The estimate will not be valid until reviewed and approved by Spida USA LLC.
The following terms and conditions also shall apply to the sale of Spida USA LLC Parts & Equipment (“goods”) from Spida USA LLC and/or its affiliates (“Spida USA LLC”) to the purchaser identified below (“Purchaser”).
75% – 25% Payment Terms
Domestic Payment Terms: Notwithstanding anything to the contrary contained herein, upon acceptance of this Agreement, the Purchaser agrees to make a deposit to Spida USA LLC of seventy five percent (75%) of the price of the goods to be purchased under this Agreement (“Deposit”). The remaining twenty five percent (25%) of the equipment price shall be made within fifteen (15) days from the date of delivery or upon installation whichever is sooner. Payment shall be in United States currency by ACH or wire transfer of immediately available funds, or by check made payable to Spida USA LLC.
50% – 50% International Payment Terms
International Payment Terms: Notwithstanding anything to the contrary contained herein, upon acceptance of this Agreement, the Purchaser agrees to make a deposit to Spida USA LLC of fifty percent (50%) of the price of the goods to be purchased under this Agreement (“Deposit”). The final Fifty percent (50%) of the equipment price to be paid prior to shipping. Payment shall be in United States currency by ACH or wire transfer of immediately available funds, or by check made payable to Spida USA LLC.
Cancellation: If Purchaser cancels this order for goods or otherwise breaches this Agreement before the goods are shipped, Spida USA LLC may treat this Agreement as terminated and receive as its remedy the Deposit as liquidated damages. Purchaser and Spida USA LLC agree that the amount of actual damages which Spida USA LLC would suffer as a result of Purchaser’s breach would be extremely difficult to ascertain and agree, after specific negotiations, that the Deposit is a reasonable estimate of Spida USA LLC’s damages and is not intended to constitute a penalty.
Interest: Purchaser agrees to pay interest in the amount of 1.5% per month compounded monthly, or the highest rate permitted by applicable law, whichever is less, on any amount payable hereunder from the date such amount is due until such amount, together with the interest thereon, is paid in full to Spida USA LLC.
Spida USA LLC Expenses: Purchaser shall pay to Spida USA LLC all fees, costs and expenses (including, without limitation, attorneys’ fees, costs and expenses) that Spida USA LLC incurs in collecting any amounts due from Purchaser or in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions of this Agreement.
Shipping Terms: All goods shall be shipped F.O.B. Spida USA LLC’s shipping point in accordance with Spida USA LLC’s standard freight policy in effect at the time of shipment. Spida USA LLC shall invoice Purchaser for, and Purchaser agrees to pay all freight and insurance costs incurred by Spida USA LLC in connection with the shipment of goods to Purchaser (or the destination point designated by Purchaser), and risk of loss for such goods shall pass to Purchaser immediately upon delivery of the goods to the carrier. Notwithstanding anything to the contrary contained herein, title to such goods shall pass to Purchaser only upon payment in full of all amounts owed to Spida USA LLC. Spida USA LLC shall not be responsible for any duties or taxes owed (state, local or otherwise), or freight or transportation expenses unless agreed to in writing by Spida USA LLC.
Security Interest: Purchaser hereby assigns, pledges and grants to Spida USA LLC a continuing, purchase money security interest in the goods and all proceeds thereof to secure payment of the full purchase price of the goods, freight and insurance costs incurred by Spida USA LLC, together with interest and all other amounts due from Purchase to Spida USA LLC in connection with the sale and purchase of the goods. Purchaser represents and warrants that all “Purchaser Information” provided below is true and correct in all respects. Purchaser authorizes Spida USA LLC to file such financing statements covering the goods and containing such language and information as Spida USA LLC shall deem necessary or desirable to protect Spida USA LLC’s security interest in the goods. Purchaser shall not file any amendments, correction statements or termination statements concerning the goods without the prior written consent of Spida USA LLC.
Guaranty: Each party identified below as a Guarantor (“Guarantor”) hereby joins in this Agreement for the purpose of absolutely and unconditionally guaranteeing the payment of all amounts owed by Purchaser hereunder (“Obligations”), together with all costs, reasonable attorneys’ fees and expenses paid or incurred by Spida USA LLC in connection with any attempts to collect such Obligations or the enforcement and collection of this Guaranty.
Force Majeure: Spida USA LLC shall arrange reasonably prompt shipment of products pursuant to terms hereof provided, however, that Spida USA LLC shall not be responsible for delays in deliveries due to fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine, restriction, delay in transportation, car shortage, labor shortage, materials shortage, manufacturing facility shortage, accident at Spida USA LLC’s warehouse, boycott, embargo or any act or regulation of government or governmental authority (including, without limitation, preference, allocation or priority systems for government), force majeure and other contingencies beyond the reasonable control of Spida USA LLC.
Inspection: Upon receipt of a shipment, Purchaser or its consignee shall be responsible for inspecting the goods and securing written acknowledgment from the carrier for any shortages, loss or damage. Purchaser shall notify Spida USA LLC within five (5) days of receipt of any shipment of any shortages, defects or non-conforming goods in that shipment. In the event Purchaser fails to notify Spida USA LLC within such five-day period of any shortages, defects or non-conforming goods, the goods shall be deemed accepted.
WARRANTY AND DISCLAIMER OF WARRANTIES: Spida USA LLC warrants the goods, other than “Component Parts,” as defined below, to be free from defects in materials or workmanship for one (1) year from the date of delivery to the Purchaser (“Warranty”). This Warranty excludes and does not cover (i) goods that are not properly installed, operated, used, maintained, adjusted, cleaned and lubricated by the Purchaser; (ii) goods that are altered or modified by any person other than Spida USA LLC; and (iii) starters, motors, gear reducers, or microswitches which are not manufactured by Spida USA LLC (the “Component Parts”). Equipment is not guaranteed to meet all global safety and electrical codes.
SPIDA USA LLC HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY, OR IMPLIED, APPLICABLE TO THE GOODS SOLD, INCLUDING WITHOUT LIMITATION, ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The Component Parts may be governed by separate warranties provided by the respective Component Parts manufacturers, which warranties may be shorter than or longer than the Spida USA LLC one (1) year Warranty offered above. Any repair or replacement of Component Parts shall be determined solely by the Component Part manufacturer, and it shall be Purchaser’s responsibility to enforce any warranty claims related to Component Parts directly with the Component Part manufacturer.
EXCLUSIVE REMEDY FOR BREACH OF WARRANTY: All goods claimed to be defective must be returned to Spida USA LLC for inspection, charges prepaid. All collect shipments will be refused. If, upon inspection, Spida USA LLC determines to its satisfaction that any part of the goods does not conform to the Warranty, Spida USA LLC shall, at its option, correct the defect by repair or replacement. This is the sole and exclusive remedy for breach of the Warranty. If defective goods are replaced by Spida USA LLC, the replaced goods shall become the property of Spida USA LLC. If, upon inspection, the goods are found to conform to the Warranty, the goods will be returned to Purchaser only upon Purchaser’s request and at Purchaser’s expense.
LIMITATION OF LIABILITY
SPIDA USA LLC’S LIABILITY ARISING OUT OF OR RELATED TO THE GOODS OR THE SALE OF ANY GOODS HEREUNDER SHALL BE LIMITED TO THE PURCHASE PRICE OF SUCH GOODS PAID BY PURCHASER TO SPIDA USA LLC WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SPIDA USA LLC BE LIABLE, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, FOR PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS, LOST SALES, INJURY TO PERSONS OR PROPERTY OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS. THIS LIMITATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, LIABILITY FOR DELAY CAUSED BY SPIDA USA LLC, INCLUDING DELAY CAUSED BY DEFECTS IN MATERIALS OR WORKMANSHIP. PURCHASER AGREES TO INDEMNIFY AND HOLD SPIDA USA LLC HARMLESS FROM ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS OR CAUSES OF ACTION, RELATED TO OR ARISING IN WHOLE OR IN PART FROM THE GOODS OR THE SALE OF GOODS TO PURCHASER, AND TO REIMBURSE SPIDA USA LLC FOR ALL COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, COSTS AND EXPENSES) THAT SPIDA USA LLC INCURS IN CONNECTION WITH ANY SUCH CLAIMS, DEMAND OR CAUSES OF ACTION.
Governing Law: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Indiana, U.S.A., without regard to conflicts of laws or rules.
Forum: Any civil action based upon, arising out of, or in any manner connected with this Agreement, its breach, or any of the transactions contemplated by this Agreement shall be commenced in and determined by one of the federal or state courts in Marion County, Indiana, U.S.A. Each of the parties to this Agreement, including Guarantor: (a) irrevocably and unconditionally consents and submits to the in personam jurisdiction of such courts in any such action; (b) consents to service of process in accordance with the rules governing proceedings in any such court; and (c) irrevocably waives and covenants not to assert any objection to the laying of venue in any such court in any such action.
Notices: All notices, requests, demands and other communications called for or contemplated hereunder shall be in writing and shall be deemed to have been duly given when delivered or two days after mailing by U.S. certified or registered first-class mail, prepaid and addressed to the parties at their principal place of business or at such other addresses as the parties may designate by written notice.
General: (a) No modification hereof shall be binding upon either party unless the modification is in writing and signed by a duly authorized representative of all parties (including the Guarantor). (b) The failure of Spida USA LLC to insist, in any instances, upon performance hereunder, or to exercise any right hereunder, is not a waiver of the future performance of any terms, covenant or condition or the future exercise of such right. (c) If any provision of this Agreement is unenforceable, such unenforceability shall not affect the remainder of this Agreement unless a failure of consideration would thereby result. (d) The captions used herein are for reference purposes only and shall have no effect upon the construction or interpretation of any provisions herein. (e) This Agreement shall be binding upon and, except as otherwise provided herein, shall inure to the benefit of the parties hereto and their respective successors and assigns. Purchaser may not assign this Agreement without the prior written consent of Spida USA LLC, which Spida USA LLC may withhold or grant in its sole and absolute discretion, and any purported assignment made without such consent shall be null and void.