Overview
GOODS AND SERVICES SOLD BY PANEL KIT (“SELLER”) ARE SOLD SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW. ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS IN BUYER'S PURCHASE ORDER OR SIMILAR COMMUNICATIONS ARE OBJECTED TO AND SHALL NOT BE BINDING ON SELLER UNLESS AGREED TO IN WRITING BY AN OFFICER OF SELLER. BY ISSUING A PURCHASE ORDER, ACCEPTING SHIPMENT OR PERFORMANCE, AND/OR PAYING FOR THE GOODS OR SERVICES, BUYER AGREES THAT IT ACCEPTS SELLER'S TERMS AND CONDITIONS OF SALE, INCLUDING SELLER'S WARRANTY POLICY. BUYER FURTHER AGREES THAT ALL INFORMATION PROVIDED BY SELLER, INCLUDING PRICING, IS SELLER'S CONFIDENTIAL INFORMATION AND MAY NOT BE DISCLOSED WITHOUT SELLER'S PRIOR WRITTEN CONSENT.
Price
Prices in effect at the time of shipment of goods or performance of services shall prevail. All prices quoted by SELLER are subject to correction or change without notice. Prices do not include freight, shipping, and/or handling fees, or any present or future duties, tariffs, sales, use, excise, value-added, or similar taxes. Where applicable, such taxes shall be billed as a separate item and paid by Buyer. A standard shipping charge is applied to each invoice for goods to cover material preparation, packaging, freight, and/or any additional costs associated with each shipment, based on the value and/or weight of the shipment. Additional charges for local delivery may also apply. Export orders may be subject to other special pricing.
Payment Terms
Unless otherwise agreed in writing, payment terms are thirty (30) days net, without setoff or deduction, from the date the invoice was mailed or goods were delivered, whichever is earliest, if Buyer's credit has been approved prior to sale. A late payment charge of 1-1/2% per month (an annual percentage rate of 18%) shall be charged on all past-due accounts, and Buyer shall pay SELLER all costs incurred by it in collecting any past-due account from Buyer, including, but not limited to, all court costs and attorney's fees. However, if the foregoing charges exceed the rate permitted by law, such charges shall be calculated at the highest allowable lawful rate. The remittance portion of the invoice shall accompany payment. Alternatively, payments and other adjustments must reference the invoice number to assure proper credit.
Credit Balance
Any credit balance issued will be applied within one (1) year of issuance. IF NOT APPLIED WITHIN ONE (1) YEAR, THE REMAINING BALANCE SHALL BE CANCELLED, AND SELLER SHALL HAVE NO FURTHER LIABILITY EXCEPT AS REQUIRED BY APPLICABLE LAW.
Delivery
Unless otherwise noted, all domestic sales of goods are made f.o.b. point of shipment (Uniform Commercial Code), and all international sales of goods are made EXW point of shipment (Incoterms® 2020). In all cases, title shall pass upon delivery, and thereafter all risk of loss or damage shall be on Buyer. Delivery dates given before actual shipment of goods or performance of services are estimates and shall not be deemed fixed or guaranteed. Buyer shall notify SELLER of any nonconforming goods within a commercially reasonable time after Buyer becomes aware of such nonconforming goods.
Warranties
Goods are sold only with such warranties as may be extended by the manufacturer of the goods. Services performed by third parties are subject only to those warranties extended by such third parties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SPECIFICALLY SET FORTH IN SELLER'S WARRANTY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE and available at WWW.PANELKITPRO.COM or upon request to SELLER. Buyer is responsible for installation and use in accordance with manufacturer's instructions. Goods are sold for commercial use only and are not intended for use by consumers. SELLER personnel are not authorized to alter this policy. Buyer shall be solely responsible for any warranty it grants to its customer.
Limitation of Liability
SELLER assumes no responsibility for the selection, operation, or use of goods, regardless of any recommendations or suggestions made by SELLER. Buyer shall make selections based on its own analysis of function, material compatibility, fitness for use or intended purpose, and goods ratings. Any such analysis, including testing, shall be the sole responsibility of Buyer. Proper installation, operation, and maintenance are solely Buyer's or its customer's responsibility. Any specifications listed in SELLER's datasheets, catalog, and website are for reference only and are subject to change without notice. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SELLER'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH THEREOF, OR CONNECTED WITH ANY GOODS OR SERVICES SUPPLIED HEREUNDER, OR THE SALE, RESALE, OPERATION, OR USE OF GOODS, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHER GROUNDS, SHALL NOT EXCEED THE PRICE ALLOCABLE TO SUCH GOODS OR SERVICES OR PART THEREOF INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. This limitation of liability reflects a deliberate and bargained-for allocation of risks between SELLER and Buyer and constitutes the basis of the parties' bargain, without which SELLER would not have agreed to the price or terms of this agreement. SELLER shall not, under any circumstances, be liable for any labor charges without its prior written consent. SELLER SHALL NOT IN ANY EVENT BE LIABLE, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHER GROUNDS, FOR CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL, CONTINGENT, SPECIAL, LIQUIDATED, OR PUNITIVE DAMAGES, including, but not limited to, loss of profits or revenue, loss of use of goods or associated goods, cost of capital, cost of substitute goods, facilities, or services, downtime costs, or claims of Buyer's customers for such damage. If SELLER furnishes Buyer with advice or other assistance regarding any goods or services supplied hereunder, or any system or equipment in which any such goods may be installed, and which is not required pursuant to this agreement, the furnishing of the advice or assistance will not subject SELLER to any liability, whether based on agreement, warranty, tort (including negligence or indemnity) or other grounds. BUYER AGREES TO DEFEND, INDEMNIFY, AND HOLD SELLER HARMLESS FROM ANY THIRD-PARTY CLAIMS ARISING OUT OF THE USE, RESALE, OR LEASE OF GOODS OR SERVICES PROVIDED BY SELLER.
Intellectual Property
Each party will retain exclusive interest in and ownership of its intellectual property developed before this agreement or outside the scope of this agreement. Upon mutual agreement, SELLER hereby grants Buyer a non-exclusive, worldwide, non-transferable, non-sublicensable, and royalty-free license to use SELLER's pre-existing intellectual property solely for the purpose of using the goods and services provided by SELLER. Any intellectual property developed under or related to this agreement shall be the sole and exclusive property of SELLER.
Subcontract/Substitutions/Interchangeability
Buyer agrees that SELLER may subcontract all or any portion of the supply of goods and the performance of services to third parties. Buyer agrees that SELLER may store, process, and use data and other information provided by Buyer. Buyer authorizes SELLER to disclose all such data and other information, including Buyer's confidential information, to SELLER's affiliated companies, representatives, suppliers, and subcontractors as necessary for the supply of goods or the performance of services. Unless specifically restricted on a purchase order, SELLER reserves the right to substitute equivalent available goods for the goods ordered where the interchangeability of the goods is based on form, fit, and function.
Equal Opportunity and Labor Practices
The contract provisions in Section 202 of Executive Order 11246, as amended, and the regulations promulgated thereunder are incorporated by reference as if fully set forth with respect to any order. SELLER certifies that the goods covered by this invoice have been produced in accordance with the Fair Labor Standards Act of 1938, as amended.
Safety Data Sheets (“SDS”)
Unless requested, SELLER will not furnish paper copies of Safety Data Sheets (“SDS”). SDS for OSHA-defined hazardous substances are supplied by the manufacturers and/or suppliers and are available online at WWW.PANELKITPRO.COM. SELLER MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE INFORMATION IN ANY SDS. CUSTOMER END USER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON, OR USE OF, ANY INFORMATION, AND FOR THE USE OR APPLICATION OF ANY GOODS. SELLER will continue to furnish paper copies of SDS for those goods for which an SDS is not electronically available. Paper copies of SDS for all goods may be requested by contacting Seller to receive a copy of any SDS via web, facsimile, or U.S. mail.
Hazardous Activities
Unless specifically agreed to in writing by an authorized officer of SELLER, goods or services sold hereunder are not intended for use in connection with any nuclear facility or any other application or hazardous activity that SELLER, in its sole discretion, determines to be high risk or hazardous, or where failure of a single component could cause substantial harm to persons or property. If so used, SELLER disclaims any and all liability for any nuclear damage, contamination, or other damage or injury. Buyer shall indemnify and hold SELLER harmless from such liability, whether as a result of breach of contract or warranty, tort (including negligence or indemnity), or other grounds. SELLER and its suppliers shall not be liable to Buyer or its insurers, based on agreement, warranty, tort (including negligence or indemnity), or other grounds, for onsite damage to property located at a nuclear facility.
California Proposition 65
NOTICE: California Consumers (as defined by California Proposition 65) are not eligible to make purchases on https://www.panelkitpro.com. Any sales made contrary to this notice are null and void. Products may be purchased for industrial MRO or OEM applications (i.e., for business or commercial use only) and not as a California Consumer pursuant to California Proposition 65 (i.e., for individual or household use).
Cancellation and Returns
Buyer may cancel an order by mutual agreement upon payment to SELLER of reasonable and proper cancellation charges. Goods shall not be returned by Buyer without SELLER's prior written authorization and payment by Buyer of a minimum restocking charge of 15%. Authorized returns shall be shipped at Buyer's sole expense, freight prepaid. There are NO returns of special order or made-to-order items. No returns shall be accepted after 60 days from delivery. No credit will be issued for shipping charges or other special expenses.
Shortage/Overages
All shortages and/or overages must be identified within 14 days of shipment.
Force Majeure
SELLER shall not be liable for failure to deliver or for delay in delivery or performance due to: (i) a cause beyond its reasonable control; (ii) an act of God, Buyer's act or omission, an act of civil or military authority, governmental priority or other allocation or control, fire, strike or other labor difficulty, riot or other civil disturbance, public health emergency or outbreak, terrorist act, insolvency or other inability to perform by the manufacturer, or delay in transportation; or (iii) a telecommunication outage, power outage, security event, or any other commercial impracticability. If such a delay occurs, delivery or performance shall be extended by a period equal to the time lost due to the delay.
Change in Buyer's Financial Condition
SELLER reserves the right, by written notice, to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to SELLER in the event of: (i) Buyer's insolvency, (ii) the filing of a voluntary petition in bankruptcy by Buyer, (iii) the appointment of a receiver or trustee for Buyer, or (iv) the execution by Buyer of an assignment for the benefit of creditors. SELLER reserves the right to suspend its performance until payment or adequate assurance of performance has been received. SELLER also reserves the right to cancel Buyer's credit at any time for any reason. Buyer, to provide security for the payment of the full price of goods furnished hereunder, grants SELLER a security interest in the goods and the proceeds thereof. Buyer agrees to execute any documents or furnish information necessary to perfect this security interest. A copy of the invoice may be filed at any time as a financing and/or chattel mortgage to perfect SELLER's security interest. SELLER may, in its sole discretion, require, and Buyer hereby grants to SELLER, a continuing purchase money security interest in all inventory, equipment, and goods sold by SELLER to or for the benefit of Buyer, wherever located, and all accessions and goods and all proceeds from the sale thereof; and all accounts and accounts receivable which may from time to time hereafter come into existence during the term of this Security Agreement. SELLER's purchase money security interest is explicitly limited to outstanding obligations between SELLER and Buyer.
Assignment or Delegation
Buyer shall not, by operation of law or otherwise, assign, transfer, or delegate any or all of its duties or rights under this Agreement without SELLER's prior written consent.
Waiver, Choice of Law, and Dispute Resolution
The failure of either party to assert a right hereunder or to insist on compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Ohio, United States of America, excluding conflict-of-law rules. Any dispute with a party located in the U.S. arising out of or relating to transactions hereunder shall be brought only in any state or federal court with jurisdiction and venue over Akron, Ohio, unless all such courts refuse to exercise jurisdiction and venue, and the parties hereby consent to the exclusive jurisdiction of such courts. Any claims brought by Buyer shall be escalated to senior management within both organizations before Buyer files a lawsuit. Trial by jury is hereby waived. Any dispute with a party located outside the U.S., except actions by Seller for nonpayment by Buyer of the purchase price of goods or services sold, shall be settled by binding arbitration in Akron, Ohio, under Ohio law, administered by the American Arbitration Association under its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitrators will have the powers a state court judge would have had if the matter had been filed in such court, including equitable powers, except for the power to award punitive damages, which they shall not have. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Compliance with Laws
Buyer recognizes that the goods are used in many regulated applications and that, from time to time, standards and regulations may conflict. SELLER makes no promise or representation that the goods will conform to any federal, state, or local laws, ordinances, regulations, codes, or standards, except as specifically specified and agreed in writing as part of the agreement between Buyer and SELLER. SELLER's prices do not include the cost of any related inspections, permits, or inspection fees.
Special Tools
Unless specifically agreed in writing by SELLER and paid for by Buyer as shown on the invoice, all special tools, dies, jigs, patterns, machinery, and/or equipment needed by SELLER for the performance of this sale are, and shall remain, the property of SELLER.
Order Acceptance
Buyer acknowledges that no order shall be deemed accepted unless and until it is verified and accepted in writing by SELLER. Buyer further consents that submitting its order shall subject Buyer to the jurisdiction of the federal courts of the United States of America and the state in which acceptance occurred in the United States of America.
Export Controls and Related Regulations
Buyer represents and warrants that it is not on, and is not associated with any organization on, the United States Department of Commerce's Bureau of Industry and Security's Denied Persons List or Unverified List; the United States Department of the Treasury's Office of Foreign Assets Control lists, including the Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers-Kingpin, or Specially Designated Terrorists List; the United States Department of State's Designated Foreign Terrorist Organizations, Embargoed Countries list, or Debarred Persons List; or subject to a denial order issued by the United States Department of Commerce. Buyer shall comply with all relevant laws and regulations of governmental bodies or agencies, including but not limited to all applicable export control laws of the United States or other governing agencies and their successors. Any commodities, technology, and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by SELLER, Buyer shall provide documentation satisfactory to SELLER verifying delivery to the designated country. BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS, AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.
Foreign Principal Party in Interest; Freight Forwarder and Documentation
For any export sales, it is specifically agreed that Buyer shall be the foreign principal party in interest and/or that its freight forwarder shall act as Buyer's agent in such capacity for Export Administration Act or other applicable purposes; and Buyer and its freight forwarder shall assume responsibility for all export or routing transaction documentation. At SELLER's request, Buyer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by Buyer or its freight forwarder related to sales to Buyer by SELLER.
Anti-Bribery and Anti-Corruption
Buyer states that it is an independent contractor and represents, warrants, and covenants that it is in compliance with the U.S. Foreign Corrupt Practices Act and all applicable laws and regulations governing bribery and corruption in all countries in which Buyer conducts business.
Permits, Export, and Import Licenses
Buyer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, the International Traffic in Arms Regulations, the Toxic Substances Control Act, or other applicable laws or regulations.
General
All orders are subject to SELLER's acceptance. The terms and conditions in SELLER's forms are incorporated herein by reference and constitute the entire and exclusive agreement between Buyer and SELLER. Any representation, affirmation of fact, course of dealing, promise, condition, or usage of trade not incorporated herein shall not be binding on either party. If any provision of this agreement is unenforceable, invalid, or void for any reason, that provision shall be voided and shall not be part of this agreement. The enforceability or validity of the remaining provisions shall not be affected.