1. Acceptance/Entire Agreement. This writing is an offer by Encon Solutions, LLC (" Encon") to sell and provide the goods (“Products”) and services ("Services” which, together with the Products, may be collectively called the “Work”) described on invoice form, accepted letter proposal, or other contract or document (“Related Agreement”), to which these Standard Terms of Sale are attached or incorporated by reference, to the buyer/contractor to which this offer is addressed ("Buyer"), subject to the terms and conditions set forth in this document and on the Related Agreement. This is not an acceptance of Buyer’s offer to buy. Encon hereby objects to any additional or different terms contained on any of Buyer's purchase order, acknowledgment, or other forms, correspondence, or in any other communication from Buyer. The terms of this offer, when accepted by Buyer explicitly, or otherwise, shall constitute the entire agreement between the parties on the subject hereof, superseding all prior communications and negotiations. Any express inconsistent terms in the Related Agreement shall control over the terms of this writing.
2. Prices/Payments. All prices (other than Transportation Costs if separately stated) are firm unless otherwise stated. All time periods for determining payment due dates unless otherwise stated in the Related Agreement, commence with Buyer’s receipt of the Products or receipt of an invoice, whichever is later. If the Related Agreement separately sets forth Transportation Costs, such specification is an estimate of the cost of shipping and Buyer shall be fully responsible for payment of any actual costs incurred upon receipt of an invoice therefore from Seller. “Transportation Costs” include, as applicable, freight, packaging, special permits, customs, and other governmental fees and insurance. All amounts due to Encon are due and payable within ten (10) days following delivery of the related Products. Amounts not timely paid shall bear interest at the lesser of (i) 1 ½ percent (1.5%) per month or (ii) the highest amount allowed by applicable law.
3. Delivery/Installation. Encon shall deliver the Products to the place designated in the Related Agreement. Buyer shall take delivery of the Products as soon as the Product is available at the delivery point. Seller will use all reasonable efforts to meet delivery dates specified in the Related Agreement; however, delivery dates are estimates only and are not binding, unless a written agreement to the contrary is made and specified in the Related Agreement. Delays in delivery do not entitle Buyer to cancel any order, refuse any Products, or claim damages. Except as otherwise specified in the Related Agreement, Buyer shall be entirely responsible for any and all construction required for the installation of the Products and for the equipment and personnel to offload the Products from the truck or rail car by which they are delivered.
If Seller’s Services include one of Seller’s engineers being present for any installation of the Products, Buyer agrees to give written notice of the time and place of the installation not later than one week before the installation date and act reasonably in accommodating a delay of not more than two business days to accommodate travel conflicts of Seller’s personnel. In the event the installation is delayed by more than two business days beyond the agreed installation date for any reason not caused by Seller, Buyer agrees to pay Seller’s travel expenses (including round trip airfare) occasioned by the delay.
4. Risk of Loss. The risk that Products may be lost, damaged, or delayed in transit shall be borne by Encon until delivered to Buyer.
5. Taxes. Unless otherwise specified in the Related Agreement, the purchase price does not include any taxes, tariffs, or other charges levied or assessed under any applicable law, including sales and use taxes with respect to the sale of the Products or Services provided. All such taxes shall remain the sole and exclusive responsibility of Buyer and Buyer shall timely pay all such taxes and other amounts in the amounts and at the times due. In the event that Buyer fails to timely pay any such amounts, Seller may, at its option, pay such amounts on Buyer’s behalf and invoice Buyer therefore. Upon receipt of such invoice, Buyer shall promptly make the payment specified on the invoice.
6. Title Warranties. Encon warrants that all Products supplied hereunder shall be free and clear of all liens and encumbrances, good and merchantable title thereto being in Encon.
7. Intellectual Property Warranty; Indemnity. Encon warrants that the sale or the use of the Products furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of another in the United States, or subject Buyer to royalties in the United States; and Encon shall indemnify Buyer and its successors and assigns against any and all losses, damages, and expenses (including reasonable attorneys' fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of an actual or alleged breach of this warranty; provided, however, that Buyer shall promptly notify Encon of any claim of infringement and permit Encon to control the defense of such claim. Moreover, in the event of any such claim, Encon reserves the right to substitute other Products which are functionally the equivalent of the allegedly infringing products for the Products alleged to so infringe.
8. Manufacturers’ Warranties. Buyer acknowledges that Encon did not manufacture the Products. Encon hereby assigns to Buyer all warranties provided to Encon by the manufacturers of the Products.
9. Exclusion of Other Warranties. THE WARRANTIES SET FORTH IN SECTIONS 6, 7, AND 8 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES IMPLIED BY COURSE OF DEALING OR CUSTOM AND USAGE AND BUYER SHALL HAVE NO CLAIM AGAINST SELLER, ITS AFFILIATES OR THE MANUFACTURERS OF THE PRODUCTS, WHETHER BASED ON CONTRACT, NEGLIGENCE, PRODUCTS LIABILITY, TRADE PRACTICES, OR OTHERWISE EXCEPT AS PROVIDED IN SECTIONS 6, 7 AND 8.
10. Limitation of Liability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ny and all actions by Buyer arising under this Agreement or the Related Agreement shall be commenced within one (1) calendar year from the date such cause of action first accrued.
11. Collection Costs; Attorney’s Fees. If any amount owing by Buyer to Encon under this Agreement and the Related Agreement is collected by or through an attorney, or if Seller otherwise enforces any of its rights hereunder by or through an attorney, Seller shall be entitled to reasonable attorney’s fees and expenses from Buyer. In addition, any amounts due to Encon and not timely paid shall bear interest at the lesser of the highest rate allowed by applicable law or fifteen percent per annum.
12. Force Majeure. The obligations of Encon hereunder shall be suspended, without any liability on the part of Encon, to the extent that Encon is hindered or prevented from complying therewith because of labor disturbances (including strikes and lockouts), acts of God, terrorist acts, war (declared or undeclared), floods, fires, storms, earthquakes, accidents, failure of the manufacturer to deliver any Product, governmental regulations or interference or any cause whatsoever not solely within the control of Seller.
13. Governing Law. This offer and any agreement of sale resulting from the acceptance hereof shall be governed by and construed in accordance with the laws of the State of Florida (without reference to principles of conflicts of laws).
14. Waiver of Jury Trial. Both Seller and Buyer do hereby WAIVE THE RIGHT TO A TRIAL BY JURY in any action arising out of this writing, the Related Agreement, and the transaction giving rise to such agreements.