Terms and Conditions of Sale
1. Acceptance of Terms: These terms and conditions, also known as (“Agreement”), together with any special conditions expressly incorporated thereto in the credit application, quotation or sales form, are to govern any sale by Gritton & Associates, Inc. a Utah Corporation, hereinafter (“Seller”). This writing is an offer or counteroffer by Seller to sell the good(s) and/or services set forth on the quotation or sales form subject to these terms and conditions and is expressly made conditional, on Purchasing Party(‘s), hereinafter (“Buyer”), Buyer’s assent to these terms and conditions. Acceptance by Buyer is expressly limited to these terms and conditions. Any additional or different terms and conditions contained in Buyer’s purchase order or other communication shall not be effective or binding upon Seller unless specifically agreed to in writing by Seller; Seller hereby objects to any such conditions, and the failure of Seller to object to specific provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these terms and conditions nor an acceptance of any such provisions. Neither Seller’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
2. Delivery/Lead Times: Delivery is subject to Federal and State laws and regulations, fires, strikes, disputes with workmen, floods, accidents, embargoes, delays in transportation, shortage of cars, shortage of fuel, or other material, shortage of labor and any other causes beyond the Seller’s control. Seller shall not be liable for damages incurred due to non-delivery or delay in delivery. Seller will provide equipment purchased within a reasonable time frame as it is shipped from the respective manufacturer(s). Seller will provide, if asked, an estimate as to the lead time for the purchased equipment. While the anticipated lead times are a best estimate by seller given to it from the respective equipment manufacturer(s). Seller does not control or guarantee arrival dates of the equipment.
3. Warranties: GUARANTEES OF THE STANDARD QUALITY OF THE GOOD(S) ORDERED ARE OF THE MANUFACTURER ONLY; IF ANY. SELLER MAKES NO WARRANTY EXPRESS OR IMPLIED OR GURANTEE RELATING TO THE GOODS PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICLUAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED. SELLER MAKES NO INDEPENDENT EXPRESS OR IMPLIED WARRANTY OR GUARANTEE FOR ANY GOOD(S) ORDERED OF ANY KIND. The use of Seller’s good(s) is beyond its control, Seller expressly disclaims responsibility for their handling, use, storage, installation, results obtained or any injury however caused, or for any dimensions, measurements, layouts or design unless otherwise agreed by Seller in writing. All dimensional drawings are those of the manufacturer.
4. Waiver: Failure of the Seller to enforce any of these conditions or to exercise any right accruing through the default of the buyer shall not affect or impair the Seller’s rights in case such default continues or in case of any subsequent default of the Buyer and such failure shall not constitute a waiver of Seller’s rights with regard to other or future defaults of the Buyer.
5. Damages: IN NO EVENT SHALL THE SELLER BE LIABLE FOR (1) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY TYPE OR NATURE IN CONNECTION WITH THE BUYER’S PURCHASE AND USE OF THE GOODS HEREIN SOLD, WHETHER SAME ARISE OUT OF NEGLIGENCE, STRICT LIABILITY IN TORT, CONTRACT OR OTHERWISE, OR (2) FOR THE DESIGN OF ANY SYSTEM OF THE COMPONENTS THEREOF IN WHICH THE GOODS SOLD TO BUYER ARE INCORPORATED, OR OTHERWISE USED BY BUYER, EVEN THOUGH SELLER MAY GIVE INSTRUCTIONS OR ADVISE BUYER WITH RESPECT TO THE USE AND APPLICATION OF THE GOOD(S) SOLD HEREUNDER, OR (3) FOR ANY DAMAGES OF ANY KIND WHATSOEVER FOR DELAY IN SHIPMENT OR NON-SHIPMENT OF ANY GOOD(S) ORDERED HEREUNDER, IRRESPECTIVE OF ANY FAULT OF THE SELLER. SELLER’S ENTIRE POTENTIAL LIABILITY SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOOD(S) ACTUALLY PAID BY THE BUYER TO SELLER.
6. Inspection of Goods: BUYER IS RESPONSIBLE FOR INSPECTING ALL SHIPMENTS IMMEDIATELY UPON RECEIPT. If Buyer finds broken or damaged goods, notify Seller via phone and email, with photos attached of the alleged damage, within 48 hours of receipt of the shipment.
7. Statements: No statement or recommendation made of assistance given by the Seller or its representatives in connection with the use of any good(s) by the Buyer shall constitute a waiver by the Seller of any of the provisions herein or affect the Seller’s liability, as herein defined.
8. Choice of Law: The terms of this agreement and all rights and obligations hereunder shall be governed by the laws of the state of Seller’s office to which the order has been submitted (without reference to principles of conflicts of laws). Hence, orders submitted to Seller’s Salt Lake City, UT office will be governed by Utah law. Orders submitted to Seller’s office in Las Vegas, NV shall be governed by Nevada law.
9. Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Seller’s office to which the order has been submitted. Hence, orders submitted to Seller’s office in Salt Lake City, UT shall be arbitrated in Salt Lake City, Utah. Orders submitted to Seller’s office in Las Vegas, NV shall be arbitrated in Las Vegas, NV. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
10. Field Assistance: In the event that Seller provides any field assistance to Buyer and Buyer’s representative, such technical assistance shall in no way render Seller liable for the installation of the equipment sold hereunder.
11. Finance Charges: Purchases that remain unpaid past their invoice due date incur finance charges based on the outstanding balance calculated from the due date until paid at a monthly percentage rate of 1.5%, or the maximum rate permitted under applicable law; whichever is higher. In the event of any overpayment of finance charges, such overpayment shall be applied to the remaining portion of Buyer’s account balance, and, if any remains thereafter, returned to Buyer or will remain as a credit on Buyer’s account’s future purchases. If back payments are due, current orders may not be shipped until payments are received. Seller reserves the right to maintain a credit limit on all accounts. Payment terms are Net 30 days, unless Seller has offered, and Buyer have accepted in writing alternate payment terms. Discount or extended terms extended by Seller shall be forfeit on any and all delinquent past due accounts.
12. Severability: The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision.