost to Buyer, hereby (and, to the extent requested by buyer, to the government) and irrevocable, non-exclusive, royalty-free license to use, sell, manufactured products embodying any inventions and discoveries made, conceived or actually or reduced to practice in connection with the performance of this purchase order.
21.BUYER'S PROTECTION FOR WORK PERFORMED AT ITS SITE
Seller shall take all steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employees, agents or subcontractors of Seller at Buyers site (including, without limitation, installation of equipment), and Seller shall indemnify and hold harmless Buyer from and against all loss, liability and damages arising from or caused directly or indirectly by any act or omission of such agents, employees or subcontractors, and Seller shall maintain such insurance against public liability and property damage, and such employees liability and compensation insurance as will protect Buyer against the aforementioned risks and against any claims under any Workers compensation and occupational safety and health acts and any other applicable labor, health and safety laws.
22. BUYER FURNISHED PROPERTY
All unfurnished products, tools and other materials furnished by Buyer for use in the performance of this order shall remain the property of the Buyer and shall be used by Seller in the performance of this order only, in accordance with the requirements hereof, and shall be returned to buyer when requested upon completion or termination of this order or as otherwise requested by buyer. Seller shall maintain insurance covering casualty of loss of buyer's property while such property is in Seller s possession or control. The insurance policy shall be in amounts reasonable under the circumstances and shall name buyer as an additional insured and loss payee. Upon request from buyer, seller shall provide evidence of such insurance.
23. COMPLIANCE WITH LAWS
Seller warrants that no law, rule or regulation of the United States, any State, any government agency or of foreign government or agency has been or will be violated in the manufacture or sale of the products ordered hereunder or in the performance of any services covered in this order, including transportation, and seller agrees to indemnify and hold the buyer harmless from all loss, liability and damages arising out of any actual or alleged violation. It is understood that Seller s warranty hereunder includes but is not limited to compliance with all requirements of the fair labor act of 1938, as amended, the occupational safety and health act of 1970, the toxic substance control act of 1976 and the transportation safety act of 1974, as amended.
24. GOVERNMENT CONTRACTS
If this purchase order is issued for any purpose that is either directly or indirectly connected with the performance of a prime contract with the government or a subcontract there under, the terms that the armed services procurement regulations or other appropriate regulations require to be inserted in contracts or subcontracts will be deemed to apply to this purchase order.
25. LIMITATION OF LIABILITY
In no event shall buyer be liable for any lost profits for any special, incidental, consequential or indirect damage, however caused and on any theory of liability, even if buyer has been advised of the possibility of such damages.
26. APPLICABLE LAW
This purchase order will be governed by the law of the State of Nevada, including its uniform commercial code without reference to conflict of law principles.
27. INDEPENDENT CONTRACTORS
The relationship of Buyer and seller established by this purchase order is that of independent contractors and nothing herein shall constitute the parties as partner, joint ventures, co-owners or participants in a common undertaking or allow either party to create any obligation on behalf of the other party.
28. ENTIRE AGREEMENT
This agreement sets forth the entire agreement between parties with respect to the subject matter hereof and supersedes all prior agreements and discussion between them. No modification or amendment hereof will be effective unless in writing and signed by a daily authorized representative of each party. Any terms and conditions set forth in any order confirmation or acknowledgment or any other documents shall be of no force or effect whatsoever.