GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES
1.0 APPLICABILITY
1.1 Application of Terms. These General Terms and Conditions for the Sale of Goods and Services, as may be amended from time to time (these “Terms”) of Centranz, Inc., a Missouri corporation and Centranz Parts and Manufacturing Company, a Missouri corporation (collectively, “Centranz”) govern the sale of components, transmissions, and other types of goods sold, exchanged, or serviced by Centranz (the “Goods”) or services performed by Centranz (“Services”) to or for you, the purchaser of such goods or services (“Customer” together with Centranz, the “Parties” and each a “Party”). These Terms are binding on you, the Customer, any time you purchase Goods or Services and your agreement to these terms are a condition to Centranz’s sale of Goods or Services to you. Therefore, you should read these Terms carefully. You agree to these Terms and all other documents referenced herein by purchasing or accepting Goods or Services from Centranz.
1.2 Entire Agreement. These Terms, together with Centranz’s quote, Confirmation of Sale, and/or invoice(s) sent to Customer, if any (collectively, the “Confirmation of Sale”), together with Centranz’s applicable [Warranty] for Goods sold (if any Goods are sold to Customer) located at centranz.com (each, an “Applicable Warranty”), and Centranz’s [Payment Policy] located at centranz.com (the “Payment Policy”), as each may be amended from time to time by Centranz, collectively constitute the “Agreement” between the Parties with respect to the sale of Goods or Services by Centranz, and supersedes all prior or contemporaneous understandings, agreements, negotiations, communications, and representations and warranties, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether Customer has submitted a purchase order for the Goods or Services, and all other terms after the date these Terms are provided to Customer. Fulfillment of a Customer’s order does not constitute acceptance of any of Customer’s terms and conditions by Centranz and does not serve to modify or amend these Terms. Notwithstanding anything herein to the contrary, but only to the extent that Centranz and Customer enter into a separate written contract (excluding, for avoidance of doubt, any Customer purchase order or Centranz Confirmation of Sale) for the sale of the Goods and Services covered hereby that is signed by the Parties (a “Written Contract”), the terms and conditions of the Written Contract shall prevail over the terms and conditions of these Terms, to the extent they are inconsistent with these Terms.
1.3 Evidence of Agreement. Centranz’s delivery of a quote or invoice, a signed Confirmation of Sale, and Centranz’s delivery of Goods or performance of Services to Customer shall constitute compelling evidence of a sales transaction between Centranz and Customer to which these Terms apply. Notwithstanding the failure of Customer to submit a purchase order to Centranz or the absence of a Confirmation of Sale, Centranz may rely on Customer’s oral or written confirmation for the purchase of Goods or Services, whether delivered by email, written correspondences, or oral communications, in which case such communications shall be compelling evidence of Customer’s intent to enter into this Agreement and purchase the underlying Goods or Services.
1.4 Revisions. These Terms, the Applicable Warranty, and the Payment Policy are subject to change by Centranz without prior written notice at any time, in Centranz’s sole discretion. Any such changes will be in effect as of the “Last Updated Date” referenced on centranz.com. Customer should review these Terms, the Applicable Warranty, and the Payment Policy prior to purchasing any Goods or Services from Centranz. Customer’s continued use of centranz.com or purchase of Goods or Services after the “Last Updated Date” will constitute Customer’s acceptance of and agreement to such changes.
2.0 SHIPMENT AND DELIVERY OF GOODS AND SERVICE COMPONENTS
2.1 Time. Each installment of Goods and Service Components will be delivered to Customer within a reasonable time after (a) with respect to Goods that are purchased from Centranz, Centranz’s receipt of Customer’s purchase order (or a signed copy of the Confirmation of Sale), subject to the availability of finished Goods and Customer’s timely payment of all amounts owing for the Goods; or (b) with respect to Service Components, within a reasonable time of Centranz completing the Services for the Service Components, subject to Customer’s timely payment of all amounts owing for such Services.
2.2 Shipping Point. Unless otherwise agreed in writing by the parties, Centranz shall deliver the Goods or Service Components to a freight carrier at Centranz’s principal business location in Buckner, Missouri (the “Shipping Point”) using Centranz’s standard methods for packaging and shipping such Goods or Service Components.
2.3 Title and Risk of Loss. Title to purchased Goods and risk of loss for Goods and Services Components shall pass to Customer upon Centranz’s delivery of the Goods or Service Components to the carrier at the Shipping Point. All risk of loss for Goods and Service Components shipped by Customer to Centranz shall remain solely with Customer. Centranz shall not be liable for any delays, loss, or damage in transit.
2.3 Shipment. Customer shall be responsible for selecting the method of shipment and the carrier for Goods and Service Components and for procuring and maintaining all documentation, bills of lading, receipts, and permits required for shipping Goods and Service Components; provided, that Centranz shall only be obligated to deliver Goods and Service Components to the carrier at the Shipping Point and Centranz may, at its discretion, arrange for the method of shipment and carrier for Goods and Service Components. Notwithstanding anything herein to the contrary, all shipping costs for all Goods and Service Components shall be the responsibility of Customer; except and only to the extent stated otherwise within an Applicable Warranty, with respect to shipments made pursuant to valid warranty claims. If Customer fails to timely select the method of shipment or carrier, Centranz may do so on Customer’s behalf; provided, that all shipping costs shall remain the responsibility of Customer. If Centranz advances any shipping costs on Customer’s behalf, Customer shall promptly reimburse and indemnify Centranz for the same.
2.4 Partial Shipments. Centranz may, in its sole discretion, make partial shipments of purchased Goods or Service Components to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the Goods shipped whether such shipment is in whole or partial fulfillment of Customer’s order.
2.5 Quantities. The quantity of any installment of Goods or Service Components shipped, as recorded by Centranz on dispatch from the Shipping Point, shall be (a) the quantity of units required to be delivered by Centranz in the shipment; and (b) shall be conclusive evidence of the quantity of units delivered to and received by Customer unless Customer provides Centranz written notice containing conclusive evidence of shortfalls in quantities of Goods or Service Components received versus the quantities of Goods or Service Components shipped (a “Shortfall”) within two (2) days following the delivery of Goods or Service Components to the Customer’s delivery location (the “Delivery Date”). If Customer fails to provide such written notice to Centranz within two (2) days of the Delivery Date, Customer shall be deemed to have accepted the quantity of Goods or Service Components shipped. If Customer timely delivers written notice to Centranz and Shortfall actually exists, Customer shall be deemed to have accepted the quantity of Goods or Service Components received and Centranz shall provide Customer with reasonable assistance (at no cost to Centranz) in locating the Shortfall, but no price adjustments shall be made for the shipment.
2.6 Non-delivery. Centranz shall not be liable, in any event, for any non-delivery of Goods or Service Components by the carrier to Customer’s delivery location (the “Customer Location”). Notwithstanding Section 2.1, If Centranz designates a delivery time within a Confirmation of Sale, Centranz shall not be liable for any non-delivery of Goods or Service Components to the Shipping Point (even if caused by Centranz’s negligence) by the time designated in the Confirmation of Sale unless Customer gives written notice to Centranz of such non-delivery and Centranz fails to deliver Goods or Service Components to the Shipping Point within seven (7) days after Centranz’s receipt of such notice, in which case Customer’s sole remedy shall be for Centranz to arrange for and pay for shipping of Goods or Service Components to Customer’s delivery location. Notwithstanding anything in these Terms to the contrary, Centranz shall not be liable for, and shall not be required to pay shipping costs for non-delivery, delays, or other failures if such delays are caused in whole or part by (a) Customer’s failure to timely arrange for shipping for the Goods or Service Components; or (b) delays or failures caused in whole or in part by the applicable carrier.
2.7 Non-Conforming Goods. Customer acknowledges and agrees that the remedies set forth in Section 7.0 are Customer’s exclusive remedies for the delivery of Nonconformities (as defined therein). Except as provided under Section 7.0, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Centranz.
2.5 Customer’s Failure to Accept Delivery. If for any reason Customer fails to accept any shipment of Goods or Service Components (in whole or part) other than to the extent permitted by Section 7.0, or if Centranz is unable to deliver the Goods or Service Components to the Shipping Point (or receives a return of any shipment) because Customer has not provided appropriate instructions, documents, licenses, or authorizations, then:
(a) the Goods or Service Components shall be deemed to have been delivered to and accepted by Customer; and
(b) Centranz, at its option, may store the Goods or Service Components until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.0 PERFORMANCE OF SERVICES
3.1 Services Generally. With respect to any Services, Customer shall:
(a) cooperate with Centranz in all matters relating to the Services and provide such access to Customer’s records, materials, and property as may reasonably be requested by Centranz and reasonably necessary for Centranz to perform the Services;
(b) respond promptly to any request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Centranz to perform Services;
(c) ensure that all Customer materials or information provided to Centranz are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
3.2 Timeliness for Performance of Services and Delivery of Service Component. Centranz shall use commercially reasonable efforts to meet any performance dates to render the Services specified in the Confirmation of Sale (if any); provided, that the Parties agree that any such dates on the Confirmation of Sale shall be estimates only and that the actual completion of the Services may vary depending on Centranz personnel and resources availability (the “Service Completion Date”). Following the Service Completion Date, Centranz may arrange for the shipment of the components Customer sent to Centranz for the Services (the “Service Component”) at Customer’s cost within a reasonable amount of time of the Service Completion Date. For avoidance of doubt, the shipping terms set forth in Section 2.0 of these Terms shall apply to the shipment of any Service Component.
3.3 Unclaimed Components and Property. Any Service Component that (a) remains on Centranz’s premises past the Service Completion Date for a period of thirty (30) days or longer (other than due to a failure of Centranz to arrange for the shipment of the Service Component; or (b) has been received by Centranz but Customer has failed to pay for the underlying Services in accordance with the Payment Policy shall be deemed an “Unclaimed Component”. Customer agrees that once a Service Component is deemed an Unclaimed Component that Centranz may exercise its rights to foreclose on the Unclaimed Component and take such other actions as authorized by Section 5.0 including disposing of and keeping the proceeds therefrom and that, in such event, title to the Unclaimed Component shall transfer to Centranz and Centranz may dispose of the Unclaimed Component in any manner as Centranz deems appropriate. To the extent that any property of Customer (including any Service Component) constitutes or becomes Unclaimed Property or becomes subject to the escheat laws of the State of Missouri, Customer hereby waives any rights in and to such property as of the date such property becomes Unclaimed Property or becomes subject to such escheat laws, whichever is earlier, and hereby transfers and assigns title to and authorizes Centranz to own, retain, and dispose of such property as Centranz deems appropriate (and for Centranz to retain all proceeds from the disposition thereof).
4.0 FURTHER ACTIONS
Customer agrees to take such further actions, and to execute such further documentation and provide such information, as Centranz may reasonably request for Centranz to perform its obligations under this Agreement.
5.0 SECURITY INTEREST
Customer agrees that any failure on its part to timely pay for the Goods or Services shall constitute a purchase money security interest in favor of Centranz in the Goods or, with respect to payments for Services, in the underlying parts, components, or other goods of Customer in Centranz’s possession, including Unclaimed Components, (collectively, the “Subject Goods”). In furtherance of the foregoing and as collateral security for the timely payment of all amounts owing by Customer to Centranz and in Customer’s performance of its obligations hereunder, Customer hereby grants to Centranz a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Subject Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as in and to any equipment into which the Subject Goods are attached or incorporated, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Missouri Uniform Commercial Code. Customer hereby authorizes Centranz to execute, on Customer’s behalf, such statements or other documentation necessary to perfect Centranz’s security interest in such Goods, including a financial statement (UCC-1), and Customer shall execute any such statements or other documentation necessary to perfect Centranz’s security interest in such Goods. Centranz shall be entitled to all applicable rights and remedies of a secured party under applicable law.
6.0 CUSTOMER’S ACTS OR OMISSIONS
If Centranz’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Centranz shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7.0 INSPECTION AND REJECTION OF NONCONFORMITIES; RETURN POLICIES
7.1 Generally. Customer shall inspect all Goods and Service Components within two (2) days of receipt (the “Inspection Period”). Customer will be deemed to have accepted all Goods and Service Components unless it notifies Centranz, in writing, of any Nonconformities during the Inspection Period and furnishes such written evidence or other documentation as required by Centranz. For the purposes of this Agreement, “Nonconformities” means only the following (a) the Goods shipped are different than identified in the Confirmation of Sale; or (b) the Goods’ or Service Components’ label or packaging incorrectly identifies its contents. Any Nonconformities that are not so specified by Customer in writing during the Inspection Period will be deemed waived by Customer, and such Goods and Service Components shall be deemed to have been accepted by Customer, and no attempted revocation of acceptance will be effective.
7.2 Return Policy. Notwithstanding anything to the contrary in an Applicable Warranty, in the event that Centranz confirms that such Goods or Service Components are Nonconformities, Centranz shall, in its sole discretion, either replace such Nonconformities with conforming Goods or Service Components or refund to Customer such amount paid by Customer to Centranz for such Nonconformities returned by Customer to Centranz subject to a restocking charge equal to 20% of the amount invoiced for Nonconformities (provided that Centranz may elect to waive this charge in its sole discretion). Customer shall ship, at Customer’s expense and risk of loss, all Nonconformities to Centranz’s facility located at 27208 East 24 Highway, Buckner, MO 64016, or to such other location as Centranz may designate to Customer in writing. If Centranz exercises its option to replace Nonconformities, Centranz shall ship to the Delivery Location, at Centranz’s expense and risk of loss, the replacement Goods or Service Components. Notwithstanding the foregoing, the following Goods and Service Components are not eligible for return:
7.2.1 those received by Centranz more than thirty (30) calendar days past the Inspection Period;
7.2.2 those damaged or with damaged and/or missing components;
7.2.3 repair manuals, parts manuals, CD’s, DVD’s, or any product capable of uploading/downloading as electronic file;
7.2.4 electrical parts including, but not limited to Electronic Control Units ( “ECU”), wire harnesses, shifters, solenoids, proportional valves, sensors, inductive transmitters, speed sensors, pressure sensors, presser monitors, and fluid level sensors;
7.2.5 custom-made and Special Order Goods; whereby, “Special Order” means Goods that are received or imported on a per-order basis and not the type, group, class, or kind of items that Centranz would order or keep in stock on a reasonably recurring basis; and
7.2.6 Goods or Service Components that have been installed, welded, machined, modified, cut, molded, or mounted.
7.3 Disposal of Ineligible Returns. Centranz will hold ineligible Goods or Service Components for thirty (30) days only after its initial attempt to resolve any disputes over returned Goods or Service Components. Centranz reserves the right to dispose of any ineligible returns after this time has elapsed unless Customer has made arrangements for return shipping. Customer is responsible for all shipping charges to recover ineligible returns.
7.4 No Incidental Damages; Remedies. Centranz does not cover miscellaneous expenses (including labor costs) for removal and installation of defective Goods or Service Components, materials, lost time or wages, towing, lift, dock, or storage fees. Centranz shall not be liable for any incidental or consequential damages including without limitation, indirect or special damages as a result of Nonconformities. Customer acknowledges and agrees that the remedies set forth in Sections 7.2 through 7.4 are Customer’s exclusive remedies for the delivery of Nonconformities. Except as provided under Sections 7.2 through 7.4 or pursuant to valid claims made under an Applicable Warranty, all sales of Goods to Customer and shipments of Service Components are made on a one-way basis and Customer has no right to return Goods purchased or Service Components delivered under this Agreement to Centranz.
7.5 Core Return Policy. At the commencement of a transmission exchange transaction (i.e. a transaction whereby Customer purchases a rebuilt or remanufactured transmission from Centranz in exchange for Customer’s used transmission (an “Exchange Core”)) Customer will receive from Centranz an itemized invoice showing an entry labeled “core deposit” (the “Core Deposit”). This Core Deposit shall be treated as a security deposit for the timely return of Exchange Cores and NOT the difference between the retail value of the transmission and the exchange price listed on Centranz’s invoice. All cores delivered to Centranz are subject to Centranz’s inspection and/or evaluation to determine whether the core is Acceptable or Unacceptable, as defined below. Centranz’s inspection of the Exchange Core will occur within sixty (60) days of Centranz’s receipt of the Exchange Core (the “Core Inspection Period”). No Core Deposit shall be refunded or returned to Customer for Unacceptable Exchange Cores and shall be deemed fully paid and earned by Centranz. Centranz will return any Core Deposit for Acceptable Exchange Cores to Customer within fourteen (14) days of the Core Inspection Period. No Unacceptable Exchange Cores will be returned to Customer and title to the Exchange Cores transfers to Centranz upon Centranz’s receipt of the same.
7.5.1 Acceptable Exchange Cores. In order for an Exchange Core to qualify as “Acceptable” it must, at a minimum:
7.5.1.1 be the same model and assembly number as the rebuilt or remanufactured transmission shipped by Centranz, unless a prior written exception is granted by the Centranz;
7.5.1.2 be received within thirty (30) days of the rebuilt or remanufactured transmission’s ship date;
7.5.1.3 be complete and not disassembled since failure;
7.5.1.4 if applicable, have the torque converter shipped with the transmission, properly secured in the torque converter housing per OEM assembly specifications and properly matched to the transmission according to the OEM assembly number; and
7.5.1.5 if applicable, shipped in the same steel shipping crate as the rebuilt or remanufactured transmission shipped from Centranz.
7.5.2 Unacceptable Exchange Cores. Notwithstanding Section 7.5.1, an Exchange Core will be deemed to be “Unacceptable” if any of the following is true: (a) the Exchange Core is contaminated with rust (minor rust damage due to condensation or pressure washing is acceptable so long as no permanent damage occurs to parts which would otherwise be deemed acceptable); (b) the Exchange Core is disassembled and reassembled with failed parts from another transmission; (c) the Exchange Core is weld-repaired; (d) the Exchange Core’s planetaries are catastrophically failed; (e) the torque converter is not rebuildable according to Centranz’s discretion; or (f) Centranz, in its sole discretion, has determined the cost of materials and labor to restore the Exchange Core to a reasonably marketable condition, meets or exceeds, or is likely to meet or exceed the actual market value of the Exchange Core. Customer is responsible for the cost of returning its core(s) to Centranz.
7.5.3 Credit Transactions. If Customer receives credit terms in writing from Centranz for an Exchange Core transaction and the Core Deposit is incorporated in said terms, Centranz will issue a credit memo upon receipt of an Acceptable Exchange Core.
7.5.4 Forfeiture for Non-delivery of Acceptable Core. Notwithstanding anything to the contrary in these Terms, CUSTOMER’S FAILURE TO DELIVER AN ACCEPTABLE EXCHANGE CORE WILL RESULT IN CUSTOMER’S FORFEITURE OF ANY CLAIM TO THE CORE DEPOSIT AND CENTRANZ SHALL RETAIN THE CORE DEPOSIT AS FAIR COMPENSATION FOR ITS LOSS, AND CUSTOMER EXPRESSLY AGREES THAT SUCH COMPENSATION IS REASONABLE.
7.5.5 Forfeiture for Non-delivery of Any Exchange Core. NON-DELIVERY OF ANY EXCHANGE CORE WILL RESULT IN CUSTOMER’S LIABILITY FOR AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE FULL RETAIL VALUE OF THE TRANSMISSION AND THE EXCHANGE PRICE, CHARGED TO THE CUSTOMER ON CENTRANZ’S ORIGINAL INVOICE.
7.5.6 Shipping. Customer is responsible for freight on all Exchange Core shipments. All risk of loss for the Exchange Cores remain with Customer during transit. All Exchange Cores must be drained of oil, reasonably clean, and packed in a suitable container pursuant to Section 7.5.1.5. Each Exchange Core return shipment must be accompanied by the proper “Core Return Tag”, to be provided by Centranz. Bills of lading must be completed as follows:
“Used Tractor Parts” in accord with National Motor Freight Classification class 50.
7.6 Data Plates. For all transmission exchange transactions, Customer must provide Centanz with a legible copy of the data plate for the transmission before the transmission is shipped to Centranz. If a legible copy of the data plate is not delivered to Centranz prior to the transmission’s shipment, then Customer shall assume sole responsibility for all damages, liabilities, and costs related to receiving the wrong transmission type, including but not limited to those arising out of or relating to:
7.6.1 all transmission removal and replacement costs;
7.6.2 all damages to vehicles and equipment;
7.6.3 all shipping charges; and
7.6.4 all additional charges by Centranz to convert the transmission (including shipping charges), all such conversion services to be provided solely at Centranz’s discretion.
8.0 PRICE
8.1 Generally. Customer shall purchase the Goods and Services from Centranz at the price(s) (the “Prices”) set forth in the Confirmation of Sale or, if no price is so stated in the Confirmation of Sale, in Centranz’s published price list in force as of the date of Customer’s purchase order or as otherwise stated in writing by Centranz.
8.2 Expenses. Customer agrees to reimburse Centranz for all reasonable travel and out-of-pocket expenses incurred by Centranz in connection with the performance of the Services.
8.3 Exclusions. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer hereunder. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Centranz’s gross income.
9.0 PAYMENT TERMS
The terms of payment between the Parties shall be solely governed by the Payment Policy. In addition to all other remedies available to Centranz by law, contract, or equity, Centranz shall be entitled to suspend the delivery of any Goods or performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for twenty (20) days following written notice thereof.
10.0 WARRANTIES
10.1 Warranty on Services. Centranz warrants to Customer that it shall perform the Services in accordance with generally recognized industry standards for similar services.
10.1.1 Verification Requirements. Centranz shall not be liable for a breach of the warranties set forth in Section 10.1 unless:
(a) Customer gives written notice of the defective Services, reasonably described, to Centranz within seven (7) days of the time when Customer discovers or ought to have discovered the breach;
(b) Centranz is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 10.1 to examine the product of the Services and Customer (if requested to do so by Centranz) returns such items to Centranz’s place of business for the examination to take place there; and
(c) Centranz, in its good faith and reasonable discretion, verifies Customer’s claim that the Services fail to meet the warranty set out in Section 10.1.
10.1.2 Exclusions. Centranz shall not be liable for a breach of the warranty for Services set forth in Section 10.1 above if:
(a) Customer fails to follow Centranz’s instructions as to the storage, installation, commissioning, use, or maintenance of the product of the Services; or
(b) Centranz materially cures such defective Services within thirty (30) days of Customer’s written notice to Centranz of the same or, if such cure is not feasible within such thirty (30) day period, Centranz commences to cure within such period and diligently pursues such cure after such period until completion.
10.1.3 Remedies. Subject to Section 10.1.1 and Section 10.1.2 above (including the cure period set forth therein), Centranz’s sole obligation with respect to a breach of the warranty for Services set out in Section 10.1 above shall be Centranz shall be to credit or refund the price of such defective Services.
10.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THE APPLICABLE WARRANTY WITH RESPECT TO GOODS PURCHASED BY CUSTOMER (BUT ONLY FOR THE PERIODS OF TIME SET FORTH THEREIN) AND THE WARRANTY SET FORTH IN SECTION 10.1 WITH RESPECT TO SERVICES PURCHASED BY CUSTOMER, CENTRANZ MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY GOODS, SERVICE COMPONENTS, OR SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE (WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE) AND CUSTOMER AGREES THAT ALL GOODS, SERVICE COMPONENTS, AND SERVICES ARE BEING PROVIDED BY CENTRANZ “AS-IS”. FOR AVOIDANCE OF DOUBT, ANY WARRANTIES WITH RESPECT TO PURCHASED GOODS SHALL ONLY APPLY TO THE TYPE OF GOODS SPECIFICALLY STATED WITHIN THE APPLICABLE WARRANTY, AND TO NO OTHER TYPES OF GOODS.
10.3 Third Party Products. Products and components manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, Goods or Service Components. For avoidance of doubt, no Third Party Products are covered by an Applicable Warranty or the Services warranty set forth in Section 10.1 and CENTRANZ MAKES NO, AND DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
11.0 LIABILITY
11.1 Indemnification. Customer shall indemnify, defend, and hold harmless Centranz and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by the Indemnified Party relating to, arising out of, or resulting from any claim of a third party arising out of or occurring in connection with (a) the Goods or Service Components being serviced, exchanged, or purchased from Centranz or any use of the Goods or Service Components by Customer, subject only to the terms of the Applicable Warranty; (b) Customer’s negligence, willful misconduct, or breach of this Agreement. Customer shall not enter into any settlement without Centranz’s or Indemnified Party’s prior written consent.
11.2 Disclaimer of Consequential Damages. TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CENTRANZ BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, COVER, OR LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CENTRANZ’S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, OR THE GOODS, SERVICE COMPONENTS, OR SERVICES, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CENTRANZ, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.3 Limitation of Liability. TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CENTRANZ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, CENTRANZ’S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, OR THE GOODS, SERVICE COMPONENTS, OR SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO CENTRANZ BY CUSTOMER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
11.4 Limitation on Claims. Any claims made by Customer (or a party on Customer’s behalf) against Centranz must be brought within one (1) year of the event giving rise to the claim after which time such claims shall be deemed waived, in all respects.
12.0 MISCELLANEOUS PROVISIONS
12.1 Compliance with Law. Customer shall comply with all applicable laws, regulations, and ordinances relating to the Goods, Service Components, or Services and Customer’s performance of its obligations hereunder. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods or Service Components requiring any government import clearance. Centranz may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods or Service Components.
12.2 Termination. In addition to any remedies that may be provided under these Terms, Centranz may terminate this Agreement with respect to a Goods or Services transaction, and Centranz’s obligations hereunder with respect thereto, with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Upon termination, Customer shall promptly return all Centranz property in its possession and shall pay to Centranz all amounts due and owing through the date of termination.
12.3 Waiver. No waiver by Centranz of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Centranz. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.4 Confidential Information. All non-public, confidential, or proprietary information of Centranz, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Centranz or made available to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Centranz in writing. Upon Centranz’s request, Customer shall promptly return all documents and other materials received from Centranz. Centranz shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is (a) in the public domain other than as a result of person’s breach of its confidentiality obligations; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
12.5 Force Majeure. Centranz shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Centranz including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemics, contagion, and any act, order, or requirement of any governmental authority, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage..
12.6 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Centranz. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
12.7 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
12.9 Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Missouri. If any suit, action, or proceeding is brought to enforce any term or provision of this Agreement, should Centranz prevail, Centranz shall be entitled to recover reasonable attorneys’ fees, costs, and expenses incurred, in addition to any other relief to which such party may be legally entitled.
12.10 Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Missouri in each case located in the County of Jackson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
12.11 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Confirmation of Sale or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, by a nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt of the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
12.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.13 Survival. Any term or section of this Agreement which by its nature should apply beyond the expiration or termination of this Agreement will remain in full force and effect after any termination or expiration of this Agreement.
12.14. Waiver of Jury Trials. TO THE FULL EXTENT PERMITTED BY LAW, CUSTOMER HEREBY WAIVES ANY AND ALL OF ITS RIGHTS TO LITIGATE CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY BEFORE A JURY.
