These General Sales Conditions (these “Conditions”) are applicable to each purchase of products from Ensto USA, LLC (“Ensto”). By purchasing products from Ensto, you agree that these Conditions form a legally binding contract between you and Ensto. These Conditions may be modified only by a written agreement between you and Ensto. If you do not agree with these Conditions, do not purchase products from Ensto.
These Conditions shall supersede any terms or conditions you may include in any purchase order or other document provided to Ensto in connection with the ordering or purchase of Ensto’s products. As such, all such terms or conditions are hereby rejected regardless of whether Ensto formally rejects or object to such terms or conditions. Unless a separate agreement has been entered into between you and Ensto, these Conditions shall be applicable to the present and all future business transactions between you and Ensto.
Except as otherwise set forth in any offer from Ensto to sell you products (“Offers”), Offers shall be valid for thirty (30) days from the date of the Offer. Until the Offer has been accepted by you, Ensto shall be entitled to change the terms of the Offer, including with respect to pricing and delivery times, if warranted by circumstances not attributable to Ensto.
Each purchase order placed in accordance with an Offer and these Conditions shall be considered an acceptance of the Offer. If a purchase order is not placed pursuant to an Offer, the purchase order shall become legally binding only upon Ensto’s acceptance of the purchase order. Ensto shall not be liable for any incorrect deliveries, products or specifications pursuant to any purchase order that is not placed in writing, unless you confirm the purchase order in writing either prior to shipment or commencement of production of the applicable products.
Materials requirements and tolerances related to products shall be as set forth in the technical specifications and standards included in or accompanying Offers. Materials requirements, tolerances, standards and other specifications related to Special Products to be manufactured according to your instructions (“Special Products”) must always be set forth in the inquiry or purchase order. Ensto warrants that it will manufacture Special Products in accordance with your specifications (as such specifications may be modified by agreement between you and Ensto, the “Specifications”), but Ensto does not verify or provide any warranties or guarantees regarding the functionality, suitability for a particular purpose, safety or merchantability of the Special Products. Unless included in the Specifications, tolerances for Special Products shall be as generally applied by Ensto.
Materials and parts supplied by you for Special Products shall be delivered DDP at the location designated by Ensto at the time agreed to by you and Ensto. With respect to any series of Special Products, the quantity of parts supplied by you shall exceed the total number of Special Products ordered by five percent (5%) (for example, if you have place an order for 100 Special Products that will include one part supplied by you, you will be required to supply us 105 such parts).
You shall be solely liable with respect to all aspects of the materials and parts delivered by you to Ensto, including without limitation that the materials and parts conform to the Specifications and that the Special Products will function as intended and be suitable for any particular purpose. You agree to indemnify and hold Ensto harmless with respect to any liabilities, costs, expenses or damages incurred by Ensto, directly or indirectly, in any manner resulting from materials or parts incorporated into the Special Products, including without limitation materials or parts that are defective, unfit or unusable.
Ensto warrants product quality and quality control in accordance with ISO 9002; provided, however, that this warranty will only be applicable to Special Products if specifically provided in the Offer or accepted purchase order for the Special Products.
Ensto shall be entitled to deliver samples of Special Products to you prior to commencement of manufacturing of any series of Special Products. You agree to promptly inspect the samples and notify Ensto of the results of the inspection and whether the samples are approved. Ensto shall not be obligated to commence manufacturing of any series of Special Products until the applicable samples have been approved by you.
All delivery terms for products shall be as set forth in the version of Incoterms 2010. Unless otherwise agreed, the delivery and transfer of title from Ensto to you shall be FCA Ensto or such other location designated in an Offer or Ensto’s acceptance of a purchase order. The products will be delivered in Ensto’s customary packaging. However, should products require special packaging, you will be separately charged for such packaging materials.
If Ensto discovers that the agreed upon delivery times cannot be adhered to, Ensto shall inform you the delays as soon as practically possible. If the delay is not due to force majeure event and the delay causes considerable disadvantages, you shall be entitled to cancel the order or part thereof to the extent that the delay is greater than four (4) weeks. Unless otherwise agreed, Ensto shall not be liable for any penalty, indemnification or liquidated damages with respect to any delay, nor shall Ensto be held responsible for any indirect or consequential damages caused by the delay.
Notwithstanding any provision to the contrary, neither party shall be liable for any loss, damage, claim or delay, change in shipment schedules or failure to deliver caused by strikes, riots, fire, accidents, insurrection, war, the elements, embargoes, failure of carriers, inability to obtain raw materials, or transportation facilities, government requirements, acts of God or the public enemy, prior orders from customers or limitations on its or its suppliers’ production or marketing activities, or any other causes beyond its control.
Ensto’s prices offered do not include U.S., foreign, state, or local transaction-based taxes or fees legally imposed on Ensto related to the sale of Ensto’s products, including sales and use taxes, goods and services taxes, value added taxes, excise taxes, and import or export duties or fees. Any such taxes or fees shall be added, when necessary, to the final amount of Ensto’s invoices. Ensto reserves the right to make price adjustments in the event of changes in production costs that are not attributable to Ensto, such as major changes in prices of raw materials or in exchange rates and the like.
Ensto shall inform you of general changes in prices not less than fourteen (14) days prior to the amendment. If you do not approve the changes, you are entitled to cancel the order within seven (7) days after having received notice of the change in price.
Except as set forth in any Offer or accepted purchase orders, all payments to Ensto shall be made within fourteen (14) days from the date of Ensto’s invoice for the applicable products. Until payment has been made in full to Ensto, you hereby grant to Ensto a security interest in the applicable products.
You agree that you shall not resell, pledge, use, install, convert or process the products in any way before they have been paid in full. A breach of this condition shall entitle Ensto to immediately cancel all orders and terminate its business relationship with you.
If you have any past due invoices, Ensto shall be entitled to suspend further deliveries without prior notice. Past due invoices shall accrue interest at the rate set forth in the applicable Offer or accepted purchase order (or the maximum permitted interest rate, if less). If no interest rate is set forth in an offer or accepted purchase order, the interest rate shall be 1.5% per month (or the maximum permitted interest rate, if less). Minimum late payment charge is $25.
Ensto shall be entitled to require you to pre-pay for products or provide a deposit for some portion of the products.
Any claim that a product or a Special Product is defective must be made to Ensto within eight (8) days after delivery of the product or Special Product to you. As such, you acknowledge and agree that you waive your rights to make a claim for defective products or Special Products after such eight (8) day period.
Subject to the terms set forth in these Conditions, Ensto warrants its products (other than its Special Products) as set forth in Ensto’s separate Standard Guarantee and Liability Terms.
With respect to Special Products, Ensto warrants only that the Special Products have been produced according to the applicable Specifications. Ensto does not provide any warranties, and shall have no liability, with respect to (i) defects in the Special Products resulting from materials ordered by you, (ii) whether the Special Products are suitable for any particular purpose, (iii) faulty installation or maintenance with respect to any Special Products or (v) damage to Special Products due to use under inappropriate conditions or resulting from normal wear and tear.
You shall return any products or Special Products rejected during inspection to Ensto in their original packing at Ensto’s cost; provided, however, that all shipping and transportation costs shall have been approved by Ensto in writing in advance. Ensto shall deliver the repaired or replaced products or Special Products to the original destination at its own cost.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION AND ANY WARRANTY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, ENSTO DISCLAIMS AND MAKES NO WARRANTY, CONDITION, REPRESENTATION OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO THE PRODUCTS, THE SPECIAL PRODUCTS OR ANY MATTER, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
Ensto shall not be liable and does not assume any liability or responsibility for improper selection, installation or use of its products or Special Products.
Your sole and exclusive remedy for a breach of the warranties set forth in this Section shall be as follows: For products, Special Products or parts thereof which prove to be defective, at Ensto’s option, (i) Ensto will deliver new replacement products or Special Products or parts theref to you, (ii) Ensto will repair the defective products, Special Products or parts thereof free of charge and deliver them to you, or (iii) Ensto will refund the purchase price for the defective products or Special Products that has been paid by you to Ensto. Remedies for defective products or Special Products not manufactured by Ensto shall be limited to the warranties extended by the manufacturers or suppliers of such products or Special Products and subject to any limitations to such warranties. Except as mutually agreed to, Ensto shall not be responsible or liable for any costs of transportation, removal, installation or other costs or expenses which may be incurred in connection with the repair or replacement of defective products or Special Products.
Ensto shall not be liable for any Special Product defects that relate to materials or parts provided by you, or designs, drawings or technical stipulations specified by you.
Title to all drawings, diagrams, technical specifications and instructions delivered to you by Ensto shall remain the sole and exclusive property of Ensto and all such drawings, diagrams, technical specifications and instructions shall be returned to Ensto upon a request. No right, title or interest in such drawings, diagrams, technical specifications and instructions or the data or information contained therein, shall be deemed to be transferred, assigned or licensed to you for any purpose.
All right, title and interest in and to Ensto’s trade names, trademarks and service marks (the “Marks”), copyrights and any patents, patent applications and other intellectual property and industrial rights of Ensto (collectively, the “Ensto IP”), together with all goodwill related thereto, shall as between Ensto and you be and remain the property of Ensto. You hereby acknowledge and agree that (i) you have no right, title or interest in or to the Ensto IP and (ii) all use of the Ensto IP by you and all goodwill arising out of such use by you shall inure to the benefit of Ensto. Your right to use the Ensto IP, if any, is derived solely from these Conditions and is limited by the Offer. You agree that you will not knowingly engage, participate, or otherwise, directly or indirectly, become involved in any activity or course of action that infringes on, diminishes and/or tarnishes the image and/or reputation of the Ensto IP. Any unauthorized use of any Ensto IP by you is a material breach of these Conditions. In the event of the institution of any suit or proceeding against you in respect of an infringement of any Ensto IP, Ensto shall have the option to defend such suit or proceeding.
No drawings, samples, technical specifications and other knowhow and any other similar industrial rights of Ensto shall be used, expressed, copied, imitated, solicited, communicated or otherwise made available to a third party.
You shall be responsible for investigating whether any Special Products are protected by a patent or the intellectual property rights of any third party and for notifying with respect to any claim related thereto. You agree that you will indemnify Ensto with respect to any claim that a Special Product infringes on the rights of any third party and all damages, costs and expenses related to any such claim.
The parties shall immediately inform each other upon receiving information of any injury, death or damage caused or allegedly cause by any product. You agree to inform Ensto of any particular risks he is aware of relating to properties or intended use of the products. Furthermore, you shall inform Ensto of any product liability claims or threats therefore relating to the products or any Special Products.
You agree that you shall maintain liability, product recall and product liability insurance in accordance with the practices and customs of your industry provided, however, that such insurance coverage shall not be less than $2,000,000 per occurrence and $5,000,000 in the aggregate. Upon Ensto’s request, you agree to add Ensto as an additional insured with respect to the foregoing coverage and promptly deliver insurance certificates evidencing the foregoing.
Should Ensto have any reason to suspect that any product or Special Product may cause a danger to users or third parties, Ensto shall have the right to suspend deliveries and to recall the products or Special Products. In such an event, the stipulations regarding force majeure shall be applied.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY LEGAL THEORY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF USE OR PRODUCTION OR LOSS OF CAPITAL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY LAW AND NOT WITHSTANDING ANY OTHER PROVISIONS OF THESE CONDITIONS, THE TOTAL LIABILITY, IN THE AGGREGATE, OF ENSTO AND ENSTO’S OFFICERS, DIRECTORS, EMPLOYEES AND AFFILIATES TO YOU FOR ANY AND ALL LOSSES RESULTING FROM OR RELATED THESE CONDITIONS SHALL NOT EXCEED THE TOTAL AMOUNT OF PAYMENTS RECEIVED BY ENSTO FROM YOU IN THE PREVIOUS SIX (6) MONTHS. IT IS INTENDED THAT THIS LIMITATION APPLY TO ALL LIABILITY OR CAUSES OF ACTION HOWEVER ALLEGED OR ARISING, UNLESS OTHERWISE PROHIBITED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT THE AMOUNTS PAYABLE HEREUNDER HAVE BEEN ESTABLISHED IN CONTEMPLATION OF THESE LIMITATIONS OF LIABILITY AND FORM ESSENTIAL COMPONENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
You shall indemnify, defend and hold harmless Ensto and its officers, directors, employees, representatives and affiliates, from and against any and all damages, losses, deficiencies, actions, demands, judgments, costs and expenses (including reasonable attorneys’ fees) of or against Ensto arising from any third party claim (a) for personal injury, death or damage to real or tangible personal property caused by you (or any of your employees or contractors) or (b) resulting from a breach by you of applicable law or these Conditions, including but not limited to misrepresentations regarding the products.
Either party may at any time terminate these Conditions upon written notice to the other party in the event of (A) a material breach of these Conditions which has not been cured within ten (10) days of notice thereof to the other party or (B) any assignment is made by the other party for the benefit of creditors; if a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property; if the other party files a voluntary petition under federal bankruptcy laws or similar state statutes; or if such a petition is filed against the other party and is not dismissed within sixty (60) days. Sections 10 through 21 shall survive the termination of these Conditions.
Ensto may at any time terminate these Conditions if it becomes impossible or impractical from a production or technical standpoint to perform Ensto’s obligations hereunder.
Neither party may assign these Conditions without the prior written approval of the other party; provided, however, that Ensto shall be entitled to assign these Conditions to an affiliate or acquirer of a controlling interest in Ensto.
Distributor recognizes and acknowledges that in the event of your breach or default of Sections 14 and 15 of these Conditions, the damages to Ensto will be impossible to ascertain and Ensto will not have an adequate remedy at law, in the event of any such breach of default. Accordingly, Ensto shall be entitled to institute and prosecute the proceedings in any court of competent jurisdiction, either at law or in equity, to enforce the specific performance of Sections 14 and 15 of these Conditions, and/or to obtain injunctive relief or damages. Such remedies shall however be cumulative and nonexclusive and shall be in addition to any other remedies, which Ensto may have under these Conditions or at law.
In the event of any litigation arising out of or related to these Conditions, the prevailing party shall be entitled to be paid by the other party all of the prevailing party’s costs of litigation, including reasonable attorneys’ fees, at both the trial and appellate levels.
These Conditions are intended as a contract under and shall be construed and enforceable (both as to validity and performance), and shall be interpreted and the rights and obligations of the parties shall be determined in accordance with, the laws and procedures and provisions of the State of Georgia (other than conflict of law rules which might result in the application of the laws of any other jurisdiction). Each party hereby irrevocably consents and agrees that any legal action or proceedings brought under these Conditions shall be brought in the state or federal courts located in Fulton County, Georgia, and by execution and delivery of these Conditions, each party hereby (i) submits to the jurisdiction of the foregoing courts with respect to any legal action or proceedings brought under these Conditions, (ii) irrevocably agrees to be bound by any final judgment (after any appeal) of any such court with respect thereto, and (ii) irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venues of any suit, action or proceedings with respect hereto brought in any such court, and further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceedings brought in any such court has been brought in an inconvenient forum. Each party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner to the extent provided by law.
Each applicable Offer and these Conditions constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and supersedes any prior communications, representations, understandings and agreements, either oral or written, between the parties with respect to such subject matter.
Except as provided in these Conditions, no delay on the part of either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of either party of any such right, power or privilege, nor any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
The sales documents that a purchaser of products will receive prior to the closing of a sale should provide that the transaction is subject to these General Conditions of Sale (with information that explains to the purchaser where the General Conditions of Sale are located).