Standard Conditions of Sale
The following terms and conditions form part of each proposal submitted by AmertechTowerServices, LLC. hereinafter called "Seller" for the sale of equipment or services to a Client/Customer hereinafter called "Purchaser" and any contract made by and between the parties includes as a part thereof these terms and conditions.
Seller warrants to Purchaser that the equipment manufactured by it is free from defects in material, workmanship and design under normal use and service for a period of twelve (12) months after purchase order. Any product which is deemed defective by ATS in material or workmanship and
returned to ATS will be as the sole and exclusive remedy to be repaired or replaced, at ATS’s option. Warranty disclaimer, no warranty or affirmation of fact, express or implied, other than as set forth in the limited warranty statement above is made or authorized by ATS. ATS disclaims any liability for product defect claims that are due to product misuse, improper product selection or misapplication, and any description does not express or imply a warranty that the products are merchantable or for a particular use.
For customers with established credit, terms are net thirty (30) days from date of shipment. If credit is not established, payment with order or purchase through Visa, MasterCard, or American Express. All payments must be in U.S. dollars. ATS shall have the right of set-off and deduction for any sums owed. If customer fails to make payment within thirty (30) days, ATS may defer shipments until such payment is made, or may, at its option, cancel all or any part of unshipped order. Customer agrees to pay interest on all past-due sums as the lower of 2 percent( 2%) per month or at the highest rate allowed by law. In the event of a payment default, Customer will be responsible for all of ATS’s costs of collection, including court costs, filing fees and attorney’s fees.
Seller's obligation under this warranty is to supply, pursuant to the delivery terms of the proposal, at Seller's sole option repaired or replacement parts for those parts which are shown to Seller's satisfaction to have been defective as to material, workmanship or design, provided that:
a. Written notice of such defect is given to Seller within thirty (30) calendar days of discovery thereof;
b. The equipment has been operated in accordance with the operating and maintenance instructions provided by Seller; and no alterations or substitutions have been made in the equipment without the express written authorization of Seller.
Customer agrees that any credit balances issued will be applied within one (1) year of its issuance. If not applied within one (1) year, any balance remaining will be subject to cancellation, and ATS shall have no further liability.
PURCHASER'S ACTS VOIDING WARRANTIES
The warranty furnished by Seller herein will be rendered void and of no further force or effect by the Purchaser's use and operation of the equipment in a manner which, in Seller's reasonable judgment is inconsistent with recommendations contained in Seller's Operation and Maintenance manual issued for the equipment including but not limited to improper erection, damage caused by abrasion, corrosion or excess temperature or other operational causes. Additionally, the warranty is voided by the Purchaser's unauthorized alteration of, or making of substitutions to the equipment herein supplied. The Purchaser shall defend, hold harmless and indemnify Seller and its officers, directors, employees and agents from and against any liability for personal injury or property damage arising out of the above-mentioned causes.
DELAYS AND DAMAGES - FORCE MAJEURE
In the event of delays or damages due to conditions beyond Seller's reasonable control, including, but not limited to, Acts of God, Acts of Purchaser or Purchaser's Customer or of other Seller's employed by Purchaser, Acts of Civil or Military Authority, priorities, fire, strikes, floods, epidemics, quarantine restrictions, war, riot, delays in transportation, car shortages, and Seller's inability to obtain necessary labor, materials or manufacturing facilities. ATS shall not be liable for any delay or impairment of performance resulting in whole or part from acts of God.
IMPLIED WARRANTIES DISCLAIMER
The warranties furnished by Seller as expressly included herein constitute Seller's sole obligation hereunder and are in lieu of any other warranties or guarantees, express or implied, including warranties of merchantability or fitness for a particular purpose.
DISCLAIMER OF CONSEQUENTIAL DAMAGES
The Seller shall not be liable to Purchaser for indirect or consequential damages including, but not limited to, loss of profits or revenue, loss of use of equipment, costs of replacement power, or product, additional expenses incurred in the use of equipment or facilities, or the claims of third parties. This disclaimer shall apply to consequential damages based upon any cause of action whatsoever asserted against Seller, including one arising out of any Breach of Warranty or Guarantee, Products Liability, Negligence, Tort, or any other cause of action.
PURCHASER'S NEGLIGENCE AND INSURANCE
Seller shall not be responsible for losses or damages arising out of the negligence of the Purchaser, its employees, agents or architects or losses for which the Purchaser has agreed to provide insurance. In the event that both the Seller and the Purchaser are negligent and the negligence of both is proximate cause of the accident, then in such event each party will be responsible for their portion of the liability or damages(excluding consequential or indirect damages which are disclaimed by the Seller)resulting there from equal to such party's comparative share of the total negligence. Both the Seller and the Purchaser hereby agree to mutually waive any rights which each may have against the other with respect to subrogation under any policy of insurance relating to the equipment or services provided under this contract.
Unless otherwise stated, freight and shipping fees will be charged for shipments to a customer's place of business anywhere in the contiguous United States, using a carrier of our choice. Other terms will apply to Alaska, Hawaii, Puerto Rico, and export orders. Any extra charges incurred for additional services, such as customer's carrier or special handling by the carrier, must be paid by the consignee. Items backordered from an order qualifying for prepaid shipping charges will be shipped prepaid. Title and risk of loss pass to the customer upon tender of shipment to the carrier. If product is damaged in transit, consignee must file claim with the carrier.
Many states and localities have codes and regulations governing sales, construction, installation, and/or use of products for certain purposes, which may vary. ATS cannot guarantee compliance, and cannot be responsible for how the product is installed or used.
LIMITATION OF LIABILITY
In no event will Seller's liability to the Purchaser for any and all claims, including property damage and personal injury claims, allegedly resulting from breach of contract, tort, or any other theory of liability exceed the amount of the initial purchase price paid to the Seller.
ATS is required to charge national, state, local tax, applicable duties, and import fees on products for which Customer has not provided valid exemption certification. Customer assumes responsibility for, and unconditionally guarantees payment or reimbursement of, all applicable
taxes, fees, licenses, import duties, and fees and licenses, and expenses as may be applicable. When ordering, Customer shall indicate clearly which products are tax exempt.
Title to all equipment shall pass to Purchaser at the FOB point or points of shipment and risk of loss will thereafter be borne by Purchaser.
If the Purchaser declines or is unable to take delivery at the time(s) specified in the proposal or contract, Seller will have the equipment stored for Purchaser at Purchaser's risk and account, and the materials shall be considered "shipped".
ATS's acceptance of any order is subject to customer's assent to all of the terms and conditions set forth in ATS's acknowledgment, and customer's assent to these terms and conditions shall be presumed from customer's receipt of ATS's acknowledgment, or from customer's acceptance of all or any part of the goods or services ordered. No addition or modification of terms and conditions shall be binding upon ATS unless agreed to by ATS in writing. If a purchase order or other correspondence contains terms or conditions contrary to the terms and conditions contained in ATS's acknowledgment, ATS's acceptance of any order shall not be construed as assent to any additional terms and conditions, nor will that constitute a waiver by ATS of any of the terms and conditions contained in ATS's acknowledgment.
Terms of Payment
Unless otherwise agreed, the payment schedule shall be as outlined herein and payments shall be made within thirty (30) days of presentation of an invoice. Payments not received by the due date shall be subject to a monthly interest charge at the rate of 2% per month or the maximum allowed by law, whichever is less, due and payable until the payment is received.
Default In Payment
a. If any payment due to Seller is more than thirty (30) days past due, Seller shall have the right at its sole option to accelerate the payment of all outstanding amounts, including, but not limited to, amounts previously retained pursuant to the agreement, by notifying Purchaser in writing that all outstanding amounts are immediately due and presenting Purchaser with an invoice for said amount. Seller shall also have the right in such event to discontinue all work on the project without incurring any liability to Purchaser for such action.
b. In the event the total aggregate amount of delinquent payments exceeds at any point during the term of the agreement ten (10%) of the total contract amount, Purchaser shall provide at Seller's request, additional collateral, including but not limited to irrevocable letters of credit, sufficient to secure payment of all contract amounts.
c. The foregoing remedies of Seller are in addition to all other remedies Seller may have at law or in equity, including but not limited to the right to obtain liens on Purchaser's assets through legal or equitable proceedings.
Purchaser's cancellation of the contract is subject to a cancellation charge of 10% of the total price of the contract, plus restocking fees. Any cancelation must be approved by ATS.
OSHA - FEDERAL, STATE AND LOCAL
Seller agrees to comply with the Federal OSHA requirements in effect as of the date of this proposal relative to the design of the equipment furnished within its scope of supply as defined in this proposal. Where state or local safety and health requirements differ from the Federal OSHA requirements, modifications or changes in design to meet state or local safety and health requirements will be incorporated at Purchaser's request. Additional costs arising from such requests and from erection procedures required by state or local safety and health regulations which deviate from Federal OSHA requirements will be for Purchaser's account.
PROPRIETARY AND CONFIDENTIAL MATERIALS
All drawings, patterns, specifications and information included in Sellers proposal or contract and all other information otherwise supplied by Seller as to design, manufacture, erection, operation and maintenance of the equipment shall be the proprietary and confidential property of Seller and shall be returned to Seller at its request. Purchaser shall have no rights in Sellers proprietary and confidential property and shall not disclose such proprietary and confidential property to others or allow others to use such property, except as required for the Purchaser to obtain service, maintenance, and installation for the equipment purchased from the Seller. This clause shall survive the termination of this contract and be in effect as long as the Purchaser has possession of any of the Seller's proprietary or confidential property.
Seller retains the right to assign this contract to any subsidiary or affiliated company of Seller without the Purchaser's prior approval. All other assignments by either Seller or Purchaser require the prior written consent of the other party.
The Purchaser's facilities may contain hazardous materials, including asbestos bearing materials. Seller's services do not include directly or indirectly performing or arranging for the detection, monitoring, handling, storage, removal, transportation, disposal or treatment of petroleum or petroleum products (collectively called "Oil") or of any hazardous, toxic, radioactive or infectious substances, including any substances regulated under RCRA or any other Federal or State environmental laws(collectively called "Hazardous Materials"). If any such materials are encountered, Seller shall have no obligation to remove or remediate them in the absence of a separate agreement, which includes separate consideration to Seller for such work. If Seller or any of its sub Sellers is required to perform work within or immediately adjacent to any facilities that are determined to contain hazardous materials and/or asbestos, and the said work must be interrupted to allow for the remediation or removal of such materials by others, Seller shall be entitled to any and all costs and other expenses associated with such interruption in work. Purchaser shall fully defend, hold harmless and indemnify Seller and its agents from and against any claims arising out of exposure to such hazardous and/or asbestos bearing materials.
Actions by ATS for nonpayment by Customer of the purchase price of products sold by ATS, or for redress of other breaches by Customer of these Terms and Conditions may be brought by ATS, at its option, before any United States or foreign judicial court of competent jurisdiction. At ATS 's option, disputes between Customer and ATS, including all claims for non-performance by ATS, shall be finally settled by arbitration in Shrewsbury ,NJ United States, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, by a single arbitrator appointed in accordance with said Rules applying these Terms and Conditions and consistent provisions of the federal and state laws (except conflict of law rules) of the State of New Jersey, United States, and the language of the arbitration shall be English.
a. If any of the provisions of these Standard Conditions of Sale (including statements made in the proposal) conflict with any provisions in the Purchaser's documents, the former shall govern unless Seller expressly agrees to the contrary in writing. Any contract resulting from this proposal shall be construed, and the legal regulations of the Seller and Purchaser shall be determined in accordance with the laws of the State of New Jersey, U.S.A
b. All communications, written and verbal, between the parties hereto with reference to the subject of this proposal prior to the date of its acceptance are merged herein and this proposal, when duly accepted and approved, shall constitute the sole and entire agreement and contract between the parties as to the subject matter thereof. No changes in or modifications of said agreement shall be binding upon the parties of either of them, unless they shall be in writing duly accepted by the Purchaser and approved in writing by Seller.
Should any part of this Agreement be declared invalid or unenforceable, such decision shall not affect the validity of any remaining portion, which remaining portion, shall remain in full force and effect, and Seller shall have the right to replace the part declared invalid or unenforceable with a provision which serves as much as validly possible the same commercial purpose as the part
determined to be invalid or unenforceable.
Law & Venue.
All transactions shall be governed by the laws of the State of New Jersey, excluding conflict of law rules, and venue shall be in Monmouth County, State of New Jersey.
ATS reserves the right to correct publishing errors and change pricing as ATS suits.