GENERAL TERMS AND CONDITIONS OF SALE
In these Conditions “the Seller” means Palladio Industries, Inc; “the Buyer” means the person, firm or company purchasing the Goods and/or Services, “the Goods” means the goods or materials which shall be the subject of the contract between the Seller and the Buyer; "a Contract” means a legally binding contract between the Seller and the Buyer for the sale and purchase of Goods ordered by the Buyer and accepted by the Seller in accordance with and subject to these conditions of sale; “Services” means any services including, any services associated with the Goods Supplied by the Seller to the Buyer in accordance with the Contract; and “the Price” means the price specified in the Seller’s acknowledgement or otherwise communicated to the Buyer and agreed. The Seller reserves the right to update these general terms and conditions at any time by displaying amended terms and conditions on its website. NO CONFLICTING TERMS AND CONDITIONS WILL APPLY TO THE TRANSACTION UNLESS SELLER AND BUYER HAVE ENTERED INTO A WRITTEN PRODUCT SALES AGREEMENT, THE TERMS OF WHICH TAKE PRECEDENCE OVER THESE GENERAL TERMS AND CONDITIONS, OR SELLER SPECIFICALLY AGREES TO SUCH TERMS AND CONDITIONS IN WRITING.
1. Acceptance of Order
(i) All orders are accepted by the Seller subject to these Conditions of Sale unless the parties entered into a written product sales agreement, as specified above.
(ii) The Seller is under no obligation to accept the Buyer’s order. Prices, offers and products are subject to availability and may change at any time prior to acceptance of the Buyer’s order. By submitting an order, the Buyer submits an offer to enter into a sales contract with the Seller.
(iii) The Seller will confirm that it has received such order without undue delay (the “Acknowledgement”). The Acknowledgement does not signify that the Buyer’s offer has been accepted. Should the Seller decide to accept an order, (whether placed by telephone, fax or email) the Buyer will receive an order acceptance at which point the order will become a binding contract.
(iv) The Buyer acknowledges that it has not relied on any statement, promise or representation made or given on behalf of the Seller which is not set out in these Conditions of Sale.
(v) Each order shall be a separate Contract and cancellation or termination of any individual contract shall not entitle the Buyer to terminate or repudiate any other Contract.
2. The Price
(i) The Price of any Goods shall be as quoted in writing or on sale brochure, except in cases of obvious error, and subject always to clause 1(i) and 1(ii).
(ii) The Seller may at any time before delivery increase the price of the undelivered balance of the Goods by notice in writing to the Buyer. In such event the Buyer may within seven days of receipt of such notice by notice in writing cancel the order so far as the undelivered balance of the Goods is concerned.
(iii) Unless otherwise stated on acceptance, the price of the Goods shall not include the Seller’s costs of packing and delivery of the Goods unless specified in writing by the Buyer and agreed by the Seller prior to delivery.
(iv) Containers and/or packages are not returnable unless so stated in the Seller’s quotation or acknowledgement or other documentation. Returnable containers and/or packages shall be returned empty by the Buyer to the Seller’s address stated on the delivery note in good condition, carriage paid, within three months of delivery of the Goods. If not, such containers and/or packages will be chargeable at replacement value and no credit will be due on containers and/or packages for which Seller shall have made a charge.
(i) Unless otherwise stated on the Seller’s invoice or otherwise agreed in writing, payment for the Goods shall be made not later than thirty days after the date of the invoice but so that the Seller may at any time on or after acceptance by notice in writing to the Buyer vary the terms of payment by demanding immediate payment or (at the Seller’s option) adequate security for sums which shall be due hereafter.
(ii) Time for payment shall be of the essence and failure by the Buyer to pay the Price or any instalment thereof in due time shall entitle the Seller to one or more of the following:
(a) treat such failure as a repudiation of the whole Contract by the Buyer;
(b) require the Buyer to make immediate payment of all monies due or to become due;
(c) recover from the Buyer damages for such breach of contract; and/or)
(d) charge a delinquency finance charge of 1% per month
(iii) The Buyer shall make all payments due in full without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
(iv) All payments shall be applied to invoices and deemed to be made in the order in which they were issued,
(v) All payments payable to the Seller shall become due immediately upon termination of the Contract.
(iv) All payments shall be made in United States dollars without discount or deduction to a bank account designated by Seller. Seller reserves the right to require payment by wire transfer.
4. Shipments and Delivery.
Unless otherwise agreed in writing between the Seller and the Buyer the following provisions shall apply:
(i) Delivery of the goods shall take place when the Goods shall be delivered at the address specified on the Seller’s quotation or Acknowledgement or other documentation, or when collected by the Buyer.
(ii) The delivery date or dates are estimates only and time for delivery shall not be of the essence. The Seller shall not be liable for failure to deliver by such date or dates or for any damage or loss arising directly or indirectly (including loss of profits) out of delay in delivery; nor shall the Buyer be entitled to refuse to accept the Goods because of late delivery.
(iii) The risk of any loss or damage to or deterioration of the Goods shall be borne by the Buyer once the Goods are loaded on to transport at the Seller’s premises.
(iv) Buyer shall give Seller reasonable advance notice for each shipment, which shall include shipping instructions. Seller may, from time to time, specify lead time requirements. Each delivery shall stand as a separate transaction.
(vi) Products are sold on a FCA-Origin basis, unless otherwise agreed upon.
(i) The legal and beneficial title in and ownership of the Goods shall remain in the Seller until payment in full has been made to the Seller by the Buyer for:
(a) the Goods; and
(b) all other sums which are due or which become due to the Seller from the Buyer.
(ii) Where full payment has not been made to the Seller and the Buyer uses the Goods in his manufacturing process or incorporates the Goods with other products, the property in the Goods shall be retained by the Seller in so far as such Goods are identifiable.
(iii) Until such payment is made:
(a) the Buyer shall hold all Goods and materials on a fiduciary basis only as a bailee for the Seller and shall store such Goods separately from all other goods in the Buyers possession so as to be clearly identifiable as the property of the Seller (at no cost to the Seller);
(b) the Buyer shall keep the Goods in satisfactory condition and insured on the Seller’s behalf for the full price against all risks to the reasonable satisfaction of the Seller; and
(c) the Buyer grants to the Seller, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or in the case of default, as defined at clause 11, to recover them.
The Seller shall in respect of all unpaid debts due from the Buyer under the same or any other contract have a general lien on all goods and property of the Buyer in its possession (although such Goods or some of them may have been paid for) and shall after expiration of fourteen days written notice to the Buyer be entitled to dispose of such Goods and property as it deems fit and apply the proceeds towards such debts.
7. Shortages and Damage and/or Loss in Transit.
(i) Unless otherwise agreed in writing between the Buyer and the Seller, the Seller may deliver against any order an excess and/or deficiency up to ten per cent of weight or volume ordered without any liability whatsoever to the Buyer, save that the price shall be adjusted accordingly. Seller’s determination, unless proven to be erroneous, shall be accepted as conclusive evidence of the quantity of Product delivered.
(ii) The Buyer shall inspect the Goods immediately upon delivery and shall within three days of such delivery (time being of the essence) give notice in writing to the Seller and the carrier of all claims on account of damage to or total or partial loss of Goods in transit. Claims for non-delivery must be submitted in writing to the Seller within fourteen days after notification of dispatch.
(iii) Any other claims (including but not limited to defects or production faults) must be made in writing immediately after the Buyer learns of the defect and in any event not later than ten days after delivery of the Goods. Any claim not made in writing and received by the Seller within the aforesaid time limits shall be deemed waived.
(iv) If the Seller fails to make delivery or makes defective delivery of any one instalment such failure or defective delivery shall not affect the Contract as regards other instalments.
(v) The right of the Buyer to set off the value of any shortage, defective Goods or Goods not otherwise conforming to contract shall be restricted to the specific invoice for the Goods in question and shall not apply to previous or future invoices and/or accounts.
8. Warranty and Limitation of Liability.
(i) SELLER WARRANTS THAT THE PRODUCT SOLD SHALL MEET SELLER’S STANDARD SPECIFICATIONS OR OTHER MUTALLY AGREED WRITTEN SPECIFICATIONS. OTHER THAN THE FOREGOING, SELLER MAKES NO GUARANTY OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY OR FITNESS FOR USE, OR FITNESS FOR ANY SPECIFIC PURPOSE, EVEN IF KNOWN TO SELLER.
(ii) Save as aforesaid, all other conditions, guarantees, or warranties whether express or implied by statute, common law or otherwise including (but without prejudice to the generality of the foregoing) conditions, guarantees or warranties as to quality, fitness for purpose or description of the Goods or their life or wear to use under any conditions whether known or made known to the Seller or not are hereby excluded to the fullest extent permitted by law.
(iv) The Seller shall not be liable to the Buyer whether in contract, tort (including, without limitation, negligence), misrepresentation or otherwise howsoever arising for any loss of profit, loss of anticipated profit, loss of business, loss of contract, overhead recovery, anticipated savings, loss of data, loss of production, depletion of goodwill, product recall nor for any special, indirect or consequential loss or damage, or otherwise for any costs, expenses or claims for consequential compensation whatsoever.
(v) Subject to clause 8(iv) the Seller’s total aggregate liability under the Contract shall be limited to, at its option, repair or replace of Goods that fail to conform to the warranty set forth above, or credit Buyer’s account for such items.
In no event shall Seller be liable for any special, consequential, incidental, punitive, or indirect losses or damages attributable to the sale of Goods under the Contract or to any other matter arising out of or in connection with it.
vi) Buyer’s claims against Palladio under this Section 8 are void if Buyer fails to notify Palladio of any apparent defects in the Goods within ten (10) business days after delivery, or of any hidden defects within ten (10) business days after the defect has been detected.
9. Hazard Warning Responsibility
Buyer acknowledges that it has been adequately warned by Seller of the risks associated with handling, using, transporting, storing, and disposing of the Product, including, without limitation, those set forth in Seller’s Material Safety Data Sheets for Product (“MSDS”), and that Buyer is familiar with the Product. Buyer further acknowledges its separate and independent knowledge of such risks, which are known in Buyer’s industry. Buyer shall maintain compliance with all safety and health related governmental requirements concerning Product and shall take all reasonable and practical steps to inform, warn, and familiarize its employees, agents, contractors, and customers with all hazards associated with the Product, including handling, shipment, storage, use, and disposal.
10. Force Majeure.
Deliveries may be partially or totally suspended by either party during any period in which it is prevented from manufacturing, delivering or taking delivery of the Goods through any circumstances outside its control. If, because of such circumstances, the Seller is unable to supply the total requirement of the Goods the Seller may allocate its available supply (after satisfaction of its own requirements) among all of its customers, including those not under contract, as the Seller thinks fit. In the event of such circumstances the Seller shall
(i) be relieved from its obligations under the Contract to the extent the Seller is prevented from performing such obligations and
(ii) shall have no obligation to procure Goods from other sources. In the event that the force majeure continues for more than 3 months either party may terminate the Contract on 30 days’ notice.
The Buyer shall indemnify, defend and hold harmless the Seller in respect of all damage or injury occurring to any person, firm, company or property and against all actions, suits, claims and demands, charges or expenses in relation to any claim made against the Seller by a third party arising out of or in connection with the supply of the Goods.
Buyer agrees to defend, indemnify and hold Palladio Group harmless from and against any and all liability, claims, costs, expenses, attorney fees and damages whatsoever for personal injury, illness, death, property damage and loss arising from utilization of Seller Goods.
Buyer's release, defense, indemnity and hold harmless obligations will apply even if the liability and claims are caused by the sole, concurrent, active or passive negligence, fault or strict liability of one or more members of the Palladio Group, breach of contract or statute, the unseaworthiness of any vessel or any defect in the data, products, supplies, materials or equipment furnished by Palladio Group whether in the design, manufacture, maintenance or marketing thereof or from a failure to warn of such defect. "Palladio Group" is defined as Palladio Industries, Inc, its parent, subsidiary, affiliated companies and insurers and its/their officers, directors, employees, consultants and agents. Buyer's release, defense, indemnity and hold harmless obligations apply whether the personal injury, illness, death, property damaged or loss is suffered by one or more members of the Palladio Group, Buyer or any other person or entity and the Buyer will support such obligations assumed herein with liability insurance to the maximum extent allowed by applicable law.
The Seller reserves the right (without prejudice to its other rights and remedies) either to terminate the contract between the parties or to suspend further deliveries under it or require payment in advance or require return of Goods delivered in the event that:
(a) the Buyer fails to pay for any one delivery when the same becomes due;
(b) the Buyer’s financial position becomes unsatisfactory to the Seller; or
(c) if notice of intention to appoint an administrator is given, or a winding up petition is presented to any court or documents are filed with any court for the appointment of an administrator or the Buyer is wound up, goes into liquidation or has an administrator, manager or receiver appointed or enters into any form of arrangement with or for the benefit of creditors or has a bankruptcy petition filed or bankruptcy order made against it or if any similar or analogous event occurs in any jurisdiction or if the Buyer is otherwise unable to pay its debts as they fall due.
All import duties V.A.T., taxes, and other import costs will be the Buyer’s responsibility.
14. Patents and Trademarks.
No representation, warranty or indemnity is given by the Seller that the Goods do not infringe any letters patent, trademarks, registered designs or other industrial rights.
The Contract of which these conditions form part is personal to the Buyer who shall not assign, transfer or otherwise deal with the benefit or burden thereof without the Seller’s written consent. The Seller may at any time assign, transfer or otherwise deal with the benefit or burden of the Contract (and if required to do so by the Seller, the Buyer shall enter into a novation agreement in such form as the Seller shall reasonably stipulate). The Seller shall be entitled to carry out its obligations under the Contract through any agents or sub-contractors.
16. Governing Law and Venue.
This contract is governed by and interpreted in accordance with the laws of the State of Texas, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties and the remainder of this contract will continue in full force and effect. This contract is not governed by the United Nations Convention on Contracts for the International Sale of Goods. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this contract lies within courts located in the State of Texas and consents to venue in Bell County, Texas. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court and Palladio may seek injunctive relief in any United States or foreign court.
17. Alternative Dispute Resolution.
Any dispute between Buyer and Seller which cannot be settled amicably within thirty (30) days of a written notice by one party to the other of the existence of such dispute specifying the object thereof, shall be settled, to the exclusion of a court of law or equity proceeding, by an arbitrator jointly selected by the parties. Arbitration proceedings shall be held in Temple, Texas. Failing agreement by the parties, the arbitrator shall be appointed by the American Arbitration Association. Counterclaims may be filed in the same arbitral proceeding. Judgment upon the arbitral award may be entered in and enforced by a court of competent jurisdiction.
(i) The parties agree to electronic communication and acknowledgement that all Contracts, notices, information and other communications that the parties provide to each other electronically comply with any legal or contractual requirement that such communications be in writing.
(ii) All notices given by the Buyer to the Seller must be sent to
Palladio Industries, Inc
2114 Trino Rd
Temple, TX 76504
or to such other address notified to the Buyer from time to time.
(iii) The Seller may give notice to the Buyer at either the email or postal address provided when placing an order. Notice will be deemed received and properly served 24 hours after a fax or email is sent or three days after the posting of any letter.
19. Entire Agreement
(i) These conditions represent the entire agreement between the parties relating to the sale and purchase of the Goods and supersede all previous agreements, arrangements and understandings between the parties relating to the sale and purchase of the Goods.
(ii) Each party acknowledges that in entering into the Contract it places no reliance on any representation, warranty or other statement relating to the subject matter of the Contract, other than as expressly set out in these conditions.
(iii) Neither party shall have any liability or remedy in respect of any representation, warranty or other statement being false, inaccurate and/or incomplete unless it was made fraudulently or is contained in these conditions. Nothing in these conditions shall exclude or limit the liability of either party for a fraudulent misrepresentation.
(iv) Each party agrees that its only remedy for breach of the Contract shall be for breach of contract.
20. Data Protection
(i) Data Protection Laws means any applicable law relating the processing, privacy and use of personal data
(ii) Personal Data, process, data processor, data controller, personal data breach, data protection impact assessment, supervisory authority and data subject have the meanings given to them in Data Protection Laws.
(iii) To the extent the Buyer receives or otherwise obtains or has access to personal data pursuant to or in the performance of the Contract, the Buyer shall:
a. Comply with obligations under Data Protection Laws in respect of its processing of personal data;
b. Use the personal data solely for the performance of the Contract;
c. Process personal data only in accordance with Seller’s written instructions;
d. Take appropriate technical and organizational measures to prevent unauthorized or unlawful processing or, accidental loss or destruction of or damage to the personal data;
e. Ensure that personal data is only accessible to personnel who require access to it for the performance of the Contract and are subject to a binding written contractual obligation to keep the personal data confidential;
f. Not transfer the whole or any part of the personal data without Seller’s written consent;
g. Comply with all applicable laws relating to rectification, erasure and/or restriction of processing of personal data;
h. Promptly notify Seller of any data subject request, complaint, notice or other correspondence received in relation to personal data and deal with the same upon the Seller’s instructions;
i. Promptly notify Seller of a data breach without undue delay, however no later than 24 hours after discovery of the breach.
(iv) Buyer will not acquire ownership of or rights in the personal data and any retention right to the personal data is excluded.
(v) Upon termination of the Contract, the Buyer shall erase all the personal data (including copies), in accordance with applicable laws.
If any provision of these terms (or part thereof) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that part shall, to the extent required, be deemed not to form part of these terms and the validity and enforceability of the other provisions shall not be affected.