Mattex USA (“Supplier”) offers to sell to buyer each product set forth on the Supplier issued invoice sent to Customer only upon the following terms and conditions of sale. By placing an order for a product with Supplier, executing its credit application, sending or making payment or taking delivery of the product, Customer agrees to these terms and conditions of sale and acknowledges that the person placing the Order has the authority to enter into the sale agreement for the Customer.
In this Agreement capitalized words are defined in this clause or in the clause in which they first appear:
“Agreement” means these standard terms and conditions including any schedules and/or annexures;
“Contract” means each contract for the supply of a particular Product(s), which is established through the Order and Supplier’s acceptance of the Order. Supplier’s acceptance of the Order may
be communicated in writing, verbally, or electronically and the Contract shall include without limitation the relevant invoice of Supplier and the payment and these terms and conditions of sale.
“Order” means the Customer’s written, verbal or electronic request to purchase Products which, in each case, automatically incorporates the terms and conditions contained in these Terms and Conditions which terms expressly override any terms of the Customer’s Order form;
“Prescribed Rate” means the commercial rate of interest as set forth in O.C.G.A. § 7-4-16.
“Product” means any goods or product to be supplied by Supplier to the Customer under this Agreement and as detailed in a Contract;
“Purchase Price” means the purchase price of the Product(s) as set out in the Contract, payable in cleared funds by the Customer into the bank account designated by Supplier in the Contract;
“Supplier” means Mattex USA, LLC, its affiliated entities, subsidiaries, successors and assigns.
“Warranty” in respect of a particular Product(s) means the relevant warranty in accordance with clause 4.2 hereof;
In this Agreement where the context permits, masculine includes feminine and vice versa; singular includes plural and vice versa; references to a party include that party’s successors and assigns; reference to a statute or regulation includes all amendments and re-enactments; and headings are for convenience only and do not affect interpretation of this Agreement.
2.1This Agreement governs and is to be read in conjunction with the applicable Contract detailing the Product to be supplied by Supplier to the Customer.
2.2To the extent there is any conflict between the terms of a Contract and the terms of this Agreement then the terms of this Agreement shall prevail followed by the terms of the Contract. The Customer shall not be able to specify any terms applicable to a Contract unless and until the same are documented through a signed addendum to this Agreement and no Customer terms specified in its own order form shall apply to or override anything set out in this Agreement or the relevant Contract.
3.1Unless mutually agreed in writing by the parties, the Purchase Price and terms of payment of the Product shall be that set forth in the Contract. All prices shall be in US Dollars unless otherwise specified in the Contract. Foreign currency exchange fluctuations and bank charges shall not be Supplier’s responsibility and the Customer is required to pay all amounts stated in the Contract in full and without any deduction setoff or adjustment.
3.2Upon failure of the Customer to pay any installment or part of the Purchase Price on any of the due dates (as specified in a Contract) in cleared funds into the bank account designated by supplier, the Customer shall pay to Supplier interest or any outstanding sum calculated at the Prescribed Rate. Each subsequent payment made by the Customer shall be allocated first to discharge any Interest for delay in payment and thereafter will be applied to the payment of the Purchase Price.
3.3The Purchase Price is exclusive of any governmental or municipality taxes, duties, fees and levies. The Customer shall be solely responsible for payment of all taxes, duties, fees or levies of any kind whatsoever levied and the Customer shall indemnify fully, hold harmless and defend Supplier from and against any losses, liabilities or sanctions which Supplier may suffer or incur in relation to any such taxes, fees or levies.
4.1Each party hereto warrants that it has the right and authority to enter into this Agreement and the Contract.
4.2Supplier warrants that the Product (other than drops, seconds, irregular or off goods), shall conform to its published product specifications, subject to reasonable variations and manufacturing tolerance. With respect to a Product sold as a drop, irregular, second, or the like, such products are sold “AS IS/WHERE IS” without a warranty of any kind. EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUPPLIER MAKES ON OTHER WARRANTIES FOR A PRODUCT OR UNDER THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE.
4.3Supplier has the right, in the sole discretion upon written notice to revise, update, amend or otherwise modify the Warranty and any terms or conditions under the Warranty and such amended updated or modified Warranty shall apply set forth in the Contract.
5.1Supplier shall use all reasonable endeavors to deliver the Product on the date specified in the Contract. However, Supplier shall not be liable to Customer, or any other person, for any loss of damage of any kind which results from delay in shipment, delivery, or failure to give notice of delay, whether or not such delay was caused by Supplier or otherwise.
5.2Delivery of the Product shall take place at the site specified in the Contract, however Supplier at its sole discretion may at the Customer’s request and cost, arrange for suitable transport to such other premises requested by the Customer and any increased costs of transport shall be borne by the Customer.
5.3Risk in and responsibility for the Product shall pass to the Customer in accordance with the incoterm identified under the Contract.
6.1It is expressly agreed that the entire liability of Supplier for any loss, costs, damages or expenses arising out of the Product, including from use or ownership of the Product, (regardless of whether the cause of action is in contract, tort, warranty, statute or otherwise) shall be limited to the supply of a replacement Product in accordance with clause 6.5 hereof. To the maximum extent permitted at law, Supplier accepts no liability for any loss or damage incurred by the Customer or anyone claiming through the Customer as a result of any loss of profit or any consequential, indirect or special damages including without limitations, loss of opportunity, damages for personal injury or damages related to lost revenue, increased costs or downtime costs.
6.2Supplier is not liable for any delay or failure to perform or comply with any obligation under this Agreement and/or Contract to the extent such delay or failure is attributable to any act or omission by the Customer or its employees, agents or contractors (including without limitation any breach by the Customer of any obligation set out in this Agreement and/or Contract) or is otherwise due to an event set out in clause 13 hereof.
6.3Supplier is not responsible for damages to property or for injury to any person arising from the installation, maintenance, management, repair and/or removal of the Product and the Customer hereby agrees to defend, indemnify and hold harmless Supplier from and against any liabilities including attorney’s fees arising out of such damage or injury.
6.4The Customer acknowledges and agrees that Supplier shall not be liable for any use that the Customer makes with respect to the Product and consequently Supplier shall not be liable with respect to any loss or damage suffered of incurred by the Customer due to claims from third parties resulting from use of the Product, and to the maximum extent permissible by law the sole liability of Supplier and the sole remedy of the Customer is as set out in clause 6.5.
6.5The sole remedy of the Customer under this Agreement and/or Contract for any defective Product supplied and/or any loss or damage resulting thereof shall be replacement of the defective Product in accordant with and on the terms and conditions set out in clause 4.2 and 4.3. All Warranty claims must be received by Supplier within 15 days of the date of Customer became aware of the circumstances giving rise to the defect or the date of Customer ought reasonably to have become so aware thereof, or Supplier shall have no liability whatsoever for such claim.
7.1Supplier may terminate this Agreement and/or any Contract immediately upon written, oral or electronic notice to the Customer if:
a)The Customer breaches a material obligation under this Agreement; or
b)The Customer is dissolved or liquidated or involved in a statutory merger or demerger or an order is made declaring the Customer bankrupt or insolvent, or granting a moratorium over repayment of the Customer’s debts;
c)However, termination of the Agreement or any Contract does not constitute a waiver or release of any other rights or remedies of Supplier in contract or provided by law or equity.
7.2Supplier may at any time immediately terminate a Contract upon written, oral or electronic notice to the Customer in the event the Customer fails to make payment by the due date under the Contract;
7.3This Agreement does not bind the Customer to order any minimum quantities of the Product, however, the Customer may not withdraw or terminate any Order once it has been accepted by Supplier.
8.1In the event of partial delivery of the Product, termination shall not reduce nor terminate the liability of the Customer to pay Supplier for such partial delivery of the Product provided up to and including the date of termination.
8.2Notwithstanding the provisions of clause 8.1 in the event this Agreement and/or Contract is terminated early for any reason whatsoever, Supplier shall be entitled to retain any deposit payment paid by the Customer under a Contract.
9.1The Customer agrees and consents that Supplier may list the Customer as one of its clients in advertisements and on its website(s).
10.1Supplier may subcontract its obligations under this Agreement and/or any Contract. The Customer may not assign or transfer a right or obligation under this Agreement or Contract without first obtaining written consent of Supplier. Any attempt assign or transfer a right or obligation of Customer under this Agreement without the consent of Supplier shall be void. Where the Customer requests Supplier to work with a third party, whether or not as its subcontractor, Supplier accepts no liability for any loss or damage arising out of or in connection with goods or services provided by such third party.
11.1The parties will use all reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relations to this Agreement and/or a Contract, or any breach of it.
11.2If any such dispute cannot be settled amicably through negotiations, then such dispute, claim or controversy arising out of, or relating to or concerning this Contract or the parties’ business relationship shall, as the sole election of Supplier, be fully and finally settled by binding arbitration in accordance with the Georgia Arbitration Code, O.G.G.A. §9-9-1, et.seq., before a single arbitrator. The arbitrator may award declaratory or injunctive relieve only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Supplier at its sole discretion, may elect to submit any claims to court(s) of competent jurisdiction. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Further;
a)The arbitration shall, at the option of Supplier, take place in Dalton, Chatsworth or Atlanta, Georgia, or such other venue as mutually agreed to by the Parties in writing;
12.1The Parties agree to treat as confidential any information which comes into their possession as a result of this Agreement and/or a Contract (whether directly or indirectly and regardless of its form) whether such information relates to the business, sales, financial, marketing, other operations, products, software, services or customers of the other party (“Confidential Information”).
12.2Either party may disclose the Confidential Information to a third party if and to the extent that it is required to do so by law, provided the receiving party gives notice of such requirement to the party who has disclosed the Confidential Information immediately after such requirement has arisen and prior to disclosing the Confidential Information to such third party.
12.3The disclosing party retains title to, ownership of and all rights and control over the Confidential Information arid, except as provided in this Agreement, no right or license to the Confidential Information is granted.
12.4The Parties agree to promptly return or destroy all Confidential Information belonging to the other party upon written request.
13.1Neither party shall be liable for any loss or damage suffered or incurred by the other party arising from the first party’s delay in performing or failure to perform its obligations under this Agreement and/or Contract to the extent that such delay or failure results from any cause or circumstances whatsoever beyond the affected party’s reasonable control, provided that the affected party notifies the other party as soon as reasonably practicable after becoming aware of a force majeure event and the manner and extent to which its obligations are likely to be prevented or delayed. Notwithstanding the foregoing, the occurrence of any force majeure event shall not effect or discharge or delay any payment obligations under any Contract.
14.1This Agreement shall be governed and construed in accordance with the laws of the State of Georgia, without reference to any conflicts of law principles. Any litigation instituted by Customer against Supplier that pertains in any manner to this Agreement must be instituted in the Superior Court of Whitfield County, Georgia, or the U.S. District Court for the Northern District of Georgia, Rome Division. Any such litigation instituted against Customer by Supplier may, at the sole option of Supplier, be instituted in the above Courts in the State of Georgia, or in the state in which Customer maintains its principal place of business.
14.2These standard terms and conditions cannot be amended except by way of specific addendum signed by corporate representatives of both parties.
14.3Provisions of this Agreement from which it is contemplated by their nature or context are to survive termination, shall remain in full force and effect notwithstanding such termination.
14.4If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, insofar as it is severable, it will be deemed omitted from this Agreement and will not affect the legality, validity and enforceability of the remaining terms.
14.5The failure of either party to enforce or exercise any right pursuant to this Agreement does not constitute a waiver of such right and will not affect that party’s right later to enforce or exercise it.
14.6The entire contractual relationship between the parties is formed by this Agreement, the Contract and all documents defined herein, which are signed by authorized representatives of both parties.
14.7No person who is not a party to this Agreement, shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term.
14.8A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.