Sales Orders; Governing Terms and Conditions. These General Terms and Conditions govern the sale by Grove Services and the purchase by Customer of goods and services under any sales order entered into between Grove Services and Customer, whether by exchange of hard copy, e-mail, confirmation or acceptance on a mobile device application or other means (“Sales Order”). As used herein, “Grove Services” means Grove Services, Inc. or its contracting subsidiary identified in the Sales Order, “Customer” means the buyer of the goods or services as identified in the Sales Order, and this “Agreement” means the Sales Order together with these General Terms and Conditions, which together constitute the entire agreement between the parties. Grove Services shall not be bound by any term or conditions of Customer’s orders, order acknowledgements or acceptance forms, invoices, counter offers or other documents or communications which propose any terms or conditions in addition to or differing from the terms of this Agreement. The failure of Grove Services to object to such terms and conditions contained in any Customer document shall not be deemed an acceptance thereof or a waiver of any of the terms or conditions of this Agreement. No amendment, deletion, supplement or change in this Agreement shall be binding upon Grove Services unless separately and specifically approved by a duly authorized officer of Grove Services in a written amendment, signed by hand in ink.
Cancellations and Changes. All orders remain subject to unilateral cancelation by Grove Services for any reason until Grove Services both accepts the Sales Order and has shipped the product. Sales Orders cannot be canceled by Customer after acceptance by Grove Services except with the express written consent of Grove Services. Except for cancelation by Grove Services as set forth above, any changes to any Sales Order must be in writing and accepted and acknowledged in writing by a duly authorized officer of Grove Services to be effective.
Consignees. Customer shall provide Grove Services with the name and address of the consignee(s) as they are to appear on the ocean bill of lading and certificates not later than 7 days after confirmation of an offer to purchase. Grove Services reserves the right to reject, and refuse to ship to, consignees in its sole discretion. Any rejection of, or refusal to ship to, one or more consignees designated by customer shall not affect in any manner the binding nature, or enforceability, of any offer to purchase that has become a binding sales order.
Price. Prices shall be firm and not subject to adjustment. Unless otherwise stated on the face of the Sales Order, all prices are in United States dollars (USD).
Taxes. Any tax which Grove Services may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any goods or services purchased hereunder shall be for the account of Customer and may be added to the price of such goods or services. Customer shall promptly pay the amount thereof to Grove Services upon demand or may, in lieu of such payment, furnish to Grove Services tax exemption certificates acceptable to the appropriate taxing authorities.
Payment; Setoff. Unless otherwise specified in a Sales Order, Grove Services is not obligated to deliver any products until the entire purchase price for such products has been remitted, in full, to Grove Services. In no event is Customer authorized to deduct any amounts from the amounts owed to Grove Services unless specifically authorized in writing by Grove Services.
Credit. All orders are subject to the approval of Grove Services’ Credit Department. Credit terms (including payment terms and credit limits) will be set and may be subject to periodic review, in each case according to Grove Services’ credit guidelines in effect from time to time. Grove Services may at any time refuse to make shipment or delivery if Customer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with Grove Services’ credit guidelines or as may otherwise be required by Grove Services. Grove Services may require payment in full or other security in advance, in each case, in its sole discretion.
Default in Payment. If Customer fails to make payments required under this Agreement, Grove Services may at its option and in addition to any other remedies available to it (a) defer further shipment until such payments are made and satisfactory credit arrangements are re-established; or (b) cancel the unshipped balance of any order. Past due payments shall be charged at the maximum interest allowed by law.
Delivery. Grove Services will use its commercially reasonable efforts to comply with the shipping period stated in the Sales Order, but such periods are estimates only and time shall not be of the essence in respect thereof. Grove Services shall have no liability to Customer for failure to meet scheduled delivery dates and such failure shall not entitle Customer to repudiate or cancel any Sales Order.
NO REPRESENTATION OR WARRANTY WITH RESPECT TO GOODS OR SERVICES.
- CUSTOMER ACKNOWLEDGES THAT GROVE SERVICES IS NOT THE MANUFACTURER OF GOODS SUPPLIED UNDER THIS AGREEMENT. GROVE SERVICES MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, INCLUDING FITNESS FOR A PURPOSE AND MERCHANTABILITY, OR OTHERWISE WITH RESPECT TO GOODS AND SERVICES SOURCED, PURCHASED OR DELIVERED UNDER THIS AGREEMENT, EXCEPT TO THE EXTENT EXPRESSLY STATED IN THE APPLICABLE SALES ORDER. CUSTOMER ASSUMES ALL RISK AND LIABILITY, INCLUDING BUT NOT LIMITED TO PRODUCT LIABILITY, RESULTING FROM THE RESALE, CONSUMPTION OR OTHER USE OF THE PURCHASED GOODS AND SERVICES. THE SUITABILITY OF GOODS AND SERVICES FOR ANY PURPOSE TO CUSTOMER OR ITS CUSTOMERS IS FOR CUSTOMER, IN CUSTOMER’S SOLE JUDGMENT, TO DETERMINE.
- IN THE EVENT OF A DEFECT IN ANY GOODS OR SERVICES, CUSTOMER SHALL HAVE AVAILABLE TO IT ONLY THOSE REMEDIES, IF ANY, PROVIDED FOR IN ANY SALES ORDER OR, TO THE EXTENT APPLICABLE, ANY OTHER AGREEMENT ENTERED BY GROVE SERVICES ON BEHALF OF CUSTOMER WITH THE SUPPLIER OR DISTRIBUTOR OF SUCH GOODS OR SERVICES. GROVE SERVICES SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO COOPERATE WITH CUSTOMER AND FACILITATE CUSTOMER’S PURSUIT OF SUCH REMEDIES, IF ANY, AT THE REASONABLE REQUEST OF CUSTOMER.
- THE PARTIES EXPRESSLY AGREE THAT ANY STATEMENTS BY THE USDA OR OTHER GOVERNMENT AGENCIES CONTAINED IN ANY EXPORT CERTIFICATION DOCUMENTS PROVIDED BY GROVE SERVICES OR ANY OF ITS SUPPLIERS DO NOT CONSTITUTE WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY GROVE SERVICES.
LIMITATION OF LIABILITY. TO THE GREATEST EXTENT PERMITTED BY LAW, NONE OF GROVE SERVICES OR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES OR AGENTS SHALL BE LIABLE TO CUSTOMER OR ITS DIRECTORS, OFFICERS, EQUITY HOLDERS, EMPLOYEES, AFFILIATES, AGENTS OR CUSTOMERS FOR ANY LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR GROVE SERVICES’ PERFORMANCE OR NONPERFORMANCE THEREOF. NONE OF GROVE SERVICES OR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES OR AGENTS SHALL BE LIABLE TO CUSTOMER OR ITS DIRECTORS, OFFICERS, EQUITY HOLDERS, EMPLOYEES, AFFILIATES, AGENTS OR CUSTOMERS FOR ANY INDIRECT OR DIRECT DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT OR GROVE SERVICES’ PERFORMANCE OR NONPERFORMANCE THEREOF, UNLESS SUCH DAMAGES ARE SOLELY THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF GROVE SERVICES OR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR AFFILIATES, IN WHICH CASE GROVE SERVICES’ AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED TWENTY-FIVE THOUSAND DOLLARS ($25,000 USD) AND GROVE SERVICES SHALL HAVE THE UNRESTRICTED RIGHT TO APPLY ANY SUCH LIABILITY AGAINST PAST AMOUNTS DUE TO GROVE SERVICES BY CUSTOMER OR, WHERE NO PAST DUE AMOUNTS EXIST, AS CREDIT AGAINST ANY FUTURE ORDER OF CUSTOMER, TO THE GREATEST EXTENT ALLOWABLE BY LAW.
Force Majeure. Customer understands and agrees that Grove Services may ship goods in accordance with any shipping information specified in a Sales Order regardless of any circumstances, whether or not known to Grove Services, that may exist at the destination of shipment. Grove Services shall have no liability (including, but not limited to, any obligation to issue refunds or credits) in connection with any delay or impairment of performance resulting in whole or in part from fire, earthquake, flood, outbreak of disease, sickness, virus (including, but not limited to, avian influenza) or other act of God, explosion, strikes or lockouts, war, terrorist act, riots and civil commotions, quarantine, or act, including, but not limited to, change in regulation or law, of any governmental agency, domestic or foreign, or branch of the armed forces, or any other circumstance or cause beyond the reasonable control of Grove Services. Grove Services shall inform Customer of any such actual or anticipated nonperformance and estimate the time necessary to correct the condition. In the event the performance of a Sales Order is rendered impossible or impractical due to a force majeure, the time of performance thereof shall be extended for a period equal to the period during which such force majeure event is occurring, plus a reasonable amount of time thereafter. If such performance is rendered impossible or impractical for a period longer than ninety (90) calendar days, either party shall have the right to terminate performance of the remaining obligations under the affected Sales Order upon ten (10) calendar days’ prior written notice to the other party.
Import Duties. Any and all responsibilities associated with landing and clearing goods purchased hereunder, including but not limited to obtaining import permits and licenses, and paying local taxes, duties, tariffs and other fees, shall remain Customer’s sole responsibility. Under no circumstances shall Customer’s inability to procure proper permits and licenses, or its inability to pay any fees, duties and taxes, excuse or relieve Customer of any of its obligations under this Agreement.
Export Compliance. Customer represents and warrants that Customer is not located in a country that is subject to a United States government embargo or that has been designated by the United States government as a “terrorist supporting” country, and that Customer is not listed in any United States government list of prohibited or restricted parties. Customer agrees that no goods purchased hereunder shall be exported or re-exported (a) to any countries included in prohibited countries listed by the U.S. Export Administration Regulations (“EAR”) or as otherwise prohibited under the EAR, including to any person or entity on the Bureau of Industry and Security Denied Parties List, Entity List or Unverified List (available at https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern) in each case as in effect at the time of export or re-export, unless any required export or other licenses have been obtained or the transaction meets all eligibility criteria for a BIS license exception; or (b) to any person or entity located in a country or territory subject to U.S. sanctions (currently Cuba, North Korea, Iran, Sudan, Syria and the Crimea region of Ukraine) or to a person or entity on the Office of Foreign Assets Control listing of Specially Designated Nationals and Blocked Persons (available at http://sdnsearch.ofac.treas.gov/), in each case as in effect at the time of export or reexport, unless any required OFAC specific license has been obtained or the transaction meets all eligibility criteria for an OFAC general license.
Compliance with Law. Customer represents and warrants that the purchase and subsequent resale or delivery of goods shall be in compliance with all applicable U.S., foreign and local laws and regulations. Without limiting the foregoing, Customer acknowledges that goods purchased hereunder may be subject to U.S. export and import control laws. Customer will defend, indemnify and hold harmless Grove Services from and against any and all claims, demands, liabilities, losses, damages, fines, assessments, judgments, penalties, costs or expenses (including reasonable attorneys’ fees) which relate in any way to any violation of law by Customer.
Claims. In the case of any claim by a Customer regarding the products or services offered or provided by Grove Services, Customer must notify Grove Services within the earlier of ten (10) calendar days of (a) the date Customer knows or reasonably should have known about the matter giving rise to the claim and (b) delivery. Any failure of Customer to so notify Grove Services within the time period prescribed shall be deemed a full and complete waiver of any nonconformance and immediately cause any claim to be null and void. All claims must be in the form of a written demand and must contain:
- A description of the claim by a third party independent expert organization (SGS or equal) approved by Grove Services;
- An assertion of liability to some party for the alleged loss or damage;
- Facts sufficient to identify the shipment or shipments involved and the circumstances, in reasonable detail, giving rise to the claim; and
- A demand stated in US dollars for the specific amount claimed.
Governing Law; Submission to Jurisdiction.
All disputes arising out of or in connection with any Sales Order or the execution thereof shall be settled by amicable negotiations. In case no settlement can be reached, and notwithstanding any provision of these General Terms and Conditions to the contrary, all such disputes shall be submitted to binding arbitration before the Society of Maritime Arbitrators (“SMA”) in accordance with the SMA Rules for such proceedings. The arbitrators shall apply maritime law, as supplemented by the laws of the Commonwealth of Massachusetts and excluding the choice of law rules thereof. Any decision of the arbitrators shall be final and may be confirmed, reduced to judgment and/or enforced in any court of competent jurisdiction. The fees for arbitration shall be borne by the losing party, unless otherwise agreed in writing or awarded by the arbitrators.
Customer and Grove Services each acknowledge and agree that the contract evidenced by a Sales Order is a maritime contract and, accordingly, each party shall have all remedies available to it under applicable maritime law. Further, Customer understands and agrees that the goods which are the subject of a Sales Order will be shipped on ocean vessels under bills of lading and/or other contracts of ocean carriage, and customer expressly accepts that Customer is liable to, and shall indemnify and hold harmless, Grove Services for any and all demurrage or other liability which may be imposed upon Grove Services or which Grove Services may otherwise have arising out of or relating to such bills of lading or other contracts for ocean carriage to the extent such liability was directly or indirectly caused by Customer’s actions or inaction.
Except as aforesaid with respect to disputes arising out of or in connection with any Sales Order or the execution thereof, this Agreement and all rights and obligations of the parties thereunder shall be governed by, and construed and enforced according to, the laws of the Commonwealth of Massachusetts of the United States of America, including the Uniform Commercial Code as adopted in the Commonwealth. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from and shall not apply to this Agreement.
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION RELATED TO OR ARISING OUT OF THIS AGREEMENT.
Attorneys’ Fees. In the event any legal action is brought for enforcement of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in connection with such action, in addition to any other relief to which such party may be entitled.
Waiver. The waiver by either party of a breach or default by the other party of any provision of this Agreement shall not operate or be construed as a waiver of any other continuing or subsequent breach or default by such party.
Assignment. This Agreement may not be assigned or otherwise transferred by Customer, including by operation of law, in whole or in part, without the prior written consent of the Grove Services. A sale or transfer of more than fifty percent (50%) of the equity interests in Customer shall be deemed to be an assignment prohibited hereby. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their successors and permitted assigns.