Terms & Conditions of Sale
All sales of products and/or services made by Encore Technology Group, LLC (“Encore”) to its customers (each a “CLIENT”) are subject to these terms and conditions, as amended from time to time (the “Terms”). CLIENT shall be deemed to have accepted these Terms by manifesting such acceptance by any of the following (i) CLIENT submitting a purchase order to Encore, (ii) CLIENT providing instructions or authorization regarding the sale of products and/or services (including instructions to bill and hold), (iii) CLIENT’s acceptance of delivery of any products sold by Encore, (iv) CLIENT’s paying for any products and/or services sold by Encore, or (v) CLIENT’s indicating in some other manner CLIENT’s acceptance of these Terms (including email authorization or email acceptance of an order by CLIENT), whichever comes first. Upon acceptance, CLIENT irrevocably agrees and commits to purchase the products and/or services in accordance with these Terms. These Terms prevail over any of CLIENT’s general terms and conditions of purchase regardless of whether or when CLIENT has submitted its purchase order or such terms. Fulfillment of CLIENT’s order does not constitute acceptance of any of CLIENT’s terms and conditions and does not serve to modify or amend these Terms. The terms on any purchase order or similar document submitted by CLIENT to Encore will have no effect on any of these Terms, unless such terms are in each case accepted in writing by Encore. Except for any written contract signed by Encore and CLIENT, ENCORE HEREBY OBJECTS TO AND REJECTS THE PROVISIONS OF ANY PURCHASE ORDER OR SIMILAR DOCUMENT SUBMITTED BY CLIENT THAT IS INCONSISTENT WITH OR IN ADDITION TO THESE TERMS, AND ENCORE’S OFFER AND OBLIGATION TO SELL PRODUCTS OR SERVICES IS EXPRESSLY CONDITIONED UPON CLIENT’S ACCEPTANCE OF THESE TERMS.
Unless Encore and CLIENT have entered into a written contract signed by both parties governing the sale of products and/or services by Encore, these Terms constitute the final and complete and exclusive statement of the terms of the agreement between Encore and CLIENT regarding the sale of products and services by Encore to CLIENT. These Terms supersede all prior or contemporaneous proposals, quotations, agreements, statements, understandings, communications, forecasts, samples, models, specifications, course of dealing and usage of trade, whether written or oral, none of which shall be part of the agreement between Encore and CLIENT. Notwithstanding anything in these Terms to the contrary, if a written contract signed by Encore and CLIENT is in existence governing the sale of products and/or services by Encore, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. Where services are ordered, the terms of ENCORE’s Standard Master Services Agreement and any related supplements or those of the third party vendor, as applicable, apply and are incorporated herein by reference.
CLIENT represents and warrants that it is not relying upon any representation of Encore not contained within these Terms, except as otherwise provided in a written agreement signed by both Encore and CLIENT governing the sale of products and/or services by Encore.
Product availability and product discontinuation are subject to change without notice.
All prices are exclusive of any applicable import duties and tariffs, custom fees, export licensing fees, import or export taxes, federal, state, provincial, municipal, and other government taxes (such as sales, use, value added, and property taxes), and any other taxes or official charges, all of which are CLIENT’s sole responsibility. All prices are subject to change without notice and are confirmed at time of order acceptance by Encore.
CLIENT shall bear applicable federal, state, provincial, municipal and other government taxes (such as sales, use, value added, and property taxes). Exemption certificates, valid in the place of delivery, must be presented to Encore prior to shipment.
Credit and Payment Terms
Prior to placing an order, CLIENT’s current account status must be in good standing. If CLIENT has not previously done business with Encore, then CLIENT must complete an Encore Credit Application and receive approval to be eligible for Net 30 credit terms. Encore has the right to decline to extend credit to CLIENT and to require that the applicable purchase price be paid prior to shipment. CLIENT shall promptly notify Encore of all changes to name, address, or if CLIENT sells a substantial portion of its assets. Encore shall have the right to limit, cancel, or change CLIENT’s credit terms at any time in its sole discretion.
Unless Encore requires that payment be made prior to shipment of products or rendering of services, all invoices are due and payable in full in U.S. Dollars within thirty (30) days of the invoice date for products (and the invoice date will be no later than the date of delivery), and within thirty (30) days of the invoice date for all services rendered during the preceding month. Payment will be made via check, wire, or ACH unless otherwise agreed in writing by Encore. All payments shall be due and payable without offset, discount (unless explicitly provided for in writing by Encore), or any reduction in price, without deduction for any currency exchange or conversion, and without deduction for any taxes or duties levied by any governmental authority. Any payment received from or for the account of CLIENT may be accepted and applied by Encore against any indebtedness owed by CLIENT to Encore, as shown on the books and records of Encore, regardless of any statement by CLIENT referring to or accompanying such payment. CLIENT agrees to pay late payment charges on any payment that is not made when due. The late payment charge rate shall be the lesser of (1) 2% per month or any portion thereof (24% annually), or (2) the maximum amount permitted by law. Encore will be entitled to recover reasonable attorneys’ fees and other costs incurred by it in connection with any action or proceeding to collect any payment due from CLIENT and court fees. If CLIENT fails to pay any invoice when due or otherwise breaches these Terms, Seller may, at its option, withhold shipment of any order for which Encore has extended credit to CLIENT. In addition, Encore shall have the right to limit or cancel CLIENT’s credit terms at any time in its sole discretion and, as a condition to Encore’s obligation to deliver products to CLIENT, Encore may, in its sole discretion, require CLIENT to (1) pay in cash an amount sufficient to cover the unpaid product price (including all related transportation, storage, and other costs to be charged to CLIENT), or (2) open and confirm an irrevocable commercial line of credit in favor of Encore for such unpaid product price. CLIENT shall bear and pay the full cost, including all banking charges, incurred in connection with the issuance, confirmation, and amendment of such letter of credit. The opening or confirmation of such letter of credit shall not discharge CLIENT’s direct payment obligation to Encore.
Retention of Title
All products delivered to CLIENT shall remain the property of Encore, or if such retained title is not valid or enforceable under applicable law, Encore shall have and retain a security interest and lien in and against the products until Encore shall have received payment in full therefor from CLIENT. CLIENT agrees that it shall not transfer to any third party any interest in any products for which Encore has not been paid in full. Notwithstanding Encore’s retained interest in the products, CLIENT shall bear all risk of loss or damage with respect to the products and shall be responsible for maintaining full replacement cost insurance for the products, at CLIENT’s sole expense, until Encore shall have been paid in full for such products. Notwithstanding Encore’s retained interest in any products, CLIENT shall be solely responsible and liable for any and all taxes, warehousing costs, storage costs, transportation costs, and other costs and liabilities associated with the products following delivery thereof by Encore. CLIENT agrees to execute any document deemed necessary or appropriate by Encore, in its sole discretion, to perfect or enforce the retained interest of Encore in the products.
Shipment and Delivery
Encore will process orders and work with its distributors to have product shipped based on product availability at the time of order placement in a timely manner. Encore and its distributors will ship products using a carrier of choice at the time of shipment. All products are shipped FOB Shipping Point, with risk of loss transferring to CLIENT at such point. For any products held subject to CLIENT’s instructions, Encore may invoice before delivery, with risk of loss passing to CLIENT as of the invoice date. Standard shipping charges are generally included in the price; however if expedited shipping is requested by CLIENT (orally or in writing), those charges will be invoiced to the CLIENT as a separate item. Delivery may, in Encore’s discretion, be made in severable installments, and installment deliveries shall be accepted by CLIENT and paid for at contract prices and terms. All delivery dates are Encore’s good faith estimates of shipping and are not guaranteed.
Defects and Claims
CLIENT shall examine all products with ten (10) days after receipt and shall promptly notify Encore of any alleged damage or nonconformity. CLIENT’s use of the products shall be deemed acceptance as conforming to these Terms. All claims of any kind, nature, or description are barred and waived unless made in writing. CLIENT shall be deemed to have accepted the products, and any right to cancel, reject, or claim damages shall expire, unless CLIENT’s written and particularized claim is received by Encore (1) within ten (10) days after receipt of products for all claims other than those for latent defects or (2) within ninety (90) days after receipt of products for a latent defect; provided, however, that in no case shall any claim be considered after products have been altered in any manner. After receipt of written notice of claimed defective products, CLIENT will make the products available to Encore. If Encore determines that a defect claim is valid, Encore may, at its sole option and election, (1) replace any defective products, (2) repair any defective products, or (3) accept return of any defective products and refund the purchase price to CLIENT. The foregoing constitutes CLIENT’s exclusive remedy for any defective products.
Returned Materials Authorization
CLIENT must comply with Encore’s Return Material Authorization (“RMA”) Policy, as may be amended from time to time, with respect to all returns. Used product(s) will not be accepted as a return, and CLIENT will be charged shipping and handling for the return of any unused product(s). Product(s) returned after twenty (20) days of the original delivery date are subject to a 10% restocking fee to Encore plus any restocking fees or terms applied by the originating manufacturer and/or distributor.
Encore warrants that it will deliver good title to the products. EXCEPT FOR THE WARRANTIES IN THE PRECEDING SENTENCE, ENCORE MAKES NO OTHER WARRANTIES, AND ENCORE HEREBY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, WHETHER CREATED BY CONTRACT OR BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. To the extent that standard manufacturer’s warranties are offered for the products, CLIENT shall be entitled to seek warranty services from the product manufacturers in accordance with such warranties; provided, however, that Encore shall have no responsibility under such manufacturer’s warranties.
Limitation of Liability
Encore’s liability to CLIENT is limited to the correct of any defect in any products or services or, (i) with respect to products, refund of the purchase price and, (ii) with respect to services and Enboard software, refund of pro rata fees for period of defect in services or Enboard software) , at Encore’s sole option. WITHOUT LIMITING THE GENERALITY OF ANY OTHER PROVISION IN THESE TERMS LIMITING OR EXCLUDING THE LIABILITY OF ENCORE, THE DAMAGES RECOVERABLE BY CLIENT BASED ON ANY CLAIM OF ANY KIND WHATSOEVER (INCLUDING NEGLIGENCE) ARISING FROM OR IN ANY WAY CONNECTED TO THESE TERMS OR THE SALE OF PRODUCTS OR SERVICES BY ENCORE SHALL NOT BE GREATER THAN THE FEES PAID TO ENCORE UNDER THIS AGREEMENT DURING THE PRIOR TWELVE MONTHS FOR THE PRODUCTS OR SERCICES AND SOFTWARE THAT GIVE RISE TO THE CLAIM. IN NO EVENT SHALL ENCORE BE LIABILE FOR CLIENT’S OR ANY THIRD PARTY’S SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF USE, LOST PROFITS, LOSS OF GOODWILL, LATE DELIVERY, NONDELIVERY, DEFECTION CONDITION, OR USE OF THE PRODUCTS. No actions, regardless of the form, arising out of any sale of products or services may be brought by CLIENT more than one (1) year after the occurrence of the events that gave rise to the cause of actions. The pricing of all products and services is based upon this limitation of liability.
CLIENT shall be in default and material breach of these Terms upon the occurrence of any of the following: (a) CLIENT’s uncured breach or nonfulfillment of these Terms or any other contract with Encore; (b) CLIENT’s failure to make timely payment to Encore for any installment of products or services; (c) CLIENT’s failure to accept any installment of non-defective products; (d) CLIENT’s insolvency, calling of a meeting of its creditors, or general assignment for the benefit of its creditors; or (e) commencement of bankruptcy, insolvency, reorganization, arrangement or similar proceedings concerning CLIENT (but, in the case of involuntary proceedings, only if not dismissed within thirty (30) days after commencement). In the event of any such default by CLIENT, Encore may, in addition to any other rights and remedies under applicable law, exercise any one or more of the following rights and remedies, which are intended to be cumulative and not mutually exclusive: (i) cancel any part of any purchase order or any other contract with CLIENT (with CLIENT liable for damages); (ii) defer any shipment under any purchase order or any other contract; (iii) declare immediately due and payable all outstanding invoices due to Encore; (iv) immediately repossess all or any part of products in transit or in the custody or control of CLIENT pursuant to these Terms or any other contract, at the sole risk and expense of CLIENT; (iv) finish all or any portion of its performance of any orders for products or services and charge CLIENT the full purchase price, and (vi) re-sell all or any part of the products covered by any purchase order or any other contract, or any materials supplied, at public or private sale, with CLIENT responsible for all losses and expenses incurred in such sale.
Software License and Use of Software
The terms and conditions applicable to software provided with any products purchased are incorporated by reference into these Terms and shall be those stated on the applicable software license agreement or similar end-user license agreement for the software.
CLIENT agrees that any software, technical and/or business information owned by Encore (“Information”) or its suppliers or licensors and furnished to the CLIENT shall be and remain the property of Encore, or other party, respectively.
All software and Information furnished to CLIENT shall be used by CLIENT only to install, operate or maintain the product for which they were originally furnished; shall not be reproduced or copied, in whole or in part, except as necessary for authorized use; and shall, together with any copies except copies for CLIENT’s archival purposes containing the business records, be returned or destroyed when no longer needed or permitted for use with the product for which they were initially furnished; and all software and information designated as “confidential” or “proprietary” shall be kept in confidence and no longer used except as may be required by state or federal law.
Parts Warranty and Software Maintenance
CLIENT is responsible for costs of all parts replacements and software maintenance either directly or indirectly through ‘Third Party Maintenance Agreements’ with the appropriate supplier or manufacturer as they may relate to the covered services or systems. ENCORE may manage the ‘Third Party Maintenance Agreements’ on behalf of CLIENT as defined in the Scope of Work issued by Encore.
Any information and data provided by CLIENT to Encore and used by Encore directly or indirectly in the performance of services shall remain the property of CLIENT.
Encore shall take commercially reasonable precautions to preserve the security and integrity and prevent any corruption, loss, damage or destruction of CLIENT’s data and information, as deemed appropriate in ENCORE’s sole discretion. ENCORE shall take commercially reasonable measures to ensure that its staff complies with the precautions taken by ENCORE to preserve the security and integrity of CLIENT’s data and information.
Upon completion of the services, Encore shall, when directed to do so by CLIENT, instruct all its agents and sub-contractors to, erase all information and data provided by CLIENT to Encore from Encore’s production operating environment. CLIENT’s data will be removed from Encore’s backup systems when the backups age-out from the normal backup retention schedule. If not previously instructed to erase by CLIENT, Encore will have the right to delete CLIENT’s data from the operating system at any time from and after thirty (30) days following completion of the services.
Encore is not responsible for CLIENT’s loss of data. CLIENT is responsible for maintaining current backups of all data. Any warranty or service contract does not cover virus infection of any CLIENT system. CLIENT will be billed for all work necessary for Encore to remove a virus.
ENCORE will not be liable for any nonperformance or delays in delivery of products or performance of services due to events beyond its reasonable control, including without limitation, interruptions, omissions, malfunctions, delays, or errors of any communication system, telecommunication or similar carrier, or operational or computer system, acts of God, fire, flood, acts of war, acts of sovereign governments, terrorism, strikes, labor shortages (including unavailability of any subcontractors), labor disputes, shortage of material, and/or compliance with any regulation, order, or instruction of any governmental authority. ENCORE will use commercially reasonable efforts to provide timely notice of the nature and extent of any delay to CLIENT, and ENCORE’s performance shall be excused during any period of delay caused by such force majeure event beyond ENCORE’s reasonable control.
Encore will maintain, at its own expense, the following insurance coverage as evidenced by insurance certificates provided to CLIENT upon request.
· Worker’s Compensation and Employer’s Liability Policy: $500,000 coverage per incident/bodily injury
· General Commercial Liability Policy: $1,000,000 per incident/$2,000,000 in aggregate
Assignment and Delegation
CLIENT may not assign or transfer, by operation of law or otherwise, any of its rights with respect to the sale of products or services by Encore to any third party without ENCORE’s prior written consent. Any attempted assignment or transfer will be considered a violation of the foregoing and will be null and void. These Terms are not intended to be for the benefit of, and shall not be enforceable by, any person or entity other than CLIENT or the permitted assignees of CLIENT.
Encore and CLIENT agree that any and all information identified by the other as “Confidential” and/or “Proprietary” will not be disclosed to any third party without the express written consent of such other party. The confidentiality obligations shall not apply to any information (i) which is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) which is already known to the receiving party before disclosure by the disclosing party; (iii) which is developed through the independent efforts of the receiving party; or (iv) which the receiving party rightfully receives from third parties without restriction as to use.
These Terms, and the terms and conditions of all sales of products or services by Encore, are governed by the substantive laws of the State of South Carolina, without regard to traditional conflict of laws principles.
Any controversy or claim arising out of or relating to these Terms or breach thereof, including any dispute as to arbitrability and/or the enforceability of this arbitration provision, shall be submitted to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, in Greenville, South Carolina. The arbitrator(s) may award injunctive relief, actual damages, attorneys’ fees and costs as part of any award, but shall have no authority to award any penalties or special, consequential, punitive, or exemplary damages, or to alter or modify any express provision of these Terms, or to render any award which by its terms affects such a modification or alteration of these Terms. Judgment upon the award rendered by the arbitrator(s) shall be final and binding and may be entered in any court having jurisdiction thereof. Qualified arbitrators shall be mutually agreed upon by both parties in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
If Encore is the prevailing party, Encore will be entitled to recover reasonable attorneys’ fees and other costs incurred by it in connection with any action, arbitration, or other proceeding concerning any controversy or claim arising out of or relating to these Terms or CLIENT’s breach of these Terms.
All notices and similar communications shall be in the English language, in writing, and delivered by first-class, prepaid, registered U.S. mail or reputable express courier service.
Waivers, alterations, modifications, and amendments of any provision of these Terms shall not be binding unless such waiver, alteration, modification or amendment is in writing and signed by an authorized representative of both parties. The authorized representatives of Encore are solely the Chief Executive Officer, Chief Financial Officer, the Vice President of Sales, and the Vice President of Services & Operations; no other person shall have authority on behalf of Encore to waive, alter, modify, or amend any provision of these Terms. If any provision of these Terms is rendered invalid, the remaining provisions shall remain in full force and effect. Waiver of breach of these Terms shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. The headings and captions of these Terms are inserted for reference convenience and do not define, limit or describe the scope or intent of these Terms or any particular section, paragraph, or provision. Encore may modify these Terms at any time in its sole discretion, and such modified Terms shall thereafter apply to all sales of products and/or services by Encore to CLIENT.