Terms and Conditions of Sale (United States)
Greenjacket, Inc. (dba Greenjacket Inc. or Reliaguard Inc.) hereafter referred to as ““Seller”) hereby agrees to sell to you (“Buyer”), and Buyer hereby agrees to purchase, the goods and or services (collectively referred to as the “Goods”) described in the attached quote or Buyer’s Purchase Order, if attached and signed by Seller (either the “Order”), under these terms and conditions and in consideration of the mutual covenants herein contained, and other good and valuable consideration. “Party” means either Buyer or Seller and “Parties” means both Buyer and Seller. “Agreement” means these Terms and Conditions of Sale (“Terms”) and any Orders, which are hereby incorporated into these Terms by this reference. In the event of a conflict between documents, the conflict shall be resolved according to the following descending order of precedence: these Terms, any quote, and any Buyer’s Purchase Order. Further, where a Buyer issues a purchase order or other initiating document, which contains its own terms and conditions which differ from these Terms, these Terms shall prevail. Fulfillment of Buyer’s Purchase Order or other initiating document does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Buyer’s execution of the Order or taking delivery of any part of the Goods shall constitute acceptance of these Terms. Seller expressly rejects any terms and conditions submitted by Buyer that are inconsistent with or in addition to these Terms, and such added or inconsistent terms shall have no force or effect. Seller’s agreement to provide the Goods is expressly conditioned upon Buyer’s acceptance of these Terms. No waiver or alteration of, or addition to these Terms shall be binding unless expressly agreed to in writing by an officer of Seller.
The terms of payment are cash in United States dollars within 30 days of delivery of the Goods to the Buyer. If applicable, delivery shall be Ex Works (EXW) Seller’s premises (as defined by INCOTERMS 2010). Seller will arrange for delivery of Goods, but all risk of loss and transportation, loading and delivery expenses shall be borne by Buyer. Title to Goods shall not pass until Seller receives payment in full. All prices are exclusive of any federal, state, provincial, local or foreign taxes, duties or fees, including, but not limited to, goods and services tax, or use or sales taxes which may now be or hereafter become applicable to this transaction, the Goods or to any services performed in connection therewith and all such taxes and fees shall be for Buyer’s account. If any tax exemption certificate provided by Buyer to Seller is not recognized by the taxing authority involved, Buyer will promptly reimburse Seller for any taxes, interest, fines and penalties that Seller is required to pay.
Buyer shall pay interest on all late payments at the lesser of the rate of 0.833% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Cancellation and Exchange Policy
The Order may not be cancelled. Buyer may not reject Goods which substantially conform to the Order or which conform to the limited warranty below. Buyer may not reject Goods after the installation of such Goods. Buyer’s rights and remedies for any non-conformity of Goods after acceptance shall be limited to Seller’s warranty set out herein and subject to all limitations described herein. If the Goods, or any part thereof, are not in conformance with the limited warrant set out herein, such Goods may be returned to Seller. Seller’s sole responsibility upon receipt of nonconforming Goods shall be to either repair or replace, at its option, any such parts that fail to conform to the Order so that the end product substantially conforms to the specifications on the Order. Such parts or repairs shall be provided or performed at no cost to Buyer, at Seller’s facility and during regular working hours. Seller shall not have any liability or responsibility with respect to component parts or accessories not manufactured by Seller or to normal maintenance work, maintenance parts or normal wear and tear. Seller shall not have any liability or responsibility with respect any transportation charges, cost of installation, duty, taxes or any other charges whatsoever arising from non-conformity of Goods.
Limited Warranty of Goods
Seller warrants parts manufactured by it to meet their published specifications as at the date of shipment and be free from material defects in material and workmanship for a period of one (1) year following installation of the applicable Goods by Buyer, provided that the Goods are stored properly and installed within thirty (30) day of delivery; or if not, then from the date of delivery. Except as expressly provided in this paragraph, the Goods are provided on an “as is” basis.
The warranties contained herein do not apply and Seller will have no warranty obligation(s) as to any Goods that have been (i) subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal conditions (effects of excessive electrical current or voltage, whether or not caused by lightning), or use contrary to any instructions issued by Seller, as determined by standard industry practice and Seller’s maintenance instructions and guidelines (ii) reconstructed, repaired, or altered by persons other than Seller or its authorized representative(s); or (iii) altered as to where manufacturer serial numbers or warranty decals have been removed or made unreadable, (iv) used with any third party product, hardware or product that has not been previously approved in writing by Seller.
Limitation of Liability
The remedies of Buyer set forth herein are exclusive and in lieu of any other rights or remedies available to Buyer at law, in equity or otherwise.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SELLER WILL NOT BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER REGARDLESS OF WHETHER SUCH DAMAGE WAS 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, 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), INDEMNIFICATION OR OTHERWISE, EXCEED THE AMOUNT PAID BY BUYER TO SELLER IN CONNECTION WITH THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL SELLER HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNIFICATION OR OTHERWISE RESULTING OR ARISING DIRECTLY OR INDIRECTLY FROM: (I) THE NEGLIGENT OR WRONGFUL (OR MORE CULPABLE) ACT OR OMISSION OF BUYER; (II) ANY DETAILED DESIGN OR SPECIFICATION SUPPLIED BY [BUYER TO SELLER; (III) ANY COMBINATION OF THE GOODS OR SERVICES WITH ANY OTHER MATERIALS OR PROPRIETARY INTERESTS NOT PROVIDED OR AUTHORIZED IN WRITING BY SELLER; (IV) ANY MODIFICATION OF THE GOODS OR SERVICES OTHER THAN: (A) BY SELLER; OR (B) WITH SELLER’S WRITTEN APPROVAL IN ACCORDANCE WITH SELLER’S WRITTEN SPECIFICATION; (V) BUYER’S FAILURE TO TIMELY IMPLEMENT ANY MODIFICATIONS, UPGRADES, REPLACEMENTS OR ENHANCEMENTS MADE AVAILABLE TO BUYER; (VI) USE OF THE GOODS IN A MANNER THAT DOES NOT MATERIALLY CONFORM WITH THE THEN CURRENT USAGE GUIDELINES PROVIDED BY SELLER; OR (VII) BUYER’S FAILURE TO MAINTAIN ANY GOOD OR DELIVERABLE IN ACCORDANCE WITH SELLER’S RECOMMENDED GUIDELINES.
Disclaimer of Non-Express Warranties
EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, SELLER DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS ON THE GOODS AND SERVICES FURNISHED HEREUNDER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING, USAGE, TRADE, PRACTICE OR CUSTOM. BUYER ACKNOWLEDGES AND ACCEPTS THAT THE STATED REMEDY WITH RESPECT TO THE EXPRESS WARRANTIES UNDER THIS AGREEENT ARE ITS SOLE REMEDY WITH RESPECT TO THE GOODS SOLD AND SERVICES PROVIDED HEREUNDER. SELLER AND MANUFACTURERS OF COMPONENTS OF THE GOODS SHALL IN NO EVENT BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, LOSS OR PROFITS OR REVENUES OR OTHER ECONOMIC LOSSES ARISING OUT OF THIS AGREEMENT OR ANY BREACH HEREOF, INCLUDING BUT NOT LIMITED TO DAMAGES FOR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE GOODS SOLD OR SERVICES SUPPLIED HEREUNDER, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
Future product specifications and availability may vary. Seller reserves the right to make changes at any time to product design, specifications, and availability, without notice.
Patent and Trademarks
GREENJACKET, Reliaguard, GreenEEL and GreyEEL are registered and common law trademarks of Seller and may not be used without the express written permission of Seller. All use of such trademarks shall inure to the exclusive benefit of the Seller.
Buyer shall defend, will indemnify and save Seller harmless from all losses, costs, damages and expenses whatsoever, including, without limitation, losses, costs, damages and expenses that are special, indirect or consequential, however caused or arising from loss of profits, actions, causes of action, proceedings, claims, demands whatsoever which may be brought or made against Seller or which Seller may pay or incur as a result of or arising directly or indirectly out of or in connection with the use or resale of the Goods by Buyer.
The Goods are solely for the mitigation of power outages caused by animals or birds. They are not to be used for prevention of injury or death from contact with an energized source or equipment, and Buyer shall defend and indemnify Seller from any claims arising from any such use.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in connection with this Agreement (collectively, the “Deliverables”), except for any confidential information of Buyer supplied to Seller, shall be owned by Seller. Seller hereby grants Buyer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Buyer to make reasonable use of the Deliverables.
Seller may terminate this Agreement if Buyer defaults in its obligations to make payments pursuant to this Agreement. The termination will be effective on the date that a notice of termination is delivered or faxed to Buyer by Seller. This Agreement will immediately terminate on the bankruptcy, insolvency, winding-up or liquidation of Seller or Buyer.
Seller will not be liable for delay in or non-performance of the Agreement or any part thereof, resulting directly or indirectly from: (1) an act of God, including epidemics, earthquakes, storms, fires, flood, lightning; (2) an act of a public enemy; (3) an act of terrorism; (4) an act of any governmental authority, domestic or foreign, including but not limited to war, declared or undeclared, priorities, quarantines, embargoes, licensing controls or distribution restrictions; (5) accidents and disruptions including but not limited to explosions, breakdowns of essential machinery or equipment and power shortages; (6) transportation or storage delays, accidents or shortages; (7) labor difficulties including but not limited to strikes, slowdowns, lockouts, sabotage and labor shortages; (8) failure or delay in its source of supply; (9) acts or omissions of Buyer, its directors, employees, agents and independent contractors; or any other cause beyond Seller’s reasonable control, whether similar or dissimilar to those listed in this paragraph.
This Agreement is governed by and will be construed in accordance with the laws of the State of Delaware, USA, excluding its conflicts of laws rules or principles which might refer such construction to the laws of another jurisdiction. The parties hereby submit and agree to the exclusive jurisdiction and venue of the courts of the State of Delaware with respect to any dispute concerning the subject matter of this Agreement. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and is expressly excluded