General Terms and Conditions
(a) These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by GreenTek Solutions LLC (“Seller”) to the buyer named on the Sales Order (as defined below) (“Buyer”). Collectively Buyer and Seller are referred to as the “Parties” and individually as “Party”.
(b) The accompanying sales order (the “Sales Order”) 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. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Seller expressly rejects Buyer’s general terms and conditions of purchase, and fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or serve to modify or amend these Terms. Acceptance of the Sales Order by Buyer is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these Terms which are expressly incorporated into the Sales Order.
(a) Unless otherwise specified in the Sales Order, all shipments are EXW (Routed Export) Seller’s facility (Incoterms 2020). Seller shall make the Goods available for pickup by Buyer or Buyer’s designated carrier within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Goods. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Seller shall make the Goods available for pickup by Buyer or Buyer’s designated carrier at Seller’s facility. Buyer or Buyer’s designated carrier shall take delivery of the Goods at Seller’s facility. Buyer or Buyer’s designated carrier is solely responsible for loading the Goods onto Buyer’s transport; if Seller assists with loading, such assistance is at Buyer’s sole risk, and Buyer shall bear all risk of loss or damage to the Goods during loading. Export documentation, filings, and compliance, if applicable, are the responsibility of Buyer and its designated agent. The delivery address on all shipping labels must exactly match the address provided on the purchase order. Any changes to the delivery address require prior written approval from Seller and may require re-screening for export compliance.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer upon Buyer’s request. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
The quantity of Goods delivered shall match the quantity set forth in the Sales Order. Any changes to the order quantity will be communicated to Buyer in advance and reflected in the applicable invoice. Buyer shall pay only for the quantity of Goods actually shipped.
4. Title and risk of loss pass to Buyer upon release of the Goods at Seller’s facility. As collateral security for the payment of the 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 Texas Uniform Commercial Code.
Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
(a) Buyer shall inspect the Goods within five (5) business days of Buyer’s actual receipt of the Goods at Buyer’s facility (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Order; or (ii) product’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 third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to the Seller facility designated in Seller’s written return instructions. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship the replacement Goods to Buyer at Seller’s expense and risk of loss.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for Nonconforming Goods. Except as provided under Section 6(b) and Sections 9 and 10 (relating to the limited warranty and RMA process), 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.
(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in the Sales Order.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices include standard packaging. The Prices exclude transportation and insurance costs, which are the responsibility of the Buyer; provided, however, that if Buyer requests that Seller arrange insurance or transportation, Seller may do so and such costs will be added to the invoice.
(a) Unless otherwise specified in the Sales Order, Buyer shall pay to Seller, by wire transfer, check, PayPal, or credit card, all invoiced amounts prior to shipment of the Goods. All payments hereunder shall be in US dollars.
(b) If payment is not received within forty-eight (48) hours of the date of invoice (or such other period specified in the Sales Order), Seller may cancel the transaction by providing written notice to Buyer. 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. Any payment not received by Seller when due shall bear interest at 1.50% per month, compounded monthly, from the date such payment was due until the date paid. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), if Buyer fails to pay any amounts when due, Buyer shall reimburse Seller for all costs incurred by Seller in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
For a period of thirty (30) days from the date Buyer takes delivery of the Goods at Seller’s facility, unless otherwise specified in the Sales Order (the “Warranty Period”), Goods that are dead on arrival (“DOA”) (i.e., Goods that fail to perform their key functions as verified through Seller’s documented testing process) will be repaired, replaced, credited, or refunded at Seller’s sole election; and Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens. For the avoidance of doubt, (i) batteries and other consumable items are not warranted and failure of such items shall not constitute a DOA condition, and (ii) the warranty applies only to the key functions tested and verified by Seller in accordance with its documented testing plans, which may vary by product category.
During the Warranty Period:
(a) Buyer shall notify Seller, in writing, of any alleged warranty claim within five (5) days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);
(b) Buyer shall ship the relevant Goods within five (5) days of the date of its notice to Seller, at Buyer’s expense and risk of loss, to the Seller facility designated in Seller’s RMA instructions for inspection and testing by Seller. All Goods must be properly packaged to prevent loss or damage in transit; Seller may reject any warranty claim for Goods that are damaged during return shipment due to improper packaging;
(c) if Seller’s inspection and testing reveals, to Seller’s satisfaction, that such Goods are DOA, Seller shall in its sole discretion, and at its expense (subject to Buyer’s compliance with this Section 10), either (i) repair or replace such Goods (and for discontinued Goods, Seller may provide a refurbished replacement of equivalent functionality), or (ii) credit or refund the Price of such Goods less any applicable discounts, rebates, or credits; and
(d) if Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Goods, ship to Buyer, at Seller’s expense and risk of loss, the repaired or replacement Goods to Buyer’s address designated in the applicable Sales Order.
(e) Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 10. This Warranty shall not apply to, and Seller shall have no obligation with respect to, any Goods that have been (i) reconstructed, repaired, altered, or replaced, in whole or in part, by Buyer or any third party without Seller’s prior written consent; (ii) damaged as a result of accident, abuse, misuse, neglect, or improper storage or handling by Buyer or any third party; (iii) damaged by natural disaster, fire, flood, or other external cause; or (iv) used in violation of applicable law or in a manner inconsistent with Seller’s instructions or specifications.
(f) THIS SECTION 10 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9 OF THIS AGREEMENT.
Buyer acknowledges that certain Goods may contain or be bundled with third-party software subject to separate license terms. Seller does not transfer any software license to Buyer unless such license is expressly transferable under the applicable licensing terms, and any such transfer is subject to Buyer’s compliance with all applicable license restrictions. Any manufacturer’s warranty applicable to the Goods is transferred to Buyer only to the extent permitted by the original equipment manufacturer, and Seller makes no representation or warranty regarding the availability, scope, or enforceability of any such manufacturer’s warranty. Buyer’s sole recourse for any manufacturer’s warranty claim shall be directly against the applicable manufacturer.
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) 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, SHALL NOT EXCEED THE TOTAL AMOUNTS PAID TO SELLER FOR THE GOODS GIVING RISE TO THE CLAIM.
Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, and representatives from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Buyer’s misuse of the Goods or use of the Goods in violation of applicable law; (b) any claims by third parties (including Buyer’s customers or downstream purchasers) arising from the resale, distribution, or use of the Goods; (c) Buyer’s violation of any export control, sanctions, or import laws; or (d) any claims relating to data, software, or intellectual property contained on or associated with the Goods after title has passed to Buyer.
Buyer, and its designated U.S. agent, shall at all times comply with all laws applicable to this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Goods. Buyer expressly agrees to assume responsibility for applying for and obtaining any export license or other governmental authorization required in connection with the export of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods; and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use, or otherwise, that violates any law. Buyer is responsible for compliance with all applicable U.S. export control and sanctions laws, including but not limited to the Export Administration Regulations (EAR) and regulations administered by the Office of Foreign Assets Control (OFAC). Buyer represents and warrants that the Goods will not be re-exported, transferred, or diverted, directly or indirectly, in violation of such laws. Buyer certifies that neither it nor any of its affiliates, nor any party to which Buyer intends to supply the Goods, is listed on any U.S. government denied, restricted, or sanctioned party list, including the Denied Persons List, Entity List, Unverified List, or any list maintained by OFAC. Buyer shall not provide the Goods to any such party. Buyer shall immediately inform Seller of any actual or suspected violation of applicable laws or regulations referenced in this Section 15. In the event of any such actual or suspected violation, any governmental enforcement action or investigation relating thereto, Buyer shall fully cooperate with Seller, including by providing all information, documentation, and assistance reasonably requested by Seller in connection with any such enforcement action, investigation, violation, or voluntary self-disclosure. Buyer shall notify Seller in writing prior to making any voluntary self-disclosure to a governmental authority relating to the Goods or this Agreement and shall coordinate with Seller in good faith regarding a joint submission, as may be applicable. Buyer shall maintain all records, documentation, and information relating to the purchase, export, re-export, transfer, and use of the Goods, including all records necessary to demonstrate compliance with this Section, for a period of not less than ten (10) years from the date of the applicable transaction, and shall make such records available to Seller upon request.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
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.
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.
Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer 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.
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.
This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
22. This Agreement is governed by, and construed in accordance with the laws of the State of Texas without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. All legal proceedings shall be instituted in the state or federal courts located in Harris County, Texas. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such forums.
All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Order or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
In any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs in addition to any other available remedy.