STARC SYSTEMS INC.
TERMS AND CONDITIONS OF SALE AND WARRANTY
The following Terms and Conditions of Sale and Warranty (the “Terms”) apply to the sale of Goods by the Company as described below. These Terms shall apply to every contract (purchase order) entered into with Company except as varied by express agreement in writing signed by an authorized person on behalf of Company.
As used herein, the “Company” refers to Starc Systems Inc., a Delaware corporation, its successors and assigns, and “Buyer” means any person at whose request goods or services are supplied by Company under these Terms or any other written contract between Company and Buyer. These Terms constitute the entire understanding and agreement between Company and Buyer regarding the warranties that cover the Goods and supersede all previous understandings, agreements, communications and representations.
“Goods” means all products and units relating to and used in connection with the telescopic modular wall system manufactured and sold by the Company under the brand STARC and STARC SYSTEMS and any other goods or replacements therefore and/or any services/workmanship supplied by Company to Buyer under these Terms or any other written contract between Company and Buyer.
The headings in these Terms are for convenience only and shall not affect construction of these Terms.
1. ORDERS AND QUOTATIONS.
(a) Buyer’s order to Company (in whatever manner communicated) is an offer to enter into a contract upon these Terms. Any terms or conditions in any offer or instrument at any time by Buyer are hereby excluded.
(b) A quotation by Company does not constitute an offer. Quotations are valid for a period of thirty (30) days from date of issue and may be withdrawn at any time. If no quotation is rendered, the price set out on Company’s price list in force at the date of delivery of Goods shall apply.
(c) Buyer shall not assign the benefit of any contract with Company without Company’s prior written consent.
(d) Buyer may not cancel any contract with Company without Company’s express written consent, signed by an authorized person on behalf of Company and subject to Section 1(e) below.
(e) If Company agrees to cancellation of these Terms or any contract between Company and Buyer by Buyer, Buyer shall indemnify Company in full against all expenses incurred or losses suffered by Company as a result of such cancellation, less such scrap or residual value as determined by Company in its sole discretion.
(f) Company’s employees are not authorized to make any representations concerning the Goods.
Prices are F.O.B. origin, Company’s manufacturing plant or branch unless Company otherwise specifies. Additional services are subject to charge at Company’s standard rates. Additionally, the price of any article scheduled for shipment on a date beyond a period of ninety (90) days from the date of Company’s quotation or, if formal quotation has not been made, from receipt of Buyer’s order, is subject to increase or decrease by Company unless otherwise agreed to in writing. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made in writing within thirty (30) days after receipt of shipment by Buyer. Prices include standard packing only.
(a) Delivery dates are estimates only.
(b) Unless Company otherwise specifies, delivery will be made F.O.B., Company’s manufacturing plant or branch and title and risk of loss shall pass to Buyer at that point. Company shall have the right to choose means of transportation and to route shipments when specific instructions are not included with Buyer’s order.
(c) Company shall not be liable, nor shall this order be subject to cancellation, for any delay in delivery which is caused by or due to any contingency beyond the Company’s control (“Force Majeure”), including, but not limited to, wars, fire, floods, riots, strikes or lockouts, or labor disputes involving the Company or its subcontractors, insurrection, earthquakes, embargos, Acts of God, demands or requirements of governments, failure of or delay in transportation, unusually severe weather, default of a supplier or subcontractor or due to any other cause beyond Company’s reasonable control. In the event of delay for any such cause, the specified delivery date shall be extended for a reasonable length of time, but not less than the period of delay. Time of delivery is not of the essence in these Terms or any contract for the sale of Goods by Company.
(d) Company reserves the right to make and to invoice in installments for partial shipments of completed articles. Each installment shall constitute a separate contract under these Terms.
(e) Buyer warrants that if an import license or other authorization is required for the importation of the Goods into the country of destination, such license or authorization has been obtained or will be obtained prior to shipment.
(a) Buyer shall inspect the Goods immediately upon receipt and shall (unless such inspection cannot be carried out and the delivery note is marked “not examined”) subject to Paragraph 4(b) below be deemed to have accepted the Goods as delivered.
(b) Company shall not be liable for defects or shortages discovered on reasonable inspection unless Buyer notifies Company before the expiry of three (3) days following receipt of any Goods alleged to be defective or lacking conformity with these Terms or any contract between Company and Buyer.
(c) Company shall make good, shortages notified to it under Paragraph 4(b) as soon as reasonably practicable but shall not be liable for any other loss whatsoever arising from such shortage.
(d) Company’s liability for defects and shortages notified to it under Paragraph 4(b) above shall in all circumstances be limited to (at Company’s sole option) the repair or replacement of the Goods in question, or crediting Buyer with the invoice value thereof.
5. TERMS OF PAYMENT.
Unless otherwise agreed to in writing by Company, terms of payment shall be, subject to credit approval by Company, at once date of invoice. Time for making payment shall be of the essence of these Terms or any contract between Company and Buyer.
Prices do not include any present or future federal, state or local sales, VAT, use, excise, manufacturing, processing or importation tax, or any other tax or charge that is, or may be imposed, on the articles or services covered hereby or on subsidiary articles or material incorporated therein. Any such taxes or charges will be added to the invoices as separate items, unless appropriate exemption certificates are furnished to Company.
7. CANCELLATION AND CHANGES.
(a) Orders are not subject to cancellation, complete or partial, without Company’s written consent. Any reduction in quantities ordered shall constitute a partial cancellation subject to this clause. If any change causes an increase in the cost of or time required for the performance of any work under the order, an equitable adjustment will be made to the price or delivery schedule, or both.
(b) Where Company consents to cancellation, settlement will be made on the following basis: (i) Buyer will pay to Company, upon delivery, the full purchase price of all articles completed at the time Company agrees to cancellation and, if Company elects to complete any part or all of the articles scheduled for delivery within thirty (30) days from such time, the full purchase price of all such articles so completed, and (ii) Buyer will further pay to Company a percentage of the purchase price of all other articles equivalent to the percentage of completion thereof as determined by Company’s normal cost accounting methods. Buyer will also pay the full unamortized costs of materials, dies, tools, patterns, and fixtures, made or contracted specifically for Buyer’s order.
(c) Invoices for all cancellation charges are payable promptly upon presentation. If within sixty (60) days from the presentation of such invoice Buyer does not instruct Company as to the disposition of the material, etc., arising from the cancellation, Company may sell the same, crediting Buyer for the proceeds. Buyer will also pay the reasonable costs and expenses incurred by Company in making a settlement hereunder and in protecting property in which Buyer has an interest. Company will defer manufacture or delivery of any articles only if and to the extent agreed to in writing.
If Buyer shall fail to pay promptly when due any sum owing to Company or to perform any agreement under this order or under any other order heretofore or hereafter placed with Company or if Buyer shall be adjudicated bankrupt or insolvent or shall make an assignment for the benefit of creditors or if there shall be instituted by or against Buyer any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect of any of Buyer’s property and, if any such proceeding shall be instituted against Buyer, it shall not be dismissed within twenty (20) days, or if Company shall reasonably believe that Buyer is unable to meet Buyer’s debts as they mature, then, and in any such event, Company may, in addition to exercising any or all other rights that Company may have, require payment of cash upon delivery, and Company may, upon written notice to Buyer at any time, terminate all Company’s obligations under any one or more of such orders. Upon termination pursuant to this clause, Buyer shall thereupon become obligated to pay the same sum in respect to each such order as if such order had been cancelled by Buyer with Company’s consent and settlement had been made on the basis set forth in Paragraph 7 of these Terms.
Subject to the limitations set forth in Paragraph 10 below, the Company warrants all products to be free from defects in material and workmanship under normal operating conditions and proper application in accordance with the current manufacturer’s specifications for operation as specified below:
(a) All supplied system components including panels, door modules and other accessories shall be warranted for a period of three (3) years from date of shipment.
10. LIMITATIONS ON WARRANTY.
(a) The warranties set forth in Paragraph 10 are expressly in lieu of any other warranties expressed or implied, including any warranty of merchantability or fitness for a particular purpose.
(b) Company’s liability for defective Goods is limited in all circumstances to (at Company’s option) delivery of replacement or crediting or refunding of the invoice value to Buyer and Buyer shall accept such of the aforementioned remedies as Company shall proffer as fulfilment of Company’s obligations under these Terms or any contract between Company and Buyer.
(c) Company’s liability under these warranty terms applies only to defects appearing before Buyer makes any modification or alteration to the Goods and whilst the Goods are being properly used or stored and in particular (but without limitation) Company shall not be liable in the case of defects arising from normal deterioration or improper or faulty handling or processing of the Goods by Buyer.
(d) If the Buyer or any agent grants any warranty greater in scope or time period or labor allowance, the Company shall not be liable beyond the herein-stated limitations. Equipment and accessories not of our manufacture are warranted to the extent of the warranty of the original manufacturer. Copies of such warranties will be furnished upon request.
(e) Company’s warranty is extended to the Buyer and is transferrable only to customers of Buyer who have an accepted purchase order or other written contract with Buyer.
(f) No products shall be returned without prior authorization from Company. Buyer shall prepay all transportation charges for the return of such products to Company’s factory or factory service center. There will be no acceptance of any charges for labor and/or parts incidental to the removal and remounting of products repaired or replaced under this warranty.
(g) The above warranties do not cover conditions over which the Company has no control, including, without limitation, incidental service damages, damages from handling the product, products damaged or subjected to accident, abuse or misuse after shipment, products altered or repaired by anyone other than Company personnel, or persons so designated in writing by the Company prior to commencement of said work.
(h) Examples of damages or items which are not attributable to defects in materials and/or workmanship and which are not considered by the Company as covered under the warranties, include, but are not limited to:
(i) Damages due to damage or deterioration during periods of storage by the purchaser prior to installation and operation.
(ii) Damage of any kind from the construction and or operating environment during use as a partition or separation wall, including damage from impact, abrasions, punctures or other types of incidental or significant events that may affect the cosmetic or structural condition of the Goods.
(iii) Damages resulting from improper installation of the Goods or failure of the surrounding building, structure, interiors or equipment either from natural or other causes.
(iv) Damage attributable to accident, abuse, neglect.
(v) Operating the Goods in environments beyond the recommended temperatures and pressures.
(vi) Use of Goods in a manner or purpose for which they were not designed or intended.
(vii) Repairs or modifications to the Goods by unauthorized personnel.
(viii) Misalignment or improper assembly of the system components or assembly of the system in a manner that exceeds the prescribed limitations.
11. LIMITATION OF LIABILITY.
(a) Company shall not be responsible for and Buyer does not have any right to make any claim for damage that occurs to any property other than the Goods. Company shall in no way be responsible for any costs incurred in the determination of the causes of damage to any property or for any expert opinions.
(b) No special, incidental, consequential or other damages shall be recoverable by Buyer. The Company shall not be liable for consequential damages or contingent liabilities including, but not limited to, loss of life, personal injury, loss due to fire or water damage, loss of business income, downtime, costs and trade or other commercial loss arising out of the failure of the product. The Company will in no event be liable for any sum in excess of the price received by it for the product for which liability is claimed or associated 1.
(c) Where Company undertakes to carry out work or provide services of any kind on premises other than its own, it shall be under no liability whatsoever for any loss or/and damage occasioned to Buyer, his contractors, servants, employees, invitees or otherwise arising from any cause connected in any way with the execution of such works or provision of such services, and Buyer shall indemnify Company against any claim by third parties under any statute or at common law.
(d) Company shall not be liable or responsible for, and Buyer does not have any right to make any claim for damage that occurs as a result of, damages arising as a result of Buyer personnel having improper or no education, experience or instruction regarding the installation and use of the Goods or as a result of the Goods being improperly installed or operated.
(e) To the fullest extent permitted by law, the Buyer agrees to indemnify, hold harmless and defend the Company, and its agents, employees, representatives, officers, directors, stockholders, members, managers and parent, subsidiary and affiliated companies (the “Indemnified Parties”) from and against any claims, damages, losses and expenses (collectively “Losses”), including but not limited to attorney’s fees, arising out of or resulting from any of the circumstances or events listed in Paragraphs 11(c) –(d) above. [This indemnification obligation shall extend additionally to Losses suffered by any Indemnified Party resulting from the performance of the work, whether performed at the Buyer’s site or not, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible property (other than the work itself) including loss of use resulting there from, but only to the extent caused in whole or in part by negligent acts or omissions of the Buyer, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this paragraph 2.
(f) Buyer shall also indemnify and keep indemnified Company against all arising out of: (i) defects in the Goods to the extent occasioned or contributed to by any act or omission of Buyer, its servants, agents or persons under its control or (ii) any claim by any third part of any intellectual property rights of such third party arising from the use, modification, adaptation of the Goods or incorporation of the Goods into other products by Buyer.
(g) If Buyer becomes aware that any third party has made or appears likely to make any claim regarding Goods (including, without limitation, regarding product defects or rights infringed by Goods), then Buyer shall immediately inform the Company and afford to the Company all assistance that the Company may require to enforce its rights and defend such claim.
(h) The Goods are supplied strictly on the terms that Buyer has satisfied itself of their suitability for Buyer’s intended purpose. Buyer acknowledges that all details issued to Buyer by Company are approximate and Company accepts no liability whatsoever arising therefrom.
(i) The Company’s maximum aggregate liability to Buyer for the breach of any and all terms, conditions, representations, covenants, obligations or other provisions of this agreement will not, individually or in the aggregate, exceed one hundred (100%) of the quoted and/or or acknowledged price. Excluded from the foregoing limitation of Company’s liability to Buyer is the obligation to repair or replace defects in the work pursuant to Paragraph 10 above.
12. INFORMATION AND INSTRUCTIONS.
Written information and instructions are available from Company concerning Goods and their use and the installation in accordance with the Company’s instructions. By accepting these Terms and taking delivery of the Goods, Buyer represents and warrants that it understands all technical specifications regarding the Goods, their operation and installation. Should Buyer not possess such information or instructions, it should immediately obtain them from Company.
13. INTELLECTUAL PROPERTY.
All patents, trademarks, trade names, copyrights, topography rights, whether registered or unregistered, in or relating to the Goods or their design are and shall remain the absolute property of Company. The trademarks, service marks, trade names, and trade dress on and copyrights associated with the Company and the Goods, are the property of the Company or its content suppliers and protected by United States and international laws. The purchase use and design of the Goods in no way grants the Buyer a license or right to use, or reproduce any design, trademark, service mark, trade name, logo, copyright, or trade dress used by the Company or associated with the Goods without prior written permission of the Company.
14. NO WAIVER.
Company’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege, or Company’s waiver of any breach hereunder, shall not constitute a waiver of any other terms, conditions, privileges or rights, whether of the same or similar type. No actual waiver of Company’s rights under these Terms or any contract with Buyer shall be effective unless in writing signed by a director or officer of the Company. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of Company’s rights in relation to different circumstances or the recurrence of similar circumstances.
15. CHOICE OF LAW AND JURISDICTION.
Unless otherwise provided in writing by Company, all purchases by Buyer from Company and the performance of the parties hereunder are in all respects (including, but not limited to, all matters of interpretation, validity, performance, breach, and the consequences of breach) to be governed by and construed in accordance with the internal, substantive laws of the State of Maine, excluding, and without regard to, it’s or any other jurisdiction’s rules concerning any conflict of laws, as amended and now in effect. The courts of the State of Maine shall have exclusive jurisdiction and venue in respect of any action, proceeding or dispute directly or indirectly arising out of or related to the performance, breach, enforcement or interpretation of these Terms. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HEREBY WAIVE THEIR RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING OR HEARING ON ANY MATTER WHATSOEVER ARISING UNDER, RELATING TO, OR IN ANY WAY CONNECTED WITH THESE TERMS.
The sections of these Terms are severable, and in the event any section or portion of these Terms shall be declared illegal or unenforceable, the remainder of the Terms shall be effective and binding on Buyer and Company.