Terms and Conditions of Sale for Products and Services
- Acceptance. The following terms and conditions are applicable to all quotations and purchase orders and are the only terms and conditions applying to the sale of Gilbarco's products or services except those that relate to prices, quantities, delivery schedules, and the description and specifications of the products. Gilbarco hereby objects to and rejects any other terms and conditions appearing on, incorporated by reference in or attached to a purchase order. Buyer's acceptance of such products or services shall constitute its acceptance of these terms and conditions.
- Billing and Payment. Unless Gilbarco otherwise agrees in writing:
(a) Payment shall be due within thirty (30) days from date of invoice (Net 30 Days). Fees for ongoing services will be invoiced annually, starting when the applicable service is enabled. Fees for all other services will be invoiced upon completion. Payment terms are subject to approval of Gilbarco’s credit department. If in Gilbarco's opinion, Buyer's financial condition reasonably appears to call for such action, Gilbarco may require payment in advance.
(b) Gilbarco may impose finance charges, the lower of one and one-half percent (1½%) per month or the highest rate allowed by law, on any amount past due. If an invoice is not paid when due, Buyer shall pay all collection costs if this account is referred outside for collection or, if suit is brought to collect this account, Buyer agrees to pay all costs and reasonable attorneys' fees, including those incurred on any appeal. For amounts past due for services, Gilbarco reserves the right to discontinue the services until the account is made current, or terminate the services and seek full recovery for any outstanding fees and costs due.
(c) Prices quoted are exclusive of, and Buyer agrees to pay, any foreign, federal, state or local excise, sales, use, personal property or any other taxes or duties, excepting only taxes based on Gilbarco's income. Any certificates or other evidence of applicable exemptions to such taxes or duties must be made available to Gilbarco prior to invoicing or such taxes or duties will be charged to Buyer, provided, however, that if Gilbarco does not collect such items from Buyer and is later requested or required to pay the same to any taxing authority, Buyer will promptly make such payment to Gilbarco or, if requested by Gilbarco, directly to such taxing authority.
- Place of Product Delivery and Method of Tender.
(a) Sales within U.S. Delivery terms and pricing for product sales within the United States are CPT (Incoterms 2010) Gilbarco’s dock, Greensboro, NC, unless otherwise agreed to in writing by Gilbarco. Gilbarco shall arrange for appropriate means of transportation of the products ordered. Freight is pre-paid from Gilbarco’s dock (Point of Delivery) and incurred after the products are delivered to the carrier from Point of Delivery to the Place of Destination. Risk of loss of or damage to the products or any part of the products shall pass to the Buyer upon delivery to carrier at the Point of Delivery, and Buyer shall have the responsibility of filing any damage claims with the carrier. Buyer shall arrange for applicable insurance covering the products from Point of Delivery to their Place of Destination. Legal title to the products shall pass to Buyer at the Point of Delivery.
(b) Sales outside of U.S. Delivery terms and pricing for export product sales are FCA (Incoterms 2010) Gilbarco’s dock, Greensboro, NC, unless otherwise agreed to in writing by Gilbarco. Gilbarco shall arrange for appropriate means of transportation of the products ordered and pay all inland freight charges from Gilbarco’s dock (Point of Delivery) to the first USA port of export unless otherwise agreed to in writing by Gilbarco. Buyer shall arrange for applicable insurance covering the products during transit to their destination. Where Buyer requires special delivery requirements, any special expense is to be borne by the Buyer, including special handling, packaging and additional freight charges. When “export packing” is required, Buyer shall be responsible for any extra charges such as export duties, licenses, fees and the like. Risk of loss of or damage to the products or any part of the products shall pass to the Buyer upon delivery to carrier at the Point of Delivery, and Buyer shall have the responsibility of filing any damage claims with the carrier. Orders are subject to Gilbarco’s ability to obtain export licenses and other necessary papers within a reasonable period. Buyer will furnish all Consular and Customs declarations and will accept and bear all responsibility for penalties resulting from errors or omissions thereon. Buyer shall not re-export the products or items which incorporate the products if such re-export would violate applicable export laws. Legal title to the products shall pass to Buyer at the Point of Delivery, except for sales to Canada or Central or South America (excluding Mexico), in which case legal title to the products shall pass to Buyer when the products cross an international border (including without limitation entering international waters), or at such later point as may be agreed to in writing by Gilbarco.
- Product Installation. Unless otherwise specified in writing on a quotation provided by an authorized representative of Gilbarco, Buyer assumes responsibility for installation. Gilbarco agrees to make installation and on-site technical support services available at Gilbarco's then-prevailing rates. If Buyer’s site has broadband internet access and the product includes connectivity hardware at the time of commissioning, Gilbarco’s commissioning process requires configuring and registration of the product for Insite360 Services to allow Gilbarco the option to collect product hardware and performance data to provide enhanced services to Buyer, and Buyer agrees to such data collection for Gilbarco use only. Gilbarco does not collect cardholder data, and Gilbarco maintains all necessary PCI certifications for its Insite360 Services.
- Maintenance. Buyer assumes responsibility for maintenance on the products sold to Buyer. Gilbarco agrees, however, to make maintenance services available at its then-prevailing rates. For any other services purchased, Buyer is responsible for:
(a) installing and maintaining the necessary equipment at the site and obtaining any required consents, licenses, or permits;
(b) providing Gilbarco with remote connectivity to access the devices required for service for each site in accordance with Gilbarco’s standards then in effect;
(c) all communication and interface equipment and services, and the associated costs and fees, necessary for the remote connectivity.
- Term for Services. Services are provided for an initial term, as provided in the applicable documentation from Gilbarco. If no initial term is specified, then the initial term is one (1) year. Services shall automatically renew for successive one (1) year periods unless one party provides the other with thirty (30) days’ written notice of its intent not to renew.
- Warranties. Gilbarco warrants its equipment parts and supplies in accordance with its standard warranty policies. A written copy of these policies accompanies these terms and conditions or is available upon request. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ONLY AN OFFICER OF GILBARCO, IS AUTHORIZED TO MAKE ANY WARRANTY IN ADDITION TO THE FORGOING.
- Limitation of Buyer’s Remedies. GILBARCO WILL NOT BE LIABLE FOR CLAIMS OR DAMAGES CAUSED BY BUYER’S FAILURE TO FULFILL ITS OBLIGATIONS HEREIN. TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, GILBARCO SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY WITH RESPECT TO ANY PRODUCT OR SERVICE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR:
(A) ANY CLAIMS, ACTIONS OR CAUSES OF ACTION ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY ARRANGEMENT BETWEEN BUYER AND ANY THIRD PARTY, OR ANY FAILURE OF PERFORMANCE, BY A THIRD PARTY;
(B) FAILURE OR DELAY OF RESPONSE TO A GILBARCO NOTIFICATION TO BUYER OF A CONDITION, FAILURE OR DELAY OF A DELIVERY;
(C) FUEL SPILLS OR LEAKS, OBTAINING OR MAINTAINING COMPLIANCE PERMITS OR OTHER GOVERNMENTAL REGULATIONS, OR FOR TAXES, FINES OR OTHER GOVERNMENTAL LEVIES AGAINST BUYER;
(D) INTERRUPTION OF USE; LOSS, INACCURACY, OR CORRUPTION OF SOFTWARE OR DATA; OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY;
(E) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF GILBARCO IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATION DOES NOT APPLY TO ANY INDEMNIFICATION FOR INFRINGMENT, WHICH IS EXPRESSLY LIMITED TO THE REMEDIES LISTED THEREIN. IN ANY EVENT, GILBARCO SHALL BE LIABLE ONLY FOR ACTUAL DAMAGES AND GILBARCO’S MAXIMUM LIABILITY HEREUNDER, REGARDLESS OF THE LEGAL THEORY, SHALL NOT EXCEED
(i) THE CONTRACT PRICE OF THE PRODUCTS GILBARCO FURNISHED; OR
(ii) THE AGGREGATE OF FEES PAID TO GILBARCO FOR SERVICES DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE MOST CURRENT EVENT GIVING RISE TO SUCH LIABILITY OCCURRED.
- Gilbarco’s Remedies. Without waiving any other rights or remedies available to it under applicable law or otherwise, Gilbarco may, at its option, defer shipment or deliveries hereunder or pursuant to any other contract with Buyer, until all past-due accounts of Buyer to Gilbarco have been satisfied in full. Any rights or remedies herein shall be in addition to and not in lieu of any other rights or remedies Gilbarco may have at law or in equity.
- Proprietary Rights. Gilbarco shall retain all rights to designs, drawings, patterns, plans, specifications, technology, technical data and information, technical processes and business methods, whether patentable or not, arising out of or evolving as a result of Gilbarco rendering engineering services to and designing systems and products for Buyer's use. Buyer agrees not to enforce against Gilbarco or customers of Gilbarco any patent rights, the scope of which includes a system, process or business method utilizing products or engineering services delivered hereunder by Gilbarco and which relates to an invention, improvement, enhancement or development made by or for Buyer on a date subsequent to the date of Gilbarco's offer hereunder.
- Hazardous Materials. Buyer acknowledges that certain supplies covered by these terms may be, or become, considered as hazardous materials under various laws and regulations. Buyer agrees to familiarize itself (without reliance on Gilbarco), with any hazard of such materials and their applications and the containers in which such materials are shipped. Buyer agrees to inform and train its employees and its customers as to such hazards. Buyer agrees to waive any claim against Gilbarco and hold harmless and indemnify Gilbarco against any claims by its employees or customers based on allegations relating to any such hazards except where such claims are based on failure to meet written specifications or the inaccuracy of specific safety information actually furnished by Gilbarco.
(a) Delivery dates are approximate and are not guaranteed, and Gilbarco shall not be liable for damages of any kind resulting from any delays in fulfillment, shipment or delivery of orders. Furthermore, Gilbarco shall not be liable for any other loss, damage, cost or expense due to causes beyond its reasonable control, such as acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes;
(b) In the event of a delay in delivery exceeding ninety (90) consecutive days, Buyer has the right to terminate its order as to the undelivered portion thereof without penalty.
- Products Not for Resale. Buyer hereby expressly agrees, acknowledges, represents and warrants to Gilbarco that:
(a) it is the Gilbarco's policy to sell these types of products and/or services only to end users for their own use;
(b) the products/services that are the subject of this order are not intended for resale;
(c) the products/services that are the subject of this order are in fact being purchased by Buyer for Buyer's own use and not for resale to a third party; and
(d) in the event that Buyer breaches the foregoing acknowledgment, covenant, representation and/or warranty by reselling the products that are the subject of this contract, Gilbarco shall be permitted to (i) void, eliminate and/or refuse to continue to extend or make available to Buyer any volume or other types of discounts, rebates or preferential payment terms to which Buyer is now or hereafter otherwise might be entitled to or eligible to receive from Gilbarco, (ii) discontinue the applicable service without liability, or (iii) refuse to accept any further orders from Buyer. Notwithstanding the foregoing, nothing in these Terms and Conditions is intended to restrict any OEM from incorporating any products purchased from Gilbarco into equipment that is to be resold to the OEM's end customer so long as such OEM provides a reasonable certification of such use to Gilbarco.
- Cancellation. Unless otherwise agreed in a writing signed by authorized representatives of Buyer and Gilbarco, all canceled product orders will be subject to a 25% cancellation fee. Buyer may not cancel orders for non-standard products or orders for products which have left Gilbarco's dock.
- Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of North Carolina, USA, without regard to the conflicts of laws provisions. Buyer and Gilbarco consent to the sole and exclusive venue and jurisdiction of the courts situated in Guilford County, North Carolina, USA. Buyer must commence any action for loss or damage with respect to the products or services which are the subject of this contract within one year from the date of delivery of such products or services or such claim shall be forever barred.
- Compliance with Laws/Anti-Corruption. Buyer shall comply fully with all applicable laws, rules and regulations, including without limitation those of the United States and any and all other jurisdictions globally (“Laws”) that apply to Buyer’s business activities in connection with its purchase of products or services from Gilbarco. Specifically, Buyer shall comply with all Laws relating to anti-corruption, bribery, extortion, kickbacks, or similar matters that are applicable to Buyer’s business activities in connection with this Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Buyer will take no action that will cause Buyer or Gilbarco or any of their affiliates to violate any such laws.
- Entire Agreement. Unless otherwise agreed in a writing signed by Gilbarco and Buyer, these terms constitute the entire agreement between the parties, there being no other promises, terms, conditions, or obligations referring to the subject matter contained herein. If any term or provision be determined to be invalid or unenforceable, the remainder shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the full extent permitted by law. Any modifications hereto shall be in writing and signed by both parties.
- INSITE360 Services. If Buyer has purchased and/or entered into an agreement for Insite360 services, the following additional terms apply:
(a) Buyer is responsible for designating on Gilbarco forms its monitoring, reporting, and other requirements. Buyer is solely responsible for defining the type and frequency of monitoring required to meet all regulatory and other standards. Gilbarco has no obligation to monitor federal, state or local law, or to modify services based on changes in such laws;
(b) Buyer represents and warrants that Buyer has the right to provide to Gilbarco the information and data provided in association with the services and to grant the rights for Gilbarco to use any such information and data;
(c) Gilbarco represents and warrants that it will perform the services materially in accordance with the written descriptions. Buyer acknowledges that the services, and/or the equipment used to provide services cannot and does not function as leak prevention and cannot and will not prevent a release. Buyer’s sole remedy and Gilbarco’s sole obligation in the event of any breach of the warranties set forth herein shall be to request Gilbarco to re-perform the nonconforming portion(s) of the services; however, if Gilbarco believes the foregoing remedy is not commercially reasonable, Gilbarco will refund to Buyer an amount equal to the amount paid by Buyer to Gilbarco for the nonconforming portion(s) of the services. GILBARCO DOES NOT WARRANT THAT THE SERVICES WILL MEET BUYER’S REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND/OR SOFTWARE USED IN THE SERVICES ARE PROVIDED AND PERFORMED “AS IS” WITHOUT ANY WARRANTY, AND BUYER’S USE OF THE SERVICES, SOFTWARE, OR ANY DATA MADE AVAILABLE THROUGH THE SERVICES ARE SOLELY AT BUYER’S OWN RISK. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, GILBARCO DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, CONCERNING OR RELATED TO THE SERVICES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ACCURACY WITH RESPECT TO THE SERVICES AND/OR SOFTWARE, AS WELL AS ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
(d) Buyer and Gilbarco may receive from the other party in the performance of the Services certain confidential or proprietary information belonging to the other party (“Confidential Information”). The parties shall treat such Confidential Information as confidential, using the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The parties shall not disclose or otherwise use such Confidential Information, except as provided herein. Either party may use or disclose the Confidential Information (i) as required for the services, but only by representatives of the receiving party who are bound by confidentiality obligations no less stringent than this herein, and (ii) as required by a court order or other legal process. These confidentiality obligations shall survive for five (5) years after the termination of the services. Nothing herein shall restrict any use or disclosure of a party’s information that: (a) is or becomes publicly available through no fault of the other party; (b) is independently developed by the other party; or (c) is received by the other party from a third party without confidentiality obligations. Buyer Confidential Information revealed to third parties because Buyer allowed the third party access to the services, is explicitly not subject to the foregoing confidentiality obligations. Gilbarco has the right to use and transfer any information or data collected as needed to provide the services and, to the extent permitted by applicable law, to use or transfer such data for other purposes but only if aggregated with other information or otherwise does not identify Buyer.
(e) Gilbarco and its licensors are the author and owner of all services and other creative materials or software for the services. Gilbarco hereby grants to Buyer a personal, non-exclusive, non-transferable, non-sublicensable right to use the software that is provided as part of the services (“Software”), including any updates thereto, solely for use of the services. Buyer may request that Gilbarco provide Buyer’s designated ASC with access to services to assist Buyer with the monitoring, maintenance, or repairs of the sites. Such access will (i) be subject to the limitations provided herein; (ii) require the ASC to sign an access agreement with Gilbarco; and (iii) require that Buyer be jointly liable for any such access granted to the ASC. Buyer shall not reverse engineer, decompile, or disassemble the Software or the services. Gilbarco and its licensors shall retain all other rights, title and interest in and to the services and the Software, including but not limited to (i) all derivative works and all related documentation; and (ii) all Gilbarco service marks, trademarks, trade names or other designations; and (iii) all other intellectual and industrial property rights of any sort in the services and the Software. Upon termination of the services, the foregoing licenses shall terminate immediately.
(f) Gilbarco shall defend and hold harmless Buyer from and against amounts payable under any judgment, verdict, court order or settlement for third party claims against Buyer that the Services infringes the intellectual property of the third party, provided: (i) Gilbarco shall have the right to control all negotiation, defense, and settlement of such a claim so long as the settlement does not require payment, admission, or action by Buyer; and, (ii) Buyer provides Gilbarco with prompt notice of such claim that Gilbarco’s right to defend the matter is not diminished in any way. If Gilbarco receives a claim for intellectual property infringement or misappropriation related to the Services, at its own discretion, Gilbarco may (i) obtain a license at no additional cost to Buyer for continued use of the Services; (ii) subject to the warranty, modify the Services so that they no longer infringe or misappropriate the intellectual property; or (iii) terminate the services upon 30 days’ written notice to Buyer with a refund to Buyer of any prepaid fees prorated for the remainder of the term;
(g) Buyer agrees to defend and hold harmless Gilbarco for any claims that (i) by contractors or third parties dispatched or notified of an alarm by Gilbarco on behalf of Buyer, relating to compensation for work performed associated with such dispatch or notice which was not covered by a Gilbarco warranty, and (ii) related to permitted uses of information and data Buyer provides in association with the services.
All information provided on this Site is subject to change without notice or liability. While efforts have been made to make this Site helpful and accurate, due to the need to obtain considerable amounts of information from third parties and the potential for errors in the storage and transmission of digital information, Gilbarco Inc. does not warrant the accuracy or completeness of information obtained from this Site. ALL MATERIALS POSTED ON THIS SITE ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. GILBARCO INC. DOES NOT WARRANT THAT FUNCTIONS CONTAINED ON THIS SITE WILL BE UNINTERUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GILBARCO INC. DOES NOT WARRANT OR REPRESENT THE USE OF THE MATERIALS ON THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Access and Use of Information
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Governing Law; Limitations
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