GENERAL TERMS AND CONDITIONS OF SALE
1. Applicability.
(a) These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the goods, including window, door and curtain wall products (the "Goods") by Yawal USA, Inc., a New Jersey corporation (the "Seller") to the buyer to whom these Terms were submitted, or to whom they apply otherwise (the "Buyer"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The Request for Quotation (as defined herein), the Proposal (as defined herein), the Purchase Order (as defined herein), the Purchase Order Confirmation (as defined herein), the Order Checklist (as defined herein), the Limited Warranty referred to in Section 9 herein (the “Limited Warranty”) and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or its general terms and conditions of purchase. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
2. Order Procedure.
(a) The Order Procedure shall be composed of the following phases, provided that Seller may, at its sole discretion, decide to omit any of the below phases:
(1) Submitting by Buyer a Request for Quotation (as defined therein), as set forth in Section 2(b) herein;
(2) Providing the Proposal (as defined therein) by Seller, as set forth in Section 2(c) herein;
(3) Submitting by Buyer a Purchase Order (as defined therein), as set forth in Section 2(d) herein, along with the filled in Order Checklist (as defined herein), which shall constitute an integral part of the Purchase Order; and
(4) Acceptance by Seller of the Purchase Order by issuing a pro-forma invoice (the “PI”). Once the PI is paid by the Buyer, Seller shall issue Purchase Order Confirmation (as defined therein), as set forth in Section 2(e) herein, or in other ways specified in Section 2(e).
(b) Prior to placing the order, Buyer shall submit to Seller a request for quotation, listing therein Goods that Buyer intends to order, their required quantities and specifications, as well as any other information thereon (the “Request for Quotation”). Such Request for Quotation shall be submitted in writing either via e-mail sent to estimates@yawalusa.com, or to any of Seller’s sales representatives.
(c) Upon the receipt of Request for Quotation, Seller shall promptly, and according to its best efforts within seven (7) business days provide a quotation to Buyer (the “Proposal”) indicating the total price for the requested Goods, which shall be inclusive of all expenses and costs agreed to, and listed in such Quotation. Costs of transportation of the Goods, taxes and applicable duties shall be specified separately in such Quotation, provided that in case of any increase of taxes and/or duties at any point shall be the sole responsibility of the Buyer. Such Quotation is valid for a period not exceeding thirty (30) days from the day of its issuance, and within such term is binding on Seller, except for any increase of taxes and/or duties.
(d) After receiving the Proposal, Buyer shall submit to Seller a purchase order (the “Purchase Order”). For the avoidance of doubt, the Proposal signed by Buyer is deemed to constitute Purchase Order. Such Purchase Order shall be submitted in writing either via e-mail sent to orders@yawalusa.com, or to any of Seller’s sales representatives. By placing a Purchase Order, Buyer makes an offer to purchase the Goods pursuant to the terms and conditions of this Agreement. The Purchase Order shall be accompanied by the order checklist (the “Order Checklist”), which specifies additional technical details of Goods subject to the Purchase Order. If Buyer fails to submit to Seller such Order Checklist, Seller hereby waives a right to raise any claim for any alleged discrepancy between Goods ordered and Goods received. For order specification, the last Order Checklist approved by Seller is binding.
(e) Seller has the right, in its sole discretion, to accept or reject any Purchase Order. Seller may accept any Purchase Order by either issuing a purchase order confirmation (the "Purchase Order Confirmation"), or by delivering such Goods, whichever occurs first. No Purchase Order is binding on Seller unless accepted by Seller as provided in this Agreement. If Seller decides to accept Purchase Order, Seller may issue a Purchase Order Confirmation, a PI, as well as provide an estimated production time.
(f) Each issuance of a Purchase Order to Seller constitutes Buyer’s representation and warranty that Buyer can pay for the Goods identified in such Purchase Order in accordance with the terms of this Agreement. Upon Seller’s request, Buyer shall furnish Seller with such statements accurately and fairly evidencing Buyer's financial condition as Seller may, from time to time, reasonably request. Buyer also consents to having Seller verify Buyer’s creditworthiness. Throughout the term of this Agreement, Buyer shall be in compliance with all loan covenants and other obligations to its lenders. Buyer shall notify Seller immediately of any and all events that have had or may have a material adverse effect on Buyer’s business or financial condition, including, but not limited to any material sale, lease, or exchange of a material portion of Buyer’s assets, a change of control or ownership, or breach of any loan covenants, or other material obligations of Buyer to its lenders. If, at any time, Seller determines in its sole discretion that Buyer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Seller's other rights under this Agreement, at law, or in equity, Seller, at its own discretion, may without liability or penalty, take any of the following actions:
(1) upon a five (5) days' prior notice, modify the payment terms specified herein for outstanding and future purchases, including requiring Buyer to pay cash in advance;
(2) reject any Purchase Order received from Buyer;
(3) cancel any previously accepted Purchase Orders;
(4) delay any further shipment of Goods to Buyer;
(5) stop delivery of any Goods in transit in the possession of a common carrier or bailee and cause the Goods in transit to be returned to Seller;
(6) upon a five (5) days' prior notice, terminate this Agreement; or
(7) accelerate the due date of all amounts owing by Buyer to Seller.
No actions taken by Seller under this Section 2(f) (nor any failure of Seller to act hereunder) constitute a waiver by Seller of any of its rights to enforce Buyer's obligations under this Agreement including the obligation of Buyer to make payments as required under this Agreement.
3. Price and Payments.
(a) Subject to Section 3(b) herein, Buyer shall purchase the Goods from Seller at the prices set forth in Seller's price list in effect at the time that Seller issues a Proposal or a Purchase Order Confirmation in case the Proposal has expired ("Prices").
(b) Due to Force Majeure (as defined herein), Seller may change Prices indicated in the Proposal or the Purchase Order Confirmation (in case of expiration of the Quotation).
(c) Unless otherwise agreed by the parties, the Buyer would make a non-refundable deposit of Ten Percent (10%) of Price upon execution of the accepted offer or letter of intent (as the case may be), Forty Percent (40%) of Price upon start of the production of Goods, and remaining Fifty Percent (50%) of Price prior to shipment of Goods. Invoices will be due upon receipt unless otherwise agreed. Notwithstanding any Incoterms or prior arrangements, under no circumstances shall the Seller be required to release, ship, or allow pick-up of the Goods until full and final payment of the Price has been received in cleared funds.
(d) Buyer shall make all payments in US dollars in accordance with the payment instructions shared by the Seller.
(e) All Prices shall be exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, including custom duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer as well as costs of transport (if applicable). However, upon Buyer’s request, such taxes, custom duties and other charges may be included in the Quotation, provided that their calculation shall never be binding on Seller, and is subject to change and adjustment. BUYER WAIVES ANY CLAIM AND SHALL NEVER HOLD SELLER LIABLE FOR SUCH CALCULATION OF TAXES, CUSTOM DUTIES AND OTHER CHARGES. Buyer shall be responsible for all such taxes, custom duties (as applicable) and other charges; provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets.
(f) Buyer shall pay interest on all late payments at the lesser of the rate of Sixteen Percent (16%) annually or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees and Goods warehousing costs. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend, the production of any Goods ordered by the Buyer, the delivery of any Goods and stop Goods in transit if Buyer fails to pay any amounts when due hereunder.
(g) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy or otherwise.
(h) Deposits paid by the Client for the commencement of shop drawings or for the purpose of securing a quoted price are strictly non-refundable, regardless of any subsequent changes, cancellation, or delays initiated by the Buyer.
4. Delivery of Goods and Shipping Terms.
(a) The Goods shall be delivered within a reasonable time, which shall be discussed and agreed prior to commencement of production. Seller shall not be liable for any delays, loss, or damage in transit. Buyer shall ensure that the transportation method complies with all applicable U.S. import and customs regulations, including packaging, documentation, and carrier suitability. Seller shall not be responsible for any delays, detentions, or additional costs arising from the Buyer’s selected transportation or customs clearance procedures. It is the Buyer’s responsibility to verify ability of the delivery agent to access the Delivery Point in terms of size, elevation, weight, accessibility of the transport method.
(b) Subject to the parties’ agreement, and as specified in the Purchase Order, delivery can be governed by (i) FCA; or (ii) DAP; or (iii) DDP, and the following would apply:
(1) if the FCA Incoterms govern – Buyer, at its sole discretion, shall select the carrier for the transportation of the Goods, inform Seller thereof, so Seller may arrange appropriate packaging, and arrange such transportation to a location indicated thereby (the "Delivery Point"). In case of not informing Seller about the selected carrier, Seller shall not be held liable for packaging improper for such selected carrier. Buyer shall be responsible for paying for freight, and for any costs associated with transportation of the Goods from the facility of the Goods manufacturer to the Delivery Point. Seller shall cooperate with Buyer with respect to scheduling the pick-up and delivery of Goods. In case Seller, at its discretion, shall inspect all trailers and containers provided by carrier for transporting Goods therein, and in case of any concerns therewith, Seller shall inform Buyer thereof. IN NO CASE SELLER SHALL BE RESPONSIBLE OR MAY BE HELD LIABLE FOR ASSURING THAT TRAILERS AND CONTAINERS ARE SUITABLE FOR TRANSPORTING THE GOODS. Title and risk of loss passes to Buyer upon having Goods placed on a mean of transportation;
(2) If the DAP Incoterms govern – Seller, at its sole discretion, shall select the carrier for the transportation of the Goods, and arrange such transportation to a Delivery Point, provided that such transportation shall be standard for the industry. If Buyer desires to have different transportation arranged therefor, Buyer shall inform Seller thereof and bear costs thereof. Seller shall be responsible for loading the container according to its own standards and knowledge to protect the Product during transportation. Seller shall take video and photographic footage of each container loaded with Goods, and shall promptly share the same with Buyer. Seller shall be responsible for paying freight cost; as well as Seller shall cover transportation costs associated with transportation of the Goods from the facility of the Goods manufacturer to the Delivery Point. Buyer shall be responsible for covering costs of custom duties and all taxes. Title and risk of loss passes to Buyer upon having Goods delivered to the Delivery Point;
(3) If the DDP Incoterms govern – Seller, at its sole discretion, shall select the carrier for the transportation of the Goods, and arrange such transportation to a Delivery Point, provided that such transportation shall be standard for the industry. If Buyer desires to have different transportation arranged therefor, Buyer shall inform Seller thereon and bear costs thereof. Seller shall be responsible for loading the container according to its own standards and knowledge to protect the Product during transportation. Seller shall take video and photographic footage of each container loaded with Goods, and shall promptly share the same with Buyer. Seller shall be responsible for paying freight cost; as well as Seller shall cover transportation costs associated with transportation of the Goods from Seller’s manufacturing facility to the Delivery Point. Seller shall be responsible for covering costs of custom duties and all taxes. Title and risk of loss passes to Buyer upon having Goods delivered to the Delivery Point.
(c) Unless otherwise agreed in writing by the parties, Seller shall use Seller's standard methods for packaging and shipping such Goods.
(d) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale and will be governed by these Terms, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order.
(e) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). If Buyer fails to accept the Goods within ten (10) calendar days of notification of readiness, Seller may charge a storage fee of Fifty Dollars ($50) per day for the amount of product stored in one 40 HC container. If such failure exceeds thirty (30) calendar days, Seller may, at its sole discretion and without liability, resell, recycle, or otherwise dispose of the Goods and retain any advance payments as liquidated damages. Any outstanding balances remaining on the purchase order remain due and collectible by the Seller.
(f) Seller shall use reasonable efforts to meet any delivery dates specified in the Purchase Order Confirmation, and any such dates shall be estimates only.
(g) If the Buyer requests a change of the Delivery Point, the Seller will verify whether this change is feasible and provide to the Buyer updated cost/additional charge reflecting this change.
5. Non-Delivery.
(a) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer can provide conclusive evidence proving the contrary.
(b) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence), unless Buyer gives written notice to Seller of the non-delivery within Three (3) days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
(d) Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer's exclusive remedies for any non-delivery of Goods.
6. Security for the Payment of the Purchase Price for Goods. As collateral security for the payment of the outstanding purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Jersey Uniform Commercial Code.
7. Buyer's Acts or Omissions. If Seller's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
8. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within Three (3) days of receipt (the "Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined herein) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. "Nonconforming Goods" means only the following: (i) Good shipped is different than identified in the Purchase Order, and the Order Checklist; or (ii) Good's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. If Seller requests return of the Nonconforming Good, the Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to Seller's facility located in Herby, Poland or Dabrowa Gornicza, Poland. Seller shall indicate, at its sole discretion, where such Nonconforming Goods shall be shipped. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Seller's expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
9. Limited Warranty. Seller’s Limited Warranty, which is incorporated into this Agreement by reference and constitutes its part, is set forth in Exhibit A hereto.
10. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED ONE (1) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 10 shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
11. Compliance with Law and Local Regulations.
(a) Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
(b) Seller makes no representation or warranty that the Goods comply with any specific federal, state, or municipal regulations applicable in the United States, including, but not limited to, fire safety, energy efficiency, building codes, or environmental standards. Buyer is considered as professional party and assumes full responsibility for verifying and ensuring compliance of the Goods with all such local regulations prior to resale or installation. Placing an Order is equivalent to agreeing and approving that Buyers understand solution proposed by Seller and that Buyer verified compatibility with local standards.
12. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, has filed against an involuntary petition for bankruptcy that is not dismissed within Thirty (30) days, or applies for or consents to the appointment of a receiver, trustee, or similar custodian for a substantial part of its assets.
13. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
14. Export Compliance and Trade Sanctions. Seller’s performance under this Agreement is subject to all applicable export control laws, trade sanctions, and customs regulations of the United States, the European Union, and other applicable jurisdictions. Seller reserves the right to suspend or cancel delivery if it reasonably believes that performance under this Agreement would result in a violation of such laws. Seller shall not be liable for any costs, delays, or damages arising from such suspension or cancellation. Any outstanding payment shall not be held under these circumstances.
15. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, but not limited to: acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemics, pandemics, material increase of taxes and/or duties, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of Fourteen (14) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
16. Insurance. Unless parties agree otherwise, Buyer shall, at its own expense, maintain and carry in full force and effect commercial general liability (including product liability) in a sum no less than One Hundred Thousand dollars ($100,000.00) with financially sound and reputable insurers, and upon Seller's request, shall provide Seller with a certificate of insurance evidencing the insurance coverage specified in this Section. Buyer is responsible for maintaining appropriate insurance coverage based on the value of the order.
17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Jersey. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New Jersey in each case located in the City of Newark and County of Essex and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
20. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
21. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.