1. Definitions. (a) “Contract” means these General Terms and Conditions of Sale (“Terms and Conditions”), together with any written quotation, order acknowledgment, or other document issued by LGMG North America, Inc. (“Seller”). (b) “Goods” means the equipment, products, spare parts, and related items sold by Seller to Buyer. (c) “Buyer” means the person or entity purchasing the Goods from Seller. (d) “Purchase Price” means the total price for the Goods as stated in Seller’s quotation or acknowledgment. (e) “Services” means services, work or other performance obligations of Seller purchased by Buyer. (f) “Order” means the Buyer’s order for the purchase of Goods and/or Services placed by Buyer and accepted by Seller.
2. Acceptance. Seller’s acceptance of any Order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions. Any additional, different, or conflicting terms or conditions proposed by Buyer shall be of no force or effect. Buyer’s assent to these Terms and Conditions shall be conclusively presumed upon the issuance of a quote, invoice, order acknowledgment, or any other document issued by Seller confirming the Order, delivery of the Goods by Seller, commencement of Services by Seller, Buyer’s acceptance of all or any part of the Goods and/or Services, or from payment for all or any part of the Goods and/or Services, whichever occurs first. Seller’s failure to object to any provision contained in any communication from Buyer shall not be construed as an acceptance thereof or a waiver of these Terms and Conditions.
3. Prices and Payment. Buyer shall pay Seller the Purchase Price, together with all applicable freight, insurance, duties, tariffs, and any federal, state, or local taxes or assessments levied in connection with the sale, delivery, or use of the Goods. Unless otherwise agreed to by Seller in writing, full payment shall be made in United States currency within thirty (30) days of the date of Seller’s invoice. Past due amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month (18% per annum), or the maximum rate allowed by law, whichever is less. Buyer shall reimburse Seller for all reasonable attorneys’ fees and other costs incurred in collecting any late payment. Buyer shall make all payments without set-off or deduction of any kind.
4. Title, Security Interest, and Risk of Loss. Title and risk of loss shall pass to Buyer upon delivery of the Goods to the carrier at Seller’s facility, subject to Seller’s security interest described herein. As collateral security for the full payment of the Purchase Price and any other amounts due from Buyer to Seller, Buyer hereby grants to Seller a purchase money security interest (“PMSI”) in and to all right, title, and interest of Buyer in and to the Goods, together with all proceeds thereof, including insurance proceeds. Buyer authorizes Seller to file financing statements and take any and all actions necessary to perfect and protect its security interest under the Uniform Commercial Code. If Buyer fails to pay any amount when due, Seller shall have all rights and remedies of a secured party under applicable law, including, without limitation, the right to enter Buyer’s premises and repossess the Goods without judicial process, or to require Buyer to return such Goods at Buyer’s expense.
5. Delivery. Unless otherwise agreed to by Seller in writing, delivery shall be deemed to occur, and risk of loss shall pass, when the Goods are tendered to the carrier at Seller’s warehouse or manufacturing facility. Shipment dates are estimates only and are subject to change without liability to Seller. Seller shall not be liable for any alleged non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer provides written notice to Seller of such non-delivery within three (3) business days after the date when the Goods would, in the ordinary course of shipment, have been received. In the event of any non-delivery for which Seller is responsible, Buyer’s sole and exclusive remedy shall be limited, at Seller’s option, to either: (a) replacement of the undelivered Goods within a reasonable period of time; or (b) adjustment of the applicable invoice to reflect the actual quantity delivered. Seller shall have no further liability to Buyer for any loss or damage resulting from late delivery, short delivery, or non-delivery of any Goods, whether such claim arises in contract, tort (including negligence), strict liability, or otherwise.
6. Inspection and Acceptance of Goods. Buyer shall inspect the Goods promptly upon delivery. Buyer shall be deemed to have accepted the Goods unless, within three (3) business days after delivery, Buyer notifies Seller in writing of any nonconformity or defect. Buyer’s failure to provide timely written notice shall constitute conclusive acceptance of the Goods and waiver of all claims relating thereto.
7. Warranty. Seller warrants that new Goods manufactured by it and delivered hereunder will be free of defects in material and workmanship for the periods of time specified in Seller’s applicable written warranty for such Goods, which is incorporated herein by reference. Accessories or components furnished by Seller but manufactured by others—including, without limitation, engines, tires, batteries, electrical components, and hydraulic systems—shall carry only the warranty the manufacturer has extended to Seller and which can be passed on to Buyer. THE FOREGING CONSTITUTES BUYER’S SOLE AND EXCLUSIVE WARRANTY AS TO THE GOODS AND/OR SERVICES AND IS IN LIEU OF ANY OTHER WARRANTY. SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE GOODS AND/OR SERVICES, AND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, USAGE OR TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Correction by Seller of nonconformities in the manner and for the period of time provided above shall constitute fulfillment of a liabilities of Seller for such nonconformities, whether based on contract, warranty, negligence, indemnity, strict liability, or otherwise. This warranty shall not apply to any Goods that have been misused, neglected, altered, repaired, improperly installed, or damaged through accident or abnormal operating conditions. No agent or representative of Seller is authorized to make any statement or representation inconsistent with this warranty, and any such statement shall be of no force or effect unless confirmed in writing by Seller.
8. Compliance with Laws. Buyer shall comply with all applicable federal, state, and local laws, regulations, and ordinances in the performance of its obligations under this Contract. Buyer shall obtain and maintain all permits, licenses, and approvals required for its use, operation, resale, or export of the Goods.
9. Default and Remedies. If Buyer fails to perform any of its obligations under this Contract, including payment of any amount when due, Seller may, at its option and without prejudice to any other rights or remedies, suspend further deliveries, declare all amounts immediately due and payable, repossess the Goods, or terminate this Contract in whole or in part. All amounts past due shall accrue interest as provided in Section 3. Buyer shall be responsible for all actual damages, including reasonable attorneys’ fees and costs, incurred by Seller as a result of Buyer’s breach. The rights and remedies provided herein are cumulative and in addition to any rights or remedies available at law or in equity.
10. Indemnity. To the fullest extent permitted by law, Buyer shall defend, indemnify, and hold harmless Seller, its parents, subsidiaries, affiliates, officers, directors, employees, and agents (collectively, “Indemnitees”) from and against any and all claims, losses, liabilities, damages, costs, and expenses (including attorneys’ fees and investigation expenses) arising out of or related to: (a) Buyer’s acts or omissions, negligence, or willful misconduct; (b) Buyer’s ownership, use, operation, maintenance, transfer, transportation, or disposal of the Goods and/or Services, or anyone for whom Buyer is responsible (c) any claim that Goods and/or Services manufactured or supplied according to Buyer’s specifications infringe any patent, trademark, copyright, or other intellectual property right; or (d) Buyer’s violation or alleged violation of any law or regulation. This indemnity shall apply even where the loss or damage is caused in part by the active or passive negligence or fault of Seller and/or the Indemnitees. Buyer’s duty to defend shall arise immediately upon Seller’s written demand and shall continue until final resolution of any claim or action.
11. Limitation of Liability. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE. THE TOTAL LIABILITY OF SELLER UNDER THIS CONTRACT OR IN CONNECTION WITH THE SALE OF THE GOODS AND/OR SERVICES, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE SPECIFIC GOODS AND/OR SERVICES UPON WHICH SUCH LIABILITY IS BASED. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF GOODWILL, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Insurance. Buyer shall maintain, at its expense, comprehensive general liability insurance, including product liability coverage, with minimum limits of $2,000,000 (USD) per occurrence, naming Seller as an additional insured. Certificates of insurance evidencing such coverage shall be provided to Seller upon request.
13. Intellectual Property. All trademarks, trade names, service marks, designs, and other intellectual property of Seller are and shall remain the exclusive property of Seller. Buyer shall not use, reproduce, or otherwise infringe upon any such intellectual property without Seller’s prior written consent.
14. Force Majeure. Seller shall not be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to acts of God, fire, flood, earthquake, war, terrorism, governmental action, strikes, shortages, or transportation delays. Seller’s performance shall be excused for the duration of such event, and the time for performance shall be extended accordingly.
15. Assignment. Buyer shall not assign or transfer this Contract or any rights or obligations hereunder without Seller’s prior written consent. Any attempted assignment in violation hereof shall be void. Seller may assign this Contract to any affiliate or successor entity without Buyer’s consent.
16. Relationship of the Parties. The relationship between Seller and Buyer is solely that of independent contracting parties. Nothing contained herein shall be construed to create a partnership, joint venture, or agency relationship between the parties.
17. Governing Law and Jurisdiction. This Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict-of-law rules. The parties agree that any action arising out of or related to this Contract shall be brought exclusively in the state or federal courts located in Dallas County, Texas, and each party irrevocably consents to the jurisdiction and venue of such courts.
18. Notices. All notices, demands, and communications under this Contract shall be in writing and delivered personally, sent by certified mail (return receipt requested), or by nationally recognized overnight courier to the address specified in the applicable Order. Notices shall be effective upon receipt.
19. Severability; Entire Agreement. If any provision of this Contract is held invalid or unenforceable, such provision shall be severed, and the remaining provisions shall remain in full force and effect. This Contract constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and representations. No modification or amendment shall be effective unless made in writing and signed by both parties.
