Sales Terms

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OS-100-v05 rev.11/23/2020

1. Contract Formation

1.1 Offer | SNG’s proposal, quote, sales order and/or SNG’s invoice quote (collectively, the “Proposal”) constitutes an offer for the sale of Switch-N-Go™ and/or AmeriDeck™ brand products, as the case may be (the “Goods”), and includes all the terms and conditions contained herein (the “Terms and Conditions”). As used herein, the term “SNG” means Switch-N-Go, LLC, a Pennsylvania limited liability company, doing business under its own name and under the trade names of “Switch-N-Go” and “AmeriDeck”.The term “Buyer” means the person or entity acquiring a Switch-N-Go™ or AmeriDeck™ product from SNG pursuant to a Proposal issued by SNG.

1.2 Acceptance | Any purchase order or other form of acceptance issued by the Buyer in response to a Proposal from SNG shall result in a contract for the purchase of the Goods at the price quoted in SNG’s Proposal and shall be subject to these Terms and Conditions.  SNG does not accept any terms contained in any purchase order or other documents issued by Buyer which are different from, conflict with, modify and/or add to these Terms and Conditions.  SNG’s execution of any document issued by the Buyer shall constitute only an acknowledgment of receipt thereof, and shall not be construed as an acceptance of any of the terms therein.  Unless Buyer shall have set forth each specific objection to these Terms and Conditions in a separate writing signed and dated by Buyer and delivered to SNG contemporaneously with Buyer’s purchase order or other acceptance document, Buyer shall be deemed to have accepted all of these Terms and Conditions.  Buyer’s issuance of a purchase order or other document which purports to reject some or all of these Terms and Conditions by virtue of Buyer’s standard form language, or otherwise, shall not be sufficient objection.  Where Buyer specifically objects to any of these Terms and Conditions, no contract shall be formed unless and until SNG agrees to accept in writing Buyer’s proposed modifications to these Terms and Conditions.

1.3 Entire Agreement | The Proposal and these Terms and Conditions shall constitute the entire understanding and agreement (the “Contract”) between Buyer and SNG.  Any representation, promise, course of dealing, course of performance, custom or trade usage will not be binding upon either party.  This Contract may not be amended or modified except by a writing executed by both parties.  The attachments to these Terms and Conditions which are identified as “End-User Warranty for Switch-N-Go Product” and “End-User Warranty for AmeriDeck Products” shall be considered a part of these Terms and Conditions and the Contract.

2. Purchase and Sale

Subject to these Terms and Conditions, Buyer agrees to buy, and SNG agrees to sell, the Goods, for the purchase price specified in the Proposal.

3. Taxes

Buyer shall be responsible for, and shall pay, any taxes (sales, excise, use, etc.) and any export or import duties which may be applicable to the sale and/or delivery of the Goods.  To the extent that any warranty work may be performed on the Goods and sales tax may be due thereon, the End-User (as defined in Section 6, below) shall be responsible for such sales taxes.  Buyer shall defend, indemnify and hold SNG harmless from any claim, loss, damage, liability or expense incurred with regard to the payment of any such taxes or duties.

4. Payment; Security Interest

4.1 Generally | Buyer shall pay the purchase price, all applicable taxes, freight charges, and all other applicable charges in full, in U.S. Dollars, without any deduction for claims, set-offs or recoupment on account of this Contract or any other matter between the parties.  Payment shall not be contingent upon use or upon field tests.  If payment is not made when due, interest shall accrue and be payable by Buyer on the unpaid balance at a rate of one and one-half percent (1 1/2%) per month.

4.2 Payment | Payment of the purchase price shall be due upon the date so specified in the Proposal or as set forth in the SNG invoice to the Buyer, whichever is the later.  SNG may, in its discretion, and at SNG’s sole option, extend the payment due date pursuant to promotional or other programs which may be instituted by SNG from time to time.  In the event that no payment due date is specified as set forth above, the Buyer shall pay the purchase price within thirty (30) days from the date of delivery or the date of shipment, whichever is earlier.  If delivery or shipment is delayed by Buyer, SNG, at its election, may invoice the Buyer when the Goods are ready for delivery or shipment, whichever is earlier.  In such case, payment shall be due thirty (30) days from the date of the invoice, regardless of whether or when delivery or shipment of the Goods is actually made.

4.3 Security Interest | Buyer hereby grants to SNG a security interest in the Goods until all monies due SNG under this Contract are paid in full.  SNG shall have the right to file financing statements and any other documents that may be necessary to evidence and perfect such a security interest in the Goods in any jurisdiction.

5. Delivery

5.1 Date | Any delivery date stated in the Contract is approximate only and shall not constitute any guarantee of delivery on any particular date.  Time shall NOT be of the essence of the Contract.

5.2 Terms | Unless otherwise specified by SNG in the Proposal: (1) delivery of the Goods shall be Ex Works SNG’s designated factory or warehouse (Incoterms 2020); and (2) any delivery terms specified in the Proposal shall be construed in accordance with Incoterms 2020.

5.3 Freight | Notwithstanding the provisions of Section 5.2, above, unless otherwise directed by the Buyer in writing or otherwise expressly specified in the Proposal, SNG shall arrange for carriage of the Goods. Buyer shall be solely responsible for the cost of carriage of the Goods, regardless of any delivery terms (including Incoterms) specified in the Proposal.

5.4 Risk of Loss; Title | Risk of loss shall pass from SNG to the Buyer in accordance with the delivery terms applicable to this Contract, as specified in Section 5.2, above.  Title to the Goods shall pass from SNG to the Buyer upon the passage of risk of loss from SNG to the Buyer

5.5 Delay in Performance by Deist | SNG shall not be responsible to Buyer or any third party for any damages resulting from any failure or delay in manufacturing, delivery or shipping due to any cause beyond SNG’s reasonable control, including, but not limited to:  (1) intervening legal requirements or governmental directives; (2) acts of God; (3) force majeure; (4) labor disputes; (5) delays caused by SNG’s suppliers or vendors; (6) war, terrorism, or similar disruptions, or (7) pandemics or other health emergencies.

5.6 Delay of Delivery or Shipment by Buyer |
If delivery or shipment is delayed by Buyer, SNG may arrange for storage of the Goods at Buyer’s sole expense.  In such event, risk of loss to the Goods shall pass to Buyer upon placing the Goods in storage, unless risk of loss has already passed to the Buyer pursuant to the delivery terms applicable to this Contract, as specified in Section 5.2, above, in which case risk of loss shall remain with the Buyer.  If storage of the Goods is at a location other than SNG’s factory, Buyer shall be responsible for all storage, handling and other expenses actually incurred by SNG in effectuating the storage of the Goods.  If storage of the Goods is at SNG’s factory, SNG shall be entitled to collect from Buyer a storage charge of $25.00 per day per unit.  SNG shall not be obligated to deliver or ship the Goods until all storage charges and related expenses have been paid by the Buyer.  Storage charges shall commence on the original due date for delivery and shall continue until shipment of the Goods to the Buyer.  SNG shall have the right to invoice Buyer for storage charges on a weekly, bi-weekly, monthly or other periodic basis, at SNG’s option.  Payment on such invoices shall be due thirty (30) days from the date of the invoice.  If Buyer delays delivery or shipment of the Goods for a period of more than ninety (90) days, or otherwise fails to take delivery of the Goods within ninety (90) days from the original due date for delivery, SNG may declare Buyer in default and exercise its remedies, as contemplated by Section 9, below.

5.6 Delay of Delivery or Shipment by Buyer | SNG shall have no responsibility for Goods that are damaged due to: (1) the Goods having been stacked and/or packaged and/or loaded and unloaded inside other Goods at the election of the Buyer; and/or (2) stacked Goods not having been unloaded within seven (7) days upon taking physical delivery of the Goods.

 

6. Warranties (Other than Patent Warranties)

6.1 Definitions |

Buyer.  For purposes of this Contract, the term “Buyer” means the person or entity purchasing the Goods from SNG pursuant to a Proposal.

End-User.  For purposes of this Contract, the term “End-User” means the person or entity purchasing the Goods from the Buyer or an Upfitter, as the case may be, and with the intention of placing such Goods in service with no immediate intention to re-sell the Goods.

Upfitter.  For purposes of this Contract, the term “Upfitter” means a person or entity which attaches the Goods to a truck or similar piece of equipment with the intention of re-selling the Goods to an End-User in combination with such truck body or equipment.  The Upfitter, may or may not, be the Buyer for the purposes of this Contract.  An End-User which installs Goods on its own truck body or similar equipment is not an Upfitter.

6.2 Warranty – Switch-N-Go Products |

(6.2.1)  Grant of Warranty to End-User | Subject to the terms, conditions and limitations of this Contract, SNG hereby makes the warranty set forth in the attachment “End-User Warranty for Switch-N-Go Products” (the “Switch-N-Go Attachment”) to the End-User of Switch-N-Go products.

(6.2.2)  Warranty Claims by Buyer or Upfitter | Subject to the terms, conditions and limitations of this Contract, SNG hereby make the warranty set forth in Switch-N-Go Attachment to the Buyer and Upfitter.  For purposes of this Section 6.2.2, the Buyer and Upfitter shall be considered the “End-User” under the Switch-N-Go Attachment: Provided, however, that the applicable Warranty Period shall be deemed to have commenced:  (a) with respect to the Buyer, upon delivery of the Goods under this Contract; and (b) with respect to an Upfitter, upon acquisition by the Upfitter by the Goods from the Buyer.

(6.2.3) Authorization to Issue Warranty to End-User | Subject to the provisions of this Section 6.2.3, the Buyer, and or an Upfitter acquiring the Goods from the Buyer, shall have the right to issue the warranty attached as the Switch-N-Go Attachment to the End-User of the Goods.  Notwithstanding the foregoing, unless otherwise authorized by SNG in writing, the Buyer or Upfitter may not issue any such warranty if the sale to the End-User occurs more than three years after the Buyer acquired the Goods in question.  The Buyer and the Upfitter shall be responsible for any warranty claims made by an End-User against SNG which arise out of damage to the Goods which occurred while such Goods were in the possession of the Buyer or Upfitter.    

6.3 Warranty – AmeriDeck Products |

(6.3.1)  Grant of Warranty to End-User | Subject to the terms, conditions and limitations of this Contract, SNG hereby makes the warranty set forth in the attachment “End-User Warrant for AmeriDeck Products” (the “AmeriDeck Attachment”) to the End-User of AmeriDeck products.

(6.3.2)  Grant of Warranty to End-User | Subject to the terms, conditions and limitations of this Contract, SNG hereby make the warranty set forth in the AmeriDeck Attachment to the Buyer and Upfitter.  For purposes of this Section 6.3.2, the Buyer and Upfitter shall be considered the “End-User” under the AmeriDeck Attachment:  Provided, however, that the applicable Warranty Period shall be deemed to have commenced:  (a) with respect to the Buyer, upon delivery of the Goods under this Contract; and (b) with respect to an Upfitter, upon acquisition by the Upfitter by the Goods from the Buyer.

(6.3.3)  Authorization to Issue Warranty to End-User | Subject to the provisions of this Section 6.3.3, the Buyer, and an Upfitter acquiring the Goods from the Buyer, shall have the right to issue the warranty attached as the AmeriDeck Attachment to the End-User of the Goods.  Notwithstanding the foregoing, unless otherwise authorized by SNG in writing, the Buyer or Upfitter may not issue any such warranty if the sale to the End-User occurs more than three years after the Buyer acquired the Goods in question.  The Buyer and the Upfitter shall be responsible for any warranty claims made by an End-User against SNG which arise out of damage to the Goods which occurred while such Goods were in the possession of the Buyer or Upfitter.

7. Intellectual Property

7.1 Rights of SNG | Buyer recognizes and accepts SNG’s exclusive right in and to all of its copyrighted materials, trademarks, trade names, trade secrets, know-how and patents attributable to any Goods part or component, and shall not dispute or impair the value of any such copyright, trademark, trade name, trade secrets, know-how or patent

7.2 No License | No right or license under any copyright, trademark, trade name, trade secrets, know-how, patent or other intellectual property right of SNG is granted to Buyer by, or is to be inferred from, any provision in this Agreement or the sale of the Goods to Buyer.  To the extent that any intellectual property of SNG (including, without limitation, drawings and user manuals) is disclosed to the Buyer and/or a customer of the Buyer in conjunction with the sale of  Goods, such disclosure is made solely for the purpose of permitting the Buyer and/or customer to properly operate and maintain the Goods, and for no other purpose (including, without limitation, replication of the Goods), it being understood and agreed by the Parties that all such other uses are expressly prohibited.  Buyer shall, under no circumstances, have any rights in or with respect to any copyright, trademark, trade name, trade secrets, know-how, patent or other intellectual property right of SNG.

7.3 Trademarks & Trade Names | Buyer may, when appropriate, use trademarks and trade names owned by SNG, but only for display purposes in connection with the sale and promotion of the Goods.  Buyer shall not in any way use such trademarks or trade names, or any trademark or trade name closely resembling them, as part of Buyer’s corporate or business name or in any manner which may be considered misleading, detrimental, or objectionable.  SNG shall have the right to restrict or withdraw in its entirety Buyer’s right to use such trademarks and/or trade names at any time, in SNG’s sole discretion.  No such use of SNG’s trademarks or trade names shall create any rights in Buyer which respect to such trademarks or trade names.

7.4 No Reverse Engineering | Buyer shall not, directly or indirectly, attempt to reverse engineer, assist any third party in reverse engineering, and/or request that a third party reverse engineer, any Goods.  The provisions of this Section 7.4 shall remain in effect for a period of five (5) years following the date of delivery of the Goods in question.    

8. Limitation of Damages

8.1 Exclusion of Certain Damages | In no event shall SNG or SNG’s employees, officers, directors, representatives, affiliates and/or agents be liable for consequential, incidental or punitive damages incurred by Buyer or any third party in connection with any matter arising out of or relating to this Contract, or the breach thereof, regardless of whether such damages are characterized as arising out of breach of warranty, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence and/or negligent misrepresentation), contract, strict liability, statutory liability, indemnity or otherwise. Such limitations shall apply regardless of whether SNG has been advised or otherwise made aware of the possibility of such damages arising.  For purposes of this Section 8.1, consequential damages include, but are not limited to:  (1) Buyer’s lost production, sales and/or profits; (2) Buyer’s loss of use of the Goods and/or any other equipment; (3) Buyer’s cost of capital; or (4) any claims of customers of the Buyer against Buyer or SNG.

8.2 Limitation on Amount | Notwithstanding any other provision of this Contract, the total liability, in the aggregate, of SNG and SNG’s employees, officers, directors, representatives, affiliates and agents to Buyer or any third party claiming through or under Buyer for any claims, losses, damages, or costs arising out of or relating to this Contract, or the breach thereof, shall not exceed the total consideration received by SNG from Buyer under this Contract.  This Section 8.2 shall apply regardless of whether the claim is characterized as arising out of breach of warranty, contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence and/or negligent misrepresentation), strict liability, statutory liability, indemnity or otherwise.

9. Termination for Default

SNG may terminate this Contract if Buyer:  (1) becomes insolvent; (2) is unable to meet its obligations as they become due or admits such in writing; (3) enters bankruptcy or has a receiver or trustee appointed for it; (4) fails to timely make payments under this Contract or under any other obligation of Buyer to SNG including, but not limited to, any storage charges and expenses due under Section 5.6, above; (5) fails to provide SNG with adequate assurance of due performance within fifteen (15) days of Buyer’s receipt of SNG’s written demand therefor; or (6) delays delivery or shipment of the Goods for a period of more than ninety (90) days, or otherwise fails to take delivery of the Goods within ninety (90) days from the original due date for delivery.  Any such termination shall be effectuated by SNG giving the Buyer a written declaration of default and notice of termination.  Upon such declaration of default and notice of termination, SNG shall have all remedies available to SNG under this Contract and at law, including, without limitation:  (1) the right to recover from Buyer SNG’s expenses, as provided in Section 11.8, below; (2) the right to recover from Buyer the purchase price of the Goods; (3) the right to re-sell the Goods to a third party (for which SNG’s declaration of default and notice of termination shall be considered sufficient notice of SNG’s intent to re-sell the Goods to a third party) and to recover the difference between such sales price and the purchase price under this Contract from the Buyer; (4) the right to recover storage charges and expenses due under Section 5.6, above; and (5) the right to recover interest from the Buyer, as provided in Section 4.1, above.  If Buyer has made a deposit on the Goods and/or has made progress payments on the Goods, upon a declaration of default by SNG, SNG shall be entitled to retain any such deposit and/or progress payments and apply such amounts against any damages incurred by SNG as a result of Buyer’s default.  All remedies shall be cumulative and the exercise of any particular remedy shall not be considered either an election of remedies or an exhaustion of such remedy..

10. Credit Verification

SNG reserves the right to perform a review of Buyer’s creditworthiness following acceptance of SNG’s Proposal by Buyer.  If Buyer’s creditworthiness is unsatisfactory to SNG, in SNG’s sole discretion, SNG shall not be obliged to proceed with the performance of this Contract.  In such case, SNG may either (1) cancel this Contract without any liability to Buyer, or (2) suspend performance of the Contract, without any liability to Buyer, unless and until the Buyer shall have agreed to such terms of payment and such security therefor as is satisfactory to SNG, in SNG’s sole discretion.

11. Other Provisions

11.1 Arbitration | Any dispute, controversy, claim or other matter arising out of or relating to the negotiation, execution, delivery or performance of this Contract, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction thereof.  The agreement of the parties to arbitrate any such dispute, controversy, claim or other matter shall apply regardless of whether the dispute, controversy, claim or other matter is characterized as arising in contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence, and/or negligent misrepresentation), strict liability, statutory liability, indemnity, contribution or otherwise.  Any such arbitration proceedings shall be held in Erie, Pennsylvania, and shall be conducted in the English language.

11.2 Limitation of Actions by Buyer | Any actions against SNG with respect to any matter arising out of or relating to this Contract must be brought by Buyer, or anyone claiming through or under Buyer, within the earlier of: (1) one (1) year from the date that the claim in question accrued; or (2) the expiration of any applicable statute of limitations.

11.3 Governing Law | This Contract shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without reference to any applicable principles of conflicts of law which would direct the application of the laws of another jurisdiction.  Any dispute, controversy, claim or other matter arising out of or relating to the negotiation, execution, delivery or performance of this Contract, or the breach thereof, regardless of whether such dispute, controversy, claim or other matter is characterized as arising in contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence and/or negligent misrepresentation), strict liability, statutory liability, indemnity, contribution or otherwise, shall be governed by, and determined and resolved in accordance with, the laws of the Commonwealth of Pennsylvania, without reference to any applicable principles of conflicts of law which would direct the application of the laws of another jurisdiction.  The United Nations Convention on the International Sale of Goods shall not apply to this Contract.

11.4 Waiver | The waiver of any right or default in any one instance shall not be deemed a waiver of any future right to enforce this Contract.    

11.5 Assignment | This Contract may not be assigned by Buyer without the written consent of SNG.

11.6 Severability | If any provision of this Contract is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect.

11.7 Confidentiality; Buyer Disclosures | Except to the extent required by applicable law, the terms and conditions of this Contract shall be held in confidence by each party.  Unless otherwise agreed to in writing by SNG, any information or ideas transmitted by Buyer to SNG in connection with this Contract shall not be regarded as a trade secret of, or submitted in confidence by, the Buyer.

11.8 Recovery of Expenses | SNG shall be entitled to recover from Buyer all costs and expenses (including, but not limited to, reasonable attorney’s fees) which are incurred by SNG in enforcing its rights under this Contract, including, but not limited to, the recovery of any amounts owed by Buyer to SNG under this Contract.

11.11 No Third Party Beneficiaries | Except as expressly set forth in this Contract as to Upfitters and End-Users, there are no third party beneficiaries with respect to this Contract between the Buyer and SNG, including (but not limited to) any customers of the Buyer or any affiliates of the Buyer.

11.12 No Nuclear Use | The Goods which are the subject of this Contract shall not be used by Buyer or any third party in any nuclear installation or for the processing, handling, movement and/or storage of nuclear material.  If any such use occurs, SNG disclaims all liability for any damages, injury or contamination relating to or arising out of such use.  Buyer shall defend, indemnify and hold SNG harmless from any such liability, regardless of whether the claim is characterized as arising out of breach of warranty, contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence and/or negligent misrepresentation), strict liability, statutory liability, indemnity or otherwise.

11.12 Third Party Contractors | Buyer expressly acknowledges and agrees that SNG shall have no responsibility for, and shall have no liability with respect to, the performance of third party contractors retained by the Buyer to perform services with respect to the Goods, including, without limitation, upfitting the Goods onto a track chassis, installing the Goods, or otherwise modifying the Goods.  Buyer shall look solely to such third party contractor to satisfy any claims by the Buyer arising out of or relating to the performance of such services by the third party contractor.  The provisions of this Section 11.11 shall apply regardless of whether SNG had or had not previously designated the third party contractor in question as an “approved”, “certified” or similarly designated service provider to perform the services in question with respect to the Goods.    

1547197v5

OS-100-v05 rev.11/23/2020