These General Terms and Conditions of Sale set forth hereafter (“Terms and Conditions”) apply to all orders placed by Customer with Dynobond, Inc. of 6500 Sheridan Drive, Suite 100, Buffalo, NY 14221 (hereinafter, “Dynobond” or “We”) for all products and related services including engineering services complementary to the purchase of product. The Terms and Conditions are effective as of the date of the invoice, engineer report, estimate or sales order confirmation to which it is attached (“Effective Date”), and apply to any sales on or after this date, until superseded by a new version of these Terms and Conditions.
The parties agree to be bound as follows:
1. Sales Subject to Terms and Conditions. All sales of Dynobond brand products and related accessories sold by Dynobond as well as accompanying services are by and between you, the buyer (hereinafter “Customer” or “You”) and Dynobond, and are subject to these Terms and Conditions. Dynobond reserves the right to make changes to these Terms and Conditions which shall apply to all sales from and after the Effective Date of such revised Terms and Conditions.
2. Products and Pricing May Change. Dynobond reserves the right to make changes to its products and pricing in any Estimate with ninety (90) days written notice.
3. Verification by Engineer. Dynobond may provide to customer an engineer’s report (“Report”), and/or sales and services estimate (“Estimates”). The data provided in Reports or Estimates is preliminary and provided to assist a licensed, professional engineer in its data calculations. The customer represents and warrants that it has hired or has had an opportunity to hire a licensed, professional engineer to review any Reports or Estimates and determine whether the proposed
project specifications meet all appropriate professional standards, federal, state and local requirements and codes. Any damages, costs, delays, product failure or poor product performance due to error by the professional engineer shall be the responsibility of the customer.
4. Customer Responsible for Accuracy. Dynobond’s Reports or Estimates are based upon information provided by Customer including building dimensions, location, size of system, brand of panels, number of panels etc. The information provided in the Engineer’s report, price estimate and/or project specification is based in part on (1) information provided to Dynobond by Customer or (2) information obtained from third party sources including satellite images solar, weather and wind conditions. Customer represents and warrants to Dynobond that it either has reviewed (or has had opportunity to review) all information in Reports or Estimates provided by Customer or obtained from Third Parties and verifies its accuracy in entirety. Customer shall responsible for any damages or cost changes resulting from any breach of the warranties in this
section including damages or costs resulting from erroneous information about the system, the job site, installation conditions, code requirements or installation environment shall void the warranty and Customer shall bear full responsibility for such damages and additional cost.
5. Cost of Initial Engineering Report. Dynobond may provide an initial Engineering Report at its own expense but is not legally bound to do so. Dynobond reserves the right to charge for the Initial Engineering Report provided that Dynobond provided that Dynobond and customer agree in writing to the cost of the Initial Engineering Report and the fee is based upon an hourly labor cost of $100.00 per hour for Engineering time only.
6. Change Fees. Furthermore, Dynobond reserves the right at its sole discretion to charge a change fee based upon an hourly engineering rate of $100.00 per hour for more than one revision requested by the customer to the price estimate or product specification. Furthermore, any revisions to the specification or changes in customer provided information will cancel the existing price estimate and necessitate a revised price estimate and revised timeline for product delivery and/or installation. Estimates of change fees for additional revisions can be requested in advance.
7. Estimate Confirmations. Should Dynobond decide to respond to a Customer’s request to purchase goods through a purchase order or other request, Dynobond will send to Customer a sales order confirmation on Dynobond’s form (“Sales Order Confirmation”) which shall include these Terms and Conditions.
8. Acceptance of Sales Order Confirmations. Dynobond will not be bound by a Sales Order Confirmation that are not agreed upon by customer in writing within thirty (30) days after the Sales Order Confirmation is delivered to the Customer including all of Dynobond Terms and Conditions.
9. Payment and Currency. The Purchase Price shall be paid in cash, either by wire transfer, check or other mutually agreed method. All prices in quotes, invoices and purchase orders shall be in United States Dollars. All payments for products and services shall be made in United States Dollars.
10. Advance Payment. If the Sales Order Confirmation specifies an advance payment, then Dynobond shall have no responsibility to commence efforts to fulfill Customer’s order until the payment has been received. Upon receipt of the payment for the entire amount of the Purchase Price, Dynobond will promptly ship the Product to Customer in the manner confirmed in the Sales Order Confirmation.
11. Late Payments and Interest. Payments are due at the time specified in the Sales Order Confirmation, or if not, so specified upon shipment, or net 30 days thereafter if credit has been approved for the Customer. Finance charges equal to the lesser of 1.5% per month (18% per annum) or the maximum rate permitted by applicable law may be assessed on payments received after delivery has been made by Dynobond to the shipper, from such delivery date to the date payment is received by Dynobond. No unauthorized deductions from invoices are permitted.
12. Sales Tax. Prices quoted do not include federal, state or local taxes, tariffs or surcharges applicable to the Products by Company to Customer. An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to pay and collect such taxes. Customer shall pay such amount to the Company unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
13. Title and Ownership of Product. Dynobond shall retain title to and ownership of the item purchased until the receipt of all payments arising from the business relationship with the customer. Prior to payment in full, the customer must not pawn the item or use the item as collateral for a debt or loan or otherwise grant a security interest or mortgage interest on the Product. In the event of a breach of contract by the customer, in particular in the case of payment default, Dynobond shall be entitled to reclaim the item purchased. After reclaiming and receipt of such item, Dynobond shall be authorized to sell the item, and the proceeds of sale shall be set off
against the customer’s liabilities – less reasonable costs of sale.
14. Cost of Shipping, Export, Duties and Taxes. Customer shall pay all actual shipping costs. Shipping terms are FOB Dynobond’ warehouse (or for international shipping FCA Dynobond’ warehouse). Dynobond will Pre-pay and Add, unless otherwise provided in the Customer’s purchase order and confirmed in Dynobond’ Sales Order Confirmation. In the event that actual shipping costs or duties are higher than the estimated shipping costs, for any reason beyond the reasonable control of Dynobond (including customer changes in orders, rush delivery charges, import fees, customs duties and other taxes), Customer shall be responsible for payment of such
additional amounts. It is Customer’s sole responsibility to obtain any licenses or approvals that may be required under the applicable laws of the United States, including, without limitation, the Export Administration Act and the regulations promulgated thereunder. Customer shall defend, indemnify and hold Dynobond harmless for any violation of export controls.
15. Delivery and Product Inspection. Customer is responsible for having an authorized representative inspect and sign for delivery of any order or shipment by a third party shipping company (“Third Party Shipping Company”) to verify that the shipment is complete, correct and undamaged upon delivery. In the event that there are missing, damaged or incorrect items in the shipment, please retain the items and document these issues with the Third Party Shipping Company according to the claims processing procedure of the Shipping Company. A signed delivery receipt, without notations of missing, damaged or incorrect items represents your acceptance of the complete order in perfect condition. Customer support is available to assist Customer with filing any claims and documenting any damages by calling our toll free number at 866-682-0503 from Monday to Friday from 9:00 AM to 4:30 PM Eastern Standard Time excluding national holidays.
16. Time of Delivery and Force Majeure. Any estimate by Dynobond to Customer for the cost and time of delivery of the Product is only an estimate, and time of delivery shall be automatically extended by a reasonable period of time due to unforeseen causes beyond the reasonable control of Dynobond. Dynobond shall not be in default by reason of any failure in its performance under this Agreement if such failure results from, whether directly or indirectly, fire, explosion, strike, freight embargo, Act of God or of the public enemy, war, civil disturbance, act of any government,
de jure or de facto, or agency or official thereof, material or labor shortage, transportation contingencies, unusually severe weather, default of any other manufacturer or a supplier or subcontractor, quarantine, restriction, epidemic, or catastrophe, lack of timely instructions or essential information from Distributor, or otherwise arisen out of causes beyond the control of Dynobond.
17. Special Orders. Special orders or custom products are not cancellable once material has been procured for the order.
18. Entire Agreement. The Sales Order Confirmation together with these Terms and Conditions constitute the entire contract of purchase and sale between Customer and Dynobond for the Products so ordered. No other previous or contemporaneous communication between Customer and Dynobond for such Products shall have any legal effect on either party. To the extent that Customer inserts any terms into the Sales Order Confirmation after it has been submitted by Dynobond to Customer, or if any terms in Customer’s purchase order differ from these Terms and Conditions, such terms shall be of no force or effect, unless subsequently expressly approved by Dynobond in writing.
19. Delay or Forbearance. No delay or forbearance by Dynobond in enforcing any provision of these Terms and Conditions or the terms of the Dynobond form of purchase order shall preclude Dynobond from enforcing such terms in the future.
20. Warranty. The warranty terms are set forth in the accompanying document titled product limited warranty terms and conditions. DYNOBOND MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
21. Limitation of Liability. Customer’s remedies and Dynobond’ liability under these Terms and Conditions shall be limited to either repair or replacement of the goods or refund of the purchase price, all at Dynobond’ option, and IN NO CASE SHALL DYNOBOND BE LIABLE FOR INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES. In addition, claims for damaged or defective merchandise or shortages in delivery, must be made in writing not more than five (5) business days after receipt of shipment.
22. Foreign Corrupt Practices Act and Export Controls. Customer shall comply with applicable laws and regulations relating to anti-corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act (FCPA) (15 U.S.C. §§78dd-1, et. seq.) irrespective of the place of performance, and (ii) laws and regulations implementing the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the U.N. Convention Against Corruption, and the Inter-
American Convention Against Corruption in Customer’s country or any country where
performance of this agreement or delivery of goods will occur.
23. Compliance with Export Laws. Customer acknowledges that this order and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders. Customer agrees to comply with all such laws, regulations, and orders, including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Customer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Customer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters.
24. Intellectual Property. Dynobond shall retain its ownership rights, copyright, and intellectual property rights in all illustrations, calculations, drawings, drafts, designs, inventions (whether patentable or not), tools and other documents. The Customer shall only be granted the right to use these within the contractually agreed purpose. No further use shall be permitted, including but not
limited to reproduction, distribution, publication, transformation, transfer to third parties, or other commercial use.
25. Confidentiality. The content of the Sales Order Confirmation including the Engineering Report shall be the confidential information of Dynobond (except to the extent such information is provided by Customer) and shall not be disclosed by either party or used for any purpose other than to conduct the business that is the subject of the Sales Order Confirmation.
26. Choice of Law. These Terms and Conditions and the Sales Order Confirmation are the entirety of the transaction documents and shall be construed and enforced in accordance with the laws of the State of New York.
27. Arbitration Clause. Any disputes regarding the Sales Order (other than collection of funds due and payable by Customer to Dynobond under the Sales Order Confirmation) that cannot be resolved by the Parties themselves shall be resolved by binding arbitration in Buffalo, New York conducted in accordance with the commercial arbitration rules of the American Arbitration Association pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. The arbitrator(s) in such arbitration shall be authorized and instructed to award to the prevailing Party, as part of its award,
an amount equal to the prevailing Party’s costs of arbitration, including, without limitation, reasonable attorneys’ fees. The Parties agree to informally negotiate any dispute for not less than a thirty (30) day period. Thereafter, prior to either Party filing for arbitration, such Party shall provide the other Party with not less than fifteen (15) days prior written notice of its intend to file for arbitration, in order to provide a final period in which to negotiate prior to the filing of an
arbitration demand. The arbitrator shall be instructed to enforce the rights and obligations of the Parties pursuant to the terms of these Terms and Conditions and the Purchaser’s form of purchase order, and shall not be authorized to render any finding contrary to such terms, or to the laws of the State of New York.
28. Consent to Venue and Jurisdiction. Each of the Parties hereby irrevocably consents and agrees that any legal action or proceedings brought to enforce any arbitral award granted pursuant to this Agreement or collection of unpaid amounts by Dynobond against Customer may be brought in state and federal courts located in Erie County, New York, or by Dynobond in any jurisdiction where Customer has a place of business or assets.
29. Notice. Any notice required by this Agreement or given in connection with it shall be in writing and shall be given to the appropriate Party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.