Ackerman & Baynes, LLC General Terms & Conditions

  1. These Terms and Conditions shall apply to all sales of goods and services (“Products”) by Ackerman & Baynes, LLC (“Seller”) to any person or entity (“Buyer”). No term or condition of the Buyer’s purchase order or other request to purchase the Products which is different from, or in addition to, the terms and conditions set forth herein shall bind Seller, and shall be deemed rejected, unless, and only to the extent such different or additional terms or conditions are expressly acknowledged and accepted by Seller in writing.
  2. The purchase price for the Products (“Purchase Price”) is based on only the Products specified in the Quote. Any other Products are sold at an additional cost and, to the extent that the Buyer makes any changes to the Products, or the drawings for the Products differ in any way from the drawings on which this Quote is based, the Seller shall be entitled to additional compensation. Quoted items are quoted as a package and individual items may not be broken out unless mutually agreed upon.
  3. Buyer shall reimburse Seller for all taxes, excises or other charges which Seller may be required to pay to any government (national, state, or local) or agency thereof upon the sale, production or transportation of the products hereunder.
  4. Credit cards are accepted and subject to a 5% transaction fee.
  5. The above pricing is based on Seller’s standard 40-hour work week. Overtime, acceleration of delivery, and expediting costs caused by the Owner and or Buyer will be considered an extra cost.
  6. The Purchase Price is quoted F.O.B. factory. Unless otherwise specified in writing by a duly authorized representative of Seller, mode of shipment shall be chosen by Seller. All transportation, insurance, packaging charges and applicable fees are in addition to the Purchase Price and shall be charged to and paid by the Buyer. Title and risk of loss shall pass to the Buyer upon delivery of the Products to the carrier for shipment to the Buyer. In no event shall any loss, damage, injury or destruction of the Products after risk of loss has passed to Buyer release the Buyer from its obligation to make payment required herein. Seller reserves the right to make partial shipments and to submit invoices for partial shipments.
  7. Quoted delivery/shipment lead times are estimated at the time of the Quote and are based on current shop load and may be modified based on capacity at time of production release or any action or inaction of the Buyer.  Time of delivery shall not constitute a material term to these Terms and Conditions.  Seller shall use commercially reasonable efforts to ship all Products by the agreed upon delivery date, but in no event shall Seller be liable in any way for any failure to ship any Products by the agreed upon delivery date.
  8. Production/fabrication scheduling considerations may require Seller to produce Products released for fabrication and invoice the product earlier than the Buyer’s required shipment date. It is the responsibility of the Buyer, at Buyer’s sole cost and expense, to submit for “payment for stored materials” if needed.
  9. Design and/or engineering are the responsibility of the Buyer and Seller expressly disclaims any warranty that the product is fit for the purpose intended by Buyer.
  10. Subject to the terms and conditions set forth herein, Seller warrants that all Products manufactured by Seller (and only Products manufactured by Seller) identified as such in the applicable quotation or other document delivered by Seller to Buyer shall comply with the specifications described in such quotation (if any) and will be free from material defects in material and workmanship under normal use and service.  The failure of Buyer to properly maintain the Products or to use the Products in accordance with Seller’s instructions or any defect in design or in the show drawings shall void Seller’s warranty. If, after Seller examines the product, Seller determines that the warranty set forth in this Section has been breached, Seller may, at its option, either repair or replace the defective Product and deliver the repaired Product or replacement to Buyer F.O.B. factory or refund the Purchase Price paid by Buyer therefor, at the election of Seller.  The warranty set forth herein shall remain in force for a period of twelve months from installation or eighteen months from readiness to ship, whichever comes first (“Warranty Period”), on Products supplied by Seller, and the warranty shall expire upon the expiration of the Warranty Period.  All warranty claims must be received in writing by Seller prior to the expiration of the Warranty Period.  Seller shall have no obligation to Buyer with respect to any warranty claims received by Seller after the expiration of the Warranty Period. Seller will not accept any back charges without the opportunity to correct the defect first. No additional back charges for material and or labor costs will be accepted.  In the event of a timely warranty claim, Seller may, at its option and in its sole and absolute discretion, repair or replace the Product or refund the Purchase Price of the Product to the Buyer.  The remedy set forth in this Section shall be the sole and exclusive remedy of the Buyer for a warranty claim with respect to any of the Products.
  11. It is further agreed that in the event that Buyer should breach the Quote or these Terms and Conditions, including the agreement to make prompt payment, in addition to other remedies otherwise available to Seller, and without notice to Buyer, Seller may declare any or all amounts owed to Seller by Buyer immediately due and payable.
  12. Seller shall be entitled to all remedies available at law or in equity, including but not limited to recovering all costs incurred by Seller (including but not limited to reasonable legal fees and court costs) in enforcing the provisions of the Quote or these Terms and Conditions.
  13. Seller’s liability for damages shall not exceed fifteen percent (15%) of the Purchase Price received by Seller, if any, for the Product furnished that is the subject of claim or dispute. Seller shall in no event be liable for special, consequential, incidental or punitive damages. Consequential damages shall include, without limitation, loss of use, income or profit or loss of or damage to persons or property.
  14. Security Agreement.  For value received, Buyer hereby grants Seller a purchase money security interest in all of the Products, wherever located, and all identifiable proceeds of any of the Products.  The foregoing purchase money security interest shall secure the purchase price of the Products.  Upon a default by Buyer, Seller shall have the right to remove the Products from the property of the Buyer, with or without notice, demand, and/or legal process.  After repossession, Seller shall have the right to dispose of the Products in any such manner as Seller deems appropriate in its sole discretion and as set forth in the Uniform Commercial Code of the State of Maryland.  Buyer shall pay all expenses incurred by Seller in the repossession of the Products, including, but not limited to, attorneys’ fees, court costs, storage fees, sale costs, and repossession costs.
  15. Buyer shall indemnify defend and hold harmless Seller, its affiliates, and their respective officers, agents and employees from and against any and all losses, liabilities and damages, including, without limitation, reasonable attorneys’ fees, arising out of or in connection with (a) a violation by Buyer of any governmental laws, rules, ordinances or regulations; (b) the negligent acts and/or omissions and/or the willful misconduct of Buyer and/or any of its officers, agents or employees; and/or (c) the breach of the provisions of these Terms and Conditions, any quotation and/or other agreement between Buyer and Seller with respect to the purchase and sale of Products.
  16. Seller shall indemnify defend and hold harmless Buyer, its affiliates, and their respective officers, agents and employees from and against any and all third-party claims, demands, complaints, or judgments, including, without limitation, reasonable attorneys’ fees, arising out of or in connection with (a) a violation by Seller of any governmental laws, rules, ordinances or regulations; (b) the negligent acts and/or omissions and/or the willful misconduct of Seller and/or any of its officers, agents or employees; and/or (c) the breach of the provisions of these Terms and Conditions, any quotation and/or other agreement between Buyer and Seller with respect to the purchase and sale of Products.
  17. If Seller is prevented from performing its obligations solely by acts of God, fire, floods, war, terrorism, embargoes, labor disputes, strikes, acts of sabotage, riots, accidents, delays of carriers, delays of subcontractors, delays of suppliers, governmental acts, shortages in materials or manufacturing facilities, unreasonable fluctuations in material costs, epidemics, pandemics, or other circumstances beyond the reasonable control and without the fault or negligence of Seller, Seller shall have the right to cancel Buyer’s purchase order in full or in part without liability, other than to return any deposit or prepayment that is unearned by reason of the cancellation.  In the event that Seller is unable for any of the above reasons to meet the demands of its customers (including Buyer) with respect to Products ordered, Seller may allocate its available inventory of Products among any or all purchasers on such basis as Seller may deem fair and practical in its sole discretion without liability for any failure of performance which may result therefrom.
  18. Seller shall not be liable for any delays in shipment of the products caused by, associated with, or attributable to any action or inaction of the Buyer and/or any of the Buyer’s other contractors or material supplies.
  19. These Terms and Conditions shall be governed by the laws of the State of Maryland, without regard to conflict of laws principles.  Buyer consents to the exclusive jurisdiction and venue of the courts of the State of Maryland, or in the United States District Court for the District of Maryland for all matters arising out of or relating to the sale of Products hereunder.  If any part of these Terms and Conditions is held void or unenforceable, such part, to the extent void or enforceable will be treated as severable, leaving valid the remainder of the Terms and Conditions which shall be deemed revised so as to remain enforceable to the greatest extent possible.  The terms of the agreement by and between Buyer and Seller shall be limited to these Terms and Conditions and the Quote.  These Terms and Conditions and the Quote shall supersede all prior agreements and understandings, whether written or oral, among the parties with respect to the Products.
  20. It is agreed that the Quote and Terms & Conditions shall be incorporated into and shall become a part of any further or additional agreement made in relation to the transaction and/or project contemplated by the Quote.
  21. Waiver of Jury Trial.  BUYER AGREES TO WAIVE ITS RIGHT TO A JURY TRIAL FOR ANY CLAIMS AGAINST SELLER.  BUYER UNDERSTANDS THAT BY ACCEPTING THESE TERMS AND CONDITIONS, BUYER MAY BE SACRIFICING LEGAL RIGHTS.