SIGNATURE SYSTEMS GROUP LLC (“Seller”)
The following terms and conditions of sale, as they appear below and on the face or back hereof and as they are amended and appear at www.signaturecorp.com, at the time of sale, govern the sale of all materials, goods, or services supplied by Seller to Buyer and apply notwithstanding any conflicting, contrary, or additional terms and conditions in any quotation, confirmation form, acceptance invoice, bill of lading, or other document, or communication from Buyer. By purchasing the Products and Services, Buyer confirms that the terms and conditions apply to Buyer’s purchase of the Products and Services, regardless of the form or terms of Buyer’s order. The terms and conditions set forth below and on the face or back hereof and as they appear on Seller’s website at www.signaturecorp.com, as the case may be, constitute all of the terms of this Agreement between Buyer and Seller. No course of prior dealings or performance between the parties or usage in the trade shall be relevant to supplement or explain any terms used in this Agreement. No modification or waiver of these conditions of sale shall be binding upon Seller unless approved by an authorized representative of Seller in writing. Any conflicting warranties, terms and conditions in the purchase order or any other of buyer’s documents shall be considered material alterations, will be of no binding effect, and are hereby specifically objected to and rejected by seller. Neither seller’s acknowledgment of a purchase order nor seller’s failure to object to conflicting, contrary, or additional terms and conditions in a purchase order shall be deemed an acceptance of such terms and conditions or a waiver of the provisions hereof. Seller’s acceptance of any purchase order is expressly made conditional on buyer’s assent to the terms of this agreement (whether such terms are additional or different to the terms found in such purchase order).
1. DEFINITIONS. “Buyer” means the person or entity identified on the front side of Seller’s invoices, quotations, or order confirmations. “Products” means the items described on the front side of any invoice, quotation, or order confirmation which Buyer has purchased or may purchase such items. “Purchase Order” or “PO” means any purchase order or other communication from Buyer by which Buyer indicates its intent to purchase Products or have such Products installed. “Seller” means Signature Systems Group, LLC, a Delaware limited liability company with its principal offices in Flower Mound, Texas. “Services” means the installation of any Products, as described in any Installation Agreement, PO, invoice, quotation or order confirmation by which Buyer has purchased or may purchase such installation services.
2. ORDERS. Orders shall be initiated by Buyer issuing an electronic PO via email or Seller’s eCommerce portal, or by issuing a hard copy PO by facsimile. POs shall identify, as appropriate, the Products, specifications, quantity, method of packing, shipment and required delivery dates, and, if applicable, the scheduling of any Services to be performed. All orders are subject to approval by Seller by either acknowledgment to Buyer or commencement of performance.
3. PRICES. Prices shall be as specified by Seller and shall be applicable for thirty (30) days unless otherwise noted. Notwithstanding the foregoing, prices are based on current labor and material prices and shall be subject to change with notice to Buyer prior to Seller’s acceptance of the order. Quoted prices are exclusive of all sales, use, excise, value added and similar taxes or charges imposed by any government authority; and all other charges, including international shipping charges, agent’s and broker’s fees, consular fees, document fees, port charges, container clearance charges and import duties, unless otherwise explicitly set forth in such quote. If Seller shall be liable for or shall pay any of the foregoing, the same shall be paid by Buyer to Seller in addition to the price of Order. In the event Buyer claims an exemption from any tax, a valid tax exception certificate must be furnished to Seller. Seller reserves the right to adjust prices on any order for (i) any alterations or changes requested by Buyer subsequent to Seller’s acceptance of the order; (ii) increases in the cost of fuel, power, material, supplies, or labor; and/or (iii) foreign or domestic legislation enacted by any level of government which increases the cost of producing, warehousing, or selling the Products and Services purchased hereunder.
4. PAYMENT. All payments under the terms herein, unless otherwise noted or as otherwise agreed in writing by Buyer and Seller, are due and payable in United States funds thirty (30) days net from date of invoice. In case payment is not made as agreed, Buyer agrees to pay: (i) interest on past due payments from the time they are due at the rate equal to the lesser of 18% per annum, or the maximum rate permitted by law; and (ii) any and all costs and expenses of collection including reasonable attorney’s fees incurred by Seller in its efforts to recover such amounts so due and owing. Nothing herein shall be deemed to provide for the payment of any amount not legally collectible by Seller. Seller shall have no obligation to extend credit or grant deferred payment terms with respect to any order except as may be specifically in writing agreed by Seller prior to acceptance of such order. No discounts shall apply unless specifically set forth above or on the face side hereof. If Seller believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped, all work on Products to date, and any Services provided to date. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms. Until the purchase price and all other sums due from Buyer are paid in full, Seller retains a security interest in the Products and in all products and proceeds thereof. Buyer hereby irrevocably authorizes Seller to file financing statements evidencing Seller’s security interest in the Products.
5. DELIVERY AND TITLE WITH RESPECT TO PRODUCTS. Unless otherwise mutually agreed in writing by Buyer and Seller, all shipments of Products by Seller are FOB Origin (Incoterms 2010) and all transportation charges shall be paid by Buyer in addition to the price of the Products unless otherwise agreed in writing by Seller. Subject to Seller’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer and any claims for losses or damage shall be made by Buyer directly with carrier. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer. Seller shall not be liable for loss, damage or expense due to delays in shipment or delivery. Seller shall use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Buyer’s required delivery dates. Buyer acknowledges that delivery dates provided by Seller are estimates only. Seller shall notify Buyer of estimated ship dates but is not responsible for delays in shipping. If Buyer delays delivery of any Products, Seller may invoice Buyer for said Products, and hold them at Buyer’s risk and expense pending instructions from Buyer. If Buyer accelerates the project, delays the project due to late data or late approvals, or impacts Seller’s means, methods, sequences and techniques of construction, such action shall be grounds for changing price and schedule pursuant to Section 7 below. Seller reserves the right to make deliveries of Products in installments. Delivery of a quantity which varies from the quantity specified shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment of Products shall not entitle Buyer to cancel other installments.
6. ACCEPTANCE OF PRODUCTS. Inspection and acceptance of the Products and Services shall be Buyer’s responsibility. Buyer is deemed to have accepted the Products and Services unless written notice of rejection is received by Seller within ten (10) business days after delivery of the Products or performance of Services. Buyer waives any right to revoke acceptance thereafter. Buyer shall report any discrepancy in shipment quantity or damage of Products within ten (10) business days after delivery and any deficiency in the provision of Services within ten (10) business days after such deficiency is discovered or should have been discovered.
7. PRODUCT RETURNS. Seller may, at its sole discretion, accept returns of unused and undamaged Products within ten (10) business days after delivery; any such return must be authorized by Seller in advance and will be subject to a minimum 15% restocking fee. Buyer shall be responsible for all round-trip freight charges and for any damage incurred to the Products during such return shipment. After inspection and approval of any such returned Products, Seller will issue a refund to the received payment less applicable restocking fees. Seller will not accept a return of used Products or custom orders.
8. CHANGES. Buyer may request order changes with respect to the quantity, shipping or date of delivery of the Products prior to actual shipment of the Products from Seller’s plant, which Seller may accept or reject in its sole discretion. If such changes result in increased cost or time to complete the manufacture of the Products or if there is a decrease in the quantity requested which invalidates any discounts offered by Seller, then the price and timing of the original order shall be adjusted accordingly, and Buyer agrees to pay any such increased cost. Unless otherwise agreed, prices for the Products are based on standard specifications of Seller. Once orders have been accepted by Seller, no changes with respect to specifications will be made or allowed unless they are requested by Buyer and accepted by an authorized representative of Seller in writing and the new price and delivery time resulting therefrom are agreed upon in writing. Additional costs for the changes, including costs for additional tooling or engineering, will be reflected in the new price.
9. CANCELLATION. Buyer may make requests for cancellation, change, or suspension of orders after they have been accepted by providing such request in writing to Seller. However, Seller reserves the right to refuse such requests for cancellation, change, or suspension of orders. If cancellations or suspensions are approved by an authorized representative of Seller, Seller may charge a fee equal to the greater of $200 or 1% of the invoice price for any canceled order. Changes will be handled as per Section 8 above.
10. LIMITED WARRANTY. Products manufactured and Services performed by Seller are subject to the terms, conditions and limitations set forth in Seller’s standard Limited Warranty which is attached to this documentation and can be found on Seller’s website at www.signaturecorp.com. Such warranty is in lieu of all other warranties, express or implied including those of merchantability or fitness for any purpose not expressly set forth herein. No affirmation of seller, by words or action, other than as referenced in this section 10 shall constitute a warranty. The parties hereto expressly agree that Buyer’s sole and exclusive remedy for nonconforming Products and Services shall be the replacement of Products or the reperformance of Services, as applicable. Products not manufactured by Seller are not warranted by Seller and are sold only with the warranties, if any, of the manufacturer thereof. Seller does not warrant (i) defects caused by improper installation (if performed by a party other than Seller); (ii) Buyer’s failure to provide a suitable installation environment (as in Seller’s standard published manuals), or proper maintenance; (iii) workmanship with respect to direct glue installation of Products over existing floor covering, adhesive, asphalt, disbonding agent, wax, floor finishes, painted surfaces or curing compounds; (iv) damage caused by misuse or use of Products for purposes other than those for which it was designed (including, by way of example, damage caused by exposure to chemicals, materials, crocking, dye, mold, stains, spills, burns, indentations, floods, accidents, or any scouring pads while buffing); (v) damage caused by accidents or disasters such as fire, flood, loading beyond its design specifications (including, by way of example, due to high heels, spiked shoes, rolling loads and furniture not using floor protectors); (vi) damage caused by unauthorized attachments or modifications; (vii) damage during shipment, storage, mishandling or any abuse by Buyer; or (vii) variations in Product color from samples or photographic examples, or discoloration of Products due to exposure to ultraviolet light or heat.
11. LIMITATION OF LIABILITY. Seller’s liability for its products and services under all theories of liability shall be limited to replacing the products found by seller to be defective or reperforming the services found by seller to be deficient. At seller’s request, buyer will send, at buyer’s sole expense, any allegedly defective products to seller. In no event shall seller’s liability arising in connection with or under this agreement (whether under the theories of breach of contract, tort liability, misrepresentation, fraud, warranty, negligence, strict liability, or any other theory of law) exceed the purchase price of the products or services at issue. It is understood and agreed that buyer assumes all risks and liabilities resulting from the acceptance, handling, transport, storage, use and disposal of the products. Seller neither assumes nor authorizes any person to assume for seller any liability in connection with the sale or use of the products or services.
12. DISCLAIMER OF DAMAGES. In no case shall seller be liable for any special, incidental, consequential or punitive damages arising out of or in connection with this agreement or the sale of products and services to the purchaser, whether based upon breach of contract or warranty, negligence, strict tort, or any other legal theory. Consequential damages shall include, but are not limited to loss of profits, loss of savings or revenue, loss of use of the product or any associated equipment, cost of capital, cost of any substitute equipment, facilities or services, down-time, the claims of third parties, including customers, and injury to property. This limitation does not apply to damages caused by breach of the warranty of title nor to claims for personal injury. Some states do not allow limits on warranties or on remedies for breach in certain transactions. In such states, the limits in this paragraph and in paragraph 11 may not apply.
13. FORCE MAJEURE. No party shall be responsible for any failure to comply with the terms of this Agreement, or for any delay in performance of, or failure to perform under this Agreement where such failure or delay is due to causes beyond the control of the party sought to be charged. The parties’ obligations shall be suspended during any such period to the extent of any such inability to perform. Events beyond the control of a party shall include, but not be restricted to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war (declared or undeclared), rebellion, insurrection, sabotage, epidemic, quarantine restrictions, lock-outs, labor disputes, labor shortages, transportation embargoes or failures or delays in transportation, inability to secure at a reasonable price or in a commercially reasonable manner necessary raw materials or machinery, acts of God, acts (including laws, regulations, disapprovals or failure to approve) of any government.
14. INTELLECTUAL PROPERTY. The specifications, drawings, manufacturing data and other information transmitted between Seller and Buyer in connection with Seller’s quotation and any resulting sale are the property of the originating party and are to be treated as Trade Secrets or Confidential Information pursuant to Section 15 below. Equipment, dyes, molds, or other personal property supplied by Buyer to Seller shall remain the property of Buyer unless otherwise agreed in writing. Buyer owns the rights to all parts produced from specific tooling developed to produce proprietary parts; and the part development cost value. Seller owns all intellectual property (IP) used to develop and produce parts. IP includes drawings, manufacturing data, and the physical tools created and developed by Seller.
15. CONFIDENTIALITY. Each party acknowledges that, in the course of its dealings with the other party hereunder, it will be made aware of, be exposed to or otherwise receive: (i) business, scientific, technical or manufacturing information; (ii) product specifications, drawing, manufacturing data; (iii) marketing materials, financial information, and listing of names, addresses or customers or potential customers; or (iv) Product defect, design defect, pending recall or similar information (“Trade Secrets”, “TS”, “Confidential Information”, “CI”). The parties agree that neither party shall communicate, divulge, or use the TS or CI for the benefit of another person: except (i) to the extent necessary to fulfill its obligations hereunder; (ii) to the extent any such information shall become generally available in writing to the general public (other than by breach of this provision); or (iii) to the extent required by a court of competent jurisdiction or necessary to comply with any applicable law, regulation or order. Each party shall require all employees to whom such TS or CI are disclosed to agree, to the same extent as each party has agreed hereunder, to maintain the confidentiality of such TS or CI and not disclose them to others. The parties agree that money damages alone will not be a sufficient remedy for any breach of the provisions of this Section 15 and that in addition to all other remedies, the non-breaching party will be entitled to injunctive or other equitable relief.
16. COMPLIANCE WITH LAWS. Buyer agrees that the Products will not be used, resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations of any local, state or other governmental entity. This Agreement is subject in part to applicable governmental laws, regulations and rules of the government of the United States, including departments, agencies and sub-divisions thereof, and of the country in which the equipment and/or services to be sold will be installed, used, or performed. Should any governmental authority prohibit the performance of this contract, in whole or in part, or if the exportation or importation of the equipment which is the subject of this proposal, or any resulting contract, be precluded because of the inability, within a reasonable time, to obtain an export or import license therefore, as appropriate, then Seller’s obligations under the quotation or any resulting contract shall be expunged, at Seller’s option, and Seller shall be entitled to reasonable termination charges for the cancellation of any resulting contract. It shall be Buyer’s responsibility to provide any required applications, documentation, or any action which may be necessary to obtain any required license(s) to export from the United States or import into Buyer’s country. These documents as applicable, may include but are not limited to, U.S. Government Form ITA-629, International Import Certificate, Country End-User Certificate and Import License.
17. INDEMNIFICATION. Seller agrees to indemnify and hold Buyer harmless from any third-party claim, injury, liability, or damage involving alleged Product design or manufacturing defects, intellectual property right infringement, or false advertising, to the extent due to SSG’s actions or failures to act. Buyer shall indemnify, defend and hold harmless Seller, including its officers, directors, employees, and agents from and against any and all lawsuits, third party claims, premises liability, other tort liability, demands, actions, injury, losses, damages, costs and expenses (including but not limited to reasonable attorney fees, court costs and costs of investigation and defense), regardless of the cause or alleged cause thereof arising out of or related to the use of the Product. This provision survives termination of any Sale of Products or Services from Seller to Buyer or any Agreement or Contract between Seller and Buyer.
18. DEFAULT. Each of the following shall constitute an event of default (hereinafter “Event of Default”) hereunder: (i) Buyer shall fail to remit any payment due to Seller when due; (ii) actual or anticipated breach or default by either party of any material term hereof; (iii) either party shall become insolvent, make, an assignment for the benefit of creditors or any petition in bankruptcy or any action under any reorganization, insolvency or moratorium law, or any other law or laws relating to or for the relief of debtors shall be commenced or filed against or for such party; or (iv) any receiver, trustee, custodian or similar official shall be appointed to take possession of the properties of either party. If any Event of Default shall occur, the non-defaulting party, at its option, may: (i) proceed by appropriate court action or actions either at law or in equity to enforce performance or to recover damages for the breach of the defaulting party; or (ii) immediately, by notice in writing to the defaulting party terminate all pending orders. An Event of Default for any reason whatsoever shall not relieve either party of any obligation due to the other party on, or accrued as of, the date of such termination and the obligations of the parties contained in all document Sections shall survive any such Event of Default. The remedies herein provided shall be cumulative and shall be in addition to all other remedies in its favor existing at law or in equity.
19. CHOICE OF LAW AND JURISDICTION. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and construed in accordance with the internal laws of the State of Texas, without giving effect to the conflict of laws rules thereof. Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Texas state court or federal court of the united stated of America sitting in Dallas county, Texas, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this agreement or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such Texas state or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. MISCELLANEOUS. No rights, duties, agreements, or obligations hereunder may be assigned or transferred by either party unless in connection with the transfer of all or substantially all the assignor’s business or upon written consent of the other party. The obligations, rights, terms and conditions hereof shall be binding on the parties hereto and their permitted successors and assigns. The waiver of any provision hereof or of any breach or default hereunder shall not be deemed a waiver of any other provision hereof or breach or default hereunder. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at another time or of any other remedy at any time. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. The several captions used herein are for the convenience of the parties only and shall not affect the construction or interpretation hereof. Any clerical errors are subject to correction.
21. FOREIGN CORRUPT PRACTICES ACT. Buyer agrees that in performing its duties under this Agreement, it has not and will not violate any of its local, state or other governmental entities, the United States of America (including the U.S. Foreign Corrupt Practices Act), the United Kingdom (including the United Kingdom Bribery Act), or any other relevant State (the “Applicable Laws”). Buyer agrees that in performing its duties under this Agreement, it will not offer, promise, authorize, or make any payments, loans, gifts of money, benefits, or gifts of anything else of value with corrupt intent and for the purpose of obtaining or retaining business or securing a business advantage: (i) to an official or employee of any government or public international organization; (ii) to an official or employee of any department, agency, or instrumentality of any government or public international organization; (iii) to an employee of any corporation or entity owned or controlled by a government; (iv) to an immediate family member of such officials or employees listed above; (v) to any political party, party official, or political candidate; (vi) to any consultant of any aforementioned individuals or entities; (vii) to any other person if company or consultant knows or has reason to believe that any part of the payment, loan, gift, or thing of value will be given, directly or indirectly, to any of the persons described above; or (viii) to any other person in violation of any Applicable Law. Buyer represents and warrants that none of its agents, consultants, partners, owners, principals, or employees is or will be: (i) an official or employee of any government department, entity, instrumentality, or government-owned or -controlled enterprise; (ii) an official of any political party; or (iii) a political candidate. Buyer further represents and warrants that none of its agents, consultants, partners, owners, principals, or employees is an immediate family member of any official or employee of any government department, entity, instrumentality, or government-owned or -controlled corporation. Buyer agrees that: (i) it has no right to assign any portion of this contract; (ii) it will not use subagents, representatives, or sub-partners that have not been approved in writing by Signature; and (iii) it will not split or share its compensation from Signature with any person or entity that has not been approved in writing by Signature. Buyer acknowledges that Signature has not authorized it in any manner to violate any relevant law or regulation, including the U.S. Foreign Corrupt Practices Act and the United Kingdom Bribery Act, and agrees that it will not accept any purported future authorization that is made orally, but instead will require any such authorization in writing from Signature. Buyer agrees to follow the policies and procedures of Signature concerning payments for reasonable expenses relating to travel, meals, entertainment, gifts, and other hospitality. Buyer agrees that Signature may disclose in writing to any governmental entity or person with which Signature transacts business the role of Buyer and any payments to or financial arrangements made by Signature with Buyer in connection with this Agreement. Buyer agrees to respond in reasonable detail to any request from Signature, Signature’s outside auditors, or Signature’s counsel regarding any of the issues raised in this Section 20, including allowing inspection of Buyer’s books and records at any time by Signature or any person it designates. Buyer agrees and represents that should any of the prohibited activities described above occur, or if there are any changes in the ownership or control of the Buyer, that Buyer will immediately advise Signature in writing of such occurrence. If Buyer violates the payment prohibitions described herein, this entire Agreement shall be void ab initio. Buyer will be liable to repay all funds received from Signature under this Agreement, and Buyer will agree to release any claim for future compensation under this Agreement. Buyer agrees: (i) to make and keep books, records, and accounts that accurately, fairly, and in reasonable detail reflect the transactions and dispositions of the assets of Buyer; and (ii) to devise and maintain a system of internal accounting controls sufficient to ensure that transactions are executed, and access to assets is limited, in accordance with management authorization, that transactions are recorded in a manner that allows financial statements to be prepared in accordance with International Accounting Standards [or other acceptable U.S. standards], that there is accountability for the disposition of assets, and that discrepancies in the accounts are addressed promptly.
22. COMPLETE AGREEMENT. This Agreement and Seller’s Limited Warranty are understood to be the complete and exclusive agreement between the parties, superseding all prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this agreement.