Standard Terms and Conditions of Sale
1. Applicability. These Standard Terms and Conditions of Sale (“Terms”) govern the sale and provision of products and ancillary services (collectively, the “Products”) by Spire Supply LLC and its authorized representatives (collectively, “Seller”) to all customers, distributors, end users, and other purchasers (each, a “Buyer”). These Terms, together with any related quote, proposal, invoice, order acknowledgment, purchase order, or sales order, whether in written or electronic form (collectively, the “Agreement”) comprise the entire agreement between Seller and Buyer. The terms of the Agreement supersede any of Buyer’s supplemental or conflicting terms and conditions. No terms, conditions, or warranties other than those contained in the Agreement, and no agreement or understanding, whether oral or written, in any way purporting to modify the Agreement, whether contained in Buyer’s purchase order, shipping release forms, or elsewhere, shall be binding on Seller unless hereafter made in writing and signed by Seller. Neither Seller’s commencement of performance or delivery of the Products nor Seller’s failure to object to conflicting or additional terms shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with those contained in the Agreement. Buyer accepts the terms and conditions contained in the Agreement by placing an order for the Products or otherwise instructing Seller to ship the Products, or by accepting the Products.
2. Prices; Taxes. The prices of the Products are those specified on the applicable quote, invoice, or online order form and are in U.S. Dollars. Unless Seller’s online order platform is unavailable, orders placed by phone, fax, email, or any method other than Seller’s online order platform may incur an additional fee. Unless otherwise specified by Seller in a separate written agreement or quotation, prices may be withdrawn or changed at any time with or without notice. Quotes or price lists provided to Buyer are solicitations for offers to purchase. Clerical or typographical errors are subject to correction. Prices for Products that have been ordered but not delivered may be increased in the event of an increase in Seller’s costs, change in market conditions, or any other cause or factor beyond Seller’s reasonable control. Unless otherwise agreed by Seller in writing, all prices quoted exclude transportation and insurance costs, duties, fees, levies, and taxes of any kind, including federal, state, and local sales, excise and value-added, and goods and services (collectively, “Taxes”), however designated or imposed. Any Taxes related to the Products purchased pursuant to the Agreement are the responsibility of Buyer, and Buyer agrees to indemnify and hold Seller harmless for any liability for Taxes in connection with the sale of the Products, as well as the collection and withholding thereof, including penalties and interest thereon. When applicable, and to the extent possible, Taxes shall appear as a separate item on any invoice or quote. If Buyer is a franchisee of an entity that is under common control with Seller (a “Franchisee-Buyer”), then Franchisee-Buyer acknowledges and agrees that Seller has assumed certain administrative burdens and costs related to negotiating with, and purchasing Products from, approved suppliers, and Seller has also agreed to undertake the payment obligations and credit risk for the purchase of the Products from approved suppliers. Franchisee-Buyer acknowledges that it is not required to purchase the Products from Seller as a condition to being a franchisee of one of Seller’s affiliates, and in exchange for accepting such administrative burdens, costs, and payment obligations, Seller may (x) sell the Products to Franchisee-Buyer at a profit, and/or (y) include in the price of each Product an administrative or other fee, in each case in its sole discretion.
3. Orders; Acceptance. Orders must be presented in writing or by telephone, fax, or electronic means to Seller and will be binding upon Seller only when accepted by written or electronic acknowledgement. Seller reserves the right, at its option and without liability, to refuse any order in whole or in part or to specify an alternative delivery schedule if orders from all sources exceed its inventory or ability to deliver in its normal course of business. Seller may allocate Products among its customers in its sole discretion. Buyer may not cancel, modify, or reschedule an accepted order without Seller’s written consent. If such cancellation or modification is allowed, Buyer agrees to pay to Seller all costs and expenses incurred therewith, as determined by Seller in its sole discretion.
4. Local Inventory Maintenance. Seller may identify and designate from time to time certain approved persons or entities (“Approved Distributors”) that offer inventory maintenance arrangements to purchasers of certain Products (“Keep Full Orders”). Pursuant to the terms of a Keep Full Order, the Approved Distributor will count inventory, recommend delivery of additional Product(s), and restock such Products on Buyer’s behalf. Buyer may not enter into Keep Full Orders without express consent from Seller in writing (which may be given by e-mail), and thereupon Buyer may only enter into Keep Full Orders with Approved Distributors. By its entry into a Keep Full Order, Buyer grants permission to the Approved Distributor to place orders for certain Products on its behalf. In the event of any dispute between Buyer and an Approved Distributor, Buyer shall bear all costs of such dispute, including attorneys’ fees. Seller may at its option assist Buyer in the resolution of such dispute, but Buyer shall nonetheless remain obligated to pay for the related Product(s) in accordance with Section 5 unless the Approved Distributor agrees to refund any portion of the purchase price or provide a credit to Buyer for the delivery of additional Product(s). An Approved Distributor may offer other products for sale to Buyer, and Buyer shall enter into direct payment terms with the Approved Distributor for the sale and delivery of such products.
5. Payment. Prices specified in accordance with Section 2 hereof reflect a two percent (2%) discount that is subject at all times to the following conditions: (i) Seller shall have approved Buyer to receive 28-day credit terms on purchases of Products; and (ii) Buyer shall pay for purchases using a Preferred Payment Method (as defined below). If payment in full is not made within such 14-day period, such discount shall not apply and the invoiced amount shall be deemed to have increased accordingly. Unless otherwise set forth in a writing signed by the Seller, Buyer will pay all invoiced amounts no later than twenty-eight (28) days following the invoice date. Past due amounts shall accrue interest at a rate equal to the lesser of one-and-one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from the due date until paid, plus Seller’s reasonable costs of collection. “Preferred Payment Method” means (x) for Products shipped directly by Seller, including but not limited to filters, wiper blades, chemicals, and other shop supplies, an automated credit card payment that Buyer has authorized Seller to charge, and (y) for Products shipped by third parties, including oil and other lubricants, an automated clearing house payment that Buyer has authorized Seller to charge. Seller expressly reserves all rights under the Uniform Commercial Code (“UCC”) for Buyer’s failure to pay for the Products or any other breach by Buyer of the terms and conditions contained in the Agreement. In the event that Buyer breaches any of the terms and conditions contained in the Agreement, Seller shall be entitled to recover all costs, fees, and expenses, including but not limited to attorney fees, court fees, and collection costs. Buyer may not withhold payment of any amounts due and payable hereunder as a set-off in connection with any claim or dispute with Seller.
6. Delivery; Shipping; Title; Security Interest. Seller will deliver the Products within a reasonable time after accepting Buyer’s purchase order in writing, or as otherwise indicated on Seller’s invoice, and subject to availability. Unless otherwise agreed in writing by Seller, delivery of the Products will be FCA (Incoterms® 2010) Seller’s warehouse facility using Seller’s standard methods for packaging, unless delivered by an Approved Distributor. Buyer is responsible for all costs, fees, and expenses in connection with freight, duties, cartage, and handling; shipping and handling charges shall be $20.00 for orders of $100.00 or less and $10 for orders over $100.00; provided that Seller agrees to pay shipping and handling charges on one order per week that is over $100. Title to and risk of loss for the Products passes to Buyer upon delivery of the goods in accordance with these Terms. As security for payment of the purchase price, Buyer grants to Seller a purchase money security interest in and to all right, title, and interest in the Products, wherever located, whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
7. Return Policy. Seller may accept returned Products from Buyer in its sole discretion and solely in accordance with the following procedures: (i) Buyer shall submit written notice to Seller requesting authorization of such return; (ii) if Seller authorizes such return, Seller shall provide shipping instructions to Buyer; (iii) upon receipt of shipping instructions, the Products must be returned within fourteen (14) days and Buyer shall be responsible for all shipping charges; (iv) Seller may charge a restocking fee of up to twenty percent (20%) of the original purchase price, which may be deducted from the Buyer’s refund; and (v) Seller shall refund the balance due to Buyer within a reasonable time after receipt of the returned Products. Products may not be returned unless such Products are in the original packaging and in unused and original condition. By returning any Products, Buyer certifies that such Products were purchased from Seller and there has been no substitution from another supplier, distributor, or other source.
8. Limited Warranty. Seller shall transfer to Buyer any warranties and indemnities authorized and provided by the manufacturers of the Products. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WARRANTY AGAINST LATENT DEFECTS. ANY SUCH WARRANTIES, TERMS, AND CONDITIONS (STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
9. Limitation of Liability. BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COSTS, LOSS OF DATA, REMOVAL OR REINSTALLMENT COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, OR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER. EXCEPT FOR DEATH OR BODILY INJURY RESULTING FROM SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCTS GIVING RISE TO SUCH CLAIM, IRRESPECTIVE OF THE NATURE OF THE CLAIM AND WHETHER SOUNDING IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.
10. Indemnification. Buyer will defend, indemnify, and hold harmless Seller and its parent company, their respective subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees (including import and export customs fees), or expense (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) arising out of or occurring in connection with the negligence or willful misconduct of Buyer or its employees or agents, including but not limited to (i) any misuse or modification of the Products by Buyer or its employees or agents, (ii) any act (or failure to act) by Buyer or its employees or agents in contravention of any safety instructions or procedures associated with the Products, or (iii) any failure to store, install, operate, or maintain the Products in accordance with applicable instructions.
11. Force Majeure. Seller is not liable for failure to fulfill its obligations for any accepted order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
12. Governing Law; Jurisdiction. All matters arising out of or relating to the Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provisions or rules. The UN Convention on Contracts for The International Sale of Goods and any other international discovery and service of process conventions shall not apply. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Davidson County, Tennessee. Each Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action, or proceeding relating to this Agreement as aforesaid, and further irrevocably waives any claim that such venue is not a convenient forum for any such suit, action, or proceeding.
13. Survival. In additional to any other term whose context may so require, the terms contained in Sections 1, 5, 6, 8, 9, 10, 11, 12, 13, 15, and 16 will survive an cancellation of a purchase order.
14. Termination. In addition to any other remedies that Seller may have, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with the terms and conditions in the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. CONFIDENTIALITY. EXCEPT TO THE EXTENT EXPRESSLY WAIVED IN WRITING BY SELLER, OR AS OTHERWISE REQUIRED BY LAW, BUYER AGREES TO KEEP CONFIDENTIAL AND SHALL NOT DISCLOSE ALL OR ANY PORTION OF THIS AGREEMENT OR ANY OF ITS TERMS OR CONDITIONS TO ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO PRICES, PRICE LISTS, REBATES, AND/OR PROMOTIONAL OFFERS RELATED TO THE PRODUCTS.
16. Miscellaneous. Buyer acknowledges that it has not been induced to purchase any of the Products from Seller by any representation, warranty, term, or condition not expressly set forth in the Agreement. The Agreement constitutes the entire agreement between Buyer and Seller and supersedes all existing agreements and communications, oral or written, regarding the Products. None of the terms and conditions contained herein may be added to, modified, superseded, or otherwise amended except by written agreement signed by Buyer and Seller; provided that Seller may update or otherwise change the Terms from time to time without notice by posting the revised Terms. No waiver by Seller of any of the provisions of the Agreement is effective unless expressly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege under the Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The section headings contained herein are for convenience only and will not affect the interpretation of any provision contained herein. If any provision of the Agreement is held to be prohibited or unenforceable the provision will be deemed amended and shall be interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer may not assign any accepted order of the Products, in whole or in part, without Seller’s prior written consent. The Agreement shall be binding upon and shall inure to the benefit of any successors and assigns.