Terms And Conditions Of Sale
GREENTEK SOLUTIONS, LLC (“GREENTEK”)
Controlling Terms; No Amendment: The following Terms and Conditions of Sale (these “Terms“) shall apply to all sales of goods (“Goods“) by GreenTek (or any affiliate), to any customer (“Customer“), to the exclusion of all other terms and conditions conflicting with, or purporting to modify, these Terms, unless otherwise agreed in a written agreement signed by both GreenTek and Customer. GreenTek shall not be bound by any terms or conditions proposed or provided by Customer unless expressly agreed in writing by GreenTek. These Terms may be amended only by written instrument expressly referring to these Terms and signed by GreenTek and Customer.
Delivery; Risk of Loss: The Goods will be delivered within a reasonable period of time after the receipt of Customer’s purchase order. GreenTek shall not be liable for any delays, loss, or damage in transit. Customer will pay for the costs of shipping, by express delivery or U. S. postal service at Customer’s discretion, provided, however, that orders weighing more than 100 pounds in the aggregate will be delivered by freight at Customer’s cost. Unless GreenTek has made other arrangements with Customer, Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the place of delivery. International shipments will be shipped as agreed by the parties on a case by case basis. GreenTek may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Goods shipped whether such Goods constitute whole or partial fulfillment of the order. Notwithstanding any other provision hereof, GreenTek reserves the right to require different delivery terms for any sale upon prior notice to Customer.
Customer Failure to Accept Goods: If for any reason Customer fails to accept delivery of any of the Goods, or if GreenTek is unable to deliver the Goods because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer; (ii) the Goods shall be deemed to have been delivered; and (iii) GreenTek, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all costs and expenses (including, without limitation, storage and insurance) incurred or suffered by GreenTek as a result of such failure by Customer. The quantity of any installment of Goods as recorded by GreenTek on dispatch from GreenTek’s place of business shall constitute prima facie evidence of the quantity delivered.
Non-Delivery: GreenTek shall not be liable for any non-delivery of Goods (for whatever cause or reason) unless Customer has notified GreenTek of such non-delivery not more than ten (10) days following the reasonably anticipated date of delivery. Any liability of GreenTek for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Inspection of Goods: Customer shall inspect the Goods within ten (10) days of receipt (“Inspection Period“). Customer will be deemed to have accepted the Goods unless it notifies GreenTek in writing of any damaged or nonconforming Goods during the Inspection Period and furnishes reasonable written evidence and supporting documentation requested by GreenTek. If Customer timely notifies GreenTek of nonconforming or damaged Goods, GreenTek shall, in its sole discretion, either (i) replace such Goods, or (ii) refund or credit the sale price paid by Customer for such Goods. If GreenTek exercises its option to replace damaged or nonconforming Goods, GreenTek shall, after receiving Customer’s return shipment of the Goods, ship to Customer at GreenTek’s expense, the replacement Goods. Customer acknowledges and agrees that the remedy set forth in this paragraph is Customer’s exclusive remedy for the delivery of damaged or nonconforming Goods.
Price: The price payable by Customer for Goods shall be as listed for the Goods on GreenTek’s website listing. Customer is permitted to submit an offer of a different price, which GreenTek may accept, counter, or ignore. All prices are exclusive of all sales, use, and excise taxes, and any other taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes, except that Customer shall not be responsible for any taxes imposed on, or with respect to, GreenTek’s payroll, income, gross receipts, or property.
Payment Terms/Invoicing: Customer shall pay for all Goods purchased at the time of finalizing the online purchase order, by credit card of PayPal. Customer shall reimburse GreenTek for all such service charges as well as for all costs and expenses incurred by GreenTek in collecting any rejected payments. In addition to all other remedies available under these Terms or at law (which GreenTek does not waive by the exercise of any rights hereunder), GreenTek shall be entitled to suspend the delivery of any Goods if Customer fails to pay any amounts when due. Customer may not withhold payment of any amount due based on a claim of amounts due Customer by GreenTek.
Limited Warranty: GreenTek provides a 90-day warranty on Goods unless otherwise expressly set forth in the sale listing for the Goods or otherwise on GreenTek’s e-commerce site. OTHERWISE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) EXPRESS WARRANTY, (B) IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, INCLUDING IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
For the return of Goods due to warranty claims, GreenTek will pay the costs of return shipping.
If GreenTek agrees to accept the return of Goods not damaged or nonconforming and provide a refund to Customer (which GreenTek is not obligated to do), Customer must pay the return shipping costs.
Limitation of Liability: IN NO EVENT SHALL GREENTEK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY GREENTEK, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL GREENTEK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO GREENTEK FOR THE AFFECTED GOODS SOLD BY GREENTEK TO CUSTOMER.
Compliance with Law: Customer shall comply with all applicable international, U.S., state or local laws, regulations and ordinances (“Laws”), including but not limited to intellectual property, privacy, data security, environmental, export/import, and taxation Laws. Customer hereby agrees to defend, indemnify and hold GreenTek harmless from any and all related claims, suits, damages, investigations, or losses, of whatever kind or nature without limitation (including reasonable attorneys’ fees and costs of suit), arising from or related to Customer’s non-compliance with Laws or breach of these Terms; including any such claims, damages, or losses caused in whole or in part by the negligence of GreenTek (but not to the extent caused by the gross negligence or willful misconduct of GreenTek).
Force Majeure: In the event of GreenTek being unable to timely deliver Goods through causes beyond its reasonable control and provided that GreenTek promptly notifies Customer of those causes and uses all possible diligence to overcome or remove them as quickly as possible, GreenTek will not be in default. Causes beyond the reasonable control of GreenTek shall include, without limitation, earthquake, fire, flood, other natural disasters, strikes, labor disputes, government intervention, pandemic or epidemic or governmental orders related thereto, power failures, communication failures, plant failures and other disasters.
Governing Law: This Contract shall be governed by and construed in accordance with the laws of the State of Texas and the federal laws of the United States, as applicable.
Dispute Resolution: It is the intention of the parties, without creating any legal obligation or preventing either party, in its discretion, commencing legal proceedings, that any dispute or difference arising out of or in relation to a sale of Goods or these Terms be determined in accordance with the following provisions of this condition. Any dispute or difference whatsoever arising out of or in connection with a sale of Goods or these Terms shall be submitted to arbitration in accordance with, and subject to, the Commercial Arbitration Rules of the American Arbitration Association. There shall be one arbitrator, the language of the arbitration shall be English, and the place of arbitration shall be Houston, Texas unless otherwise agreed by the parties.
Waiver: No waiver by GreenTek of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by GreenTek. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Assignment: Customer shall not assign any of its rights under any price quote, purchase order for Goods, or these Terms without the prior written consent of GreenTek, which may be granted or withheld in the sole discretion of GreenTek. Any purported assignment violation of this paragraph shall be null and void.
Severability: If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.