1. APPLICATION OF CONDITIONS.
1.1. The following terms and conditions shall govern the Contract between Seller and Buyer.2. DEFINITIONS.
2.1. The following terms have the meanings assigned to them:
- “Seller” means BayWa r.e. Solar Systems, LLC;
- “Buyer” means the person, or employer of the person, who accepts the quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by Seller;
- “Contract” means the contract for the purchase and sale of the Goods under these terms and conditions;
- “Goods” means the goods (including any installment or any parts for them), which the Seller is to supply in accordance with these terms and conditions.
- “Special Order” means an order for Goods in which Seller needs to place a purchase order with manufacturer that is for custom product, or for product not normally stocked.
- “Delivery Date” means the date on which the Goods are to be delivered as stated in Buyer’s order and accepted by Seller.
3. REPRESENTATIONS AND WARRANTIES.
3.1. The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in writing. Buyer acknowledges that it does not rely on, and waives any claim for breach of any such unconfirmed representation.
3.2. The Goods shipped by Seller to Buyer may be covered by a Manufacturer’s Warranty, which Warranty is not affected by Seller’s Terms and Conditions. SELLER DOES NOT WARRANT THAT THE GOODS ARE FREE FROM ANY CLAIMS OF INFRINGEMENT AND MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
3.3. Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alternation without notice and do not constitute offers to sell the Goods, which are capable of acceptance.
3.4. By accepting these terms and conditions of sale Buyer represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Contract and that the Contract is a valid and legal agreement binding on Buyer and enforceable in accordance with its terms. The Buyer understands that its employees may have the ability to place and pay for orders by several methods, including online, and assumes full responsibility for its employees’ activities and internal controls that govern them.4. ORDERS AND SPECIFICATIONS.
4.1. Acceptance. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorized representative. This acceptance will be effective only if the Buyer accepts all its terms.
4.2. Cancellation. Orders may be canceled up to 24 hours before shipment. If an order is canceled after this time Buyer is responsible for any costs incurred for processing order, such as the costs of picking, packing, and restocking the order.
4.3. Special Orders. No special order which has been accepted by Seller may be cancelled by the Buyer except with the agreement in writing of Seller and on the terms that Buyer shall indemnify the Seller in full against any loss (including loss of profit), costs (including the cost of labor and materials), damages, charges and expenses incurred by Seller as a result of cancellation.
5.1. The price of the Goods shall be the price as stated on the Sales Order Acknowledgment Form, valid for 30 days from the date listed on the Sales Order Acknowledgment Form except as modified by Section 5.2 of this Contract.
5.2. Seller reserves the right, by giving notice to the buyer at any time before shipping, to increase the price of Goods to reflect any increase in cost to the Seller, which is due to any factor beyond the control of the Seller, or due to any change in delivery dates or quantities which is requested by the Buyer.
5.3. Except as stated under the terms of any Sales Order Acknowledgment Form, or agreed to in writing by Seller and Buyer, the Seller’s charges are not inclusive of charges for packaging and transport.
5.4. The prices are exclusive of any taxes. Buyer agrees to pay any taxes that are payable or assessed in connection with Buyer’s order.
5.5. Buyer shall provide Seller with a Tax Exempt Certificate for each state in which Buyer has tax-exempt status.6. PAYMENT.
6.1. Seller shall invoice Buyer upon shipment of the Goods by Seller or pick-up of the Goods by Buyer. The invoice shall be due upon receipt and, except for any terms of credit extended to Buyer under any Credit Agreement entered into by Seller and Buyer, Buyer shall pay in full for the Goods as invoiced.
6.2. Past Due Accounts. Interest shall accrue on any past due invoices at the rate of 18% per year (1.5% per month) or the maximum amount allowable under the laws of the State of New Mexico applicable at the time, whichever amount is higher.7. DELIVERY.
7.1. Shipment Terms. All shipments are F.O.B. warehouse from which the material is shipped.
7.2. Delivery Date. The Delivery Date is approximate only and time for delivery shall not be of essence to the Contract unless previously agreed by the Seller in writing. Goods may be delivered in advance of the Delivery Date.
7.3. Failure to Deliver Entire Order or Portion of Order. If Seller fails to deliver Buyer’s entire order or a portion thereof within 30 days of the Delivery Date, for a cause not attributable to Buyer, and other than for reasons outside of Seller’s reasonable control (See Section 13.3 Force Majeure), Buyer’s sole remedy shall be the right to cancel the order or the undelivered portion of the order without payment of any cancellation charges.
7.4. Packing and Shipping – Seller will package all Goods in accordance with its standard procedures unless Buyer provides specific written instructions, in which case Buyer agrees to pay for additional costs incurred by Seller including the costs of material and labor to package Goods.8. TITLE AND RISK OF LOSS.
8.1. Title and Risk of Loss. Title and risk of loss shall pass to Buyer at the point of Seller’s delivery to the freight carrier.
8.1.1. Seller may retain a security interest in the Goods.
9. SECURITY INTEREST.
9.1. Buyer hereby grants to the Seller a security interest in the Goods sold to the Buyer under this Contract and any proceeds therefrom (including accounts receivable), until payment in full for the Goods has been received by Seller. The Buyer shall sign and deliver to the Seller any document to perfect this security interest that the Seller reasonably requests.10. INSPECTION.
10.1. Buyer shall inspect all shipments at the time of delivery for any noticeable defects and/or shortage of Goods. All noticeable defects, damage, and/or shortages shall be indicated on the “bill of lading” or “delivery receipt”.
10.2. Seller shall be under no liability for any noticeable defects, damages or shortages that would be apparent to Buyer upon a reasonably careful inspection, unless the terms of Section 9.1 of this Contract are adhered to.
10.3. Nothing in Sections 9.1 and 9.2 shall be understood to modify or replace the terms set forth in Sections 7.1 and 8.1 with respect to Title and Risk of Loss.11. RETURN OF GOODS.
11.1. For the return of “new” and “unused” Goods, Buyer must obtain a Return Merchandise Authorization (RMA) number or form from Seller within 60 days of purchase. Product returned with an RMA number or form must be unused and in its original packaging.
11.2. Buyer agrees to pay Seller a 15% restocking fee plus the original shipping charges for any “new” and “unused” Goods that Buyer is authorized to return.
11.3. Buyer is responsible for the loss of or damage to Goods until such time as Seller has taken delivery of such returned Goods, whether or not Buyer has obtained an RMA number or form from Seller.12. BUYER’S DEFAULT
12.1. Upon failure of Buyer to pay any amounts due to Seller, or in the event of any breach or anticipated breach by Buyer of any Contract with Seller, or if Buyer shall either (i) become insolvent, (ii) call a meeting of its creditors, or (iii) make any assignment for the benefit of creditors, or if (iv) a bankruptcy, insolvency, reorganization, receivership or reorganization proceeding shall be commenced by or against Buyer, then, in each such occasion, Seller may, at its sole discretion, opt to (1) cancel this and any other Contract with Buyer (without waiving any of Seller's rights to pursue any remedy against Buyer); (2) claim return of any Goods in the possession of Buyer, and enter Buyer’s premises (or the premises of any associated company or agent where such Goods are located), without liability for trespass or any alleged damage, to retake possession of such Goods; (3) defer any shipment hereunder; (4) declare forthwith due and payable all outstanding bills of Buyer under this or any Contract; and/or (5) sell all or part of the undelivered Goods, without notice at public and/or on private sale, while Buyer shall be responsible for all costs and expenses of such sale and be liable to Seller for any shortfall in the discharge of the amounts due to Seller.
13. LIMITATION OF LIABILITY.
13.1. Seller’s total liability in contract, tort or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
13.2. In no event shall Seller be liable to the Buyer for any consequential, incidental, indirect or special damages of any kind whatsoever in connection with this Contract.14. MISCELLANEOUS.
14.1. Waiver. No waiver by the Seller of any breach of this Contract shall be considered a waiver of any subsequent breach of the same or any other provision.
14.2. Severance. If any provision of this Contract is held to be invalid or unenforceable, in whole or in part, the other provisions shall remain in full force and effect.
14.3. Force Majeure. If a either party is prevented from fulfilling its obligations under this Agreement by reason of an event or circumstance beyond the control of the party that party shall not be deemed to be in breach of its obligations under the Agreement, on condition that the party 1) notifies the other party of the event or circumstance, and 2) uses reasonable efforts to perform its obligations.
14.4.1. Seller may assign the Contract or any part of it to any person, firm or company.
14.4.2. Buyer shall not be entitled to assign the Contract or any part of it with the prior written consent of Seller.
14.5. Attorney’s Fees. Buyer agrees to indemnify Seller for any costs, including attorneys’ fees, expenses, court costs, and collection agency costs incurred by Seller to collect any amounts owed to it by Buyer under the Contract.
14.6. General Indemnification. Buyer agrees to defend and indemnify BayWa r.e. and its affiliates, members, officers, employees and contractors (“Indemnitee”) against any and all claims or actions brought by against an Indemnitee arising from Buyer’s own negligence or willful misconduct.
14.7. Governing Law and Jurisdiction. Any dispute arising out of this Contract shall be governed by and construed in accordance with the laws of the State of New Mexico and the parties agree to submit to the jurisdiction of the United States Court for the District of New Mexico or if there is no federal subject matter jurisdiction to the state Courts of New Mexico for any proceeding arising out of this Contract.
The receipt by Seller of Buyer’s purchase order shall be deemed to be an acceptance of these Terms and Conditions. No modification of these Terms and Conditions shall be binding upon Seller unless agreed to in writing by Seller.