Terms & Conditions of Sales
Sale of any equipment or services described herein at the prices indicated is expressly conditioned upon the terms and conditions set forth below. Any order for or any statement of intent to purchase any such equipment or services, or any direction to proceed with engineering, procurement, manufacture or shipment, shall constitute assent to said terms and conditions and a representation that the purchaser is solvent. Acceptance of this proposal is strictly limited to the terms and conditions contained herein. Any additional or different terms or conditions set forth in any communication from the Purchaser are not agreed to by Tom Barrow Co., hereinafter referred to as “Seller”, and shall not be effective or binding unless agreed to in writing by an officer of the Seller . Purchaser is defined as the person, either directly or through an agent, accepting this proposal. Sellers receipt, acknowledgement or acceptance of Purchasers forms are for Sellers internal use and shall not alter the terms of Sellers forms, including this proposal.
PROPOSALS – All proposals for sales and/or services, unless otherwise specified upon the face are subject to acceptance within thirty days only. All proposals, which include equipment manufactured by others, are subject to the same conditions extended to Seller. In the event of a conflict between the terms extended to Seller and the terms contained herein, the terms contained herein shall control. Any numerical, clerical or stenographic errors appearing in Tom Barrow Co. proposal may be corrected at any time by Seller.
DELIVERY – Shipping dates are approximate and are based upon shipping promises given us by the manufacturer and are contingent upon prompt receipt of all necessary information. The Seller shall not be liable for delays in delivery or in performance or failure to manufacture or deliver, due to (1) causes beyond its control, including errors or delays in manufacture or by the manufacturer or (2) acts of God, acts of the Purchaser, acts of civil or military authority, priorities, fires, strikes, or other labor disturbances, floods, epidemics, war, riot, delays in transportation or car shortages, or (3) inability on account of causes beyond its reasonable control to obtain necessary labor, materials, components or manufacturing facilities. In the event of any such delay, the date of delivery or of performance shall be extended for a period equal to the time lost by reason of delay.
FIELD SERVICE & STARTUP – Services of factory authorized field service personnel for installation supervision, startup and adjustment and for subsequent technical assistance may be purchased at rates determined by Seller plus travel and per hour if not specifically quoted. Field Service is provided upon a “best efforts” basis and Seller assumes no responsibility and shall not be liable for any direct, incidental, consequential, special or contingent damages or expenses arising directly or indirectly from such Service. Purchaser agrees to defend and indemnify Seller and its employees, officers and owners and to hold them harmless against all claims, losses, demands, liabilities and expenses (including attorneys fees) resulting from claims arising from such Field Service, regardless if such claims, losses demands liabilities and expenses (including attorneys fees) are caused in part by Seller, except that Purchaser will not be liable under this section for claims, losses, demands, liabilities and expenses (including attorneys fees) caused or resulting from the sole negligence of Seller.
ELECTRICAL EQUIPMENT – Equipment includes only the electrical components referred to in the Proposal. Charges arising from any local, state or provincial regulations necessitating changes to electrical equipment are to be paid by the purchaser unless equipment has been specifically quoted to meet these regulations.
CLAIMS – Any claim of defects, shortages, nonconformities, or errors must be made in writing to Seller by the purchaser within five (5) days after receipt of shipment. The writing must specifically describe the errors, nonconformities, defects or shortages in the goods or delivery thereof. Failure to deliver the writing establishes delivery, acceptance and responsibility for prompt payment and waiver of all claims against Seller and expressly waives the Purchasers right to revoke acceptance. No back charge or retention of monies by purchaser shall be permitted without prior written approval from the seller.
PAYMENT AND TERMS TAXES – Any tax or other governmental charge now or hereby levied upon the production, sale, use of shipment of goods ordered or sold will be charged to any paid for by the Purchaser. Such taxes are not covered in the Seller’s price unless expressly so quoted.
TERMS OF PAYMENT – Unless other terms are specified, payment shall become due 30 days from date of invoice. If shipment is delayed by the Purchaser, date of readiness for shipment shall be deemed to be date of invoice for payment purposes. Past due amounts shall accrue interest at the rate of 1-1/2% per month including post-judgment amounts or at the highest rate allowed by law, whichever is less. If, in the Seller’s judgment, the Purchaser’s financial condition at any time does not justify the terms specified, the Seller may require full or partial payment as a condition to commencing or continuing manufacture or service in advance of shipment, or if shipment has been made seller may recover equipment from the carrier. Title to the goods described herein shall not pass to Purchaser until payment is made in full. Customer hereby assigns the right to payment from third persons and grants Seller a security interest in the goods described herein with authority to file UCC forms.
FREIGHT – Unless otherwise stated, prices are F.O.B. shipping point. Delivery of the goods to a common carrier or a licensed trucker or Purchasers driver shall constitute delivery to Purchaser, and all risks of loss or damage in transit together with any loss or damage associated with any delays, shall be borne by Purchaser.
CANCELLATION – The Purchaser may cancel his order only upon written notice and upon payment to the company of reasonable and proper cancellation charges, as determined by seller.
CHANGES – Changes in the specifications on which Purchaser’s order covered by this Proposal is based will not be accepted unless requested in writing and any change in price is agreed to in writing.
PATENTS – Tom Barrow Co. does not design or manufacture any equipment and waives any claims related thereto against Seller, including any claims for patent infringement.
LIMITED WARRANTY – Seller is a reseller of goods and provides no warranty for the goods sold. Only those warranties and guarantees offered by the manufacturer of any equipment or goods sold by Seller are offered to the Purchaser and only to the extent that they are transferable to the Purchaser; copies of these warranties and guarantees will be furnished by Seller upon written request by the Purchaser. Seller makes no other warranties, express or implied, including, but not limited to, warranty of merchantability, warranty of fitness for a specific purpose or the condition of the goods, all of which are specifically excluded. This limited warranty is exclusive and is in lieu of all other warranties, express, implied or statutory. Seller does not authorize any person or entity to assume for it any other liability for the sale of the goods described herein.
LIMITATION OF LIABILITY – The Seller’s liability on any claim of any kind, including negligence, for any loss or damage, including direct, general, special, incidental and consequential damages, arising out of, connected with, or resulting from this contract, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, inspection, repair, operation, service, or use of any equipment covered by or furnished under this contract shall in no case, exceed the price allocable to the equipment or unit thereof which gives rise to the claim. This shall be the sole and exclusive remedy against Seller. In no event whether as a result of breach of contract or warranty or alleged negligence or any other claim at law or in equity, shall the Seller be liable for special, incidental or consequential damages including, but not limited to, loss of profits or revenue, loss of use of the equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, or claims of customers of the Purchaser for such damages.
APPROVALS & CLEARANCES – The purchaser shall have responsibility to obtain any and all necessary approvals and clearances from his Insurance carrier(s), FDA, USD, OSHA, Local Building, Health, Industrial Safety, Pollution Control and all other similar agencies unless specially quoted herein.
DRAWINGS, PLANS, SPECIFICATIONS, PERFORMANCE, REGULATORY LAWS AND/OR STANDARDS – The Seller makes no promise or representation that its products, equipment or services will conform to any state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as a part of the contract between Purchaser and the Seller. The Seller’s prices do not include the cost of any related inspections permits or inspection fees. The Seller does not promise, acknowledge or warrant that the goods stated in this proposal conform or comply to any plans, specifications, performance requirements, drawings, scopes of work, written scopes of work or any other obligations or promises that Purchaser may have to any third party (the ‘Project Documents and Obligations’) and Purchaser waives any and all claims related thereto. Purchaser acknowledges that it has, or prior to accepting this proposal shall, become familiar with the specifications, features, dimensions, capacities and operating abilities of the goods described herein and acknowledges that it bears the responsibility to ensure the goods described herein conform and comply with the Project Documents and Obligations. Purchaser accepts and assumes all responsibility and liability that the goods described herein conform to or comply with the Project Documents and Obligations and specifically waives any and all claims against Seller related thereto.
GENERAL – In the event any disputes between Seller and Purchaser that arise out of or relate to this proposal, Purchaser agrees to pay all costs, expenses and attorneys’ fees related to the dispute, whether or not suit is filed, through appeal and judgment enforcement. In the event suit is brought by Seller or Purchaser arising out of or relating to this proposal or any dealings between them, Purchaser and Seller waive trial by jury which waiver includes all causes of action at law or in equity, counterclaims, crossclaims and defenses which are or could be asserted. The Parties hereby agree that the law of the state where this proposal originates shall control any litigation arising out of or relating to this Proposal notwithstanding any conflict of laws and the parties specifically submit themselves to the personal jurisdiction of that state. The parties expressly agree to venue as follows: 1. For any state litigation in Florida venue shall exclusively be in Pinellas County, Florida, or if in Federal court, the Middle District of Florida in Tampa, notwithstanding convenience of the parties or any venue selection laws; 2. For any state litigation in Tennessee venue shall exclusively be in Shelby County, Tennessee, or if in Federal Court, the Western District Of Tennessee in Memphis notwithstanding convenience of the parties or any venue selection laws; or 3. For any litigation in Georgia venue shall exclusively be in Cobb County, Georgia, or if in Federal Court, the Northern District of Georgia in Atlanta, notwithstanding convenience of the parties or any venue selection laws. Should any terms or provisions contained in this proposal be deemed unenforceable , the contract of which these conditions for a part shall not fail by reason thereof but shall be construed in the same manner as if such terms or provisions had not appeared herein. Any assignment of this contract or any rights hereunder, by the Purchaser without written consent of the company shall be void. The provisions of the contract are for the benefit of the parties hereto and not for any other person or reason.
ADDITIONAL CONDITIONS – If the purchaser issues an order to the manufacturer directly or in care of Seller the manufacturer’s term and conditions of sale are specifically incorporated herein by reference and shall be in addition to the terms and conditions herein To the extent any of the manufacturers’ terms and conditions conflict with the terms and conditions contained herein, the terms and conditions contained herein shall control. The terms and conditions herein shall be in addition to those terms and conditions contained in any open account or credit agreement between Seller and Purchaser, which are specifically incorporated herein by reference. In the event the terms and conditions of the open account or credit agreement conflict with the terms and conditions herein, the terms and conditions herein shall control.