GST MANUFACTURING, LTD.

STANDARD TERMS AND CONDITIONS

 

These terms and conditions are a material part of any transaction between GST Manufacturing, Ltd. (“Seller”) and the purchaser of any goods or services from Seller (“Buyer”) and shall be deemed incorporated into any subsequent purchase order or contract between the parties.  NO TERMS OR CONDITIONS WHICH ALTER OR MODIFY IN ANY WAY ANY PROVISION HEREOF SHALL BE BINDING UNLESS EXPRESSLY AGREED TO IN A WRITTEN INSTRUMENT SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE.

 

NO MODIFICATIONS

SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS AND HEREBY REJECTS ANY AND ALL SUCH TERMS, WHETHER CONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS FROM BUYER.  Execution of this agreement or authorization by Buyer to seller to furnish goods and materials hereunder constitutes Buyer’s acceptance of and assent to all terms and conditions set forth herein.

 

ORDERS

Orders made by Buyer which are not in writing are made at the risk of the Buyer, and shipments made before Seller’s receipt of a written confirmation of such orders are permitted for the Buyer’s convenience.  To avoid the possibility of duplication, Buyer’s written confirmation of any orders must be clearly marked as “CONFIRMATION.”  Buyer shall be responsible for any costs of correcting any non-written orders, or Buyer’s error in any written order.  Confirmation of orders which are not properly marked may be treated as original open orders.  Orders cannot be canceled or modified without Seller’s consent. 

 

DELIVERY

If the goods purchased hereunder are defective or are not in substantial conformity with the specifications, Seller will replace such goods with conforming goods at the point of initial delivery or will, at Seller’s election, allow Buyer a credit or refund for the purchase price, provided that (1) Buyer has notified Seller of the defect or nonconformity within ten (10) days after the deliver of the goods; (2) the goods have not been incorporated by Buyer into any project; (3) Seller has been given a reasonable opportunity to inspect the defective or non-conforming goods, and (4) Buyer has requested and received a Return Material Authorization (“RMA”) prior to the return of any goods.  BUYER MAY NOT RETURN GOODS WITHOUT SELLER’S CONSENT.

 

PACKAGING AND SHIPPING

Unless otherwise stated in writing on the acknowledgment of the order or quotation from Seller to Buyer, all goods sold to Buyer are FOB Seller’s facilities unpackaged and not palletized.  In the event Buyer desires to have goods packaged and/or delivered, issuance of a purchase order from Buyer to Seller irrevocably binds Buyer to pay packaging and delivery charges as customarily charged by Seller.

 

FINANCIAL RESPONSIBILITY

Credit is provided to the buyer at the Seller’s sole discretion.  Seller may, in its discretion, require any order placed by Buyer to be paid on a C.O.D. basis.  Any concern on the part of the Seller regarding the Buyer’s or the Guarantor(s)’ ability or willingness to pay for goods and materials purchased on credit shall entitle Seller to stop operation, decline shipment, or stop any goods or materials in transit without liability, until the goods and materials have been paid for or until Seller is furnished assurances adequate to Seller of payment. 

 

PAYMENT TERMS

Unless otherwise stated in writing by Seller, Seller will invoice immediately upon notification to customer of products manufacturing completion and readiness for shipment, whether or not the product has been received by Buyer. Payment is due immediately upon receipt of invoice by customer unless otherwise stated in writing by Seller.  Payments not made when due shall bear interest at 1.5% per month, or the maximum rate allowed by applicable law, whichever is less.

 

NON-WAIVER

No failure or delay on the part of Seller in exercising any rights under this agreement shall operate as a waiver of any of Seller’s rights hereunder.

 

SECURITY AGREEMENTS/LIEN RIGHTS

Buyer hereby grants and conveys to Seller a security interest, pursuant to the Texas Uniform Commercial Code (“UCC”), in all goods and materials sold by Seller to Buyer, and in any and all additions, accessions, substitutions thereto and proceeds thereof (the “collateral”).  The security interest is being provided to secure Buyer’s obligation to make payment of the purchase price of the collateral to Seller.  Upon any default or breach under this agreement by Buyer, including, however not limited to, failure to make timely payment, Seller shall have all remedies and rights of a secured party under the UCC.  Seller is hereby granted authority to file a financing statement (UCC-1) in the county real estate records and with the Secretary of State, of any county or state.  Buyer hereby agrees to execute and deliver any such financing statement immediately upon Seller’s request, and additionally irrevocably grants Seller a power of attorney to execute and deliver any such financing statement on Buyer’s behalf.  If Seller is providing goods and materials to Buyer to be used in the construction, improvement, repair and/or alteration of improvements and/or structures upon land, Seller is hereby granted a lien on any such property, pursuant to C.R.S. 38-22-101 et. seq. to secure any amounts due to Seller from Buyer.  Upon Seller’s request, Buyer and/or Guarantor shall immediately provide Seller with the address and legal description of any real property on which Seller’s goods and materials are being used, an accounting of the goods and materials used on each property, the name of the owner of each property, and the name of the principal contractor, if different from the Buyer.  Failure to timely provide the information shall constitute a default.

 

BANKRUPTCY

Buyer warrants that Buyer has not been in bankruptcy under any chapter of the United States Bankruptcy Code within the past twelve (12) months, and Buyer hereby represents that such Buyer does not have any present intent (i) to file any voluntary petition in bankruptcy under any Chapter of the Bankruptcy Code; or (ii) directly or indirectly to cause any project in which the collateral is utilized (“Project”) or any interest of the Buyer in such Project to become the property of the bankruptcy estate.  Buyer has been, and is presently, paying its debts to creditors as they become due.  In the event of any voluntary or involuntary bankruptcy filing by or against Buyer, Seller shall be entitled upon ex parte application to an order from the Bankruptcy Court granting immediate relief from the automatic stay to permit Seller to Exercise its rights and remedies pursuant to Agreement, including without limitation, enforcement of its security interest in the collateral.

 

WARRANTY

Unless otherwise expressly stated, all goods sold to Buyer for which Seller receives payment in full in good funds, are warrantied for one (1) year from the date of manufacture or installation if the installation was completed by GST, specifically excluding the following: (1) damage caused by failure to follow operating instructions, (2) exposure to extraordinary conditions or pollutants, (3) damage caused by severe weather, (4) damage or discoloration due to misuse, abuse, improper storage, impact of objects, alteration by applied heat or welding, or contact with chemicals or other substances, (5) goods that have been physically altered, (6) ordinary wear and tear, (7) all warranties other than workmanship or materials, including WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE FOR A PARTICULAR PURPOSE WHICH ARE EXPRESSLY DISCLAIMED, (8) any claim by a party other than Buyer, (9) buy-out items and products manufactured or supplied by third parties, and (10) engineering and design.   Seller is not liable for loss of time, cost of labor expended, or for any separate, liquidated, special, direct, consequential, or incidental damages, including without limitation consequential damages resulting from rejection of finished parts by Buyer’s customers.  Buyer understands that it must inspect and approve all goods and materials received from Seller.