Hiwassee Products Standard Terms & Conditions Governing the Sale of Products
These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the goods ("Goods") by Hiwassee Products (“Seller”) to the buyer ("Buyer"). Alterations or deviations from the Terms shall not be binding on Seller unless confirmed in writing by Seller. These terms are incorporated into any proposal to sell Goods, order to purchase Goods placed by Buyer, acceptance of an order, and invoice issued by Seller, and together with such documents comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms, and any contrary or additional terms not expressly accepted in writing by Seller are hereby rejected. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
2. Proposals and Orders
A proposal is valid for 30 days from the date shown on it unless otherwise specified in writing. A proposal does not constitute a firm offer, but is rather an invitation to Buyer to make an offer to buy Goods. Seller retains the right to correct any clerical error in a proposal or order.
3. Price and Payment
All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges. Buyer shall be responsible for all such charges, costs, and taxes.
Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice.
Shipment and delivery dates are estimated and not guaranteed. Unless otherwise agreed in writing signed by Seller, all shipments are F.O.B Seller’s manufacturing plant or warehouse. Title and risk of loss pass to Buyer upon shipment.
In no event shall Seller be liable for any failure or delay, when and to the extent such failure or delay is caused by or results from acts beyond Seller's reasonable control, including, without limitation, acts of God, flood, fire, earthquake, epidemic, government order or actions, or accidents.
Orders placed with and accepted by Seller may not be cancelled without Seller’s written consent. No Goods may be returned without Seller’s prior written authorization.
6. Warranty and Remedies
a. Seller warrants to Buyer that for the specified period of time ("Warranty Period") from the date of shipment of Goods, the Goods will be free from material defects in material and workmanship under normal use and regular service. Notice of any claims for defects in material or workmanship must be given to Seller in writing within fourteen days of discovery and within the Warranty Period.
b. With respect to any defective Goods to which this warranty applies, Seller shall in its sole discretion, upon being satisfied of the existence of such defect, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller. The remedies set forth in this paragraph shall be the Buyer's sole and exclusive remedy and Seller's entire liability for any breach of the limited warranty set forth in section 6(a).
c. The warranty set forth in Section 6(a) is inapplicable to and excludes any defect, damage or malfunction resulting from (i) normal wear and tear; (ii) misuse, negligence, or modification or repair by Buyer or any third party; (iii) failure by Buyer to follow Seller's operating manuals or instructions; (iv) continued use after discovery of the defect; or (v) failure of goods, parts, or components manufactured by a third party including pumps and motors.
d. Except for the warranty set forth in Section 6(a), Seller makes no warranty whatsoever with respect to the Goods, including any warranty of merchantability or fitness for a particular purpose whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise. The warranty set out in Section 6(a) is exclusive to Buyer and may not be assigned or transferred to subsequent owners.
e. Seller will, upon written request by Buyer, assign to Buyer all assignable rights Seller has under the manufacturer’s warranties for component parts of Goods.
7. Limitation of Liability and Indemnity
In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue or profit, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not seller has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
In no event shall Seller's aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Seller for the Goods sold hereunder.
Buyer will defend, indemnify, and hold harmless Seller, its officers and agents from and against any and all claims, actions, costs, expenses, damages, and liabilities for personal injury or death or other loss or damage to property arising out of use of the Goods by Buyer, except to the extent caused by the gross negligence or willful misconduct of Seller.
8. Proprietary and Confidential Information
All drawings, designs, specifications, manuals, prices and other proprietary information furnished to Buyer by Seller shall remain the confidential and proprietary property of Seller. Buyer will use any information disclosed by Seller including any operating manual for the sole purpose of product operation.
9. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
10. Governing Law and Jurisdiction
All matters arising out of or relating to these Terms are governed by and construed in accordance with the laws of the State of New York without regard to any conflict of law provision or rule. The parties agree that the courts of the State of New York shall have exclusive jurisdiction to settle any dispute or claim arising in connection with these Terms.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. Waiver by a party of any default or breach by the other will not be deemed a waiver of any other default or breach. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller and any such assignment will be void and of no force or effect. The invalidity or unenforceability of any provision of these Terms shall not affect the validity or enforceability of the remaining provisions. All notices that one party may provide to the other pursuant to this agreement shall be in writing and sent by registered or certified mail or overnight courier service, postage prepaid, return receipt requested, to the addresses provided on Seller’s quote or invoice.