TERMS AND CONDITIONS OF SALE
All offers to sell Products (as defined below) by Vulcan Line Tools, Inc. (“VLT”), and all purchases of Products from VLT, are subject to and expressly conditioned upon these Terms and Conditions of Sale (these “Terms”), which are accepted by, and shall be deemed binding on, the Customer upon placing an order for Product(s) (as hereinafter defined). VLT’s failure to object to any terms and conditions contained in any purchase order or other document from Customer will neither be construed as its acceptance of such terms and conditions, or a waiver of these Terms.
1. DEFINITIONS.
1.1 “Customer” means a person or entity that purchases Products directly from VLT or from a VLT-authorized distributor.
1.2 “Documentation” means, with respect to any Product, the instructions for use or other documentation provided to Customer, in writing or electronically, for such Product.
1.3 “Equipment” means equipment, related parts, software, peripherals and accessories that are manufactured, licensed, leased, sold or otherwise distributed by VLT . Equipment shall also include any related services offered by or on behalf of VLT
1.4 “Expedited Orders” means a request from a Customer that indicates a guaranteed expedited delivery day (same day, next day, or second day delivery) that is outside of the Customer’s normal schedule or normal lead time.
1.5 “Product(s)” means any product other than Equipment (including, without limitation, the Vulcan Line Tools Dynamometer) that is sold or otherwise distributed by VLT.
1.6 “Product Warranty” means, with respect to a Product, the Product warranty that is hosted at https://www.vulcanlinetools.com/product-warranty as of the date of placement of order for such Product.
1.7 “Purchase Order” means an agreement separate from these Terms (including, but not limited to, a purchase order) that has been negotiated and executed between VLT and Customer for the purchase of Products or any other products (including Equipment) sold or otherwise distributed by VLT.
1.8 “Return Goods Policy” means VLT’s Return Goods Policy, which can be requested by emailing sales@vulcanlinetools.com .
1.9 “Specifications” means (a) with respect to Products manufactured by VLT, VLT’s specifications for the Product as set forth in the applicable Documentation, and (b) with respect to Products distributed, but not manufactured, by VLT, the manufacturer’s published specifications at the time of shipment.
2. WARRANTIES AND LIMITATION OF LIABILITY.
2.1 Product Warranty and Remedy.
2.1.1 VLT offers the Product Warranty with respect to every Product. The Product Warranty is incorporated herein as part of these Terms by reference.
2.1.2 Product Warranties shall be extended only to the original Customer, and are not assignable or transferable by Customer.
2.1.3 Each Product Warranty is conditioned upon proper storage, installation, use, and maintenance in accordance with the applicable Documentation. A Product Warranty will be void and of no effect if: (a) the Product is not used in accordance with its Documentation; (b) the alleged defect is a result of abuse, misuse, improper maintenance, accident or the negligence, willful misconduct or fraud of any party other than VLT; (c) the Product’s failure to conform to the Product Warranty was due in whole or in part to other conditions beyond the control of VLT; (d) any repairs, alterations or other work has been performed by Customer or others on such Product (other than work performed with VLT’s prior written authorization and in accordance with VLT’s approved procedures). Without limiting the foregoing, the Product Warranty does not extend to damage to Products or other items resulting in whole or in part from the use of components, accessories, parts or supplies that are not furnished by VLT.
2.1.4 VLT’s obligations in connection with any breach of a Product Warranty is expressly conditioned upon Customer’s compliance with the procedure set forth therein.
2.1.5 THE APPLICABLE PRODUCT WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY REGARDING THE PRODUCTS AND PROVIDED IN LIEU OF ALL OTHER WARRANTIES. VLT HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
2.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VLT SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY OR ENTITY UNDER THESE TERMS, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, THAT ARE OR INCLUDE (A) PROXIMATE, ACCIDENTAL, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT OR SIMILAR DAMAGES OR (B) LOST PROFITS OR LOST REVENUES, EVEN IF VLT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VLT’S TOTAL LIABILITY, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE PRODUCT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
3. INDEMNIFICATION. Customer hereby agrees to indemnify, defend, and hold harmless VLT, its affiliates and subsidiaries, and the officers, directors, employees, agents and insurers of each of them (individually and/or collectively, “VLT Indemnitees”), from and against any and all third-party claims, demands, actions, damages, expenses, costs, claims, judgments and liabilities (including, without limitation, interest, penalties and reasonable attorneys’ fees and investigative costs) which may be sustained or incurred by VLT Indemnitees, arising from, in connection with or as a consequence of (a) any negligence, willful misconduct, fraud, breach of law, or breach of these Terms by Customer; (b) Customer’s use or sale of the Products, except to the extent that such suit or demand arises out of the failure of the Products to meet VLT’s Warranty; and/or (c) Customer’s improper handling or storage of Product(s). No settlement of such claim shall be made unless such settlement provides a complete and unconditional release of VLT.
4. ATTORNEYS’ FEES. In the event legal action is brought to enforce the provisions contained herein, the prevailing party shall be entitled to recover its reasonable and actual attorneys’ fees and costs.
5. ORDERING INFORMATION.
5.1 Purchase Orders. Customer shall submit all orders to VLT by email at sales@vulcanlinetools.com .
5.1.1 The following information is requested and must be validated by Customer on every purchase order:
Account number
Customer name
Complete delivery address
Purchase order number
Contact name and telephone number
Product code number
Quantity
5.1.2 When using a purchase order form, only the information set forth in Section 5.1.1 shall apply to VLT. Any purchase order terms and conditions, and/or modifications regarding pricing or general ordering information, contained in such purchase orders shall have no effect. Customer acknowledges and agrees that these Terms supersede the terms and conditions of any purchase order or other documentation used by Customer and, except for delivery and billing addresses, and types and quantities of items ordered, any conflicting or additional terms are void and have no effect.
5.1.3 All orders are subject to acceptance by VLT.
5.2 Licenses. Customer hereby represents and warrants that it has any and all current licenses required to purchase such Products and agrees that this representation is material consideration for purchasing Products from VLT and that VLT is relying on such representation. Upon VLT’s request, Customer shall forward a copy of such licenses to VLT.
5.3 Expedited Orders.
5.3.1 Expedited Orders placed by Customer during VLT’s regular business hours, if accepted by VLT, shall be subject to additional shipping/delivery charges.
5.3.2 Expedited Orders placed by Customer after VLT’s regular business hours or on weekends/holidays, if accepted by VLT, shall be subject to additional shipping/delivery charges.
5.3.3 VLT will attempt to ship all accepted Expedited Orders to Customer on an expedited basis based on Customer’s request, however, VLT will not be liable for any loss or damage arising out of delay or failure of shipment or delivery.
6. SHIPPING INFORMATION.
6.1 Delivery. Shipping dates that VLT may provide to Customer are approximate only and are estimated from the date of receipt of order. VLT reserves the right to revise shipping estimates to reflect conditions in effect on or before the date on which an order is scheduled to be shipped. VLT shall use its reasonable commercial efforts to fill and ship accepted orders on or before the estimated shipping date, however, VLT will not be liable for any loss or damage associated with a delay or failure of shipment or delivery of Product for any reason. In any event, receipt of Product by Customer shall constitute acceptance and waiver of any and all claims due to delay.
6.2 Nonperformance. Without limiting the foregoing, Customer agrees that VLT will not be liable for any loss or damages that may result from nonperformance caused by manufacturing problems, discontinuation of a product line, acts of Customer, and/or by reason of any “Force Majeure Event” as more particularly described and defined in Section 8 of these Terms. Customer agrees and understands that under any such circumstances, VLT may, subject to VLT’s discretion and without liability to Customer, allocate available Products (including Products subject to these Terms) among all its customers without liability.
6.3 Inspection and Acceptance of Product at Delivery. Customer shall be responsible for visually inspecting and counting all Product(s) received prior to acceptance of delivery from the carrier. Any exception must be noted on both the packing list accompanying the shipment and the carrier’s freight bill or bill of lading and must be signed by Customer. The carrier should countersign the packing list and the carrier’s freight bill or bill of lading. Customer shall notify VLT of any delivery exceptions (e.g., shortage, damage, picking error, warehouse error, Customer error, overage, labeling error, and order entry error) within two (2) business days of receipt of shipment for credit eligibility consideration in accordance with VLT’s Return Goods Policy.
6.4 Shipping and Handling Charges. Customer is responsible for freight, handling, clearance and special services charges for all Products including when Customer requests Expedited Orders processing and delivery.
6.5 Proof of Shipment/Delivery. Customer must maintain VLT’s invoice and packing list as its proof of shipment and delivery. Customer must request proof of delivery from VLT within thirty (30) days of receipt in order to obtain clear documentation from the carrier. After this period, the shipment shall be deemed undisputed and the full invoice amount for such shipment will be due and payable.
6.6 Shipping Terms/Risk of Loss. Except as otherwise permitted herein, Product is shipped FOB origin, and the risk of loss on any Product shall pass to Customer when the carrier receives the Product or when the Product leaves VLT premises.
6.7 Title. Title to all Products shall pass to Customer upon delivery to carrier.
6.8 Product Recall. VLT will notify Customer promptly upon the occurrence of a Recall for any Products purchased by Customer directly from VLT. VLT shall be responsible for implementing the Recall and upon VLT’s reasonable request, Customer shall fully cooperate with VLT to implement the Recall. The Product subject to Recall shall be deemed non-conforming and VLT shall pay to Customer Customer’s reasonable, documented out-of-pocked expenses incurred in connection with such Recall, provided such expenses are preapproved by VLT. “Recall” shall mean any action by VLT or any governmental authority whether voluntary or involuntary, to recover title to or possession of Product sold or shipped, including Product recalls, market withdrawals, and field corrective actions.
7. BILLING AND PAYMENT INFORMATION.
7.1 Prices. Products are priced at the amount indicated for the selling unit of measure.
7.2 Taxes. Customer shall be responsible for payment of all applicable state and/or local sales, use, and/or gross receipts tax receipts resulting from its transactions with VLT. Customers claiming an exemption from taxation are required to provide valid certification to VLT supporting its claim of exemption.
7.3 Invoices. Product is invoiced after it is shipped to Customer. Notwithstanding the foregoing, VLT reserves the right to demand payment before shipping Product. Questions regarding invoices should be directed to VLT. VLT shall send all invoices electronically and Customer must have the capability to receive invoices electronically.
7.4 Payment Terms. Payment terms are net thirty (30) days from date of invoice (“Due Date”). VLT must receive payment at the “Remit To” address listed on the invoice on or before the Due Date to be considered as received on time. Customer shall pay VLT a service charge of one and a half percent (1.5%) per month or the highest amount allowed by law, if lower, on all past due amounts. Additionally, VLT reserves the right to require payment in advance of shipment.
7.5 Disputes Regarding Invoices. All disputes regarding invoices, with the exception of delivery exceptions as defined in Section 6.3, must be submitted to VLT within thirty (30) days after the date of invoice. All disputes or rights are waived unless Customer’s complaint has been filed within such time period. Only amounts that are disputed may be withheld from payment pending resolution. Any portion of an invoice not in dispute must be remitted within the timeframe specified within these Terms. If Customer disputes an invoice or portion of an invoice and such dispute is invalid or incorrect, Customer will pay additional charges referenced above (in Section 7.4) on any unpaid amounts in dispute. Such charges will begin to accrue on the date payment was originally due. If Customer and VLT are unable to resolve a disputed invoice, then Section 9 shall govern.
8. FORCE MAJEURE. VLT shall not be liable for nonperformance or delays caused by strikes, lockouts, concerted acts of workers or other industrial disturbances, fires, explosions, floods, pandemics or other natural catastrophes, civil disturbances, riots, or armed conflict, whether declared or undeclared, curtailment, shortages of power or materials, rationing, or allocation, of normal sources of supply, labor, materials, transportation, energy, or utilities, accidents, acts of God, sufferance of or voluntary compliance with acts of government or governmental regulation, (whether or not valid) embargoes, or any other cause not specified above which is beyond the commercially reasonable control of VLT (a “Force Majeure Event”). Customer agrees that in the event of any of the foregoing, VLT may, subject to VLT’s good faith discretion and without liability to Customer, allocate the distribution of any of its Products (including the Products subject to these Terms) among its customers.
9. ARBITRATION. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in the Atlanta, GA, before three (3) arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on any award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including any hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. These Terms and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the provision in this paragraph with respect to applicable substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
10. ADDITIONAL OBLIGATIONS OF CUSTOMER.
10.1 Compliance with Laws and Standards. Customer shall, at all times during its use of the Products, the exercise of its rights and the performance of its obligations hereunder, comply with all instructions, documentation, training and applicable recommendations of VLT (including, without limitation, VLT’s instructions for use) as well as all applicable laws, rules, regulations, applicable industry standards, and safety protocols.
10.2 Own Use; No Reselling. Customer agrees that it will not resell or otherwise transfer any Products, in their original form, to any reseller, distributor or end-user.
10.3 No Export or Transfer. Customer will not export, re-export or otherwise transfer, directly or indirectly, any Products except as authorized by United States law. In particular, but without limitation, Products may not be exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals (“SDN”) or the U.S. Department of Commerce Denied Person’s List or Entity List (“DPL”)). Customer also represents and warrants that it is not listed on the SDN, DPL, or any other similar prohibited/restricted list issued by the US or other governmental entity and will not use the Products for any purposes prohibited by applicable law.
10.4 No Reverse Engineering. Customer shall not, and will not permit any third party to:
10.4.1 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any Product or Equipment (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); or
10.4.2 modify, translate, or create derivative works based on any Product or Equipment.
10.5 Intellectual Property. VLT alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Products or Equipment, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Products and/or Equipment, which are hereby assigned to VLT. Customer will not, and will not permit any third party to, copy, distribute, reproduce or use any of the foregoing except as expressly permitted under these Terms
11. CONFIDENTIALITY. The term “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other, business or technical information including the identity of VLT’s suppliers and/or business partners disclosed by or for VLT, but not including any information Customer can demonstrate is (1) rightfully furnished to it without restriction by a third party without breach of any obligation of confidentiality, (2) generally available to the public without breach of this Agreement or (3) independently developed by it without reliance on such information. All pricing information provided by VLT is deemed to be Confidential Information. Except for the specific rights granted by these Terms, Customer shall not copy, reproduce, use for its own benefit, publish, or disclose to others, or permit the use by others for their benefit or to the detriment of VLT, any of VLT’s Confidential Information without its written consent, and shall protect it with the same degree of care used by Customer to protect its own confidential information, which in no event shall be less than reasonable care. Customer shall be responsible for any breach of the foregoing by its employees and agents. Customer acknowledges that any breach or threatened breach of the foregoing may cause irreparable harm to VLT for which money damages may not be an adequate remedy and VLT shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.
12. RETURN POLICY. VLT’s Return Policy is incorporated herein as part of these Terms. The Return Policy applies only to purchases of Products made directly from VLT and does not apply to purchases of Products made through a distributor.
13. MISCELLANEOUS. All communications under this Agreement shall be via email, in writing or by confirmed fax, and shall be deemed to have been duly given upon receipt if sent to the email address, address or fax number set forth on the Purchase Order or such other address or fax number as either party may specify. All notices hereunder shall be in English. In the event that any provision of these Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of these Terms. The waiver by VLT of a breach or a default of any provision of these Terms by Customer shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of VLT to exercise or avail itself of any right, power or privilege hereunder, operate as a waiver of any right, power or privilege by VLT. Nothing contained in these Terms shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. These Terms, including all documents incorporated herein by reference, any quotation issued to Customer by VLT, and those specific terms of a Purchase Order that are consistent with these Terms (a) constitute the entire agreement of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter; (b) may not be amended or modified except by a writing executed by an authorized officer of the party against whom enforcement is sought; (c) may not be assigned by Customer without the written consent of VLT; and (d) shall be binding upon and shall inure to the benefit of the respective successors and permitted assigns of the parties hereto. ANY ADDITIONAL OR INCONSISTENT TERMS IN CUSTOMER’S DOCUMENTATION ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO AND REJECTION OF SUCH TERMS IS HEREBY GIVEN.