Terms and Conditions of sale
- ENTIRE AGREEMENT. Any offer to sell products (“Products”) by Skilled Plastics LLC as well as any other related or affiliated entities desiring to make use of these Terms and on whose behalf these Terms are entered into (collectively, “SP”), to the customer or any of its related or affiliated entities (collectively, “Customer”) is expressly conditioned upon Customer’s acceptance of these terms and conditions (these “Terms”). These Terms shall apply to all orders placed by Customer, whether placed prior to or after the date of these Terms. These Terms (together with the terms of any long form of agreement provided by SP and executed by the parties, which shall prevail in the event of a conflict) are the entire agreement between the parties and supersede any prior written or oral agreements or understandings, or any preprinted or standard terms on any purchase order or similar document exchanged between SP and Customer, and shall not be supplemented by any course of dealing, course of performance, or usage of trade. Customer and SP acknowledge that these Terms have not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in these Terms. Customer’s assent to these Terms shall be conclusively presumed from Customer’s failure to object in writing within three (3) days from receipt hereof, Customer’s submission of an order for Products or Customer’s acceptance of any or all of the Products delivered. SP expressly rejects all new, different or additional terms submitted by Customer. No waiver or modification of these Terms shall be binding upon SP unless made in writing and signed by a duly authorized representative of SP. If any provision of these Terms is found to be invalid, such provision shall be ineffective only to the extent of such invalidity, and all other provisions shall remain in effect. Both parties shall negotiate in good faith in order to agree to the terms of a mutually satisfactory provision to be substituted for any provision that is found to be invalid.
- ORDERS. Orders for Products placed by Customer shall not be binding upon SP unless such order is accepted by SP in writing.
- PRICING. All SP quotations, including price lists and discount schedules, are intended as indications of the price at which the Products are available and are subject to change without notice. Unless otherwise agreed in writing, SP shall charge its prices in effect at the time of shipment of the Products (“Prices”). Except as otherwise set forth in an accepted purchase order for Products, all Prices are in United States Dollars, Ex Works SP’s premises (Incoterms 2020). Prices are exclusive of, and Customer shall be solely responsible for, all taxes (including where applicable, value added tax) and other charges applicable to the production, sale, shipment, importation or exportation of the Products imposed by federal, state or local governmental authorities.
- PAYMENT TERMS. Customer agrees to pay the Price quoted by SP for all Products ordered by Customer. Except as otherwise st forth in an accepted purchase order for Products, payment for Products shall be made in advance of delivery of such Products unless SP otherwise agrees in writing to extend credit terms to Customer. If credit is extended and any payment is not made within thirty (30) days of the invoice date, SP reserves the right to impose interest at a rate of 1% per month on overdue amounts. No retainages shall be deductible from or withheld by Customer from payments due to SP. SP reserves the right, among other remedies, to suspend further deliveries if Customer fails to make any payments as herein provided or if SP deems that its prospect of receiving payment from Customer or any of its affiliated companies (under any order or contract) is impaired. If Customer fails to pay any amounts owed to SP when due, SP may, at SP’s option, (i) treat all outstanding purchase orders submitted by Customer as repudiated, (ii) demand payment from Customer for all legal fees and costs incurred by SP in collecting past due amounts, and (iii) dispose of all Products ordered by Customer, including custom Products, in any manner it deems fit. Time for payment shall be of the essence.
- DELIVERY OF PRODUCTS. Except as otherwise set forth in an accepted purchase order for Products, (a) SP will select the carrier for all deliveries, (b) delivery shall take place upon SP’s delivery to the carrier for shipment and (c) all Products shall be at the risk of Customer from such point of delivery. Full legal, beneficial and equitable title in the Products shall remain vested in SP (even though they may already have been delivered and risk has passed to Customer) until (x) payment in full, in cash or cleared funds, for all the Products has been received by SP; and (y) all other money payable by Customer to SP on any other account or under these Terms or any other terms has been received by SP. Until full legal, beneficial and equitable title in the Products passes to Customer: (i) Customer shall hold the Products on a fiduciary basis as SP’s bailee; (ii) Customer shall store the Products at its premises in a proper manner in conditions which adequately protect and preserve the Products and shall insure them without any charge to SP; (iii) Customer shall not tamper with any identification upon the Products or their packaging and shall ensure that they are stored separately from any other products and are clearly identifiable as belonging to SP; (iv) SP shall be entitled to examine any such Products in storage at any time during normal business hours upon giving Customer reasonable intention to do so; (v) SP may at any time, on demand without prior notice, require Customer to deliver the Products to SP if any sum due under these Terms or on any other account or under any other terms is not paid when due; and (vi) SP authorizes Customer to use and/or sell the Products in the normal course of Customer’s business and to pass good title in the Products to its customers if they are purchasing in good faith without notice of SP’s rights. In the event that Customer delays shipment or does not accept delivery, payment shall be due on the date SP is prepared to ship and Customer shall reimburse SP for any costs incurred by SP in connection with such delay or non-acceptance, including but not limited to, the cost of storing and insuring the Products. Products held for Customer, or stored for Customer, shall be at the sole risk and expense of Customer. Any conflicting shipment terms set forth in an accepted purchase order for Products shall control over the terms of this Section 5.
- SHIPMENT DELAYS. All acknowledged shipping dates are approximate, based upon known conditions existing at the time of order placement. SP will make reasonable efforts to ship by the estimated shipping date, but shall in no event be liable for any delay or any damage arising therefrom. SP shall have the right to deliver the Products prior to any agreed-upon delivery date and time for delivery shall not be of the essence. SP shall not be liable for any damages, including general, incidental, consequential or otherwise, arising from delays in delivery, or for failure to give notice of delays, and, further, such delays shall not constitute grounds for cancellation. If any deliveries are made in installments, delay in delivery or default of any installment shall not relieve Customer of its obligation to accept and pay for remaining installments. Without limiting the foregoing, SP shall not be responsible for delays (or any other breach) caused by, or in any manner arising from, fires, floods, accidents, civil unrest, acts of God, war, embargoes, strikes, shortage of raw materials or supplies, or any other cause (whether or not such cause is similar in nature to any of these hereinbefore specified) beyond its reasonable control. Unless otherwise agreed in writing, once SP has commenced manufacture of custom or non-stock Products, Customer may not defer delivery of such Products beyond the approximate shipment date set forth in the order or as otherwise agreed. Any conflicting shipment terms set forth in an accepted purchase order for Products shall control over the terms of this Section 6.
- LIMITED WARRANTY; DISCLAIMERS; LIMITATION OF LIABILITY. SP warrants the quality and performance of STABline products it sells and distributes as set forth below (the “Product Warranties”). SP’s Product Warranties are made only to the Customer and shall not extend to subsequent purchasers via resale or otherwise. All claims under the Product Warranties must include evidence of original purchase from SP, either in the form of a purchase order, executed sales contract, receipt or other documentation SP may issue in connection with such purchase.
EXCEPT AS EXPRESSLY SET FORTH BELOW, ANY AND ALL PRODUCTS ARE SOLD AND DISTRIBUTED BY SP AS IS AND AS AVAILABLE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SP DISCLAIMS ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED. THE END USER OF PRDOCUTS SP SELLS AND DISTRIBUTES ASSUMES ALL RESPONSIBILITY FOR THEIR USE OF SP’S PRODUCTS, AND SP ASSUMES NO RESPONSIBILITY FOR SUCH USE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SP WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO ANY STABLINE PRODUCT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING NEGLIGENCE, AND EVEN IF SP HAS BEEN ADVISED OF THE POSSIBILITY OF BELOW, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SP WILL HAVE NO LIABILITY TO CLIENT OR ITS USERS ARISING OUT OF OR IN CONNECTION WITH ANY END USERS’ USE OF STABLINE PRODUCTS. SP’s LIABILITY UNDER ANY PRODUCT WARRANTY SHALL IN NO EVENT EXCEED THE COST OF THE DEFECTIVE PRODUCT.
- STABline Outrigger & Crane Pads
For the life of the product, SP warrants all STABline Outrigger and Crane pads it sells and distributes against breaking, cracking or similar damage caused by defects in material or workmanship. Except as set forth below, Customer’s sole and exclusive remedy under SP’s STABline Outrigger & Crane Pads Warranty shall be repair or, at SP’s option, replacement of the defective Outrigger or Crane Pad. Such repair or replacement shall be at SP’s sole expense, without charge to the Customer for parts or labor. Notwithstanding the foregoing, SP may elect, at its option, not to repair or replace a defective product but rather issue to Customer a refund equal to the original purchase price paid for the STABline Outrigger or Crane Pad, or a credit of the same amount to be used toward the purchase of a new STABline product sold or distributed by SP.
SP’s STABline Outrigger & Crane Pads Warranty covers only manufacturing defects and does not cover any damage caused by misuse such as bridging voids, neglect, accidents, abrasion, or transport damage. While the Customer is entitled to enlist the services of any service provider for non-warranty maintenance or repairs to STABline Outrigger & Crane Pads, all warranty repairs must be conducted by an SP technician or representative or other approved maintenance or repair facility. In the event of improper or incorrectly performed maintenance or repairs to STABline Outrigger & Crane Pads, this warranty shall be null and void and all of SP’s obligations relating to such STABline Outrigger & Crane Pads shall terminate and be of no further force or effect.
SP’s STABline Outrigger & Crane Pads Warranty is limited to the value of the STABline Outrigger or Crane Pad. Manufacturing specifications are subject to change without notice. Customers should inspect their STABline Outrigger & Crane Pads immediately after each use.
For the avoidance of doubt, SP’s STABline Outrigger & Crane Pad Warranty shall not cover (i) defects caused by normal wear and tear, scratches, or unapproved field modifications, (ii) defects of any kind relating to the Outrigger & Crane Pad handles, or (iii) defects resulting from conditions beyond SP’s control including, but not limited to, misuse, the spanning of voids, overloading or actions in contradiction of SP’s published usage guidelines (such as exceeding the allowable load rating at any time after purchase).
- STABline Ground Protection Mats
For ten (10) years from the date of the original purchase, SP warrants all STABline Ground Protection Mats against defects in material or workmanship, including, but not limited to, cracking, breaking, splintering and chipping. Except as set forth below, Customer’s sole and exclusive remedy under SP’s Ground Protection Mats Warranty shall be replacement of the defective Ground Protection Mat. Such replacement shall be at SP’s sole expense, without charge to the Customer for parts or labor. Notwithstanding the foregoing, SP may elect, at its option, not to replace a defective product but rather issue to Customer a refund equal to the original purchase price paid for the STABline Ground Protection Mat, or a credit of the same amount to be used toward the purchase of a new STABline product sold or distributed by SP.
SP’s STABline Ground Protection Mats Warranty covers only manufacturing defects and does not cover any damage caused by misuse. The intended use and function for STABline Ground Protection Mats is to provide additional traction, stabilization and displacement of vehicle weight by increasing the vehicle’s footprint while travelling over the mats. STABline Ground Protection Mats also protect the turf/soil below, reducing the creation of ruts and the likelihood of stuck vehicles. STABline Ground Protection Mats are designed to take the abuse that the turf/soil would otherwise experience. Customer should expect normal wear and tear, which does not constitute a defect and shall be covered by SP’s STABline Ground Protection Mats Warranty. Typically any defects will be evident within the first few months of use, but SP will individually evaluate any and all claims under this STABline Ground Protection Mats Warranty on its merits, at the time such claim is made.
SP’s STABline Ground Protection Mats Warranty is limited to the value of the STABline Ground Protection Mats. Manufacturing specifications are subject to change without notice. Customers should inspect their STABline Ground Protection Mats immediately after each use.
SP’s STABline Ground Protection Mats Warranty is null and void, and shall be of no further force and effect with respect to (i) any STABline Ground Protection Mats used as a “bridging” or “spanning” device, (ii) defects resulting from conditions beyond SP’s control including, but not limited to, misuse or actions in contradiction of SP’s published usage guidelines, or (iii) defects caused by improper or incorrectly performed maintenance or repairs. STABline Ground Protection Mats are designed to have turf/soil underneath and supporting them at all times. Use of STABline Ground Protection Mats as a “bridging” or “spanning” device may cause damage to the vehicle or cause personal injury to workers nearby. The ultimate responsibility for proper usage solely relies upon the End Users. Using chains or cables to extract stuck mats from the mud is not only unsafe, but constitutes misuse and will render SP’s STABline Ground Protection Mats Warranty null and void.
Notwithstanding the Product Warranties set forth above, in no event shall SP’s liability arising from any claim, loss, damages or cause of action, whether based on contract tort or otherwise, arising in connection with parties’ relationship shall be limited to the total amount actually paid by Customer under the applicable accepted purchase order. UNDER NO CIRCUMSTANCES WILL SP BE LIABLE TO CUSTOMER FOR ANY DAMAGES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO SP OR FOR ANY DAMAGES BASED UPON LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF HCT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
- INSPECTIONS; RETURNS. Products should be inspected by Customer upon delivery and refused at Customer’s receiving department if damaged. Unless Customer notifies SP in writing within fifteen (15) days from the date of Customer’s receipt of any Products that said Products are rejected, they will be deemed to have been accepted by Customer and Customer will be deemed to have waived any and all claims with respect thereto. In order to be effective, the notice of rejection must specify in writing the reason(s) why the Products are being rejected. SP reserves the right to inspect allegedly defective Products at points of delivery or have them shipped to a destination of its choice. All custom or non-stock Products are not returnable. No Product shall be returned more than thirty (30) days from the date of delivery or without SP’s written authorization. All returned Products are subject to the payment of restocking charges by Customer.
- TIME LIMITATIONS. Notwithstanding any legal provisions, no action, whether based on contract, tort or otherwise, arising out of or related to Products furnished by SP may be brought by Customer more than one year after the cause of action has accrued and no claims for breach of warranty may be brought by Customer unless Customer notifies SP in writing within thirty (30) days of discovery of the breach or when the breach should reasonably have come to the attention of Customer. Any claim made after the time periods specified in the foregoing sentence shall be deemed null and void.
- CONFIDENTIALITY; OWNERSHIP. From time to time, SP may disclose to Customer confidential, proprietary and non-public information (in oral, written, visual, electronic or physical form), whether disclosed prior to or after the date of these Terms, relating to SP’s business operations, customers, suppliers, employees, products, technologies, technical expertise, data, processes, inventions, methodologies, designs, drawings, specifications, know-how, trade secrets, works of authorship and other non-public materials (collectively, “Information”). Customer agrees to hold all Information in the strictest confidence and not to disclose the Information to any third party other than its agents who have a need to know and are subject to written obligations of confidentiality with respect thereto. Customer agrees that SP is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Information (which is deemed to include all improvements, modifications, adaptations, enhancements, derivative works thereof, whether developed by SP or others), and all intellectual property rights (including, without limitation, all rights of patent, copyright, trademark and trade secret) related to or derived from the Information (collectively, “SP Intellectual Property”). Customer acknowledges and agrees to respect all of SP’s rights in the Information and the SP Intellectual Property, including, among other things, its patents throughout the world covering its thermal tip technology such as its metal tip applicators and all related products. Customer further agrees that it will not, and will cause its employees and other agents not to: (i) use the Information or SP Intellectual Property for the benefit of anyone other than SP; (ii) sell, lease, license, encumber or otherwise transfer the Information or the SP Intellectual Property; (iii) copy, modify, reverse engineer, disassemble or create derivative works of the Information or the SP Intellectual Property; (iv) file, attempt to file or otherwise assert any patents, copyrights, trademarks or other intellectual property rights with respect to the Information or the SP Intellectual Property; or (v) take any other action which is inconsistent with SP’s ownership rights described in these Terms. Customer acknowledges and agrees that it is not granted any rights in or to the Information and the SP Intellectual Property hereunder, except for the limited rights necessary to utilize the Products delivered. Customer further agrees to execute and deliver (or cause the execution and delivery by its agents) of all documents requested by SP to perfect its rights in the Information and the SP Intellectual Property. Customer hereby grants SP (and its subcontractors, consultants and agents) a license to use its trademarks and other intellectual property as necessary for SP to perform its obligations to Customer and to deliver the Products.
- CANCELLATIONS. Customer’s order may not be modified, terminated, or otherwise rescinded by Customer except in writing, signed by SP and Customer. SP reserves the right to pre-purchase material and to begin production
- CUSTOMER WARRANTIES. Customer represents and warrants to SP as follows: (i) it is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the corporate power to own its assets and properties and to carry on its business as currently conducted; (ii) these Terms constitute legal, valid and binding obligations of Customer; and (iii) the execution, performance and delivery of these Terms by Customer will not conflict with or violate or result in any breach of, or constitute a default under, any contract, agreement or other obligation of Customer. Customer acknowledges and agrees that SP shall be entitled to rely on any apparent authority of any agent of Customer who submits an order to SP.
- INDEMNIFICATION. Customer will at all times defend, indemnify and hold harmless SP (including, without limitation, all related and affiliated entities and their respective directors, officers, shareholders, agents and representatives, and each of their respective successors and assigns) from and against any and all claims of whatever nature, including without limitation: (i) any violation of law committed by Customer or its agents; (ii) any breach of Customer’s obligations set forth in these Terms; (iii) any damages resulting from the use by Customer or its agents of any Product or the incorporation by Customer of any Product into a Customer-produced product; (iv) any and all claims that any Product manufactured in accordance with Customer’s designs and/or specifications, infringes any patent, copyright, trademark or other intellectual property rights of a third party; and (v) any loss, damages or expense due to an order cancellation for Products, including but not limited to, the cost of special materials, the cost of custom or non-stock Products completed or in process, overheads, and any reasonable costs incurred to collect such losses from Customer. The obligation of the Customer to indemnify and defend SP as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by SP in connection with any such claim.
- TERMINATION. SP may, as it thinks fit, (without any prejudice to any other rights or remedies it may have against Customer) immediately suspend further performance of the order incorporating these Terms or cancel delivery of the Products or by notice to Customer terminate the order if Customer commits a material breach of any of its obligations under these Terms. Sections which expressly or by implication survive termination shall continue in full
force and effect.
- DISPUTE RESOLUTION. All disputes, claims or controversies arising out of or in any way relating to the sale of the Products by SP to Customer, including, without limitation, a dispute regarding the non-contractual obligations arising from or in connection with these Terms and their existence, validity, interpretation, performance, breach or termination (“Disputes”), shall be governed by, construed under, and enforced in accordance with the laws of the State of New York, without regard to conflict of laws principles. Customer agrees that SP may effect service of process upon Customer by regular mail at Customer’s principal place of business, or at SP’s option, by service upon Customer’s agent for the service of process. Customer acknowledges that the state and federal courts located in New York City, New York (the “Acceptable Forums”), will be the exclusive jurisdiction and venue for resolution of Disputes, and each of the parties hereby agrees that the Acceptable Forums are convenient to it, expressly submits to personal jurisdiction in such state, irrevocably agrees to be bound by any judgment rendered thereby in connection with these Terms, and waives any and all objections to jurisdiction or venue that it may have under the law of the State of New York or otherwise in those courts in any such Dispute. Should any such proceeding be initiated in any other forum, Customer waives any right to oppose any motion or application made by SP as a consequence of such proceeding having been commenced in a forum other than an Acceptable Forum. Customer further acknowledges and agrees that any breach of Section 10 these Terms will likely result in irreparable harm to SP for which money damages would not be adequate and, as such, SP will be entitled to seek injunctive relief to enjoin any breach or threatened breach, without the necessity of posting a bond or guarantee, or giving an undertaking to pay damages, and shall be entitled to all legal fees, costs and expenses incurred if an injunction should issue.
- MISCELLANEOUS. These Terms shall be binding upon and inure to the benefit of each of the parties and their respective affiliates, related entities, successors and permitted assigns. Except with the prior written consent of SP, Customer may not assign or transfer any of its rights or obligations under these Terms.