- AGREEMENT. Purchaser and Greencore USA for itself and/or on behalf of one or more of its
subsidiaries ("Seller")
acknowledge, understand and agree that the Purchaser's Credit Application, if any, the
Quotation, if any, the
specifications stated in the Quotation and these Standard Terms and Conditions
(collectively, the "Agreement")
shall collectively form the sole and entire agreement by, under and pursuant to which
Purchaser shall purchase
from Seller, and Seller shall manufacture and sell to Purchaser, the materials described in
the Quotation (the
"Materials"). This Agreement supersedes any and all prior or contemporaneous oral
or written agreements between
the parties regarding the same.
Any different or additional terms or conditions contained in Purchaser's acceptance of the
Quotation, or any
document or instrument constituting this Agreement, whether by purchase order or otherwise,
are hereby objected
to by Seller and shall have no effect on, and not become part of, the terms and conditions
of this Agreement.
Additional terms, changes, and alleged subsequent agreements shall not be effective unless
and until any of the
same are in writing and signed by Seller's and Purchaser's authorized representatives.
Notwithstanding any
subsequent changes made to the Quotation, these Standard Terms and Conditions (in the form
originally referred
or attached to the Quotation) shall continue in full and unvaried force and effect except to
the extent modified
by written agreement signed by Seller's and Purchaser's authorized representatives.
Purchaser's signature to the Quotation, direction to manufacture of the Materials,
acceptance of delivery of the
Materials or the payment for the Materials, shall be deemed an acceptance of these Standard
Terms and
Conditions. Seller may elect not to manufacture or deliver any Materials until Purchaser
returns a signed copy
of the Quotation.
- DELIVERY AND ACCEPTANCE. Delivery of the Materials shall be made pursuant to a delivery
schedule agreed to by
Purchaser and Seller. Purchaser agrees to give the Seller reasonable notice of the time and
rate of deliveries.
Seller shall not be deemed to have failed to comply with such schedule for any delay where
such delay is caused
by acts of God, acts of civil or military authority, epidemics, war, riot or any other
reason or cause beyond
Seller's control. In connection with any such delay, the agreed delivery date(s) shall be
extended for a period
equal to the duration of the delay.
Seller's responsibility for delivery shall cease FOB shipping point or, if Seller agrees to
deliver, FOB
jobsite, at the curbside or street or frontage of the address of delivery. Seller reserves
the right to charge
Purchaser at the applicable rate for any waiting time at the jobsite in excess of one (1)
hour.
The type and quantity of Materials delivered and detailed on the delivery ticket must be
inspected by Purchaser
at the time of delivery for compliance with the Agreement. Variations between actual
quantities of Materials
delivered and those shown on the delivery ticket must be noted on all copies of the delivery
ticket signed by
Purchaser. Invoice charges will be based on the quantities shown on the delivery ticket.
Title and risk of loss of each of the Materials shall remain with Seller until delivery of
such Materials to the
delivery location specified in this Agreement. Purchaser hereby grants Seller a first
priority security interest
in all such Materials until such time as Seller is paid in full all amounts due under this
Agreement. Purchaser
further agrees to execute any and all documents that may be required for Seller to perfect
such security
interest.
Standard Materials sold under this Agreement may be returned by Purchaser for credit only
with Seller's prior
written consent and only if, in Seller's sole opinion, the Materials to be returned are in
re-saleable
condition. Seller will deduct from any such credit any and all restocking fees, loading and
unloading costs,
disposal fees, and any costs of repair and delivery costs to and from Purchaser's jobsite.
Custom-designed and
special Materials of other than normal and standard design regularly sold by Seller may not
be returned. The
Purchaser will be liable to pay for any custom-designed or special Materials not taken by
the Purchaser.
- PRICING AND PAYMENT. Unless stated otherwise herein, prices for the Materials quoted are
subject to material
availability and shall remain firm for a period of thirty (30) days after the date of the
Quotation; thereafter,
prices for the Materials are subject to change by Seller. Pricing for ordered, but
undelivered, Materials are
subject to change at any time to account for cost increases and volatility in respect of
materials, fuel,
energy, and transportation. Prices quoted are based on minimum truckload lots and are
subject to increase should
Purchaser request delivery in lots smaller than truckload. Prices are applicable only to the
project specified
in the Quotation, are available only to the Purchaser, and are only for the quantities
stated in the Quotation.
Payment terms are net 30 days, without retention or set-off. Seller will submit invoices to
Purchaser upon each
delivery of Materials pursuant to the Agreement. Purchaser's obligation to pay Seller will
not be delayed or
conditioned upon installation of the Materials furnished pursuant to the Agreement,
Purchaser's receipt of
payment from any third-party, or any disputes between Purchaser and the Owner.
Past due amounts will accrue interest at the rate of eighteen percent (18%) per annum or the
maximum rate
allowed by law, whichever is less. Should Purchaser fail to pay when due any amount payable
to Seller under the
terms of this Agreement, after ten (10) days written notice without cure, Seller may: (a)
make demand upon
Purchaser for assurances of payment, including but not limited to, requesting immediate
payments of all amounts
then due and owing to Seller under this Agreement; and/or requesting payment in advance of
delivery of all
future amounts to become due under this Agreement; (b) suspend future deliveries; (c) file a
claim of lien and,
if applicable, a claim on bond; (d) terminate this Agreement; or (e) take such other actions
as Seller
determines are necessary to secure its right to payment.
Seller may exercise the right of set-off under this Agreement as to any sums owed by Seller
and/or its
affiliates under any other contract or agreement with Purchaser and/or its affiliates.
Purchaser agrees to pay
Seller any and all collection fees, attorneys' fees, and court costs incurred by Seller in
collecting any
amounts due under this Agreement.
If during the life of this Agreement, Purchaser's financial responsibility or credit
standing becomes impaired
or his method of paying accounts become unsatisfactory to Seller, Seller reserves the right
to require Purchaser
to make payment in advance or give satisfactory security or guarantee that the invoices will
be promptly paid
when due and if Purchaser fails to do so, Seller reserves the right to cancel this
Agreement.
- TAXES. In the absence of an exemption or resale certificate reasonably acceptable to Seller
and to the
respective taxing authority, all federal, state, and local taxes, assessments, fees, duties
and charges levied
by reason of this Agreement are in addition to the prices set forth in the Quotation and
shall be the sole
responsibility of, and paid by, Purchaser.
- LIMITED WARRANTY AND LIABILITY DISCLAIMER. Seller warrants its Materials to be free of
manufacturing defects
when used or applied in accordance with the instructions on the packaging. This warranty
does not cover standard
manufacturing variations, color variations/matching or efflorescence. Seller is not
responsible for installation
of the Materials or defective conditions caused by installation, structural movement,
substrate failure, abuse,
impact, abrasion or alteration of the Materials, earth-shifts, excessive or unforeseen site
conditions, acts of
God or application of chemicals to the Materials. Liability under this warranty, if found to
be defective, is
LIMITED to the replacement of the defective item of Materials (as purchased), or at Seller's
option, the refund
of the purchase price of the defective item of Materials. This warranty is valid for a
period of one (1) year
from the purchase of the Materials and is non-transferable. In the event of a claim under
this warranty, notice
must be given to Seller, together with original proof of purchase, at its headquarters by
sending a letter to:
Greencore USA a/s Warranties, 5 Concourse Parkway, Atlanta, GA 30328. THIS WARRANTY IS
ISSUED AND ACCEPTED IN
LIEU OF ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND OR NATURE AND EXPRESSLY
EXCLUDES LIABILITY
FOR LABOR, FREIGHT AND OTHER COSTS ASSOCIATED WITH REMOVAL AND REPLACEMENT OF THE DEFECTIVE
PRODUCT AND FOR
INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY
LOSSES DUE TO DELAYS
INCURRED BY THE ORIGINAL PURCHASER OR ANY OTHER PARTY.
Seller makes no warranty whatsoever with respect to goods, products, accessories or parts
furnished by Seller
but not manufactured by Seller, which carry only the warranty, if any, in the applicable
manufacturer's
warranties (if any) to the extent permitted by the terms of such warranty between Seller and
such manufacturer.
This warranty supersedes the warranty found at:
https://www.greencore-usa.com/product-warranty/.
- LIMITATION OF LIABILITY. Seller's liability on any claim for loss or damage arising from
this Agreement, or the
fabrication or sale of any of the Materials pursuant to this Agreement, whether based on
contract, warranty,
tort (including negligence) or other grounds, shall not exceed the price of the Materials
actually received from
Purchaser by Seller under this Agreement with regard to which such claim for loss or damage
is made. Neither
Seller nor Purchaser will be liable to the other party, or any third party beneficiary,
whether as a result of
breach of contract, warranty, tort (including negligence and strict liability) or other
grounds, for special,
consequential, incidental, punitive (if allowed by law) or other indirect damages of any
kind, including, but
not limited to loss of data, loss of profits or revenue, loss of use of the Materials
furnished by Seller
pursuant to this Agreement or any associated product, cost of capital, cost of substitute
products, facilities,
services, downtime costs, or claims, or for liquidated damages (delay or otherwise) incurred
by such party from
any third party.
- INDEMNIFICATION. To the fullest extent permitted by applicable law, each party (the
"Indemnifying Party")
agrees to indemnify, defend and hold harmless the other party and its affiliated companies
along with its
respective officers, directors, owners, employees and agents (collectively the
"Indemnitees") from and against
all claims, damages, losses, liens, causes of action, suits, judgments and expenses
(including but not limited
to reasonable attorneys' fees) of any person or entity, to the extent arising out of, any
injury, death or
destruction of property, but only to the extent caused by or arising from the negligent acts
or omission of the
Indemnifying Party, it's employees, any subcontractor, supplier or person or entity over
which it controls or
exercises control over (collectively, "Claims"); provided, that the Indemnifying
Party
shall have no obligation
to indemnify for any Claims to the extent caused by or arising from the negligence or
willful misconduct of any
Indemnitee and provided further that "Claims", for purposes hereof, shall not
include
damages, compensation or
benefits payable under any insurance policies, workers' compensation acts, disability
benefit acts, or other
employees' benefit acts.
Seller shall indemnify, defend and hold harmless the Indemnitees from and against all
claims, damages, losses,
liens, causes of action, suits, judgments and expenses (including but not limited to
reasonable attorneys' fees)
to the extent arising from any claims made by third parties that the use or sale of the
Materials infringes any
United States patent covering the Materials. Provided, however, this paragraph will not
apply in the event that
the infringement results from use of the Materials in combination with other materials,
goods, or manufacturing
processes.
- ASSIGNMENT. Neither party shall assign this Agreement or any interest herein without the
prior written consent
of the other party, and any attempted assignment, whether by operation of law or otherwise,
shall be void
without such prior written consent.
- NOTICE. Any notice required to be sent to Seller shall be in writing and sent by Certified
Mail, postage
prepaid, to the Seller's office set forth on the Quotation, or as specified in the
applicable paragraph in this
Agreement, with a copy to Seller, 5 Concourse Parkway, Suite 1900, Atlanta, Georgia 30305,
Attention: Legal
Department. Any notice required to be sent to Purchaser shall be in writing and sent by
Certified Mail, postage
prepaid, to the Purchaser's office set forth on the Quotation.
- SEVERABILITY. If any term, provision, covenant, or condition of this Agreement is held by a
court of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall
remain in full force
and effect and shall in no way be affected, impaired, or invalidated. The parties agree that
each term and
provision of this Agreement shall be construed according to its fair meaning and not
strictly for or against any
party.
- VENUE AND CHOICE OF LAW. The parties hereto agree that venue for any action brought for the
breach of or the
enforcement of this Agreement will lie in the county of the Project site described in the
Quotation. This
Agreement shall be governed by and shall be construed in accordance with the laws of the
state of the Project
site described in the Quotation, without regard to its conflicts of law provisions. AS A
MATERIAL INDUCEMENT TO
ENTER INTO THIS AGREEMENT, BOTH PARTIES WAIVE THE RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
- WAIVER. Failure or inability of either party to enforce any right hereunder shall not waive
any right in respect
to any other or future rights or occurrences.
- CORRECTIONS. Seller reserves the right to correct typographical or clerical errors appearing
in the Quotation or
other documents constituting the Agreement.
Effective August 2022
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