Acceptance. The following are the Terms and Conditions upon which G.D. Roberts & Co., Inc. (“G.D. ROBERTS”) agrees to sell and/or deliver the product(s) (“Product”) to Buyer/Purchaser (“Buyer”). Provisions and conditions of Buyer’s purchase which are in any way inconsistent with or in addition to the provisions of these Terms and Conditions shall be inapplicable and not be binding upon G.D. ROBERTS unless specifically agreed to by G.D. ROBERTS in writing signed on behalf of G.D. ROBERTS by its authorized representative. No contract shall be formed until G.D. ROBERTS issues a Sales Order Acknowledgement.
Delivery, Transfer of Title and Risk of Loss. G.D. ROBERTS will make available for pick-up all Products for the chosen carrier at G.D. ROBERTS’ office where at such time all title, liability and risk of loss to the Products shall pass to Buyer upon receipt by carrier. Unless otherwise agreed in writing, Buyer will be responsible for all shipping charges, premiums for freight insurance, and other transportation costs outside of the contiguous United States of America. Claims against a carrier for damage caused during shipment must be made by Buyer. The estimated shipping date will be as set forth in G.D. ROBERTS’ Sales Order Acknowledgement or Quote.
Payment. Terms are Net 30 days from the date of G.D. ROBERTS’ invoice. Late payments are subject to a 1.5% per month late charge. G.D. ROBERTS may, at its discretion, require an up-front payment, entire or partial, in the case of orders for custom manufactured or modified Products or international orders.
CANCELLATIONS. In the event Buyer cancels Buyer’s order in whole or in part, or such contract is canceled by G.D. ROBERTS because of default by Buyer, then Buyer shall pay G.D. ROBERTS by reason of such cancellation or default for all damages sustained, including completed units, shipped or unshipped, at the current price applicable to the total quantity completed or uncompleted at time of default. G.D. ROBERTS may charge Buyer a restocking fee of up to 20% of the original order price for cancellations. G.D. Roberts will not cancel orders for custom manufactured Products after the Sales Order Acknowledgement is sent to Buyer.
RESCHEDULING. Buyer may reschedule delivery (one time only) of Products ordered hereunder for delivery up to 30 days later than the original delivery date set forth in G.D. ROBERTS’ Purchase Order or Quote without penalty, upon written notice to G.D. ROBERTS at least 30 days prior to the original estimated delivery date. Buyer agrees that rescheduled deliveries may incur storage and carrying charges for which Buyer is responsible.
CHANGES. No changes may be made to the order without G.D. ROBERTS’ written consent.
North America. As a condition to receiving this warranty, Buyer shall be required to register their Product at https://powergisticspk.wpengine.com/faq/product-registration-form/. Provided Buyer registers its Product and is located in North America, G.D. ROBERTS warrants the Product will be free from Defect in material and workmanship for the lifetime of the Product. This warranty shall not apply to any Product or part thereof that is defective, or unworkable due to abuse, mishandling, misuse, accident, alteration, negligence or improper installation. Buyer’s sole remedy for breach of warranty shall be limited to the replacement or repair of a Product part, at the discretion of G.D. ROBERTS, of any Product found by G.D. ROBERTS to be defective and covered by the warranty set forth in this Section 7(a) and not to exceed the purchase price for the order. The lifetime of the Product shall be ten years. “Defect” shall mean any characteristic of the Product which hinders its usability for the purpose for which it was designed and manufactured, except Defect does not include obsolescence and normal wear and tear. Provided Buyer registers the Product, G.D. Roberts will also pay for standard shipping costs for shipping within the contiguous United States of America to ship a replacement Product or pieces.
Outside of North America. As a condition to receiving this warranty, Buyer shall be required to register their Product at https://powergistics.co.uk/product-registration/. Provided Buyer registers its Product and is located outside of North America, G.D. ROBERTS warrants that the Product hardware will be free from Defect in material and workmanship for the lifetime of the Product and that the Power Strip (defined below) will be free from Defect in material and workmanship for one (1) year. This limited warranty shall not apply to any Product or part thereof that is defective, or unworkable due to abuse, mishandling, misuse, accident, alteration, negligence or improper installation. Buyer’s sole remedy for breach of warranty shall be limited to the replacement or repair of a Product part, at the discretion of G.D. ROBERTS, of any Product found by G.D. ROBERTS to be defective and covered by the warranty set forth in this Section 7(b) and not to exceed the purchase price for the order. This warranty does not include the cost of labor to repair any defective Product. The lifetime of the Product shall be ten years. “Power Strip” shall mean the portion of the Product that contains the power-cable and provides electricity to the Product.
THE WARRANTY SET FORTH IN THIS SECTION 7 IS EXCLUSIVE AND IN SUBSTITUTION FOR, AND G.D. ROBERTS HEREBY DISCLAIMS, ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OTHER PERSON, FIRM OR CORPORATION IS AUTHORIZED TO ASSUME FOR D. ROBERTS ANY OTHER LIABILITY IN CONNECTION WITH THIS SALE.
TAXES. In the event any sales tax, manufacturer’s tax, or other tax is applicable to any shipment made on Buyer’s order, such tax shall be added to the selling price and shall be paid by Buyer.
Limitation of Liability. In no event shall G.D. ROBERTS be liable for indirect, incidental, consequential, special, or punitive damages of any kind or nature arising out of or relating to these Terms and Conditions or connected with or resulting from the manufacture, sale, delivery, resale, repair, replacement, or use of any Products or the furnishing of any service or part thereof, whether such liability is based on contract, tort, negligence, strict liability or otherwise, even if such party had been warned of the possibility of such damages.
The cumulative liability, if any, of G.D. ROBERTS for direct damages arising under any provision of these Terms and Conditions or any contract formed pursuant hereto and under any theory of liability with respect to the Product, is limited to an amount not to exceed the price paid by Buyer for the particular Product giving rise to the liability. The right to recover damages within the limitations specified in this Section 9 is Buyer’s exclusive alternative remedy in the event any other contractual remedy fails in its essential purpose.
FORCE MAJEURE. G.D. ROBERTS will not be in default with respect to these Terms and Conditions or any contract formed pursuant hereto because of any failure or delay if the failure or delay is due to any occurrence beyond its reasonable control, including acts of God, acts of government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, civil commotion, war or war-like operation, acts of terrorism, invasion, military or usurped power, sabotage, and severe weather condition.
INDEMNIFICATION. Buyer hereby specifically agrees to hold G.D. ROBERTS harmless and indemnify G.D. ROBERTS against any and all claims for damages or profits, and for all costs and attorney’s fees incurred by G.D. ROBERTS resulting from any suit or suits arising from any Product claims or alleged infringement of patents, designs, copyrights or trade-names made as a result of Buyer’s alteration of the Product with respect to all goods manufactured either in whole or part to Buyer’s specifications.
ASSIGNMENT. Buyer shall not assign in whole or in part any of its rights and obligations with respect to these Terms and Conditions or any contract formed pursuant hereto without the express written consent of G.D. ROBERTS
Attorneys’ Fees. If either G.D. ROBERTS or Buyer retains legal counsel to enforce any of these Terms and Conditions, or to recover damages from the other, arising from the other’s alleged breach of these Terms and Conditions, or the other commences a suit against G.D. ROBERTS or Buyer for any alleged breach of contract that is not successful, then the other party shall pay the reasonable attorneys’ fees together with cost of suit at both trial and appellate levels of either G.D. ROBERTS or Buyer, as the case may be.
Applicable Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Wisconsin, without regard to its conflict of laws principles or rules of construction concerning the draftsman hereof. Any controversy, claim or dispute arising out of or relating to this Agreement or the relationship, either during the existence of the relationship or afterward, between the parties hereto, their assignees, affiliates, attorneys, or agents, shall be litigated solely in state court in Dane County, Wisconsin or the United States District Court for the Western District of Wisconsin. Each Party (1) submits to the jurisdiction of such court, and (2) waives the defense of an inconvenient forum. The application of the U.N. Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.
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