Terms and Conditions of Sale
Solus Group, Inc. and its subsidiaries and affiliates (collectively “Solus”) and the person or entity (“Buyer”) purchasing goods (“Goods”) or services (“Services”) from Solus hereby agree to these terms and conditions of sale (“Terms and Conditions”), which, together with any Solus provided price list, schedule, quotation, acknowledgement, or invoice in connection with the sale of Goods or the provision of Services, forms the entire agreement between Solus and Buyer with respect to the Goods or Services upon Solus’s acceptance of a purchase order from Buyer. Solus and Buyer may individually be referred to as a “Party” or collectively as the “Parties.” The Parties hereby agree that any prior agreements with respect to Goods or Services between the Parties, whether written or oral, are superseded by these Terms and Conditions. Upon the placement of a purchase order, Buyer consents to these Terms and Conditions with respect to the Goods or Services. Solus hereby objects to and rejects the provisions of any Buyer’s purchase order, confirmation, or terms and conditions that are inconsistent with or in addition to the provisions of these Terms and Conditions.
1. Solus shall honor prices for orders received within thirty (30) days from the date of the quote.
2. Prices quoted are final; no further discounts apply. Prices do not include any applicable taxes, freight, or insurance costs unless specifically provided in a quote; Buyer is solely responsible for the costs of taxes, freight, insurance, or other ancillary expenses with respect to the Goods or Services.
TERMS OF PAYMENT
3. Unless otherwise agreed upon in writing by the Parties, payment terms are net ten (10) days from the date of Solus’s invoice. All payments shall be made in United States currency. All payments shall be made without setoffs or deductions other than for amounts that the Party responsible for payment reasonably and in good faith disputes are due.
4. Solus is not obligated to begin performance on any purchase order for Goods or Services until Solus has received a down payment from Buyer of no less than thirty percent (30%) of the total purchase price for said Goods or Services.
5. If Buyer fails to pay any amount due for Goods or Services in a timely manner (as described in Section 3 above), Solus may, without waiving any other legal remedies available to Solus, terminate the corresponding purchase order, suspend further performance of any obligation thereunder, or both.
6. Buyer hereby grants Solus a purchase money security interest in all Goods sold to Buyer by Solus, which security interest shall continue until all such Goods are fully paid for in cash. Buyer, upon Solus’s demand, shall execute and deliver to Solus such instruments as Solus requests to protect and perfect such security interest.
SUBSTITUTE GOODS OR SERVICES
7. Solus reserves the right to change or modify, at any time without notice, any Goods or Services, or any materials used in the fabrication of Goods or the provision of Services, or to discontinue the manufacture of any Goods, without any liability thereto. Buyer shall accept substitute Goods and Services as changed or modified.
ACCEPTANCE OF ORDERS; COMMENCEMENT OF PERFORMANCE
8. Solus may reject any purchase order, for any reason, in Solus’s sole discretion.
9. All orders are subject to and shall be effective only upon written acceptance by an authorized representative of Solus or upon delivery of Goods or commencement of Services.
10. Solus will accept an order only after it receives complete and final information covering price, plans, specifications, delivery requirements and any information necessary to fill the order. It is Buyer’s responsibility to supply all such information.
11. Solus shall not be obligated to begin the manufacturing of any Goods, including but not limited to battery extractor systems, before it has received the written approval of the design drawings relating to the Goods from both Buyer and Buyer’s end customer.
12. Nothing contained herein shall create any contractual obligation of Solus towards the Buyer’s end customer.
SHIPMENT AND DELIVERY
18. All shipments of Goods are FOB Shipping Point. Title and risk of loss will pass to customer at the shipping point, which is Solus’s facility in St. Louis, Missouri. Solus, at its option, shall not be required to tender delivery of any Goods for which Buyer has not provided shipping instructions and other required information.
19. A Service or a shipment of Goods that is delayed for any reason to accommodate the Buyer will be invoiced and dated the day Solus is prepared to ship the Goods or to provide the Service. Additional charges for warehousing, trucking, or other incidental expenses created by the delay shall be borne by Buyer.
20. Solus reserves the right to make partial deliveries or provide partial Services. Buyer acknowledges and agrees that Solus may use subcontractors to provide part or all of the Services.
21. Weights specified in Solus’s literature and catalogs are estimated, not guaranteed. Solus assumes no responsibility for tariff classifications of carriers.
22. Information and schedules related to the delivery of Goods or the provision of a Service are approximate and not guaranteed. Delivery means time of delivery to first carrier. Delay by Buyer in supplying specifications, custom parts, or other information necessary to complete the execution of an order shall extend delivery schedules and Service schedules for a reasonable time. Solus is not liable for any penalties or damages, liquidated or otherwise, for shipments, Services, or installments that are delayed.
23. Buyer shall indemnify, defend, and hold harmless Solus, Solus’s subcontractors, and their respective directors, officers, agents, representatives, or employees, for, from, and against any damages, costs, and expenses (including attorneys’ fees) arising from or in connection with any claim: (a) for or arising out of any injury to, or death of, any person or loss or damage to property of any person, in each case to the extent that such losses arise from (i) the acts or omissions of Buyer, Buyer’s end customers, or the Project Site owner, or their respective employees, agents, or representatives at the Project Site in the course of performing the Services or any portion thereof or (ii) the negligence or willful misconduct of Buyer, Buyer’s end-customer, the Project Site owner, or their respective employees, agents, or representatives, wherever occurring, or (b) asserted by any end-customer of Buyer or the Project Site owner, against Solus or its subcontractors, in any manner arising out of, attributable to, in connection with, or otherwise directly or indirectly related to the purchase order or the transactions contemplated hereby.
24. All sales of Goods by Solus to Buyer shall be governed by Solus’s standard limited warranty in effect at the time of shipment (“Standard Warranty”), which Solus will provide to Buyer upon request. A copy of the current version of the Standard Warranty is attached hereto as Schedule 1 to these Terms and Conditions. Solus shall furnish, undertake, or provide (or cause to be furnished, undertaken, or provided) any Services in a workmanlike manner and in accordance the provisions of the purchase order. Buyer shall not make, give, or extend any other warranties with respect to the Goods, the use of the Goods, or the Services, except as authorized in writing by Solus, and shall hold Solus harmless against all damages, costs, and expenses (including attorneys’ fees) related to claims based upon an unauthorized warranty given by Buyer. THE WARRANTY DESCRIBED IN THIS PARAGRAPH AND IN SCHEDULE 1 ATTACHED HERETO IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY Solus WITH RESPECT TO THE GOODS AND THE SERVICES. SOLUS HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
25. UNDER NO CIRCUMSTANCES SHALL Solus BE LIABLE FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THE LOSS OF PROFITS OR DAMAGES RESULTING FROM BUSINESS INTERRUPTIONS OR LOSS OF USE) OR (B) DAMAGES WHICH IN THE AGGREGATE EXCEED THE PURCHASE PRICE PAID FOR THE GOODS OR SERVICES GIVING RISE TO THE CLAIM.
26. BUYER’S EXCLUSIVE REMEDIES WITH RESPECT TO THE GOODS OR SERVICES ARE, AT SOLUS’S OPTION AND DEPENDING ON THE CIRCUMSTANCES: (1) THE REPLACEMENT OR REPAIR OF GOODS OR (2) CREDIT IN AN AMOUNT NO GREATER THAN THE AMOUNT PAID BY BUYER FOR THE GOODS OR SERVICES. The limitations of this Section apply regardless of whether an underlying claim is for breach of contract, breach of warranty, infringement, negligence, strict liability, any other tort, or any other cause of action liability.
INTELLECTUAL PROPERTY OF SOLUS
27. All trade names, trademarks, logos, patents, designs, drawings, copyrights, engineering, patents, trade secrets, photographs, samples, literature, and any other legally protectable intellectual property of any kind with respect to the Goods or Services (“Intellectual Property”) shall at all times remain the property of Solus. Except for the materials supplied by Solus that accompany the Goods, Buyer shall not use any Intellectual Property of Solus at any time in any manner without the express written permission and approval of Solus. Further, Buyer shall not use any Intellectual Property of Solus at any time in any manner that may be detrimental to Solus’s reputation or other interests. Buyer may not obtain any intellectual property rights with respect to any Intellectual Property of Solus in any country, territory, or region.
28. Solus shall not be liable for any losses, damages, or delays caused by any event, condition, or circumstance beyond its ability to control, including without limitation, changes in government regulations, acts of God, Buyer’s acts or omissions, fires, strikes, boycotts, floods, epidemics, quarantines, wars, insurrections, riots, terrorism, inclement weather, acts of civil or military authorities, transportation embargoes, shortages, wrecks, labor shortages, delays by Solus’s suppliers, or other similar circumstances. If a Party becomes aware of any such event, condition, or circumstance, then such Party will promptly advise the other Party and both Parties will cooperate to ameliorate the event, condition, or circumstance as quickly as possible. If there is such an event, condition, or circumstance, Solus may allocate available merchandise among customers as it may determine or cancel orders without liability for any part thereof not shipped to the Buyer upon refunding any allocable advance payments received with respect of the cancelled portion.
CLAIMS FOR MISSING OR NON-CONFORMING GOODS OR SERVICES
29. Claims for missing or nonconforming Goods or nonconforming Services must be made in writing and received by Solus within thirty (30) days of Buyer’s receipt of any shipment of Goods or the commencement of any Services. Any Goods or Services will be deemed accepted if Buyer does not give such notice of any claim within the above-proscribed period.
30. If the financial condition of the Buyer is not satisfactory to Solus at the time of shipment of the Goods or at the commencement of any Services, or at any other time, Solus may unilaterally terminate the applicable purchase order or require the Buyer to make full or partial payment in advance of shipment.
31. Solus may terminate a purchase order in the event the Buyer is in breach of any material term of such purchase order (including payment obligations) and such breach remains uncured for thirty (30) days after written notice has been provided by Solus.
32. After Solus’s acceptance of Buyer’s purchase order, such purchase order cannot be cancelled or rescinded by Buyer without Solus’s advanced written consent, which Solus may, in its sole discretion, withhold or condition to include certain terms and conditions that compensate Solus for lost profits and all costs and expenses (including any engineering and/or fabrication charges) attributable to the cancelled or rescinded purchase order.
33. Solus will not accept Goods for return or credit unless previously agreed to in writing by Solus and Buyer receives a Returned Goods Authorization form issued by a duly authorized representative of Solus. The Buyer retains the risk of loss and shall reimburse Solus for any costs it incurs in connection with the shipment and return of the merchandise, including but not limited to, a restocking fee of not less than twenty percent (20%) (restocking fees for non-standard Goods may be as high as one hundred percent (100%) of the purchase price of the Goods).
INTEREST AND ATTORNEYS’ FEES
34. Interest at the maximum legal rate or eighteen percent (18%) per annum, whichever is lower, shall be charged to Buyer on any overdue accounts and such amounts will be charged from the date the account becomes overdue.
35. If an invoice is not paid when due, Buyer agrees to pay all costs of collection, including attorneys’ fees, whether incurred in or out of court, on appeal, in arbitration, in bankruptcy court or in any insolvency proceedings.
36. Solus’s stenographic, clerical, or other errors are subject to correction.
37. Solus assumes no liability from penalty or liquidated damage clauses of any kind, written or implied, unless specifically approved in writing by a duly authorized Solus representative.
38. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Solus, and any such assignment without consent shall be void.
RELATIONSHIP BETWEEN THE PARTIES
39. Solus shall perform and execute the Services as an independent contractor. None of Solus, its subcontractors, nor any of their respective employees or agents shall be deemed for any purpose to be an agent, servant, employee, or representative of the Buyer or Buyer’s end customers. Though Solus shall have control over the details of the Service and the manner in which the Service is to be accomplished, nothing contained in these Terms and Conditions shall be construed to create the relationships of employer and employee or franchisor-franchisee between Buyer and Solus, or to make either Party a partner, joint venturer, fiduciary or co-employer of the other. The employees of each Party shall not be deemed to be the employees of the other for any purpose.
40. If any provision of these Terms and Conditions is deemed invalid or unenforceable, the remaining provisions of these Terms and Conditions shall remain fully valid and enforceable.
GOVERNING LAW AND VENUE
41. These Terms and Conditions shall be deemed accepted in the State of Missouri, USA and the rights and obligations of the Parties hereunder shall be construed, interpreted, and enforced in accordance with the laws of the State of Missouri, without regard to its conflict of laws principles. In the event of any dispute or controversy arising under these Terms and Conditions or the transactions contemplated herein, the Parties mutually consent to the jurisdiction of the U.S. District Court for the Eastern District of the State of Missouri and agree that any and all process directed to either of them in any such litigation may be served by registered, certified mail, return receipt requested, outside Missouri with the same force and effect as if service had been made in Missouri.
42. Solus reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms and Conditions, at any time by providing written notice to Buyer. Otherwise, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these Terms and Conditions shall be binding upon Solus unless hereafter made or confirmed in writing and signed by Solus. No modification or additional terms will become applicable to these Terms and Conditions by Solus’s receipt, acknowledgement, or acceptance of purchase orders, shipping instruction forms, service instruction forms, or other documentation. Any such modifications or additional terms are specifically objected to, rejected, and deemed a material alteration hereof. No waiver by either Party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a waiver of any other breach or default or of any other right or remedy, unless such waiver is in writing and signed by the Party to be bound.
(STATEMENT OF WARRANTY AND LIABILITY)
Solus Group, Inc. and its subsidiaries and affiliates (collectively “Solus”) warrants to the original purchaser of its equipment, that the equipment shall be free from defects in material and workmanship under normal and proper use, operation, and maintenance during the applicable warranty period set forth below for the product containing the alleged defect:
- Thirteen (13) months from the date of shipment to the original purchaser with respect to frames, weldments, electric drives, motors (except brushes), motor driven pumps, valves, and drive wheel assemblies (except wheels) only.
- Ninety (90) days from the date of shipment to the original purchaser with respect to all other parts not covered above.
- Bulbs, fuses, and filters are not included in this ninety (90) day warranty, unless found to be defective prior to use or within (90) days of shipment to the original purchaser, whichever occurs first.
Solus’s warranty obligations hereunder are contingent upon the following conditions: (1) Solus or its authorized dealer is promptly (but in no event later than thirty (30) days following the discovery of the claimed defect) notified of the defect; (2) the purchaser establishes to Solus’s reasonable satisfaction that any goods have been properly installed, maintained, and operated; (3) the purchaser returns the defective goods or any part thereof to Solus; and (4) the purchaser complies with all other warranty procedures required by Solus (such procedures are available upon request). Upon a determination by Solus that a product is defective within the above-mentioned warranty period(s), Solus may, at its exclusive option, either provide parts and labor to repair or replace said defective equipment, or grant a credit or refund of the purchase price of the defective equipment. Repaired or replacement equipment and parts will carry the foregoing warranty for the remainder of the original warranty period or ninety (90) days from the date of shipment of the repaired/replaced equipment, whichever is longer.
Solus will cover normal ground freight charges such as ground UPS, common carrier, etc. for the delivery of repaired or replaced equipment or parts covered by this warranty. The cost of any express delivery, if requested, will be the sole responsibility of the purchaser, and the purchaser agrees to provide its account number with its preferred carrier to Solus or to pay the entire cost of express delivery as a condition of Solus’s provision of such express delivery. Unless expressly authorized in writing by Solus, the foregoing warranty does not cover the cost of removal or reinstallation of equipment (or the cost of other activities ancillary thereto), the cost of which will be borne solely by the purchaser.
This warranty is void in the case of abuse, misuse, abnormal use, accidents, overloading, improper installation, repair, or maintenance (other than by Solus), modification of products, application of products not in accordance with the instruction manual and product application bulletins, or any other reason Solus determines that said product is not operating properly as a result of causes other than defective manufacture.
This warranty shall apply exclusively to products sold to the purchaser by Solus. Solus shall not have any liability or obligation to the purchaser, under this warranty or otherwise, with respect to any defect or failure of performance in products which are not sold or manufactured by Solus, including any such products which are commingled with or incorporated into any Solus products, or any products into which Solus products are incorporated as a system component or otherwise without the prior written approval of Solus. This warranty does not cover accessories and attachments not manufactured by Solus. The original manufacturer’s warranty, if any, for such accessories or attachments takes precedence and all claims shall be directed to their respective manufacturers.
ANY LITIGATION TO ENFORCE THE FOREGOING WARRANTY MUST BE COMMENCED NO LATER THAN ONE (1) YEAR AFTER DISCOVERY REASONABLY SHOULD HAVE BEEN MADE OF ANY FACTS OR OTHER INFORMATION SUGGESTING THE EXISTENCE OF A PRODUCT FAILURE OR A PRODUCT DEFECT. THE WARRANTY SET FORTH HEREIN IS THE COMPLETE AND ENTIRE WARRANTY MADE BY Solus AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER OR ADDITIONAL WARRANTY ON BEHALF OF Solus. THE RIGHT TO REPAIR, REPLACEMENT, OR CREDIT/REFUND, AS SET FORTH HEREIN, IS THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE ABOVE WARRANTY. SOLUS SHALL NOT BE LIABLE FOR CHARGES OR EXPENSES OF ANY NATURE UNDER THE FOREGOING WARRANTY INCURRED WITHOUT SOLUS’S CONSENT. FURTHER, UNDER NO CIRCUMSTANCES, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER IN WARRANTY, CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OR FOR ANY OTHER TORT OR CLAIM), SHALL Solus BE LIABLE TO THE PURCHASER OR ANYONE ELSE FOR ANY: (A) INCIDENTAL DAMAGES (EXCEPT AS SPECIFICALLY PROVIDED FOR ABOVE), OR CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES RELATIVE TO OR ARISING FROM OR CAUSED DIRECTLY OR INDIRECTLY BY SAID PRODUCTS OR THE USE THEREOF OR ANY DEFICIENCY, DEFECT, OR INADEQUACY OF SAID PRODUCTS; OR (B) DIRECT DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE Solus EQUIPMENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, OR AT THE ELECTION OF Solus, THE RESTORATION OR REPLACEMENT OR REPAIR OF SUCH EQUIPMENT. “CONSEQUENTIAL DAMAGES” INCLUDE, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION DAMAGES, LOSS OF USE DAMAGES, AND DAMAGE TO REPUTATION OR GOODWILL.
This Warranty is governed by and construed in accordance with the laws of the State of Missouri, without regard to conflict of law principles. All disputes or controversies arising out of or in connection with this Warranty shall be subject to the exclusive jurisdiction of the U.S. District Court for the Eastern District of the State of Missouri and any and all process in connection with any litigation arising out of such dispute or controversy may be served by registered, certified mail, return receipt requested, outside Missouri, with the same force and effect as if service had been made in Missouri.
If part of this Warranty is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Warranty, but rather the Warranty shall be construed as if not containing the particular invalid or unenforceable provision.