Goldhofer Inc. (only for USA)
General Terms & Conditions (Sale)
1. DEFINITIONS: As used in these Terms and Conditions, the term "Equipment" shall mean the machinery, equipment, products and other tangible property from time to time sold or offered for sale by Goldhofer Inc. (“Seller”), whether acting under the trade name “Goldhofer” or “Flite Line,” and the term "Buyer" shall mean the person to whom such Equipment is sold or offered. To the maximum extent permitted under applicable law, no assignee or transferee of the Equipment purchased by Buyer is included within the term “Buyer.” References to a “purchase order” means the purchase order as modified by the acknowledgement provided by Seller (setting forth, among other things, specifications, delivery type, pricing, duration (if any) of warranty), in all cases subject to these Terms and Conditions, as set forth in paragraph 15.
2. PRICES: Unless otherwise stated on the applicable purchase order, all prices are in U.S. Dollars, ex-works (EXW) place of manufacture. All Equipment prices are subject to prior sale and availability at the time an order is received on terms acceptable to Seller.
3. PAYMENTS: All payments shall be in U.S. Dollars (unless otherwise stated in Euros or another currency in the purchase order, as contemplated in paragraph 2) without offset, back charge, retention or withholding of any kind. Invoices are due and payable within the terms stated in the quotation. Any amounts not paid when due will be subject to interest at the rate of one and one half (1½%) percent per month or the highest non usurious rate permitted by applicable law, whichever is less. At the request of Seller, payments will be made through wire transfer or company check. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. 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. If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days following receipt of said invoice (or the payment due date, if shorter than thirty (30) days), detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above. As security for the payment of amounts owing to Seller with respect to the sale or servicing of Equipment, Buyer hereby grants a security interest in all Equipment sold or repaired by Seller and all proceeds of such Equipment. Seller shall have all of the rights and remedies of a secured creditor under Article 9 of the Uniform Commercial Code, and Buyer authorizes the filing of a financing statement with respect to such security interest.
4. DELIVERY; RISK OF LOSS:
Delivery of the Equipment, whether to the carrier, to a destination, or whether through notice that the Equipment is ready (or any other means of delivery) will be determined under the applicable Incoterms specified in the purchase order. Those terms, and the underlying allocation of payment and shipping (including customs and duties) obligations and responsibilities, are incorporated by reference into these Terms and Conditions. Buyer is responsible for familiarity with such Incoterms. Risk of loss or damage to the Equipment shall pass from Seller to Buyer upon the delivery (including any deemed delivery) under the applicable Incoterms delivery requirements.
5. SHIPMENTS: Seller ships in accordance with Incoterms 2020, as specified in the applicable purchase order agreed to by Seller.
6. TIMING OF DELIVERY; DELAYS: Any delivery dates are estimates only and are subject to change depending on manufacturing capacity at the time the order is placed. Seller does not warrant or guarantee shipping dates, including but not limited to land transport, outbound or inbound customs clearance, sailing schedules or port delays. Furthermore, Seller shall have no liability for any failure to deliver the Equipment to Buyer if such failure arises from causes beyond the reasonable control of Seller, including but not limited to, delays of suppliers, government actions, shortages of materials, unavailability of carriers or providers of services at ports, labor difficulties, pandemics and governmental or regulatory responses to pandemic (including those affecting work forces), fires, floods, acts of God and the effects of civil disobedience.
7. CHANGES: Seller reserves the right to change the details of any Equipment provided that such change shall not impair the performance or critical dimensions of such Equipment. Seller may make any change in the Equipment requested by Buyer that Seller, in its sole discretion, determines will not adversely affect the performance, reliability or safety of such Equipment, subject to paragraph 9(a) below. Any modified equipment, molds, fixtures or supplies required to implement such changes shall be and remain the property of Seller, notwithstanding that the costs thereof have been paid by Buyer.
8. PENALTIES: Unless otherwise stated or agreed to by an authorized employee of Seller, Seller does not and will not consent to or agree to any penalties or forfeitures, whether stated or implied.
9. ADDITIONAL COSTS: In addition to the purchase price, Buyer shall pay to Seller any costs incurred as a result of (a) changes in the Equipment or delays in delivery requested by Buyer; (b) delays in delivery arising from Buyer's failure to provide information, drawings or materials; (c) changes in the laws, codes, rules, or regulations applicable to the Equipment after the date of quotation by Seller; (d) tariffs, taxes, or impositions or increases in tariffs, taxes (other than taxes on income of Seller) or impositions; or (e) Buyer’s (or its agent’s) failure to pick up Equipment on a timely basis. In the case of such failure to pick up Equipment, Seller may arrange to have the specific Equipment moved to storage and Buyer will incur a transportation surcharge of not less than $350.00 per truckload and the passing on of storage costs (which may be allocated by Seller on any basis that Seller deems reasonable). To the extent that the Incoterms delivery method chosen would include these additional costs, this paragraph 9 shall govern.
10. TAXES: Unless otherwise agreed, Customer agrees to pay, and Seller may withhold, any and all taxes imposed by law upon or on account of the goods, materials, or services, including without limitation sales, use and excise taxes. In the sole discretion of Seller, Seller may (i) determine that sales tax is not required upon presentation of a reseller certificate in form acceptable to Seller, a direct pay certification or another undertaking to self-report taxes payable, and (ii) condition its allowing Buyer to pay applicable taxes upon Buyer’s agreement to promptly provide proof of payment of such taxes to Seller. If Seller requests proof of payment and Buyer does not provide same to Seller’s satisfaction, Seller may charge and Buyer shall pay to Seller the applicable tax(es) that Seller had not previously required. This provision shall survive any expiration of these Terms and Conditions. Buyer shall also indemnify Seller for any taxes, interest or penalties for any resulting failure on the part of Seller to comply with applicable tax laws, rules and regulations.
11. CANCELLATIONS: Orders for Equipment may not be cancelled by Buyer after acceptance by Seller. Seller shall be entitled to request reasonable assurances that Buyer will accept and pay for any Equipment, including but not limited to requiring deposits or payments on account or in advance (each, “Earnest Money”), including payment in full in advance, if in the sole discretion of Seller there are reasons to believe (including without limitation any non-payment or late payment of any deposit or installment payment due from Buyer) that Buyer will not accept and/or not pay for Equipment when delivered. Until such assurances are received, Seller shall be entitled to stop work on the Equipment, cancel any agreement to sell the Equipment, sue for and recover the purchase price or any expenses incurred to the date or cancellation, resell the Equipment to a third party, or exercise any other remedy available at law or in equity for breach of contract. Cancellations accepted by Seller will be subject to a loss of any Earnest Money previously paid, and/or a fifteen percent (15%) restocking fee of the total order. No returns of special, custom, or made-to-order Equipment will be permitted.
12.a. LIMITED WARRANTY: As a general matter, and subject to paragraph 12(f), Seller does not manufacture Equipment. If and to the extent that the Equipment or a component part of any Equipment is warranted by its original equipment manufacturer (“OEM”), including Seller affiliates (the “OEM Warranty”), and to the extent that the OEM Warranty is assignable to Buyer, Seller assigns to Buyer any rights and remedies it has relating to such Equipment or component parts, as applicable. An OEM Warranty may be expressed in terms of a process to make a claim for a product defect. Misuse or negligent handling of the Equipment or any part thereof, including without limitation any use that is inconsistent with the technical information provided in any order acknowledgement, instruction manual or other comparable materials or other information provided with respect to any Equipment (or component thereof) during training or otherwise (collectively, “Technical Requirements”), shall void any warranty and serve as a waiver of any product defect and/or product liability claim. SELLER DOES NOT GIVE, AND EXPRESSLY DISCLAIMS, ANY WARRANTY AS TO ANY EQUIPMENT OR ANY COMPONENT OF ANY EQUIPMENT MANUFACTURED BY OTHER COMPANIES, INCLUDING SELLER’S AFFILIATES. THIS DISCLAIMER INCLUDES ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. NO SERVICES PROVIDED SHALL BE DEEMED TO CREATE, EXTEND OR OTHERWISE MODIFY ANY WARRANTY.
b. The only warranty made with respect to Equipment not manufactured by Seller is made by the OEM in the OEM Warranty, if any. Seller will forward any written OEM Warranty included in Equipment being sold by Seller, to the extent it may be conveyed to Buyer. Any such OEM Warranty may be included with the delivery of the Equipment as a separate document, or within or together with the Technical Requirements. Alternatively, if the OEM Warranty is not received by Seller, then upon a written request by Buyer, Seller will facilitate Buyer’s obtaining a copy of the OEM Warranty or provide instructions as to how to pursue a claim with the OEM. Buyer acknowledges that an OEM Warranty may be subject to laws of other jurisdictions, and may be subject to limitations on assignment and to prescribed periods and procedures for processing a claim based on product defects. These procedures may include, among other things, performing a prompt review and providing information to Seller or to the OEM on a timely basis, so that Seller or the OEM can assess the validity of the product defect claim and determine whether a remedy is required. If it is determined that a remedy is appropriate, Seller or the OEM shall determine whether to replace, repair or grant a refund (or other acts, all at Seller’s and the OEM’s sole discretion). Seller will use commercially reasonable efforts to facilitate a warranty claim by Buyer with the OEM within the warranty period. Seller may perform or engage personnel to perform warranty services, but this will be in its capacity as an agent of the OEM, and as between Seller and Buyer, Seller shall have no obligation to perform such services. Any affirmation of fact or promises made by Seller shall not be deemed to create an express warranty that the Equipment shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to Equipment sold are not warranted by Seller to be accurate or complete. If a model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of Equipment sold by Seller
and not to represent that the Equipment would necessarily conform to such model or sample. Any description is for the sole purpose of identifying the Equipment and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain.
c. All Equipment is sold or serviced for commercial use only and are not intended for use by consumers. Accordingly, to the maximum extent permitted by applicable law, Seller disclaims all warranties to consumers, and paragraphs 12(a) and 12(f) apply to transactions with consumers. Inspection services, if any, provided by Seller at Buyer’s request shall be provided as a customer service only and shall not be deemed to act as a warranty or approval of Buyer’s installation, use, or maintenance of the Equipment, nor shall Seller be liable for failure to detect improper use, installation or maintenance of the Equipment by Buyer.
d. Training. Training by Seller’s personnel, or by parties engaged by Seller, if any, shall be provided as a customer service only and shall not be deemed to act as a warranty or approval of Buyer’s installation, use, or maintenance of the Equipment. Regardless of whether training services are expressly included as a separate listed charge as part of a purchase, Buyer may only obtain training services during the six month period following receipt of the Equipment for which the training is sought. Seller shall use commercially reasonable efforts to have personnel provide such training, but timing of the training shall be subject to availability of training personnel. If personnel is not available, then Seller, in its sole discretion, may extend this six month period.
e. Buyer understands that the Equipment described herein may have been used by persons other than Seller. Buyer is warned and acknowledges that no warranty, including any warranty of merchantability or fitness for any particular purpose, shall apply to such used Equipment.
f. Notwithstanding paragraphs 12(a) and 12(b), if the purchase order contains an express, affirmative confirmation that the Equipment is manufactured by Seller, then the limited warranty in this paragraph 12(f) shall apply. The duration of any warranty provided by Seller for new Equipment that it has manufactured is as set forth in the purchase order (which timeframes may be broken out by component, if Seller so determines). No warranty is provided for any Equipment manufactured by Seller that is not new Equipment. Any affirmation of fact or promises made by Seller shall not be deemed to create an express warranty that the Equipment shall conform to such affirmation or promise. Any descriptions, samples and, except as provided below, specifications with respect to Equipment sold are not warranted by Seller to be accurate or complete. If a model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of Equipment sold by Seller, and not to represent that the Equipment would necessarily conform to such model or sample. Any description is for the sole purpose of identifying the Equipment, and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain. Subject to the preceding sentences, SELLER WARRANTS TO BUYER THAT NEW EQUIPMENT MANUFACTURED BY SELLER SHALL BE FREE FROM DEFECTS AND SHALL CONFORM TO SPECIFICATIONS INCLUDED IN THE PURCHASE ORDER. EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, SELLER DOES NOT MAKE AND EXPRESSLY DISCLAIMS, ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO EQUIPMENT MANUFACTURED BY SELLER, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. NO SERVICES PROVIDED SHALL BE DEEMED TO CREATE, EXTEND OR OTHERWISE MODIFY ANY WARRANTY.
13.a. LIMITATION OF LIABILITY: SUBJECT TO PARAGRAPHS 12(a), 12(b) and 12(f), THE OBLIGATIONS AND LIABILITY OF SELLER TO BUYER SHALL BE LIMITED TO 5 4137-1962-2707.7 (A) PROVIDING EQUIPMENT MISSING FROM THE EQUIPMENT THAT SELLER AGREED TO DELIVER, SUBJECT TO PARAGRAPH 6, AND (B) WITH RESPECT TO EQUIPMENT ACTUALLY DELIVERED AND WITHIN THE OEM WARRANTY, REPAIRING OR REPLACING NONCONFORMING EQUIPMENT (BUT ONLY IF SO DIRECTED BY THE OEM, WHERE SELLER DOES NOT MANUFACTURE THE EQUIPMENT). HOWEVER, SELLER SHALL NOT BE OBLIGATED TO TAKE ANY SUCH ACTION OR HAVE ANY SUCH LIABILITY UNLESS BOTH (I) SELLER IS ADVISED OF THE ALLEGED NONCONFORMANCE WITHIN 20 DAYS FOLLOWING THE DELIVERY DATE OR, IN THE CASE OF LATENT DEFECTS, WITHIN 30 DAYS FOLLOWING THE DISCOVERY OF THE ALLEGED NONCONFORMANCE, BUT NOT LONGER THAN 180 DAYS AFTER DELIVERY, AND (II) THE ALLEGED NONCONFORMANCE IS NOT ATTRIBUTABLE TO NEGLECT OR IMPROPER USE OR HANDLING BY BUYER OR A THIRD PARTY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF PROFIT OR OTHER ECONOMIC LOSS (DIRECT OR INDIRECT), CONSEQUENTIAL (EVEN IF SELLER HAD BEEN ALERTED TO THE POSSIBILITY OF THE APPLICABLE LOSS), SPECIAL, INCIDENTAL LOSS OR DAMAGE, COSTS, EXPENSES WHATSOEVER OR LOSS OR DAMAGE THAT ARISES OUT OF OR IN CONNECTION WITH THE EQUIPMENT UNDER ANY THEORY OF LAW, INCLUDING WITHOUT LIMITATION CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY 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 THE AGGREGATE LIABILITY OF SELLER ARISING OUT OF OR RELATED TO THE SALE OR SERVICING OF THE EQUIPMENT CONTEMPLATED BY THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS ACTUALLY PAID TO SELLER BY BUYER FOR THE SPECIFIC EQUIPMENT SOLD HEREUNDER OR, AS TO SERVICES, THE AMOUNTS ACTUALLY PAID TO SELLER FOR ITS SERVICES PERFORMED HEREUNDER. THIS LIMITATION OF LIABILITY IS A MATERIAL BASIS FOR THE PARTIES’ BARGAIN AND REFLECTS THE BARGAINED-FOR ALLOCATION OF RISKS BETWEEN SELLER AND BUYER, WITHOUT WHICH SELLER WOULD NOT HAVE AGREED TO PROVIDE THE EQUIPMENT OR SERVICES AT THE PRICE CHARGED.
14. INDEMNIFICATION. Buyer hereby agrees to defend, indemnify and hold harmless Seller, its directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses, including attorney's fees and expenses and other professional fees and expenses, incurred or suffered by such person arising from, by reason of, or in connection with any loss, damage or injury to person or property arising from, by reason of or in connection with the Equipment sold or serviced hereunder. This indemnification shall survive delivery of the sold or repaired Equipment to Buyer and any subsequent sale or other transfer of the Equipment to a third party.
15. COUNTER-PROPOSALS. Any purported acceptance of these Terms and Conditions that includes any additions, limitations or other modifications is hereby rejected and deemed a counter proposal, or a separate offer subject to acceptance. Buyer acknowledges that additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of Seller’s liability to Buyer, shifting of risk of loss, timing of acceptance, or the settlement of disputes are considered to alter the terms of the offer materially. Buyer further acknowledges that any terms to the contrary in a purchase order on Buyer’s form is rejected, whether such purchase order was provided before or after these Terms and Conditions were delivered to Buyer.
16. ADDITIONAL TASKS. In the event Buyer desires for Seller to perform any assembly or installation work or seeks any training not expressly addressed in the initial purchase order, then said work or, subject to clause 12(d) above, training will be performed pursuant to a separate agreement to be entered into in writing by both Buyer and Seller detailing the terms of said work or training.
17. AMENDMENTS; WAIVER. These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party. No waiver by Seller of any of the provisions of these Terms and Conditions 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 the sale of Equipment or these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. GOVERNING LAW; SUBMISSION TO JURISDICTION. These Terms and Conditions, the quotation to which it is attached, and any dispute arising out of or in connection with it shall be governed by and be construed in accordance with the laws of the State of Florida. All disputes or claims arising out of or relating hereto and thereto shall be subject to the exclusive jurisdiction of the Florida state courts or U.S. federal courts, in each case located in the county or federal district in which Seller’s principal office is located.
19. SEVERABILITY; SURVIVAL. If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions.
20. COMPLETE AGREEMENT. The Terms and Conditions, the OEM Warranty (if applicable), and the quotation (purchase or sales order, as acknowledged by Seller) constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof. For the avoidance of doubt, subject to paragraph 15, all purchase orders between Buyer and Seller are subject to these Terms and Conditions until Seller agrees that these Terms and Conditions are replaced.
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4137-1962-2707.7