HULL MARINE PRODUCTS (HMP)
Terms and Conditions of Sale
1. DEFINITIONS
All orders are subject to acceptance by Seller. “Terms and Conditions” means collectively,
the terms and conditions contained herein, any Seller’s “Supplement to Terms and
Conditions of Sale”, and terms and conditions stated in Seller’s quotation. “Agreement”
means the agreement arising from the acceptance of this order and its attachments,
including the Terms and Conditions, which are incorporated into and are part of the
purchase order. Any terms and conditions originating with Buyer are superseded by the
Terms and Conditions and shall not be or become part of the contract between Buyer and
Seller unless specifically accepted in a writing signed by a duly authorized representative of
Seller. Acknowledgement of the receipt of any order, including signing and returning to
Buyer its acknowledgement copy, if any, shall not constitute acceptance by Seller of any
additional or different terms and conditions, nor shall Seller’s commencement of effort, in
itself, be construed as acceptance of an order containing additional or different terms and
conditions. Seller shall have no liability until and unless the orders are accepted. Buyer
assumes full responsibility for inaccurate, incomplete or faulty data supplied to Seller for
Seller’s use in the performance of orders. For purposes of the Agreement between the
Buyer and the Seller, the Seller shall be the Seller legal entity that manufactures the Goods.
2. PRICES
Prices and shipping lead times are subject to change without notice for any reason,
including but not limited to, changes related to the increased costs of raw materials and
components and transportation for the Goods. Any such changes shall apply to booked
and/or acknowledged orders. Published prices are prepared for the purpose of furnishing
general information and are not quotations or offers to sell on the part of the Seller. No
payment discounts are offered, and minor inadvertent administrative errors contained in
an invoice are subject to correction and shall not constitute reason for untimely payment.
Goods will be billed at the prices in effect at the time of shipment. Partial shipments on
quantity orders shall be deemed a separate and independent contract for billing. Freight
charges will be “Prepaid and added to the invoice” unless specified otherwise. Prepaid
charges will be invoiced using Seller’s freight and handling charge rate list. Courier service
and/or US Parcel Post charges will be prepaid and added to the invoice using current rates.
Seller does not accept COD orders.
3. TAXES
Prices do not include any sales, use, excise, property, import, export or such taxes that may
be levied on the transaction by local, state, federal or foreign governments. Any such taxes
shall be the responsibility of Buyer. If Seller is required to pay any such taxes, the cost shall
be added to the invoice or billed to Buyer separately. If the Seller (including when agreeing
to Drop Ship for Buyer) is subsequently assessed sales tax by a state tax agency because
Seller was not able to secure the correct state documentation to support tax exemption that
the goods were purchased for resale, any tax liability imposed will be passed from the
Seller to the Buyer who will be responsible for the assessed tax incurred.
4. DELIVERY
Unless otherwise agreed to by Seller, all shipments are made at Seller’s place of
manufacture. Delivery to a common carrier or licensed trucker shall constitute tender of
delivery to Buyer and all risk of loss or damage in transit shall be borne by Buyer. In no
event shall Seller be held liable for any damages or expenses caused by delays in delivery.
The parties recognize that delivery dates are approximate.
Method and route of shipment are at Seller’s discretion, unless Buyer supplies explicit
instructions that are accepted by Seller in writing in accordance with these Terms and
Conditions. If Seller is prepared to make shipment, and Buyer delays delivery, terms of
payment shall apply as though delivery had been affected as of the date that Seller was
prepared to make shipment. All costs associated with handling, care and custody of the
Goods shall be to the account of Buyer. The acceptance of the Goods by Buyer shall
constitute a waiver of all claims for delay. Buyer and Seller agree that “TIME IS NOT OF THE
ESSENCE” in Seller’s performance of this order.
Seller shall not be liable for delay in delivery or failure to manufacture due to causes
beyond its or its subcontractors’ reasonable control, including, but not limited to, delays or
failures due in whole or in part to, acts of God, acts of Buyer, acts of civil or military
authority, priorities, fire, strike, floods, acts of terrorism, insurrection, epidemics,
quarantine, war, riot, transportation delays, acts of a public enemy, inability to obtain
necessary labor, materials or manufacturing facilities, or other causes similar to those
enumerated. In the event of any such delay or failure, the date of delivery shall be extended
for a period equal to the time lost by reason of the delay.
5. LIMITED WARRANTY
Seller warrants that the Goods sold hereunder will be free from defects in material and
workmanship for the Warranty Period set forth below. Seller warrants its Good(s) only to
the original Buyer (“Warranty”). Additionally, in the event that Goods are manufactured
based upon Buyer’s designs or specifications or are not installed in accordance with Seller’s
instructions or guidelines, Buyer accepts the Goods “As Is, With All Faults.”
The Warranty in this Section is in lieu of and excludes all other warranties, express or
implied, by operation or law or otherwise, including but not limited to THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
(WHETHER KNOWN TO SELLER OR NOT). All other such warranties are hereby expressly
disclaimed by Seller and waived by Buyer. Without limiting the foregoing, Seller does not
warrant that the goods will be suitable for Buyer’s specific needs, will work in any
particular environment, will perform without interruption or be error free, or will work in
conjunction with Buyer’s equipment.
If Buyer makes a warranty claim, written notice of claimed defect must be given to Seller
within thirty (30) days from the date any such defect is first discovered, or in the exercise
of reasonable care should have been discovered. In no event whatsoever may a claim be
made later than thirty (30) days following the end of the 12-month warranty period. Buyer
shall be deemed to have waived any claim not made within thirty (30) days from when the
defect is first discovered or in the exercise of reasonable care should have been discovered.
The Good or parts claimed to be defective must be returned to Seller and must include a
detailed description of the claimed defect. If a warranty claim is valid, Seller shall pay
reasonable one-way costs of transportation of the defective Goods from either the original
destination or the location where defect occurred, whichever is closest to Seller’s facility.
Should any of the Goods fail to conform with the foregoing Warranty during the Warranty
Period, Seller shall, at its discretion, either (a) repair or replace the Goods, or (b) provide
Buyer with a credit equal to the price paid by Buyer for the Goods. THIS SHALL BE BUYER’S
SOLE AND EXCLUSIVE REMEDY AND BUYER SHALL NOT BE ENTITLED TO ANY OTHER
DAMAGES REGARDLESS OF THE NATURE OF BUYER’S CLAIM, BE IT IN CONTRACT,
WARRANTY, TORT OR OTHERWISE. Further, the Seller’s warranty on the Goods is void in
the event the Goods are not properly (i) used, stored, handled, installed and maintained
and (ii) de-installed, packed and shipped back to Seller by Buyer. If the Warranty return is
“No Fault Found,” the Buyer is responsible for any evaluation and return shipping charges.
Under no circumstances shall Seller be liable for removal of Seller’s Goods from Buyer’s
equipment or re-installation into Buyer's equipment. No person including any agent,
distributor, or representative of Seller is authorized to make any additional or different
representation or warranty on behalf of Seller concerning any Goods manufactured by
Seller. The remedies of Buyer with respect to the Warranty are exclusive and in lieu of any
and all remedies available under applicable law. This Section shall survive the expiration or
termination of any agreement between the Buyer and Seller.
6. WARRANTY PERIOD
Hull Marine Products:
Micro Jack Reinforcement
NanoJACK
Locking Flag Pole
Jack Plate Relay Bracket
Jack Plate Wiring Harness
Retrofit Relay Harness
Warranty Period
12 months from date of receipt.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, SELLER SHALL NOT BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING BUT
NOT LIMITED TO LOST PROFITS ARISING OUT OF THE PERFORMANCE, DELAYED
PERFORMANCE OR BREACH OF PERFORMANCE OF THIS ORDER REGARDLESS WHETHER
SUCH LIABILITY BE CLAIMED IN CONTRACT, EQUITY, TORT OR OTHERWISE. SELLER’S
OBLIGATION IS LIMITED SOLELY TO REPAIRING OR REPLACING (AT ITS OPTION AND AS
SET FORTH IN SECTION 5), AT ITS APPROVED REPAIR FACILITY, ANY GOODS OR PARTS
WHICH PROVE TO SELLER’S SATISFACTION TO BE DEFECTIVE AS A RESULT OF
DEFECTIVE MATERIALS OR WORKMANSHIP, IN ACCORDANCE WITH SELLER’S STATED
WARRANTY EVEN IN THE EVENT THAT BUYER’S SOLE AND EXCLUSIVE REMEDY SHALL
FAIL OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE
PURCHASE PRICE OF THE PRODUCT THAT GAVE RISE TO SUCH LIABILITY. THE
PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE ANY TERMINATION OR EXPIRATION
OF THE AGREEMENT AND SHALL APPLY REGARDLESS OF THE BASIS OF BUYER’S CLAIM,
BE IT IN CONTRACT, WARRANTY, TORT OR OTHERWISE.
8. GENERAL INDEMNITY
Buyer shall defend, indemnify and hold harmless Seller (and its officers, directors,
employees and affiliated companies, to be referred to collectively as “Seller”) from and
against any and all claims, lawsuits, liabilities, damages, losses, costs and expenses
(including but not limited to Seller’s attorney’s fees) arising from or in connection with any
third party claim(s) against Seller arising from Buyer’s use or resale of the Goods, or the
use or resale of the Goods by any third party. By way of example only and not by way of
limitation, Buyer shall indemnify Seller for any claims arising from the use of the Goods in
applications such as personal mobility, vehicular and amusement equipment.
9. PATENT INDEMNITY
Seller shall have no liability for infringement of any patents, trademarks, copyrights, trade
dress, trade secrets or similar rights except as specifically provided in this section. Any
liability of Seller shall be limited as set forth in section 7. Seller will defend and indemnify
Buyer against allegations of infringement of U.S. patents, U.S. trademarks, copyrights, trade
dress and trade secrets as (hereinafter collectively referred to as the “Intellectual Property
Rights”) subject to the limitations and conditions set forth in this section. Seller will defend
at its expense and will pay the cost of any settlement or damages awarded in any action
brought against Buyer based on an allegation that an item sold to Buyer (“Item”) infringes
the Intellectual Property Rights of a third party. Seller’s obligation to defend and indemnify
Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes
aware of such allegations of infringement, and Seller having sole control over the defense of
any allegations or actions including all negotiations for settlement or compromise. If an
Item is subject to a claim that it infringes the Intellectual Property Rights of a third party,
Seller may, in its sole discretion, procure for Buyer the right to continue using the Item,
replace or modify the Item so as to make it non-infringing, or offer to accept return of the
Item and return the purchase price less a reasonable allowance for depreciation.
Notwithstanding the foregoing, Seller shall have no liability for claims of infringement
based on information provided by Buyer, or directed to Items for which the designs are
specified in whole or in part by Buyer, or infringements resulting from the modification,
combination or use in a system of the Items. The foregoing provisions of this section shall
constitute Seller’s sole and exclusive liability and Buyer’s sole and exclusive remedy for
infringement of Intellectual Property Rights. If a claim is based on information provided by
Buyer or if the design for an Item is specified in whole or in part by Buyer, Buyer shall
defend and indemnify Seller for all costs, expenses or judgments resulting from any claim
that such Item infringes any patent, trademark, copyright, trade dress, trade secret or any
similar right.
10. PROPERTY RIGHTS
Except where otherwise expressly agreed, all patterns, tools, jigs and fixtures, drawings,
designs, software and other materials and data developed, fabricated or otherwise required
in the performance of this order, notwithstanding any charges, shall be and remain Seller’s
property and in Seller’s possession and control.
Except as specifically provided for in this order, Buyer shall have no right in any technical
data, Intellectual Property Rights, and computer software associated with this order. In the
event Seller agrees to provide Buyer with proprietary information, drawings, designs or
data in conjunction with this order, Buyer agrees that such information, drawings or data
will not be disclosed to a third party, or used by Buyer, without the written permission of
an authorized official of Seller.
11. RIGHT TO GOODS; DEFAULT; INSOLVENCY
If Buyer becomes insolvent or if Buyer is in default for any reason under the terms of this
or any other agreement between Buyer and Seller, Seller shall be entitled, at Seller’s option,
to discontinue further performance of all or part of the order, to withhold shipments, in
whole or in part, and/or to recall Goods in transit, retake same, and repossess all Goods
which may be stored with Seller for Buyer’s account, without the necessity of taking any
other proceedings. Buyer consents that all Goods so withheld, recalled, retaken or
repossessed shall become Seller’s absolute property, provided that Buyer is given full
credit. The foregoing shall not be construed as limiting, in any manner, any rights or
remedies available to Seller under contract, at law or equity.
12. CONDITIONS
The order is accepted with the understanding that it is subject to Seller’s ability to obtain
the necessary raw materials, and the order and all shipments applicable thereto are subject
to Seller’s current manufacturing schedules, and governmental regulations, orders,
directives and restrictions that may be in effect from time to time.
13. NON-WAIVER BY SELLER
Waiver by Seller of a breach of any of the Terms and Conditions shall not be construed as a
waiver of any other breach. Any failure at any time of Seller to enforce any provision of
these Terms and Conditions shall not constitute a waiver of such provisions or prejudice
Seller’s right to enforce such provisions at any time. Should any provision of these Terms
and Conditions be or become void or not enforceable by force or operation of law, all other
provisions shall remain valid and enforceable.
14. ASSIGNMENT
Buyer shall not assign, subcontract, or otherwise transfer the order, in whole or in part,
without the prior written consent of Seller, and any such assignment, subcontract, or
transfer without Seller’s prior written consent shall be void.
15. BUYER SUPPLIED MATERIAL
All material or equipment owned or furnished by Buyer while in Seller's possession will be
carefully handled and stored but Seller will not be responsible for accidental loss thereof or
damage thereto.
16. CHANGES
Changes in whole or in part of the order can be made only with Seller’s consent and upon
terms that will permit an equitable adjustment to be made in both the price and schedule of
the Goods to be delivered. Changes will be recognized and implemented only when
communicated to Seller by Buyer’s authorized representative, in writing.
17. TERMINATION
Termination of the order in whole or in part can be made only with Seller’s prior written
consent and upon terms that will indemnify Seller against loss and afford an equitable
profit.
18. RESERVATION OF RIGHTS
Seller reserves the right to make subsequent improvements and changes in the design of
Goods without imposing any obligation to make such changes or improvements upon
Goods sold to Buyer.
19. INSPECTION AND ACCEPTANCE OF GOODS
Final inspection and acceptance of Goods provided under this order shall be made by Buyer
within fourteen (14) days of receipt of the Goods at Buyer’s facility, except in the case
where Buyer’s source inspector or authorized representative inspects the Goods at Seller’s
facility. Failure of Buyer to inspect and reject in writing, said Goods within the above time
period (where source inspection is not applicable) shall be deemed to mean acceptance has
occurred. In the event Buyer’s source inspector is delegated to perform inspection and
acceptance, then sign-off of the relevant test documentation by the source inspector or
authorized representative shall constitute acceptance of the Goods by Buyer.
20. INSTALLATION
All Goods shall be installed by and at the expense of Buyer. Should Buyer request the
services of Seller, such service shall be rendered and charged at the established rate at the
time of performing said service, plus all other expenses including travel, hotel bills and
living expenses.
21. GOVERNING LAW; LIMITATION ON ACTIONS
This order shall be governed and construed in accordance with the laws of the State North
Carolina. No actions arising out of the sale of Goods covered by this order, other than an
action by Seller to recover the purchase price of such Goods, may be brought by either
party more than one (1) year after the cause of action accrues.