ZEP STANDARD TERMS AND CONDITIONS OF SALE
1. SCOPE. These Standard Terms and Conditions of Sale ("Terms and Conditions"), apply to all quotations and sales of products and services ("Products") by Acuity Specialty Products, Inc. (d/b/a: Zep Sales & Service, Selig Industries, and Niagara National) and its subsidiaries: (1) Amrep, Inc. (d/b/a: Zep Commercial Sales & Service and Zep Professional); (2) Zep Vehicle Care Inc.; (3) New Wave Industires Ltd.; (4) Alex C Ferguson LLC.; (5) PureChem Products Inc (collectively "Zep"). All quotations are valid for a period of 30 days, unless otherwise specified.
2. ACCEPTANCE. If this writing differs in any way from the terms and conditions of Customer's order or if this writing is construed as an acceptance or as a confirmation acting as an acceptance, then Zep's acceptance is EXPRESSLY MADE CONDITIONAL ON CUSTOMER'S ASSENT TO ANY TERMS AND CONDITIONS CONTAINED HEREIN THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED IN CUSTOMER'S WRITING. Further, this writing shall be deemed notice of objection to such terms and conditions of Customer. If this writing is construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Customer's acceptance of the Products shall manifest Customer's assent to these Terms and Conditions. No addition to or modification of these Terms and Conditions will be effective unless set forth in writing and accepted in writing by Zep.
3. SHIPMENT; TITLE AND RISK OF LOSS. All orders for Products ("Orders") will be shipped FOB at the shipping point indicated on the invoice using a carrier approved by Zep. Unless otherwise indicated on the Order or invoice, the shipping cost will be prepaid by Zep and added to the amount of the invoice. Unless otherwise agreed by Zep in writing, title to and risk of loss of the Products shall pass to Customer upon delivery of Products to a carrier at Zep's facility notwithstanding any agreement to pay freight or insurance charges.
4. PAYMENT TERMS. All payments are due net 30 days from date of invoice, unless otherwise specified in the invoice. Customer's failure to make payment when due will be a material breach of these Terms and Conditions. All invoices not paid when due will be bear interest at the lesser of (i) the maximum interest rate permitted by law and (ii) 1.5% per month until paid in full. Payments for all export shipments will be made by prepaid electronic wire transmission or credit card. Customer shall have no right to withhold or offset any amount due Zep because of any claim by Customer against Zep pursuant to the Order or any other order or agreement.
5. CREDIT; SUSPENSION OF PERFORMANCE; COLLECTION. Zep shall have the sole right of credit approval or credit refusal for its Customers in all cases. If in Zep's judgment, Customer's financial position does not justify the terms of payment specified, Zep may require full or partial payment prior to shipment of the Products. If Customer defaults in any payment obligations, Zep, at its option, may defer further shipment of Products to Customer until Customer re-establishes satisfactory credit, or Zep may cancel the unshipped portion of the Order without any liability on the part of Zep for failure to ship. Customer agrees to furnish Zep with all requested credit information. Customer agrees to pay reasonable attorney fees to Zep for collection of nonpayment of any invoices.
6. TAXES. Federal, state, or local taxes, including without limitation sales and/or use taxes, VAT taxes, GST taxes, transfer taxes or any similar tax are not included in the quoted price for the Products, will be separately set forth in the invoice and will be paid by Customer. Customer will provide Zep with all applicable reseller exemption certificates.
7. WARRANTY. Zep warrants only that all Products manufactured by Zep shall be free from defects in material and workmanship; provided, however, that this warranty shall be limited to Products found to be defective within a period of 90 days from the date of shipment ("Warranty Period"). Products which are not manufactured by Zep shall carry only the warranty offered by the original manufacturer, to the extent such warranty may be transferred to Customer, and no warranty by Zep. Customer's sole and exclusive remedy for any liability of Zep of any kind, including (a) warranty whether contained in these Terms and Conditions of Sale, or in any terms additional or supplemental hereto agreed to by the parties, (b) contract, (c) negligence, (d) tort, or (e) otherwise, is limited to the repair or replacement by Zep of those Products which an examination by Zep reveals to be in breach of warranty during the Warranty Period, or at Zep' option to refund to Customer the money paid to Zep by Customer for such Products. Zep will have no obligation to remedy defects unless, within the Warranty Period, Customer gives Zep written notice of its claim. In no event shall Zep incur any obligation to repair or replace Products that are determined by Zep to be defective due to Customer misuse, or due to use not in accordance with applicable labeling. EXCEPT FOR THE EXPRESS WARRANTY STATED HEREIN, ZEP DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER ORAL, WRITTEN, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. The return of Products that are subject to warranty claims is subject to the terms of Section 12 of these Terms and Conditions.
8. DELIVERIES. Zep will use reasonable efforts to fill this Order in accordance with the estimated shipping date, but will not be responsible for any delays in filling this Order nor liable for any losses, costs, damages, expenses or liabilities resulting from such delays, and this Order will not be subject to cancellation for such delays. Zep reserves the right to make either early shipment or partial shipments and to invoice Customer accordingly.
9. EXCUSABLE DELAYS. Zep shall not be liable for loss, damages, detention, or delays resulting from causes beyond its reasonable control including but not limited to strikes, restrictions of the United States Government or other governments having jurisdiction, delays in transportation, inability to obtain necessary labor, materials, or manufacturing facilities, fires, floods, or other natural disasters.
10. INSTALLATION/SERVICE; INDEMNIFICATION. Customer will install any Products requiring installation, unless otherwise agreed to in writing with Zep. Customer will indemnify, defend and hold Zep harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees), regardless of the theory of liability, incurred by or threatened against Zep in connection with any modifications to the Products by Customer, the incorporation of Products into any product, the extension of any warranties beyond those provided herein, or any other acts or omissions of Customer related to the sale or distribution of the Products.
11. CANCELLATION. Cancellation of Orders by Customer is not acceptable without the express written consent of Zep. All cancelled Orders will be subject to cancellation charges, which will include all expenses incurred by Zep and lost profits and other consequential damages on the cancelled Order.
12. RETURNS. Customer has 90 days from the date of sale to request a return. Products must be in new re-sellable condition. If Products are dirty, damaged or otherwise in less than new condition the Products will not be approved for return. Chemical Products that have been opened are not eligible for return. Products cannot be past expiration date or older than 12 months whichever is applicable.
13. LIMITATION OF LIABILITY. ZEP WILL NOT BE LIABLE FOR ANYLOST PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER ARISING UNDER WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE OF THE PRODUCTS OR LOSS OF GOODWILL. In no case will Zep's liability exceed the amount paid to Zep by Customer for the specific Products giving rise to such liability. THE LIMITATIONS OF LIABILITY IN THIS SECTION 13 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. EXPORT SALES. Zep will not export or deliver any products, technical information, data, and/or equipment outside of the United States of America, if such export or delivery is then prohibited or restricted by any law or regulation of the federal government of the United States of America. Customer will comply with all applicable export and re-export control laws and regulations, including without limitation, the Export Administration Regulations (15 C.F.R. Parts 730, et seq.) maintained by the U.S. Department of Commerce and the Office of Foreign Assets Control Regulations (31 C.F.R. Chapter V) of the U.S. Treasury Department. Specifically, Customer will not, directly or indirectly, sell, export, re-export, transfer, provide, divert, loan, lease, consign, or otherwise dispose of goods, services, software, source code, or technology received in connection with this Order to any person, entity, or destination prohibited by the laws or regulations of the federal government of the United States of America, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
15. COMPLIANCE WITH FAIR LABOR STANDARDS ACT. The Products manufactured by Zep were produced in compliance with the Federal Fair Labor Standards Act of 1938, as amended. Zep hereby certifies that the Products manufactured by Zep were manufactured in compliance with all applicable requirements of the Fair Labor Standards Act as amended, and of the regulations and orders of the United States Department of Labor. Zep considers Orders that are subject to these Terms and Conditions as not being subject to any government contract provisions, including but not limited to, Armed Services Procurement Regulations.
16. GOVERNING LAW. All matters involving the validity, interpretation, and application of these Terms and Conditions of Sale will be controlled by the laws of the State of Georgia, United States of America. The parties disclaim any applicability of the U.N. Convention on the International Sale of Goods to the Order. All suits, actions, or other proceedings arising out of or relating to the Order or the subject matter thereof shall be brought only in Fulton County, Georgia. Customer hereby consents to the jurisdiction of the state and Federal courts sitting in Fulton County, Georgia, or such other venue selected by Zep, and agrees to appear in any such action upon written notice thereof.
17. CLERICAL ERRORS. All stenographic and clerical errors by Zep are subject to correction by Zep.
18. TERMINATION. Zep may terminate this Order immediately by written notice to Customer without liability or further obligation hereunder if Customer breaches any provision, term or condition of the order or these Terms and Conditions.
19. MISCELLANEOUS. The headings used throughout are for convenience only and will be disregarded for the purpose of construing and enforcing these Terms and Conditions. Failure of Zep to enforce any of the terms, conditions and limitations contained in these Terms and Conditions shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein, and the failure of Zep to exercise any rights arising from default of Customer or otherwise shall not be deemed to be a waiver of such right or any other right.