The following are the Terms and Conditions for the Sale of Goods and Services which shall govern all transactions, unless otherwise prior agreed in writing.
Orders you (the “Customer”) place with The DeCoste Group (“TDG”) shall be governed by these Terms and Conditions for the Sale of Goods and Services (“Terms”), unless Customer has a valid agreement in place with TDG, in which case such agreement will govern. TDG and Customer are sometimes referred to herein individually as a “Party” and jointly as the “Parties.”
Orders shall consist of either (i) Customer’s valid Purchase Order or other form of payment or obligation to pay and these Terms; or (ii) TDG’s proposal for the sale of goods and services (“Proposal”), Customer’s valid Purchase Order and these Terms.
Customer’s Purchase Order must be signed by an authorized representative of Customer and shall include the TDG proposal number, the bill-to and ship-to addresses, and shall reflect the total purchase price. These Terms shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to TDG, and any such additional or conflicting terms are deemed as explicitly disclaimed and rejected by TDG. Orders must be emailed to: email@example.com or Customer’s specific representative at TDG.
SCOPE OF WORK
The Parties agree that the scope of work for goods and/or services (the “Work”) agreed upon in the Order, as well as any supplementary documents attached to and made a part of the Order, may only be amended in writing and signed by authorized representatives of the Parties. The Order referenced in Customer’s Purchase Order, or the amendment to the Order referenced in Customer’s amended Purchase Order, as applicable, define the entire scope of the Work that TDG shall provide to Customer under that Order.
Pricing is valid for thirty (30) days from the last dated Proposal, Quote, or Order. Pricing is in US dollars and does not include any destination sales/use tax, import/export duties, or other charges of such kind. Additional amounts beyond the pricing quoted by TDG is Customer’s sole and exclusive responsibility. Pricing for shipping/freight, unless specifically stated in the Order, will be invoiced at actual cost as incurred by TDG. Other billable expenses, unless specified otherwise in the Order, will be invoiced at the current rates.
All payments are due and payable net thirty (30) days from the date of TDG’s invoice. Milestone payments apply against the total purchase price as specified in the Order, if applicable. Freight, documentation, and other fees not itemized in the Order price will be invoiced upon delivery.
The Parties acknowledge that in connection with their relationship and the Work, either Party may come into contact with Confidential Information from the other. “Confidential Information” means proprietary and confidential information and may include, but is not limited to, trade secrets, know-how, inventions, techniques, designs, processes, programs, schematics, software source documents, data, financial information, sales and marketing information, and proprietary or trade secret information of the disclosing Party. The receiving Party shall keep in trust and confidence all Confidential Information and shall not use such Confidential Information other than to perform the Work, nor shall the receiving Party disclose any such Confidential Information to any third parties without the disclosing Party’s written consent. If requested, the receiving Party shall destroy or return to the disclosing Party all Confidential Information upon termination or expiration of the Order. Under all circumstances, the receiving Party will treat the other Party’s Confidential Information using protections at least as stringent as it does with its own Confidential Information. The obligations of confidentiality do not apply to information which: (i) has entered the public domain, except where such entry is the result of the receiving Party’s breach of the Order; (ii) prior to disclosure hereunder was already rightfully in the receiving Party’s possession; or (iii) following disclosure hereunder is obtained by the receiving Party on a non-confidential basis from a third Party who has the right to disclose such information to the receiving Party. The receiving Party will be authorized to disclose Confidential Information pursuant to a valid order issued by a court, government agency, or relevant regulatory authority of competent jurisdiction.
TDG shall maintain information security controls to protect against unauthorized access to Confidential Information and shall take technical and organizational measures to maintain network and internet integrity using gateways, firewalls, protocols, and procedures to enhance data security.
GOODS. All equipment, parts, products, components, devices, and hardware (collectively, “Goods”) furnished by TDG shall be of the kind and quality stated in the Order. Unless specifically stated otherwise, Goods shall be new and free from improper workmanship and defective materials and shall substantially conform to Customer’s specifications.
Unless specifically indicated in an Order or Proposal, Goods are warranted for thirty (30) days from shipment. TDG shall assign to Customer any warranties and/or remedies provided to TDG by its Vendor. Customer has thirty (30) days from receipt of faulty or defective Goods to notify TDG. TDG will work with Customer to troubleshoot issues and attempt to remediate the issue, however, should Customer elect to return the Goods, Customer must request a Return Materials Authorization (“RMA”) Number and instructions from TDG. Upon receipt of the returned Goods, TDG will make a determination to repair or replace the defective Goods, at TDG’s sole discretion, and notify Customer as to when to expect the repaired or replaced Goods. No repair of Goods or other costs are assumed by TDG unless agreed to in advance and in writing.
SERVICES. TDG warrants that Services provided pursuant to an Order shall be performed using personnel of required skill, experience, and qualifications, in a professional and workmanlike manner, and in accordance with industry standards and the specifications set forth in the Order. Services are warranted for a period of three (3) months from delivery. To initiate a warranty claim for Services, Customer must issue a Purchase Order to TDG for travel to Customer’s site to evaluate the warranty claim. If the warranty claim is due to a failure or defect in the Services or the associated Goods furnished by TDG and currently warranted, TDG will promptly make good any defect in the Goods or Services including, at TDG’s sole discretion, removal, replacement and/or, with respect to defects in Services, re-performance of the Services so that they conform to the performance specifications in the Order.
Warranty claims do not apply in cases a) where installation, start-up or activation services are performed by Customer or a third party not authorized by TDG; b) Goods are provided or maintained by Customer or a third party not authorized by TDG; c) Goods have suffered abuse, misuse or neglect; d) Goods are failing due to errors by Customer or a third party not authorized by TDG; and/or e) failure is due to detrimental environmental factors.
OWNERSHIP OF PROPERTY
Unless agreed otherwise by TDG in writing, all tooling, fixtures, equipment, tools, software, and designs produced, acquired, or used by TDG for the purposes of fulfilling Customer‘s Order shall remain the property of TDG.
LIMITATION OF LIABILITY
To the extent required by law, nothing in these Terms shall limit (i) TDG’s liability to Customer for bodily injury or death caused by TDG’s negligence or (ii) TDG’s liability for fraudulent misrepresentation.
Customer agrees that it can be adequately compensated by money damages and, except as provided in this Section, liability of TDG, its officers, employees, agents, and suppliers collectively for claims arising shall be limited to the amount paid by Customer to TDG within the six (6) months preceding the claim. This limitation of liability is cumulative and not per incident. In no event shall either Party, its respective affiliates, officers, directors, employees, agents, or suppliers be liable for any special, incidental, indirect, or consequential damages, or lost revenue, lost profits, lost business opportunity, or lost or damaged data whether arising in contract, tort (including negligence), or otherwise.
To the extent allowed under the law, the Parties agree that this Section of the Terms fairly allocates the risks between the Parties. TDG and Customer further agree that this allocation is an essential element of the basis of the relationship between the Parties.
Neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control including, without limitation, Acts of God, labor disputes, shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, natural disasters, epidemics, pandemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance.
APPLICABLE LAW & JURISDICTION
The validity, interpretation, and performance of these Terms and any applicable Order shall be controlled by the laws of the State of Florida, as if performed wholly within the State and without giving effect to the principles of conflicts of law, and the State and Federal courts seated in Jacksonville, Duval County, Florida shall have sole and exclusive jurisdiction over any claim arising under these Terms or any applicable Order. For the purposes of all transactions between Customer and TDG, the concept of fortius contra proferentem shall not apply.
Neither Party may assign or delegate its rights or obligations under the Order without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.
All notices under these Terms and any applicable Order will be in writing and sent to The DeCoste Group at:
4077 London Road, Suite 2
Jacksonville, Florida 32207
In the event that one or more terms of the Terms or the Order becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from the Terms and the applicable Order. All remaining terms of the Terms and the applicable Order shall remain in full force and effect.