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General Terms and Conditions

Warranty disclaimer/consequential damages
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER SHALL HAVE NO LIABILITY TO PURCHASER FOR ANY CLAIM, LOSS, OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY, OR CONSEQUENTIALLY BY THE EQUIPMENT, OR BY ANY INADEQUACY, DEFICIENCY, OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSO SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER DISCLAIMS AND PURCHASER WAIVES ANY WARRANTY REGARDING THE OPERATION OF MACHINERY OR THE TYPE OF REFRIGERANT REFRIGERATED CONTAINERS MAY CONTAIN, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING. IF ANY EQUIPMENT SURVEYS ARE REQUIRED AT THE REQUEST OF THE PURCHASER, THEY WILL BE CONDUCTED BY AN INDEPENDENT THIRD PARTY ON THE PURCHASER’S BEHALF. THE ACCURACY OF ANY SUCH SURVEY IS NOT GUARANTEED BY THE SELLER.

Taxes, customs, and adherence to the law
The Equipment was used primarily for international transportation prior to sale to Purchaser, and it is currently at the pickup place under temporary entrance authority under the Istanbul Convention and relevant international and domestic legislation. The Equipment has not been approved for any other purpose in any jurisdiction. Purchaser agrees to assume sole responsibility for and pay all sales or use taxes, transfer, title, and registration fees, VAT, domestication, personal property taxes, or other taxes, tolls, levies, imposts, duties, or government charges imposed in connection with Purchaser’s intended use of the Equipment, and to indemnify and hold SELLER harmless from all such taxes, tolls, levies, imposts, duties, or government charges.

Indemnification
Purchaser will defend, indemnify, and hold Seller, its agents, employees, and indemnities harmless from and against any and all claims, losses, damages, liabilities, demands, actions, costs, expenses, and fees (including attorneys’ fees) arising out of or in connection with the sale of the Equipment to Purchaser or any subsequent use, operation, or disposition of the Equipment at Purchaser’s expense.

Remedies/waiver
Seller’s remedies below are cumulative and in addition to any other or other remedies granted by law. Seller’s failure to insist on fulfillment of any of this Agreement’s terms and conditions, or Seller’s waiver of any breach, does not constitute a waiver of any other term, condition, or future breach.

Assignment/entire agreement
Purchaser may not assign this Agreement or any of its rights or duties without Seller’s express agreement, which may be withdrawn for any reason. It is acknowledged and agreed that this Agreement, along with the appropriate invoice, encapsulates Purchaser and Seller’s comprehensive understanding of this sale. Only a written agreement signed by both parties can amend this Agreement.

Jurisdiction and law
This Agreement will be construed and interpreted in accordance with the laws of the State of California, USA excluding its conflict of laws rules. This Agreement is exempt from the UN Convention on Contracts for the International Sale of Goods. Any claim or controversy arising out of or connected to this transaction may be arbitrated in San Francisco county, California, before a single arbitrator designated by the American Arbitration Association, or sued in the state or federal courts of San Francisco county, California, USA. Seller and Purchaser agree to submit to the jurisdiction of such arbitration or courts, waive any objections to the arbitration or courts’ venue, and waive any defense of forum non conveniens. In any action or arbitration, the Seller and Purchaser agree that service of process on the other may be effected by mailing a copy (by registered or certified mail or commercial courier with receipt required), postage prepaid, to the responding Party at the address indicated on the invoice. After such process has been sent to the responding Party, service shall be complete seven (7) days thereafter. In any action or arbitration brought to enforce any of the provisions of this Agreement, the Purchaser agrees to pay Seller’s expenses and attorneys’ fees. Nothing in this Agreement affects any Party’s right to serve legal process in any other way allowed by law, or to commence any action or proceeding against the other Party or its property in any other court of competent jurisdiction.

Provision for Alternative Dispute Resolution
The parties shall take the appropriate steps in the following order:

Step One
Negotiation
The parties hereto will use their best endeavors to resolve any dispute, claim, question, or disagreement arising from or connected to this agreement or its breach. To that end, they will consult and negotiate with each other in good faith, taking into account their mutual interests, in order to reach a just and equitable solution that is acceptable to both parties. If they do not reach an agreement within 60 days, all disputes, claims, questions, or differences will be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules, which will be notified by either party to the other.

Step Two
Mediation
If a dispute arises out of or relates to this contract, or its breach, and the parties are unable to resolve the dispute through negotiation, the parties agree to try in good faith to resolve the dispute through mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or another dispute resolution procedure. Manning Steel will also pay for up to three hours of mediation services.

Step Three
Arbitration
Any dispute or claim arising out of or relating to this contract, or its breach, shall be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the arbitrator(s)’ award may be entered in any court having jurisdiction. The arbitrator(s) will be chosen by the parties from a pool of screened and trained specialists. The mediation or arbitration will take place in San Francisco, California, United States of America. The mediation or arbitration shall be conducted in either English or French. The arbitration will take place in the same language that the contract was written.

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