Standard Terms and Conditions of Sale

The following terms and conditions shall govern the order, sale and delivery of all Products and Services of The Noribachi Group, LLC, Green by Design and their affiliated companies (collectively, the “Company”) to Distribution Partners, Dealers, Distributors (collectively “Dealers”) and Customers (Dealers and Customers are also referred to as “Purchasers”). The Company reserves the right to forward any order for Products from a Customer to any authorized Dealer. These standard terms and conditions may be updated by the Company from time to time. Any different, conflicting or additional terms or in any purchase order or other writing from a Purchaser shall be of no force or effect unless acknowledged and executed by an officer of the Company.

THESE STANDARD TERMS AND CONDITIONS APPLY TO ALL PURCHASES FROM AND AFTER MARCH 1, 2011 WHETHER OR NOT SUCH PURCHASE IS SUBJECT TO A SIGNED PURCHASE ORDER OR DEALER AGREEMENT BETWEEN THE COMPANY AND THE PURCHASER.

1. ORDERS

1.1 Orders from Customers through Dealers shall first be forwarded to the Dealer. Orders from or through Dealers and orders from Customers directly from the Company shall be forwarded to Company at its head office. No order shall be final as to Company until accepted by Company. After acceptance an order shall not be subject to cancellation. All sales are final. Customers are not authorized to resell any order, in whole or in part, by any means, including online or via e-commerce.

2. SHIPMENT, DELIVERY AND DELAYS

2.1 The Company will endeavor to ship Products two (2) to eight (8) weeks after acceptance of orders depending on size of order and Product. Completion dates for Services ordered from the Company will be determined based on the nature and scope of the Services.

2.2 Although the Company will make every reasonable effort to deliver by the estimated shipment date, the Company does not guarantee shipment by that date. Further, shipment may be delayed by strike, fire, act of God, unavailability of materials or components, or any other circumstances not within the reasonable control of the Company that prevents delivery in the normal course of business.

2.3 All Products will be tendered and shipped FOB the Company dock, Albuquerque, New Mexico, unless otherwise indicated by the Company and may be tendered in several lots. Title to (except with respect to any and all intellectual property rights in and to any Products) and all risk of delay in shipment, loss or damage for any Products will pass to purchaser upon tender by the Company of Products to the carrier.

2.4 Company will select the carrier and ship freight prepaid. Shipping and handling charges will be invoiced to the Customer. In cases where Purchaser, for any reason, requests deliveries of Products on a basis that is not in conformity with Company’s standard shipping procedures, Purchaser shall be responsible for all costs associated with premium freight and any overtime required to make deliveries in conformance with Purchaser’s required schedule. Purchaser will pay all loading charges and all taxes. Company will not be deemed to assume any liability in connection with its selection of a carrier or its failure to obtain insurance.

3. PAYMENT TERMS AND TAXES

Unless otherwise stated in Company’s invoice or agreed in writing executed by an officer of Company, terms of payment for orders shipped to destinations in the U.S. are:

3.1 Where the Company has in writing approved a Purchaser’s credit, the standard terms of payment of Company invoices are: Orders equal to or less than $4,999.99, payment is due upon order. Orders greater than $4,999.99, 50% due upon order, remainder Net Cash thirty (30) days from the date of delivery of Products to the carrier for shipment to Customer or Purchaser, unless otherwise agreed in writing by the Company.

3.2 Where the Company has not approved a Purchaser’s credit, or where such approval has been revoked, payment for all the Company invoices will be as follows:

  • (a) Subject to subsection 2.3, below, payments are to be made prior to the shipment by the Company of any Products:
    • (i) By check or money order,
    • (ii) by wire transfer to a bank and account designated by the Company, or
    • (iii) by credit card (after acceptance of such card by the Company).

3.3 Purchaser will have five (5) business days from the date of each invoice to submit to the Company, in writing, any objection concerning the charges appearing on the invoice. Thereafter, Purchaser will be considered to have acknowledged the accuracy of the invoice.

3.4 The Company’s Base Prices for Products do not include sales, use, gross receipts, excise, goods and services, personal property or any other applicable taxes or impositions (collectively “Taxes”). All Taxes applicable to the sale or use of Products or otherwise applicable to the purchase, resale (in the case of a Dealer) and use of Products will be paid by Purchaser.

3.5 On any overdue payment, Purchaser will pay a service charge on the overdue amount equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law.

3.6 Purchaser hereby grants Company a security interest in all Products and all Service deliverables sold to Purchaser to secure due and punctual payment and performance of all its obligations. Purchaser shall execute all financing statements and other instruments and take all actions which Company.

4. LIMITED WARRANTIES, RETURNS

4.1 Limited Warranties for each of the Company’s Products and the Company’s Return Policy are published on the Green by Design website at www.greenbydesign.com. Any Limited Warranty for a Service shall be stated in a purchase order. Dealer is responsible for processing returns or warranty claims for Products sold to Dealer’s Customers. Dealer shall respond in a prompt and courteous manner to all Customer inquiries, complaints, return requests and warranty claims and will report all complaints and warranty claims in writing to the Company within five (5) business days of notice of such complaint, request or claim and provide all information requested by the Company. Purchaser shall direct all inquiries, complaints, return requests and warranty claims to the Dealer from whom Purchaser purchased the Product, or to the Company for any Product purchased directly from the Company.

5. GOVERNING LAW, VENUE

5.1 This instrument and agreement shall be governed by the laws of the State of New Mexico as if fully performed in New Mexico and without regard to its conflicts of laws principles. In connection with any dispute hereunder, Company, Dealer and Purchaser irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts located in New Mexico and waive any trial by jury. The provisions of this instrument are severable and shall be interpreted so as to be valid and enforceable to the maximum extent possible under applicable law. Any invalid or unenforceable provision shall be reformed or replaced by a valid and enforceable provision that is as similar in meaning as possible, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. The waiver of any provision by a party shall not be construed as a waiver of any succeeding occurrence or any other provision, nor shall delay or omission of a party to avail itself of any right, power or privilege operate as a waiver of such right, power or privilege.

6. LIABILITY AND INDEMNIFICATION

6.1 Dealer agrees to defend, indemnify and hold the Company, its officers, agents and employees, harmless from and against any and all claims, liabilities or costs (including attorney fees) for any loss, damage or injury caused by, arising out of, or resulting from the distribution, sale or licensing of Products (by a Dealer) or any other activities carried on by a Dealer pursuant to this Agreement or otherwise in connection with any Products, except and to the extent that any such claims or damages are covered by the Limited Warranty or are the result of the willful misconduct or gross negligence of the Company.

6.2 Purchaser agrees to defend, indemnify and hold the Company, its officers, agents and employees, harmless from and against any and all claims, liabilities or costs (including attorney fees) for any loss, damage or injury caused by, arising out of, or resulting from the improper or negligent use, application, installation or implementation of any product.

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