5. Virtual Support
INVOICING: Travel and living expenses, as well as diverse expenses connected with the service work such as air fare, rental car, hotel, parking, etc. will be invoiced at cost.
MINIMUM CHARGES: A minimum of 8 hours per day will be charged at the applicable rate, plus travel and living expenses.
U.S. HOLIDAYS: New Year’s Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving (Thursday/Friday), Christmas Eve, Christmas Day.
PRICES EFFECTIVE January 1, 2020
(Prices are subject to change without prior notice.)
Terms and Conditions of Sale
1) Parties; Applicability. These Terms and Conditions of Sale (these “Terms”) are the only terms which govern the sale of the goods ("Goods") and services ("Services") by Rovema North America, Inc., a Georgia corporation (“Seller”) to the buyer named on the reverse side of these Terms (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and/or Services covered hereby, the terms and conditions of said contract shall prevail to the extent inconsistent with these Terms. The quotation and/or sales confirmation to which these terms are attached or incorporated (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) 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. 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) Delivery, Storage and Shipping of Goods; Title to and Risk of Loss of Goods. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order. In the event that Buyer has given Seller specific delivery instructions, Seller will use its reasonable efforts to comply with such instructions; provided, however, that Seller assumes no liability for any failure to comply. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods F.O.B. Seller’s manufacturing facility or warehouse, as applicable, (the "Delivery Point"). Buyer shall take delivery of the Goods within seven (7) days of Seller's written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. If for any reason Buyer fails to accept delivery of any of the Goods by the date fixed pursuant to Seller's notice that the Goods have been delivered: (i) risk of loss to the Goods shall nevertheless pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). In all events, title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point and notice of the same to Buyer. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Georgia Uniform Commercial Code.
3) Performance of Services. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only. Buyer shall: (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer's premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services; (iii) provide such complete and accurate materials or information as Seller may request to carry out the Services in a timely manner; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
4) Nonconformance. Buyer shall inspect the Goods within ten (10) days of receipt (such period being the "Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall return, at its expense and risk of loss, the Nonconforming Goods to the Delivery Point. If Seller exercises its option to replace Nonconforming Goods, Seller shall, within a reasonable period of time after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section (4) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section (4), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
5) Price and Payment. Buyer shall purchase the Goods and Services from Seller at the price(s) set forth in the Sales Confirmation, unless otherwise specifically agreed to in writing by Seller (such price being the “Price”). Prices are for single shipments of the quantities of Products specified, unless otherwise authorized in writing by Seller. Buyer and Seller acknowledge that the Prices reflect, and are based upon, the terms and conditions of this Agreement and the allocation of risk set forth herein. Buyer agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer; for each of which Buyer shall be responsible. Buyer shall pay all invoiced amounts due to Seller in US dollars via check or wire transfer and within thirty (30) days from the date of Seller's invoice. Late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible by law, calculated daily and compounded monthly. In addition to the other remedies set forth herein, Seller shall be entitled to suspend the delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. 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
6) Limited Warranty; Limitations of Liability.
7) Buyer’s Indemnification of Seller; Costs of Enforcement. Seller has provided Goods and Services based solely upon information furnished by Buyer. Seller makes no representations or warranties to Buyer regarding any infringement of intellectual property rights (or the absence thereof) by the Goods or Services, or by the products of Buyer into which the Goods or Services may be incorporated or for which the Goods and Services may be utilized (Buyer’s “Products”). Buyer hereby agrees to indemnify, defend, and hold Seller and its stockholders, directors, officers, agents, employees and assigns harmless from and against any and all liabilities, damages, costs and/or expenses (including reasonable attorneys’ fees and costs), resulting, directly or indirectly, from: (i) Buyer’s use or misuse of the Goods, Services or Products or the distribution, sale, resale or use of the Goods, Services or Products by Buyer or any other party; (ii) any claim or allegation that the Goods, Services or Products infringe upon the intellectual property rights of any third party; and (iii) Buyer’s, or any of Buyer’s agents’, employees’ or subcontractors’, gross negligence, intentionally wrongful act or omission, and/or action or inaction. Additionally, and not in limitation of the foregoing, Buyer shall reimburse Seller for all costs (including, without limitation, attorneys' fees and costs) incurred in enforcing its rights hereunder, including in collecting any late payments.
8) Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Additionally, Seller may cancel an order or terminate this Agreement with immediate effect and without liability in the event that Seller reasonably determines that Buyer’s intended use of the Goods, Services or Products may result in death or injury to persons or property.
9) Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10) Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including; provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
11) Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in (or, in the case of the federal courts, having jurisdiction over) the City of Norcross and County of Gwinnett, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
12) Other Provisions. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.