MISCELLANEOUS TERMS AND CONDITION OF SALE
These “Terms and Conditions” are incorporated by reference into all proposals and orders between Sentry Equipment & Erectors, Inc. (“Sentry”) and its customers (each a “Buyer”). Acceptance of orders by Buyer, whether oral or written, and/or delivery to Buyer is based on the express condition that Buyer agrees to all of these Terms and Conditions, and Buyer waives its right to reject them, in whole or in part. All references by Sentry to Buyer’s specifications and similar requirements are only to describe the Equipment and work covered hereby and none of Buyer’s warranties or other terms will have any force or effect. No representation, promise or term not set forth herein has been or may be relied upon by Buyer, and any terms not contained in this proposal are expressly objected to and rejected.
All proposals are for prompt acceptance by Buyer and Sentry Equipment & Erectors, Inc. (herein “Sentry”) may change and/or withdraw any proposal without advance notice, and without recourse by the Buyer. Neither this proposal, nor any modification, amendment or waiver to it, nor any cancellation, change or return of any order under it, will be binding on Sentry until agreed in writing by Sentry’s authorized agent.
All shipping prices are F.O.B. Sentry’s facility in Forest, Virginia. All shipping dates are approximate, and any time period indicated for a shipment will not commence until receipt at Sentry’s plant of complete manufacturing, shipping, and credit information. Acceptance of shipment by designated shipper, allocation of the Equipment to Buyer at premises other than Sentry’s, or delivery to Buyer’s representative or designee, whichever first occurs, will constitute tender of delivery and title to the Equipment will pass to Buyer, subject to Sentry’s right of stoppage in transit and to any interest of Sentry reserved to secure Buyer’s payment or performance. In cases where freight allowance is included in the proposal, Buyer is liable for any rate increase, and/or additional expense over the calculated allowance resulting from compliance with Buyer’s shipping instructions. In the case of any Equipment held subject to Buyer’s instructions, or Equipment for which Buyer has failed to supply shipping instructions, Sentry may invoice for the Equipment and Buyer agrees to make payment within thirty (30) days of the date of the invoice rendered. Equipment invoiced and held at any location for whatever reason will be at Buyer’s risk and Sentry may charge for (but is not obligated to carry) insurance, storage and other expenses incident to such delay at their prevailing rates. Partial deliveries shall be accepted by Buyer and paid for at the prices and upon the terms contained in the proposal. When Buyer has declared or manifested an intention not to accept delivery, no tender shall be necessary but Sentry may, at its option, give notice in writing to Buyer that Sentry is ready and willing to deliver and such notice shall constitute a valid tender of delivery. Buyer must report any shortages in shipments within ten (10) days of receipt of the initial shipment.
LOSS OR DAMAGE IN TRANSIT
Buyer may not make any deduction from any payment due hereunder by reason of loss or damage to the Equipment in transit. Upon Buyer’s written request, Sentry, in its sole discretion, may agree as a service to Buyer to process Buyer’s claim against the carrier for any loss or damage in transit.
TERMS OF PAYMENT
Terms are stated on the proposal or on Sentry’s invoice document. Sentry may make partial shipments of the Equipment and payment for that portion shall be due as provided on Sentry’s invoice document based on time of shipment. If, at any time or for any reason, Sentry has cause to question Buyer’s ability to perform, Sentry may demand such assurances of Buyer’s performance as Sentry deems necessary in its discretion, including full payment in advance for all shipments. In the event of Buyer’s bankruptcy or insolvency, or in the event of any proceeding brought against Buyer, voluntarily or involuntarily, under bankruptcy or any insolvency laws, Sentry may cancel any order then outstanding and receive reimbursement for its costs and expenses incurred, plus a reasonable overhead charge. If Buyer fails to make payment for Equipment when due, Buyer’s account will be deemed delinquent and Buyer will be liable to Sentry for a service charge of twenty-four percent (24%) per annum or the maximum allowed by law, whichever is greater, on any unpaid amount; provided that, in addition to the foregoing, Sentry may also suspend its performance, cancel any order then outstanding, receive reimbursement for its costs and expenses incurred, and to collect, without limitation, any sums due and owing, and all damages resulting from Buyer’s default. Buyer will be liable to Sentry for all costs and expenses of late payments, default, demands, and collection, including court costs and reasonable attorneys’ fees.
CANCELLATION , CHANGES , AND RETURNS
In the event of a proper cancellation, change or return request from Buyer under this Agreement, Sentry may, at its option: (A) charge Buyer for any costs Sentry incurred prior to or as a result of such cancellation, change or return; and/or (B) revise its prices and delivery dates to reflect such change. Reference “Cancellation Policy”.
DELAY IN OR PREVENTION OF PERFORMANCE
Sentry will not be liable for any expense, loss or damage resulting from delay in delivery or prevention of performance caused by any event beyond Sentry’s reasonable control (“Force Majeure”), including without limitation: fire; flood; storm; act of God; strike, labor dispute or labor shortage; lack of or inability to obtain materials, fuels, supplies or equipment; terrorism; civil unrest or riot; accident; transportation delay or shortage; act or failure to act of any government or of Buyer; or any other cause whatsoever, provided that such cause is beyond Sentry’s reasonable control. Sentry shall inform Buyer of any Force Majeure event within a reasonable period of time following the occurrence of a Force Majeure event.
If Buyer requests a deferred delivery and Sentry approves in writing, Sentry may charge Buyer for the completed portion of this Agreement and warehouse all completed Equipment at Buyer’s expense and risk of loss. As to any uncompleted portion of this Agreement, Sentry may, at its option, cancel said uncompleted portion or revise its prices and delivery schedules on the portion not completed to reflect its increased costs and expenses attributable to the delay.
If any claim is made against Buyer based on a claim that the Equipment, or any party thereof, constitutes an infringement of any U.S. Letter Patent, Buyer will notify Sentry immediately. Sentry may, with Buyer’s assistance, if required, but at Sentry’s expense, conduct settlement negotiations or the defense of any resulting litigation. If the Equipment, or any part thereof, is held to infringe any U.S. Letter Patent, and their use is enjoined or, if as a result of a settlement, Sentry deems their continued use inadvisable and provided that Buyer has given Sentry the immediate notice required above and has used the Equipment only in accordance with the provisions of this Agreement and has not altered or changed it in any material way, Sentry may, at its option and expense, procure for Buyer the right to continue using the Equipment, modify the Equipment so that it becomes non-infringing, replace the Equipment, or parts thereof, with non-infringing Equipment or parts of substantially equal quality, or accept return of the Equipment and refund the purchase price, less reasonable depreciation. The foregoing states Sentry’s entire liability for patent infringement.
CONTROLLING LAW AND CONSENT TO VENUE
This Agreement and all rights and obligations hereunder will be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, U.S.A., without regard to its conflicts of law’s provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties irrevocably agree that the exclusive venue for all disputes between the parties will be the state and federal courts of Lynchburg, Virginia, U.S.A., to which jurisdiction and Buyer hereby irrevocably submits and waives any objection thereto. Buyer waives any objection or defense that Buyer is not personally subject to jurisdiction of the state and federal courts of Lynchburg, Virginia, U.S.A.; that the venue of the action is improper; and that the action, suit or proceeding is brought in an inconvenient forum. In addition to any other mode of service of process authorized by law, Buyer consents to service of process by registered or certified mail.
COMPLIANCE WITH LAWS
Buyer represents and warrants, in connection with the transactions contemplated by the proposal, and any other agreement contemplated by or entered into pursuant to the proposal, that Buyer will comply with all governmental laws, regulations and orders that may be applicable to Buyer, including without limitation all laws and regulations regarding export controls, economic sanctions and trade embargoes, anti-boycott restrictions, anti-money laundering laws and anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act (as amended) and the United Kingdom Bribery laws (collectively, the “Applicable International Trade and Anti-Corruption Laws”). Buyer acknowledges and confirms that it and its officers, directors, employees, agents, contractors, designee"s and/or any other party acting on its behalf (collectively “Related Parties”) are familiar with the provisions of the Applicable International Trade and Anti-Corruption Laws. Buyer agrees to indemnify, defend and hold harmless Sentry and its employees from and against any and all claims, demands, costs, penalties and fines arising in connection with any alleged breach by Buyer or any of its Related Parties of this paragraph. Sentry may terminate this Agreement in its entirety, without liability to Buyer, if Sentry believes in good faith that Buyer or any of its Related Parties has violated or intends to violate this paragraph.
No waiver of any provision, right or remedy contained in this herein or on the face of the proposal, is binding on, or effective against, Sentry unless expressly set forth in writing and signed by Sentry’s authorized agent. Buyer expressly agrees that no right or remedy provided for herein or on the face of the proposal can be waived through course of dealing, course of performance or trade usage. Buyer expressly agrees and acknowledges that reliance on any waiver without Sentry’s written consent is unreasonable. Waiver by Sentry of any breach will be limited to the specific breach so waived and will not be construed as a waiver of any subsequent breach. Sentry’s approval or consent to any action proposed by Buyer will not be considered an agreement to the propriety, fitness or usefulness of the proposed action, and will not affect Buyer’s obligation to strictly comply with these terms and conditions and any set forth on the proposal.
Buyer may not assign this Agreement or any rights or obligations hereunder without Sentry’s prior written consent. Any attempted assignment in contravention of this paragraph is void. These terms and conditions and those set forth on the face of the proposal, are enforceable, however, against Buyer’s successors and permitted assigns.
Sentry’s prices do not include sales, use, excise or other similar taxes. Consequently, in addition to the price specified herein, Buyer will pay the amount of any present or future such tax, unless Buyer, at the time of sale, provides Sentry with all tax-exemption certificates required by taxing authorities.
CUMULATIVE NATURE OF REMEDIES
Sentry’s remedies are cumulative and in addition to any other remedies available to Sentry, whether at law, equity or otherwise.
If any provision or part of a provision contained in these terms and condition or on the face of the proposal is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions will remain in full force and effect. In the event any of these terms and conditions of any of those set forth on the face of the proposal violates or is prohibited by the law of the jurisdiction into which the Equipment will be shipped, such term(s) or condition(s) shall be deemed severed here from and unenforceable.
No provision of these terms and conditions or those on the face of the proposal may be construed against Sentry as the drafting party.
Buyer agrees that all of its employees and independent contractors who might use, operate, maintain, repair or have access to the Equipment, will be thoroughly and properly trained in how to safely use, operate, maintain, and repair the Equipment, as the case might be.
LIMITATION OF LIABILITY
In no event, whether as a result of breach of contract, warranty, tort (including negligence) or strict liability, will Sentry be liable for any punitive, special, incidental or consequential damages, including without limitation loss of profit, loss of use of the equipment, loss of production, downtime, and / or damage to other property. Sentry will not be liable for, and Buyer agrees to indemnify, defend and hold harmless Sentry from and against, any and all damages, liabilities, costs, expenses (including attorney’s fees and opinion witness fees) arising from personal injury, disease, property damage or death that resulted, in whole or in part, from Buyer’s negligence or intentional wrongful act. No claims of any nature, whether based on contract, tort, strict liability or otherwise may be brought against sentry more than twelve (12) months after original delivery of the equipment to Buyer. In no event shall Sentry’s liability to Buyer under any theory of recovery or any type of cause of action whatsoever be more than the purchase price of the Equipment.
Buyer agrees to release, indemnify, defend and hold harmless Sentry and Sentry’s directors, officers, employees and insurers, from and against any and all damages, losses, liabilities, claims, lawsuits, complaints, actions, costs or expenses (including attorney’s fees, opinion witness’ fees, litigation costs and court costs), including those resulting from bodily injury, disease or death, arising, in whole or in part, from the Buyer’s: (i) failure to purchase safety equipment recommended by Sentry, (ii) failure to properly maintain the Equipment and all of its safety equipment; and/or (iii) failure to properly train Buyer’s employees and independent contractors who will use or otherwise have access to the Equipment . Buyer agrees to accept, without any recourse against Sentry, all of the risks against which Buyer indemnifies Sentry herein.
All non-public, confidential or proprietary information of Sentry, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Sentry 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 an order is confidential and may not be disclosed or copied unless authorized in advance by Sentry in writing. Upon Sentry’s request, Buyer shall promptly return all documents and other materials received from Sentry. Sentry 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.
MISCELLANEOUS TERMS AND CONDITION OF SALE
Any changes to the design due to non-disclosure of obstructions in the customer’s facility may incur extra cost at Sentry’s discretion. Costs incurred may include, but not be limited to engineering redesign and possibly a site visit to the customer’s facility.
If the customer’s site standard specifications are different than what is listed in this proposal, those differences may result in changes to both system costs and delivery schedule.
If it is the customer’s intent to purchase any or all of the equipment or services outlined in this Proposal, the Purchase Order must reference current Proposal number noted in the header of this document. By doing so, the customer agrees to the content, terms and specifications of this Proposal unless otherwise noted in writing to the author of this document.
Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination, completion, or expiration of any order, including, but not limited to, the following provisions: Compliance with Laws, Confidential Information Governing Law, Submission to Jurisdiction, and Survival.
Conveyor / Machinery / Controls
Order Processed and in Engineering – Refund Amount 75%
Order Released from Engineering – Refund Amount 50%
Order Fabricated but Assembled – Refund Amount 25%
Order Assembled – Refund Amount 0%
If the Service has not been performed and Travel and Living Arrangements have not
been booked, the customer is entitled to a full refund.
If the Service has not been performed and Travel / Living Arrangements and Rental
Equipment have not been booked, the customer is entitled to a full refund.