SFES TERMS AND CONDITIONS FOR THE SALE OF GOODS
(a) These SFES Terms and Conditions for the Sale of Goods (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by PWC Enterprises, Inc. d/b/a Southeastern Filtration & Equipment Systems, a Georgia corporation (“Seller”), to the buyer who is placing this online Purchase Order with Seller (“Buyer”).
2. Delivery.
(a) The Goods will be delivered within a reasonable time after the receipt of the Purchase Order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit. Seller shall make delivery in accordance with the terms on the Purchase Order.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location identified on the Purchase Order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods upon delivery 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 on the date the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall 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).
3. Non-Delivery. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this Section 3 are Buyer’s exclusive remedies for any non-delivery of Goods.
4. Title and Risk of Loss. Except as otherwise provider herein, title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. 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.
5. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods upon receipt and during the twenty-four (24) hour period following receipt (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 required by Seller. As used herein, “Nonconforming Goods” means only the following: (i) the Goods shipped are different than identified in the Purchase Order; or (ii) the Goods’ label or packaging incorrectly identifies its contents.
(b) 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 ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 359 Hood Road, Building 1, Suite 100, Jasper, GA 30143. If Seller exercises its option to replace Nonconforming Goods, Seller shall, 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.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), 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.
7. Price. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth on the Purchase Order. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices. 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. Buyer shall be responsible for all such charges, costs, and taxes.
8. Payment Terms. Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice. In the event payments are not received by Seller within thirty (30) days after becoming due, Seller may: (a) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend the delivery of any Goods or stop Goods in transit, until payment has been made in full. Buyer agrees to pay the costs associated with the collection of unpaid invoices, including associated attorney’s fees and court costs. 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. Buyer shall make all payments hereunder by wire transfer, credit card, or other electronic payment of immediately available funds and in U.S. dollars.
9. Mutual Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering (if Buyer is a business entity); (b) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth herein has been duly authorized by all necessary action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
10. Seller’s Limited Warranties.
(b) THE REMEDIES SET FORTH IN THE SFES LIMITED WARRANTY ARE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THE SFES LIMITED WARRANTY.
11. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, 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.
12. Insurance. During the Term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in such amounts as is industry standard for similarly situated businesses in Buyer’s industry and with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms, and Seller shall be named as an additional insured on such certificate. Buyer shall provide Seller with ten (10) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
13. Indemnification. Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party in a final judgment (collectively, “Losses”), relating to any claim of a third party or Seller arising out of or occurring in connection with Buyer’s actions or omissions, negligence, willful misconduct, or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.
14. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
15. Term. The term of this Agreement shall begin upon the date the Purchase Order is accepted by Seller and continue until the later of: (a) the end of the Inspection Period with respect to the last Goods delivered to Buyer; and (b) delivery of conforming Goods if Seller elects to replace any Nonconforming Goods pursuant to Section 6(b) (the “Term”).
16. Termination. In addition to any remedies that may be provided under this Agreement, 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 thirty (30) 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.
17. 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.
18. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the sale Goods, or this Agreement is confidential, and shall not be disclosed or copied by Buyer without the prior written consent of Seller. Confidential Information does not include information that is: (a) in the public domain;(b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Seller shall be entitled to injunctive relief for any violation of this Section.
19. Intellectual Property. 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 the Goods and all documents, work product, and other materials that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in the course of the sale of Goods shall be owned by Seller.
20. Non-Solicitation. During the Term of this Agreement and for a period of two (2) years thereafter Buyer shall not, directly or indirectly: (a) hire or solicit, or encourage any other person or entity to hire or solicit, any individual who is currently or has been previously employed by Seller as an employee or engaged by Seller as an independent contractor, or encourage any such individual to leave such employment or terminate such engagement; or (b) solicit or entice, or attempt to solicit or entice, any clients, customers, vendors, or suppliers of Seller, or any prospective clients, customers, vendors, or suppliers of Seller for purposes of diverting their business or services from Seller. Buyer acknowledges and agrees that a breach or threatened breach of this Section would give rise to irreparable harm to Seller, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Buyer of any such obligations, Seller shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). Buyer acknowledges that the restrictions contained in this Section are reasonable and necessary to protect Seller’s legitimate interests and constitute a material inducement to Seller to enter into this Agreement and consummate the transactions contemplated hereby.
21. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, pandemic, or outbreak; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action, including lockdowns or lockouts; (e) national or regional emergency; (f) strikes, labor stoppages, or slowdowns or other industrial disturbances; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
22. Assignment; Amendments and Modification. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under 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.
23. Relationship of the Parties; No Third-Party Beneficiaries. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns 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 this Agreement.
24. Governing Law; Submission to 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 sitting in the Northern District of Georgia or the courts of the State of Georgia located in the County of Pickens, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
25. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
26. Severability; Survival. 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 including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Non-Solicitation, Governing Law; Submission to Jurisdiction, and Severability; Survival.
27. Entire Agreement and Order of Authority. These Terms together with the Purchase Order and other exhibits attached hereto contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. In the event of any inconsistency between these Terms and the terms in the Purchase Order, these Terms shall govern unless it is explicitly set forth that the terms of the Purchase Order override these Terms.
28. Acceptance of Terms. BY ACKNOWLEDGING, ACCEPTING, OR CHECKING THE BOX THAT SAYS “I AGREE” TO THESE TERMS, BUYER ACKNOWLEDGES AND AGREES THAT BUYER HAS READ, UNDERSTOOD, AND HEREBY ACCEPTS THE TERMS OF THIS AGREEMENT.
(a) Seller warrants to Buyer that for a period of one (1) year for all Goods constituting an entire system (excluding replaceable elements) and six (6) months for all water treatment filters and cartridges, in each case from the date of purchase of the Goods (collectively, “Warranty Period”), that such Goods will be free from defect in material or workmanship. To qualify for the foregoing warranty, all Goods must be installed in accordance with the specifications provided by Seller, used in an operating condition that conforms to recommended guidelines, and be used with a potable water source which meets the criteria in all applicable owner’s guides or performance data sheets for the applicable Goods. The SFES Limited Warranty shall not apply if the Goods or any part thereof have been modified, altered, or repaired by Buyer without the written consent of Seller and shall not apply beyond the life of any water treatment filters or cartridges incorporated into the Goods. Capitalized terms used and not otherwise defined herein shall have the meaning ascribed to them in the SFES Terms and Conditions for the Sale of Goods by and between PWC Enterprises, Inc. d/b/a Southeastern Filtration & Equipment Systems and the buyer named on the Purchase Order.
(c) Products manufactured by a third party (a “Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranties in the SFES Limited Warranty. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO THIRD PARTY PRODUCTS INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH THE GOODS, SELLER MAY FROM TIME TO TIME PASS ON TO BUYER ANY OF THE WARRANTIES MADE BY SUCH THIRD PARTIES RELATING TO SUCH THIRD PARTY PRODUCTS, WHICH SHALL NOT CONSITUTE WARRANTIES MADE BY SELLER.
(f) The warranties contained in the SFES Limited Warranty shall only apply to the original Buyer of the Goods and may not be transferred or assigned. Any attempted transfer or assignment of the warranties contained in the SFES Limited Warranty shall void all warranties contained herein.
(g) In the event of any breach of the warranties contained in the SFES Limited Warranty, Seller’s obligations under the SFES Limited Warranty shall be limited to either (i) replace the defective or non-conforming Goods with non-defective or conforming Goods, or (ii) credit or refund the purchase price for such non-conforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Upon Seller’s request in Seller’s sole discretion, Buyer shall either (1) ship, at Seller’s expense and risk of loss, the non-conforming Goods to Seller’s designated facility, or (2) discard the non-conforming Goods. If Buyer elects to have Seller replace the non-conforming Goods, Seller shall upon Buyer’s instruction, promptly ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point.