The following SPD Enterprises, Inc. d/b/a VariGuard (“VariGuard”) terms and conditions of sale and those additional terms that may appear in VariGuard’s order confirmations (collectively the “Terms of Sale”) are exclusive and in lieu of all other terms and conditions appearing on Customer’s purchase order or elsewhere and apply to all quotations made and all orders accepted by VariGuard for VariGuard products (“Products”). Customer agrees that VariGuard’s acceptance of Customer’s order is limited to VariGuard’s Terms of Sale. Customer shall be deemed to have accepted VariGuard’s Terms of Sale unless written notice of objection is given by Customer to VariGuard within one business (1) day of receipt of VariGuard’s order confirmation. Neither VariGuard’s commencement of performance nor delivery of Products shall be deemed or constitute acceptance of any Customer additional or different terms and conditions. VariGuard’s failure to object to provisions contained in any order or other writing of Customer shall not be construed as a waiver by VariGuard of its Terms of Sale or an acceptance of any terms and conditions of Customer, which are hereby rejected by VariGuard. VariGuard and its affiliates do not offer design, electrical or engineering services. Any conversations or information regarding design specifications exchanged between VariGuard or its affiliates personnel or representatives and Customer may be used for informational purposes only, and may not be regarded as direction or recommendation from VariGuard or its affiliates or personnel.
1. Purchase Orders.
All orders placed by Customer must be in writing and transmitted to VariGuard by mail, fax or email. All orders should include shipping address, quantities and complete description of Products being purchased, as well as Customer’s name, contact name, address, email address, and telephone number. Orders will be a binding contract only when received and accepted by VariGuard (confirmation of this acceptance by VariGuard to be made by mail, fax or email) and any required Customer deposit has been paid to VariGuard. All purchase orders shall be subject to acceptance of these terms and conditions of sale, and no additional, inconsistent or contrary terms shall become part of this agreement or any sale of products to Customer. The terms and conditions listed herein shall be made a part of any agreement made between Customer and VariGuard and shall have precedence over any terms and conditions proposed by Customer in a purchase order or other writing. VariGuard accepts purchase orders by return of an acknowledgment copy of a purchase order, VariGuard’s order acknowledgment, or by shipment of any of the products to Customer. All orders are subject to acceptance or rejection by the executive officers of VariGuard, at its sole discretion. Customer will inform VariGuard if an export license is required, and orders requiring an export license will not be accepted until the export license has been obtained. VariGuard shall have no obligation to begin production until an order is accepted and any required Customer deposit has been received. Customer shall have one (1) business day from receipt of VariGuard’s order confirmation to make any corrections or changes. Failure to do so shall constitute acceptance of VariGuard’s order confirmation. Any target delivery dates may not be rescheduled without VariGuard’s written approval.
2. Cancellation or Change in Order.
Customer acknowledges that the products being supplied to it by VariGuard are custom manufactured and Customer may not cancel or change any order in whole or in part without the written agreement of VariGuard, which agreement to cancellation or change may be withheld by VariGuard in its sole and absolute discretion. If VariGuard has agreed to the cancellation or change of an order in whole or in part, such cancellation or change shall be on condition of Customer’s payment of VariGuard’s cancellation charges (which may include the forfeiture of any Customer deposit) and other losses and damages incurred by VariGuard as a result of such cancellation or change. If VariGuard agrees to cancel Customer’s order, VariGuard may assess Customer cancellation charges of 20% of the contract price for cancellation of any order or part thereof for (i) standard products that can readily be resold to VariGuard’s other customers, or (ii) for custom or specially made Products, only if the order is cancelled before VariGuard begins performance. Once VariGuard begins performance on a custom or specially made Customer order, VariGuard’s cancellation charges may include: x) the contract price for all completed Products; and y) with respect to non-completed Products, an equitable charge as determined by VariGuard based upon all costs (including but not limited to cost of materials purchased, labor, storage charges, handling, freight, duties and, taxes, and any destruction or recycling costs) incurred by VariGuard in performance of Customer’s order to the date of cancellation and that VariGuard will thereafter reasonably incur as a result of such cancellation, plus a cancellation fee of 20% of the contract price for such Products, not to exceed in total the contract price. Customer shall pay all cancellation charges due within thirty (30) days of invoicing by VariGuard. VariGuard’s cancellation charges shall not be deemed VariGuard’s exclusive remedies in the event of an unauthorized order cancellation or change by Customer.
VariGuard may cancel any order in whole or in part by notice to the Customer and resell the products if the Customer fails to comply with any of its obligations under these terms of sale or under any separate agreement with VariGuard. VariGuard may cancel any order in whole or in part by notice to the Customer and resell the products if Customer has had a deterioration in its financial condition, if VariGuard reasonably considers that it may be unable to satisfy the order within a reasonable time; if products remain uncollected or the Customer fails to give satisfactory instructions for the dispatch of the products after a period of 14 days from notification to the Customer that they are ready for collection or shipment. The Customer shall have no claim against VariGuard for any damage, loss, cost or expense arising from cancellation under this Section.
A quotation is not an offer by VariGuard and VariGuard may withdraw or alter it without notice. Unless VariGuard withdraws it, a quotation is valid for the period stated in it, or if no period is stated, for 30 days after the date of the quotation. The prices of the products are those specified on VariGuard’s quotation or confirmation of Customer’s order. Prices quoted are those in effect at the date of issue of quotation and are subject to adjustment (including a proportional adjustment for fixed costs and profit) for any variation in the amount of work any other charges affecting the cost of production required to produce the products ordered by Customer due to a variation in specifications approved by the parties; and any other charges affecting the cost of production. If VariGuard suspends work on any order due to the Customer’s instructions or lack of instructions, VariGuard may increase the contract price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit). Any prices quoted apply only if all of the products included in the quotation are bought. If the Customer orders part only, VariGuard may submit a revised quotation. All prices printed in VariGuard’s price list or quoted to individual Customers are subject to change without notice. Prices do not include packaging. Extra charges will be added for special packaging and/or for expediting delivery. All prices are exclusive of federal, state, local and other excise, sales, use, property, VAT, transportation, occupational and other taxes relating to the sale, together with penalties and expenses, all of which shall be paid by Customer. Customer shall be responsible for collecting and/or paying any and all such taxes whether or not they are stated in any invoice for products shipped and shall indemnify VariGuard with respect thereto. VariGuard, at its option, may at any time separately bill Customer for any taxes not included in VariGuard’s invoice, and Customer shall pay said taxes, or in lieu thereof, shall provide VariGuard with a tax exemption certificate acceptable to the taxing authorities.
Payment shall be due thirty (30) days after the date of the invoice unless otherwise specified in VariGuard’s quotation or order confirmation. For orders with multiple delivery dates or in the case of partial shipments, VariGuard may invoice Customer and Customer shall pay for each delivery separately and each delivery shall be considered a separate and individual contract. VariGuard may charge Customer interest for all late payments computed on a daily basis from the due date until paid in full at the rate of two percent (2%) per month or the maximum rate permitted by law, whichever is less. VariGuard reserves the right to establish and/or change credit and payment terms extended to Customer when, in VariGuard’s sole opinion, Customer’s financial condition or previous payment record warrants that action. Further, on delinquent account, VariGuard shall not be obligated to continue performance under any agreement with Customer. VariGuard retains a security interest in the Products delivered to Customer, and in their accessories, replacements, accessions, proceeds and products, including accounts receivable (collectively, (the “Collateral”), to secure payment of all amounts due under this Agreement. If Customer fails to pay any amount when due, VariGuard shall have the right to repossess and remove all or any part of the Collateral from Customer but not from Customer’s customers. Any repossession or removal shall be without prejudice to any other remedy of VariGuard hereunder, at law or in equity. Customer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by VariGuard to transfer, create, perfect, preserve, protect and enforce this security interest. Customer is responsible for and shall pay all costs, fees and expenses, including reasonable attorneys’ fees and the fees of collection agencies, incurred by VariGuard in enforcing any of the terms, conditions or provisions hereof or in protecting VariGuard’s rights herein or with respect to past due Customer accounts.
Inspection and Acceptance; Returns. Unless otherwise agreed to in writing by VariGuard, all prices quoted or printed in VariGuard’s Price List are F.O.B. VariGuard’s premises or those of VariGuard’s supplier or, with respect to imported goods, F.O.B. United States point of shipment. Unless otherwise agreed upon in writing by VariGuard, Customer agrees that all freight, express and delivery charges shall be paid by Customer and shall not be subject to discount. If VariGuard has agreed with Customer to arrange for shipping of products, VariGuard will select the carrier and all shipments shall be freight collect, unless otherwise negotiated. In no event shall VariGuard be liable for any delay in delivery nor shall the carrier be deemed an agent of VariGuard. Delivery will be deemed complete and risk of loss or damage to the products will pass to Customer upon delivery by or on behalf of VariGuard to the first common carrier. All freight damage claims, incurred after material title transfer, are the responsibility of the Customer and the freight carrier. Upon acceptance of a shipment with visible damage, the damage must be noted on the carrier’s delivery record in order to file a claim and VariGuard must be notified of any damaged shipments within two days of receipt of shipment. All product receipt shortages, defects or discrepancies must be communicated to the VariGuard, in writing within 48 hours of receipt or the products shall be deemed accepted by the Customer in full satisfaction of VariGuard’s obligations to supply product to Customer. Claim validation requires Customer to hold all packaging materials for verification of supplier markings. Any defective product must be returned by Customer to VariGuard or its designees within 20 days of receipt by Customer. Products must be in their original packaging and be in new condition. Customer shall return the goods in the same condition as they were supplied. No Products may be returned to VariGuard without VariGuard’s prior written return authorization. In the event that Customer claims that Products do not conform to contract specifications and after inspecting the returned products, VariGuard determines that the Products do not conform to the contract, VariGuard’s sole obligations and Customer’s exclusive remedies with respect to a non-conforming Product shall be, at VariGuard’s option, repair or replacement of the Product or refund to Customer of the purchase price paid for the Product, or issuance of a credit to Customer for future purchases from VariGuard. Customer shall be responsible for all costs associated with the return of products if the products are found to be within specification, otherwise VariGuard will bear the return cost. Customer shall be responsible for any damage to returned products.
All specifications, drawings, and particulars of weight and dimensions, estimated shipping dates and delivery dates, are approximate only and VariGuard shall not be liable for any deviation nor will such deviation relieve or reduce Customer’s obligation to VariGuard. VariGuard shall not be liable to Customer for any loss or damage (including any consequential loss or damage) arising from late or damaged delivery of products. The descriptions, illustrations and material contained in any advertisement, catalogue, price list or brochure do not form any part of the agreement between the parties to this Agreement.
Shipment dates for all products are approximate only. VariGuard reserves the right to make partial shipments, but will attempt to minimize such partial shipments to the extent possible.
VariGuard reserves the right to withhold shipments or require prepayment of any orders where, in the opinion of VariGuard, Customer’s payment record or financial conditions warrants. Such action shall not be construed as a breach or cancellation of this Agreement.
7. Ownership of Production Tooling, Materials and Equipment, No license granted; Confidentiality.
Unless otherwise agreed in writing, all material, equipment, facilities, and tooling used in the manufacture of the products covered by any Customer order shall remain the property of VariGuard regardless of whether or not Customer has provided funding for such tools and methods. VariGuard shall retain all rights to technical data, intellectual property and any other information, whether patentable or not, arising out of or evolving as a result of manufacture of its products whether for Customer or otherwise. VariGuard shall not be responsible for any Customer furnished materials or tooling damaged during processing or manufacturing. VariGuard’s supply of products to Customer does not in any way convey or grant to Customer any license or right to make, have made or use the products or any additional products (whether or not identical to the products supplied by VariGuard) coming within past or future patents and/or inventions owned, made or controlled by VariGuard or its affiliates. Drawings, specifications, designs, and other technical information furnished to Customer by VariGuard shall remain the property of VariGuard and shall be held in strict confidence by Customer. Such information shall not be used or disclosed to others by Customer without VariGuard’s prior written consent.
8. No Warranty by VariGuard.
It is the responsibility of the Customer to determine if a VariGuard product meets its needs. VariGuard does not represent or warrant the performance of its products including the performance of SPD technology or any information provided to Customer, and Customer expressly acknowledges and agrees that any product provided by VariGuard hereunder is provided “AS IS” and that VariGuard makes no warranty with respect thereto and DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT THERETO, CUSTOMER’S USE OR ANY INABILITY TO USE A PRODUCT, OR THE RESULTS OF ITS USE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
If a specific warranty is given by VariGuard to Customer in a separate agreement, the duration of any product warranty given by VariGuard shall be strictly limited to the applicable warranty terms and duration stated by VariGuard. If such an additional warranty is given and no warranty duration is specified by VariGuard then the warranty duration shall be one (1) year from the date of shipping to Customer. Any products sold by VariGuard with any additional express warranties shall be subject to the specific terms and conditions of those warranties. Unless otherwise agreed to in writing by VariGuard, no warranty shall extend to any third party. No warranty shall apply to any product that is subject to misuse, abuse, accident, disaster, or repair by anyone other than VariGuard. Customer will be deemed to have waived any warranty claim unless written notice of such claim is given to VariGuard promptly but in no event later than ninety (90) days from date of discovery of such breach of warranty.
Without limitation of the foregoing, VariGuard and its affiliates shall not be responsible for:
(1) defects or damage arising from shipping, improper installation, alterations, modifications, tampering, accidents, abuse, misuse, use of the product in a damp environment, or lack of proper maintenance, in all cases whether caused by a contractor, service company, the owner or any other person or entity; (2) IN NO EVENT WILL VARIGUARD OR ITS AFFILIATES BE LIABLE FOR THE COST OF REPAIR OR REPLACEMENT OF ANY INSTALLATION MATERIALS, INCLUDING BUT NOT LIMITED TO, TILES, SHEETROCK, FRAMING, CABINETRY ETC.; (3) Postage or shipping costs for returning products for repairs or replacement and labor or other costs incurred in connection with product removal or installation; (4) Compliance with local code requirement. (Since code requirements vary greatly, distributors, dealers, installation contractors and users of glazing products should determine whether there are any code restrictions on the installation or use of a specific product.)
Customer’s purchase order shall not be assigned in whole or in part by either party without the written consent of the other party, except that VariGuard may assign its rights, liabilities and obligations arising out of Customer’s purchase order to one or more of its subsidiary or affiliated companies.
10. Statute of Limitations
No claim or cause of action by Customer arising from this Agreement may be brought at any time more than one (1) year after the facts occurred upon which the claim or cause of action arose.
11. Export Control
Customer shall comply with all applicable U.S. export laws, regulations and treaties relating to export or re export of the Products. Customer will defend, indemnify and hold VariGuard harmless for any claims, penalties, fines, damages or costs to VariGuard arising from Customer’s failure to comply with this provision.
12. Limitations of Liability
VARIGUARD’S ENTIRE AND AGGREGATE LIABILTY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER FOR INFRINGEMENT, BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE SHALL NOT EXCEED CUSTOMER’S PAYMENTS TO VARIGUARD FOR THE PRODUCTS PURCHASED UNDER THIS AGREEMENT THAT CREATE SUCH LIABILITY. VARIGUARD SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM MADE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS, OR OTHERWISE. THE EXPRESS REMEDIES STATED IN THIS DOCUMENT WILL BE THE EXCLUSIVE REMEDIES AVAILABLE TO CUSTOMER AGAINST VARIGUARD AND ITS AFFILIATES FOR ANY DEFECTS IN THE PRODUCTS SOLD IN CONNECTION WITH THIS DOCUMENT OR FOR ANY DAMAGES RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, VARIGUARD’S NEGLIGENCE. VariGuard supplies products as is and it is up to the Customer to determine whether such products are suitable for the purposes for which Customer intends. VariGuard shall have no liability for performance of its products or Customer’s use thereof. No liability can be accepted for any damage or injury to property or persons arising directly or indirectly, from any defect in the goods, or any costs, losses or expenses, incurred or sustained by the Customer or end user if not the Customer in connection with such goods prior to or subsequent to such defect becoming apparent. In addition, VariGuard shall not be responsible for defects or failures in the product, glazing or fixing or framing as a result of unsuitable frames, structures, systems, packaging or additional value added work conducted or being used by the Customer or the end user if not the Customer.
13. Governing Law and Choice of Forum.
The construction, interpretation and performance of this Agreement and all transactions under it shall be governed by the laws of the State of New York excluding any of its choice of law provisions. VariGuard and Customer specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. Any and all claims or actions challenging the validity, interpretation or performance of this Agreement shall be brought in either the New York Superior Court for the County of Nassau or the United States District Court for the Eastern District of New York. Notwithstanding the foregoing, VariGuard may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged or anticipatory breach of such party’s proprietary rights. VariGuard reserves the right to initiate and maintain legal action in New York or in any other forum where VariGuard or products supplied to Customer by VariGuard, may be located for purposes of replevying or repossessing such products. VariGuard shall be entitled to all attorneys’ fees, court costs and other expenses incurred in enforcing this Agreement.
14. Waiver of Jury Right and Punitive Damages
CUSTOMER AND VARIGUARD HEREBY IRREVOCABLY AND KNOWINGLY WAIVE ANY RIGHTS TO TRIAL BY JURY OR FOR PUNITIVE DAMAGES WHICH EITHER MIGHT HAVE FOR ANY CLAIM RELATING TO OR ARISING OUT OF THESE TERMS AND CONDITIONS OR THE PURCHASE, SALE OR USE OF THE GOODS OR OTHERWISE RELATING TO THE RELATIONSHIP OF THE PARTIES.
15. Force Majeure
Except for the payment of money due and owing, neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that delay or failure is caused by causes beyond its reasonable control (“Force Majeure Conditions”), including, but not limited to, fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, act of God, act or omission of carriers or other similar causes and, with respect to VariGuard, inability to reasonably obtain necessary labor, materials, components or manufacturing facilities. If any Force Majeure Condition occurs, the party delayed or unable to perform (“Delayed Party”) shall give immediate notice to the other party (“Affected Party”), and the Delayed Party, upon giving prompt notice to the Affected Party, shall be excused from performance under this Agreement for the duration of the Force Majeure Condition; provided, however, that the Delayed Party shall take all reasonable steps and cooperate with the Affected Party to avoid or remove the cause of nonperformance and shall resume performance hereunder with dispatch when the cause is removed. If the Delayed Party cannot within sixty (60) days remove the cause of nonperformance, the Affected Party may terminate this Agreement. If Force Majeure Conditions cause shortages in VariGuard’s supply of Products or materials necessary to produce the Products, VariGuard may, without obligation to obtain similar products or such materials from other sources, first satisfy its own requirements and the requirements of its divisions, subsidiaries and affiliates for such materials and Products and then allocate the remainder among its customers in a manner and amount that, in VariGuard’s sole judgment, is fair and reasonable.
No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition.
17. Entire Agreement
VariGuard’s Terms of Sale shall constitute the entire agreement (the “Agreement”) between the parties with respect to the sale of the Products and shall not be modified or rescinded, except by a writing signed by VariGuard and Customer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement.
If any part of these terms and conditions of sale is held invalid, the remaining terms and conditions hereof shall not be affected thereby. These terms and conditions of sale may be modified, canceled or rescinded only by a written agreement signed by both parties. No agent, employee or representative of VariGuard (or any distributor, dealer or sales representative of VariGuard) has the authority to bind VariGuard to any affirmation, representation or warranty concerning the products and unless such affirmation, representation or warranty is specifically included in these terms and conditions of sale, it will not form a part of the basis of these terms and conditions of sale and shall in no way be binding upon VariGuard or be enforceable by the Customer. All rights available to VariGuard under the Uniform Commercial Code (even though not specifically enumerated), are expressly reserved to VariGuard as remedies available to it in case of Customer’s breach. Any failure by either party to enforce at any time any term or condition hereof shall not be considered a waiver of such party’s right thereafter to enforce the same or any other term or condition. These terms and conditions of sale shall be binding upon the successors and legal representatives of Customer and VariGuard.