- Applicability.
- These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (the “Goods”) by T-Drill Industries, Inc. (the “Seller”) to the buyer named on the reverse side of these Terms or in the Sales Confirmation (as defined below) (the “Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. Seller and Buyer together are hereinafter sometimes referred to as “Parties”, and each individually a “Party”.
- The accompanying quotation or confirmation of sale (the “Sales Confirmation”) 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 with respect to the subject matter hereof. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms, all of which are hereby rejected. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
- Delivery of Goods.
- Unless otherwise set forth on the Sales Confirmation or agreed to in writing between the Parties, the Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.
- Notwithstanding Section 2(a) hereof, if under this Agreement Buyer submits a blanket purchase orders for Goods to Seller, Buyer shall issue any releases under such purchase order, with each such release including a definite quantity of Goods, no later than three (3) months before Buyer’s preferred date of delivery. If Buyer issues any such release less than three (3) months before Buyer’s preferred date of delivery, Seller will use reasonable efforts to meet such preferred date of delivery and quantity of Goods but Seller shall not be liable for any delays or delivering less than the quantity specified in such release.
- Unless otherwise agreed in writing by the Parties, Seller shall deliver the Goods, if delivered from Seller’s U.S. warehouse, to Seller’s U.S. warehouse, and, if delivered from Seller’s Finnish parent’s warehouse, to the airport named in the Sales Confirmation (each, the “Delivery Point”) pursuant to the shipping terms set forth in Section 4. Buyer shall take delivery of the Goods within five (5) days of (i) Seller’s Notice (as defined below) that the Goods have been delivered to the Delivery Point or (ii) actual delivery of the Goods to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
- Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. 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.
- Delivery is deemed to have occurred upon Notice by Seller to Buyer that Goods are ready for pick-up. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s Notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- Non-Delivery.
- The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
- Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives Notice to Seller of the non-delivery within 5 days of the date when the Goods would in the ordinary course of events have been received.
- Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
- Shipping Terms. If the Goods are delivered from Seller’s U.S. warehouse, delivery shall be made FCA Seller’s warehouse, Incoterms® 2020, and if the Goods are delivered from Seller’s Finnish parent’s warehouse, delivery shall be made CIP airport named in the Sales Confirmation, Incoterms® 2020.
- Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Inspection and Rejection of Nonconforming Goods.
- Buyer shall inspect the Goods within five (5) days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods 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 Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
- 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 shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located in Norcross, Georgia. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
- Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), 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. Notwithstanding the foregoing, if Seller, at its sole discretion, authorizes Buyer to return some or all of the conforming Goods Seller may charge to Buyer a restocking fee of 5% of the net value of any returned Goods (a “Restocking Fee”), and Seller may deduct such Restocking Fee from any credit or refund of the Price, if any.
- Price.
- Unless otherwise set forth in the Sales Confirmation, Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased Prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased Prices.
- 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.
- Payment Terms.
- Unless otherwise set forth in the Sales Confirmation, Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice as follows, unless otherwise set forth in the Sales Confirmation: 30% upon acceptance by Seller of the Buyer’s Goods order, 60% prior to delivery by Seller of the Goods under such Buyer’s order to the Delivery Point, and the remaining 10% Net 30. Buyer shall make all payments hereunder in US dollars by wire transfer, check or as otherwise specified in Seller’s invoice sent to Buyer.
- Buyer shall pay interest on all late payments at the higher of the rate of 5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for five (5) days following Notice thereof.
- Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or Dispute (as defined below) with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- Limited Warranty; Limitation of Liability. Seller’s Limited Product Warranty for the Goods, available for download at https://t-drill.com/warranty, shall apply to this Agreement and is incorporated herein by reference, provided that wear and tear shall be based on use of the Goods in a one shift production environment.
- Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon Notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Waiver. 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 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.
- Confidential Information. 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.
- Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic (including, without limitation, the COVID-19 pandemic), lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (all such circumstances collectively, the “Force Majeure Events”). Seller may terminate this Agreement with immediate effect in case of any Force Majeure Event, which continues for 5 days or more.
- Security Interest. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods and performance in full of all the obligations of the Buyer under this Agreement, the Buyer hereby pledges and grants to the Seller, a lien on and security interest in and to all of the right, title, and interest of the 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 Article 9 of the Georgia Uniform Commercial Code and Buyer grants to Seller power of attorney to file and cause all documents and actions to file and perfect any security interest, including but not limited to any UCC-1
- Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement 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.
- Relationship of the Parties. 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.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
- Arbitration. The Parties agree that any dispute, claim, or controversy arising out of, connected with, or related to this Agreement (a “Dispute”), or the dealings between the Parties occurring at any time (including before the inception of or after termination of this Agreement), including without limitation any Dispute arising out of, connected with, or related to (i) the creation, existence, scope, validity, effect, interpretation, performance or non-performance, or termination of, or the legal relationships established by, this Agreement, or the consequences of its supposed nullity; (ii) any non-contractual rights or obligations arising out of, connected with, or related to this Agreement; and (iii) the relationship between the Parties created by this Agreement and any dealings between the Parties related to the subject matter of the transactions contemplated by this Agreement; all regardless of whether such Dispute may be characterized as sounding in contract, tort, breach of duty, fraud (including fraudulent inducement to enter into or fraud in the inception of this Agreement), or any other common law or statutory law or equitable principle or doctrine and regardless of the relief sought (even if such relief includes rescission of this Agreement) shall be finally and conclusively resolved by binding arbitration. Such arbitration will be conducted by one arbitrator in the English language in the city of Atlanta, Georgia, under the administration of the American Arbitration Association (the “AAA”) in accordance with the laws of the State of Georgia and the AAA’s Commercial Arbitration Rules and Mediation Procedures (collectively, the “Rules”). The Parties to the arbitration shall facilitate the arbitration by: (i) conducting arbitration hearings to the greatest extent possible on successive days; and (ii) observing strictly the periods established by the Rules or by the arbitrator for the submission of evidence or briefs. Any award rendered by the arbitrator shall be final and binding upon each Party to the arbitration and judgment on the award may be entered in any court of competent jurisdiction. The arbitration award may be enforced by any court of competent jurisdiction through injunctive or other equitable relief, as well as all relief and process available at law. The arbitrator may issue interim awards, interlocutory, provisional or partial relief, including temporary restraining orders, preliminary injunctions, orders to compel discovery, orders of attachment, protective orders, any of which may be enforced as an arbitration award by any court of competent jurisdiction. Any arbitration award for money shall be made and shall be payable in U.S. dollars. The arbitrator may award interest from the date of any breach of this Agreement and shall fix the rate of interest on any amount awarded from the date of the award to the date the award is paid in full.
- Submission to Jurisdiction for Enforcement. For purposes of an action to confirm or enforce any award entered in the arbitration, the Parties hereby submit to personal jurisdiction in the Fulton County Superior Court, State of Georgia, or the United States District Court for the Northern District of Georgia. In addition, for purposes of an action to enforce any award entered in the arbitration, Buyer hereby submits to personal jurisdiction in any court anywhere in the world having jurisdiction over property that is the subject of this Agreement or Buyer’s affairs, other property, or assets (including money and deposit accounts) in respect of or against which such award may be enforced, regardless of whether such affairs, property, or assets have any relation to the subject matter of this Agreement and even if Buyer’s contacts with the forum for enforcement are fleeting, incidental, or unintentional.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is 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.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Arbitration, Submission to Jurisdiction for Enforcement and Survival.
- Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each Party.
