Including Limitations Of Warranty — (Revised and effective June 1, 2011)
All goods, equipment, products and services (hereinafter collectively called “Goods”) furnished by Atlantic Corporation of Wilmington, Inc. (hereinafter “Seller”) are governed by these Terms and Conditions of Sale Including Limitations of Warranty (hereinafter “Terms and Conditions”) and by the Proposal. Placement of your order, as “Buyer,” shall be in accordance with Seller’s then current procedure. Acceptance by Seller of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, including those on the face of this Proposal, and any provisions of Buyer’s order or other communication in conflict with, or in addition to, these Terms and Conditions or the Proposal are expressly rejected.
Buyer may cancel the order, in whole or in part, by written notice at any time, provided Buyer pays Seller, within ten (10) days: (a) except for orders for customized Goods, a restocking charge equal to twenty-five percent (25%) of the amount of the order cancelled; and (b) for any orders for Goods customized to Buyer’s specifications the aggregate of (i) the cost, including installation and removal costs, of any items purchased by Seller prior to cancellation for the purpose of filling Buyer’s order and not needed by Seller to fill other orders which it then has, plus (ii) the quoted price for all goods finished and ready to ship, plus (iii) other reasonable costs, overhead, and expenses (including, but not limited to, the cost of labor and services provided, and the cost of raw materials and Goods still in the process of manufacture but unfinished at the time of cancellation) which Seller may have incurred in the performance of the order, plus (iv) Seller’s reasonable and anticipated lost profit resulting from such cancellation. Notice of cancellation is not effective until received by Seller at the following address: Atlantic Corporation of Wilmington, Inc., Attn: Roger D. Teague, Vice President, 806 North 23rd Street, Wilmington, NC 28405. If Buyer elects to cancel the order in part, Seller may, at its option, within a reasonable time thereafter, cancel the entire order by written notice. Seller’s election, at its option, to cancel Buyer’s order under such circumstances is in addition to, and not in lieu of, any other rights or remedies which Seller may have at either law or equity.
Unless otherwise provided by the Proposal or agreed by Seller in writing, price and delivery terms shall be F.O.B. shipping point, freight prepaid or freight collect to destination. If shipped freight prepaid, the charge for freight will be added to the invoice. “Shipping point” shall mean Seller’s plant or the plant of a third-party manufacturer. Prices do not include any federal, state or local taxes and all such taxes, including excise, sales, use, import or similar taxes shall be the responsibility of Buyer. Unless otherwise agreed in writing, Seller will select the route and manner of shipment. All risk of loss or damage in transit shall pass to Buyer at the place and time such Goods are placed into the possession of the carrier or shipper, in accordance with the foregoing F.O.B. shipping point term, and claims for loss, damage or shortage in transit shall be made directly with the carrier or shipper. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. If Buyer fails to accept delivery according to the agreed upon delivery schedule or fails to make payment in accordance with the agreed payment schedule, Seller may cancel the then remaining balance of the order. Such cancellation, if elected by Seller, shall be in addition to, and not in lieu of, any other rights or remedies which Seller may have at law or equity. Delivery terms are approximate only and Seller shall not be liable to Buyer for any delay in shipment, delivery or installation.
CHANGES TO PROPOSAL
If Buyer requests any changes to the Proposal, such changes must be approved in writing to be binding upon Seller. Information and specifications regarding the goods set forth in this Proposal are current as of the date of the Proposal; provided, however, Seller reserves the right to change such specifications, designs and standard equipment without notice and without incurring any obligation to Buyer.
All payments shall be made in U.S. dollars. Payment shall be due upon delivery or as otherwise provided by the Proposal, Seller’s order acknowledgment, invoice or other writing. Seller reserves and, by its order, Buyer grants, Seller a security interest in all Goods furnished by Seller to Buyer until payment has been received, and Buyer will promptly execute and deliver documents to perfect such security interest. All orders received are subject to credit approval. Buyer agrees to submit items reasonably requested by Seller in order to establish or update Buyer’s credit. Seller shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at eighteen percent (18%) per annum or the highest rate permitted by law, whichever is less. Whenever Seller in good faith deems itself insecure (including, but not limited to, the initiation of bankruptcy or insolvency proceedings against Buyer), it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production and/or shipment of any unfilled orders; modify or revoke its extension of credit to Buyer; reduce any unpaid debt by enforcing its security interest (and applying the proceeds therefrom); and take any other steps permitted by law and necessary or desirable to secure Seller with respect to Buyer’s payment for Goods furnished or to be furnished. Buyer will pay Seller’s actual costs of collection, including but not limited to court costs, and reasonable attorneys’ fees and costs, incurred for collection of any amount owed to Seller hereunder. Buyer shall have no right of offset against amounts owed to Seller. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, and regardless of other writings, statements or documents, shall be applied by Seller against any amount owing by Buyer with full reservation of all of Seller’s rights and without an accord and satisfaction of Buyer’s liability.
Goods furnished by Seller will be deemed to have been accepted within ten (10) days after receipt by Buyer, unless rightfully rejected within such period by written notice to Seller setting forth all of the defects upon which the rejection is claimed. Claims for damage or shortages shall not be considered unless also made in writing within ten (10) days after receipt of the Goods and accompanied by reference to Seller’s bill of lading and invoice numbers. Defective Goods shall be held for Seller’s inspection or disposition. Acceptance of Goods upon delivery shall constitute a waiver by Buyer of any claim for damages on account of non-shipment or delays in delivery or performance.
EXCLUSION FROM WARRANTY/SOFTWARE
All software is sold “AS IS.” Seller disclaims all and makes no warranties with respect to any software or with respect to the performance of any goods in conjunction with any software.
SELLER WARRANTS FOR A PERIOD OF TWELVE (12) MONTHS FROM THE ORIGINAL DATE OF SHIPMENT OF THE GOODS THAT THE GOODS FURNISHED HEREUNDER WHICH ARE DIRECTLY MANUFACTURED BY SELLER ARE FREE FROM DEFECT IN MATERIAL OR WORKMANSHIP AS OF THE TIME AND PLACE OF DELIVERY BY SELLER, AND CONFORM TO THE SPECIFICATIONS SET OUT IN THIS PROPOSAL, UNDER NORMAL USE AND REGULAR SERVICE AND MAINTENANCE. GOODS MANUFACTURED FOR SELLER BY OTHERS ARE COVERED BY THAT MANUFACTURER’S WARRANTY AND NOT BY SELLER. NO OTHER WARRANTY, EXPRESS OR IMPLIED, SHALL APPLY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY SUCH IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED. THE ABOVE WARRANTY PROVISIONS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, notwithstanding any knowledge of Seller regarding the use or uses intended to be made of Goods, proposed changes or additions to Goods, or any assistance or suggestions that may have been made by Seller’s personnel. This warranty may be altered only in writing signed by an officer of Seller and is conditioned upon Seller receiving full payment for the Goods. This warranty does not extend to any defect, problem, loss or damage caused by the negligence or acts of Buyer, or others, failure to operate or install the Goods in accordance with operating and/or installation instructions furnished with such Goods, unreasonable use or misuse, accidents, abuse, neglect, alterations, use beyond rated capacity, improper maintenance or application, or ordinary wear and tear. To the extent that Seller has relied upon any specifications, information, representation of operating conditions, or other data supplied by Buyer or its agents to Seller in the selection or design of the Goods and the preparation of this Proposal, and actual operating or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other similar provisions contained herein which are affected by such conditions shall be null and void.
If, within the warranty period, the goods prove to be defective in material or workmanship, Buyer shall promptly (but in no event later than thirty (30) days after discovery of the defect) give written notice of the defect to Seller and provide Seller an opportunity to inspect the Goods. Failure by Buyer to provide such written notice or opportunity to inspect to Seller within the time period set forth herein shall render the warranty null and void as to such defective Goods. Goods for which damages are claimed shall not be returned, repaired or discarded without Seller’s written consent. In Seller’s discretion, the defective Goods shall be returned to Seller. All shipping costs for the return of such Goods shall be at Buyer’s expense. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS PROPOSAL, BUYER’S EXCLUSIVE REMEDY AGAINST SELLER, AND SELLER’S SOLE OBLIGATION AND LIABILITY, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF GOODS THAT DO NOT CONFORM TO THE QUALITY OR SPECIFICATIONS WARRANTED OR REFUND OF THE PURCHASE PRICE. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR DAMAGES IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE GOODS SOLD HEREUNDER, NOR SHALL SELLER HAVE ANY RESPONSIBILITY OR LIABILITY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, including but not limited to those for loss of time, inconvenience, lost profits or economic loss. The warranty period hereunder shall not be extended by reason of the repair or replacement of Goods pursuant to this section. THE PROVISIONS OF THIS SECTION LIMITING REMEDIES TO REFUND, REPAIR OR REPLACEMENT, LIMITING LIABILITY AND EXCLUDING SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL AND CONSEQUENTIAL DAMAGES ARE INDEPENDENT PROVISIONS AND ANY DETERMINATION THAT ANY SUCH LIMITATION OF REMEDIES FAILS OF ITS ESSENTIAL PURPOSE OR. IS OTHERWISE UNENFORCEABLE, SHALL NOT BE CONSTRUED TO MAKE ANY OTHER SUCH PROVISION UNENFORCEABLE.
Buyer shall defend, indemnify and hold Seller harmless from and against any and all claims, liabilities, loss, costs, damage, expense (including reasonable attorneys’ fees and costs) or injury of any kind or nature whatsoever (including, but without limitation, property damage, personal injury or death, as well as economic loss or damage) caused by, resulting from, arising out of, relating to, or occurring in connection with. Buyer’s actions with respect to the Goods purchased by Buyer including, but not be limited to, those arising from Buyer’s dismantling or overriding of safety devices attached to the Goods, failure to follow instruction manuals and product warnings, or other improper use of the Goods.
ELECTRICITY, ACCESS, ETC.
Buyer will be responsible for providing a building structure, foundations and approach, suitable for the efficient transport, reception, installation and maintenance of the Goods, and will also provide any necessary services such as electricity required for the installation and operation of the Goods. The supply of electricity shall be to the control panel or console of or on the machine, and the Buyer shall also supply satisfactory means for the isolation of the electrical supply and protective fuses for the electrical wiring to the control panel or console. Any supply of light, water, air or the like shall be to the spot where the equipment is to be erected. Seller accepts no responsibility for any damages or loss whatsoever arising from the inadequacy of the aforementioned installations and services.
Where Seller supplies Goods to Buyer’s specifications and/or manufactured or fabricated from Buyer’s blueprint, sketch or specifications, Buyer, at its own expense, shall defend any suit or proceeding of any kind whatsoever brought against Seller in any capacity if such suit or proceeding involves a claim that any Goods or any part thereof constitutes an infringement of any patent, copyright or trademark and Buyer shall pay or indemnify any and all judgments, expenses and costs which may be awarded against or incurred by Seller related to such legal action, as well as reasonable attorneys’ fees incurred by Seller.
The failure of Seller to enforce its rights or remedies hereunder shall not be construed as a waiver of such default or violation, or of any of its rights or remedies.
LIMITATION OF LITIGATION/ATTORNEY FEES
Any controversy or claim of Buyer arising out of or related to the Proposal or the sale and purchase of Goods must have accrued within the applicable warranty period, and then be commenced within one (1) year after the cause of action has accrued. Seller shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from the Buyer relating to any lawsuit or other proceeding arising from, or relating to, this Proposal, or any agreement entered into hereafter, in which Seller prevails.
Buyer acknowledges that delivery dates are approximate. Seller shall not be liable or responsible for non-shipment of Goods, delays in delivery or performance, or any damages suffered by Buyer by reason of such delay, and shall be excused from performance, when such non-shipment or delay is directly or indirectly caused by, or in any manner arises from, causes beyond Seller’s reasonable control, including, but not limited to, acts of God; acts of Buyer; strikes or other labor disturbances; Seller’s inability to obtain, or material increases in the cost of, labor, fuel, power, materials or supplies; governmental interference; embargoes; war; acts of terrorism; riot; delays in transportation; any existing or future laws or acts of any government (including specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Seller’s business; repairs to equipment; epidemics; floods; fires; accidents; a contingency the non-occurrence of which was a basic assumption on which this Proposal and the purchase and sale of Goods was made; and/or any other cause or causes (whether or not similar in nature to any of those specified above) that renders such performance commercially impracticable, including, but not limited to, modifications to the specifications requested by Buyer subsequent to commencement of production by Seller.
ENTIRE AGREEMENT/GOVERNING LAW/FORUM/SEVERABILITY
Except as otherwise agreed in writing, the Proposal (including these Terms and Conditions) constitutes the entire agreement between Seller and Buyer with respect to the subject matter hereof, superseding all prior proposals, quotations and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, Buyer acknowledges that no representation or warranty other than those contained in the Proposal or these Terms and Conditions has been made or relied upon, and no stipulations, representations or agreements by Seller, or its officers, agents, or employees shall be binding upon Seller unless reduced to writing. Terms or conditions contained in a purchase order or any other document issued by Buyer that in any manner purport to alter, modify, change, suspend or add to any term or condition contained herein or in the Proposal shall be deemed excluded from such purchase order or other Buyer document and waived by Buyer. Any disputes, controversies, or litigation arising either directly or indirectly from the Proposal or other agreement between the parties shall be governed by the substantive laws of the State of North Carolina without regard to its conflicts of law principles. Buyer and Seller each consents to the exclusive personal jurisdiction of the state or federal courts located in New Hanover County, North Carolina over any action arising out of or relating to the Proposal (including these Terms and Conditions), any purchase order or other document submitted by Buyer and/or any agreement entered into hereafter, and waives any objection it may now or hereafter have to venue or to convenience of forum. If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other provisions; and if any provision hereof is found to be ambiguous or in conflict with any other provision hereof, such ambiguity or conflict shall be resolved in the manner which provides the greatest protection and limitation of liability to Seller.
If applicable, performance by Seller is subject to U.S. export laws and regulations. Seller’s failure to perform due to such laws and regulations shall not constitute a breach of this Proposal.
These terms and conditions (“Terms and Conditions”) apply to you (“Supplier”) as a seller of products and/or provider of services to Atlantic Corporation of Wilmington Inc. (“Atlantic”) and/or its customers. Supplier agrees that the sale of such products and/or provision of such services are subject to all terms and conditions set forth hereinafter.
Atlantic reserves the right, in its sole discretion, with or without notice, to modify these Terms and Conditions at any time. Supplier shall be responsible for making sure Supplier has the most current version of these Terms and Conditions (Supplier) at any time. A current version can be obtained by checking Atlantic’s website (https://www.atlanticpkg.com/supplier/) or by requesting a current copy by mail from Atlantic Corporation of Wilmington Inc., 806 N. 23rd Street, Wilmington, NC 28403.
Supplier represents and warrants to Atlantic that all products sold and services provided to Atlantic hereunder (i) shall be free from defects in material and workmanship; (ii) shall be sold with good title, free and clear of any liens, security interests or encumbrances whatsoever; (iii) shall be, in the case of products sold, merchantable; (iv) to the knowledge of Supplier, not infringe upon or misappropriate any published patent or other intellectual property rights of any third party, either as delivered or when used for its intended purpose; and (v) shall conform to the final specifications that have been previously provided by Atlantic to Supplier.
In addition to Atlantic’s other rights and remedies set forth herein, including without limitation, its right of indemnification, in the event any products do not conform with the above representations and warranties and such defects or non-conformance is disclosed to Supplier within one year after shipment by Supplier, Supplier shall, at Atlantic’s sole option, either promptly replace such defective or non-conforming products at Supplier’s sole cost and expense or refund the purchase price paid by Atlantic. Notwithstanding the foregoing, Supplier shall pay all taxes, transportation and other costs and expenses incurred by Atlantic in the replacement and return of any defective or non-conforming products, and shall pay all costs and expenses related to products not delivered by the date requested per Atlantic’s purchase order.
Supplier shall, at its sole cost and expense, indemnify, hold harmless and defend Atlantic and its customers and their respective officers, directors, representatives, agents, subsidiaries, affiliates, employees, successors and assigns from any and all claims, damages, losses, liabilities, actions, costs and expenses (including, without limitation, reasonable attorneys’ fees, expert fees and court costs) of any kind or nature, whether at law or in equity (the “Claims”), arising from or caused by or related to the breach of any representation, warranty, covenant or agreement of Supplier contained herein.
GOVERNING LAW AND JURISDICTION
The sale of the products and/or services shall be governed by the laws of the State of North Carolina, excluding its conflict of law principles.
Supplier and Atlantic agree that, any provision of applicable law notwithstanding, neither party will request or be entitled to any award for punitive or exemplary damages against the other party.
OTHER TERMS AND CONDITIONS
These Terms and Conditions, together with all purchase orders of Atlantic submitted to Supplier, constitute the complete and exclusive understanding between Atlantic and Supplier relating to the sale of products and/or provisions of services by Supplier to Atlantic and supersede all prior or contemporaneous understandings, agreements and/or communications with respect thereto.
If any provision of these Terms and Conditions is held by a court of competent jurisdiction or other applicable authority to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
Atlantic’s failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Atlantic in writing.