TERMS AND CONDITIONS FOR THE SALE OF GOODS AND/OR EQUIPMENT BY ACTION MANUFACTURING, LLC
Last updated: 11/13/2025
1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods and/or equipment (“Equipment”) by Action Manufacturing, LLC (“Seller”) to the buyer named on an applicable Order Confirmation (as defined below) (“Buyer”). Buyer and Seller are referred to herein collectively as the “Parties” and individually as a “Party.”
(b) The accompanying order confirmation (the “Order Confirmation” and together with these Terms, collectively, this “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement supersedes any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Acceptance of the Order Confirmation by Buyer is a prerequisite to the purchase of the Equipment and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Equipment (“Master Agreement”), then the Master Agreement shall prevail to the extent of any inconsistency with these Terms.
(c) To the extent applicable, Equipment conforms to Seller’s published catalog specifications current as of the Order Confirmation. For Buyer‑furnished designs or drawings, Seller shall not have any design responsibility with respect thereto, and Buyer is solely responsible for structural sufficiency, load assumptions, wind exposure, mounting details, and compatibility with poles, hardware, luminaries and other applicable items.
2. Delivery.
(a) The Equipment will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Delivery dates given by Seller are estimates only and are subject to shipping variations and requirements. Seller shall not be liable for any delays, loss, or damage in transit resulting from any reason. In the case of any delay, delivery dates will be extended accordingly, in the sole discretion of Seller.
(b) Seller shall deliver the Equipment to the location specified by Buyer in the Order Confirmation (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Equipment. Buyer shall be responsible for all loading costs and shall provide machinery and labor reasonably suited for receipt of the Equipment at the Delivery Point. Buyer is responsible for fees associated with not taking timely delivery of the Equipment, such as storage fees.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Equipment to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
3. Title and Risk of Loss. Seller shall not be liable for loss or damage in transit. Title and risk of loss shall pass to Buyer upon shipment of the Equipment by the Seller. As collateral security for the payment of the purchase price of the Equipment, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Alabama Uniform Commercial Code.
4. Amendment and Modification. Except for Section 2(b), these Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.
5. Inspection.
(a) Equipment received freight prepaid must be checked by Buyer against the applicable packing list to ensure all items have been delivered. In the case of shortages (a “Shortage”), Buyer must note on the carrier’s paperwork “Shipment Received Short” (or similar reasonable and conspicuous indication of Shortage) and contact Seller immediately. If a Shortage is not discovered upon receipt from carrier but is later discovered, Buyer must notify Seller of such Shortage within seven (7) days of receipt of the Equipment to ensure a claim for loss can be filed. Shortages reported later than seven (7) days carry no guarantee of replacement or credit by Seller.
(b) Equipment received freight prepaid must be checked for damage by Buyer upon receipt. If damaged Equipment is observed upon delivery (“Damage” and together with a Shortage, each, a “Nonconformance”), Buyer must note on the carrier’s paperwork “Received with Damage” (or similar reasonable and conspicuous indication of Damage) and contact Seller immediately. If Damage is not discovered upon receipt from carrier but is later discovered, Buyer must notify Seller within twenty-four (24) hours of receipt of the Equipment to ensure a claim for loss can be filed. Buyer will be deemed to have accepted the Damage unless it notifies Seller in writing and furnishes such written evidence or other documentation as required by Seller.
(c) Equipment received freight collect must be checked for Damage by Buyer upon receipt. If Damage is observed upon delivery, Buyer must note on carrier’s paperwork “Received with Damage” (or similar reasonable and conspicuous indication of Damage). Seller will not be responsible for any Damage or losses on collect shipments. Freight claims shall rest solely with the consignee.
(d) Subject to this Section 5, if Buyer timely notifies Seller of any Nonconformance, Seller may, in its sole discretion and as an exclusive remedy of the Buyer, (i) replace such Equipment with conforming Equipment, or (ii) credit or refund to Buyer the Price for such Equipment, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, any returned Equipment to Seller. If Seller exercises its option to replace the Equipment, Seller shall, after receiving Buyer’s shipment of Equipment, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Equipment to the Delivery Point.
(e) Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for a Nonconformance. Except as provided under this Section 5, all sales of Equipment to Buyer are made on a one-way basis.
6. Price.
(a) Buyer shall purchase the Equipment from Seller at the prices (the “Prices”) set forth in Seller’s quotes to Buyer, which shall remain valid for thirty (30) days from receipt by Buyer of the Price quotation, unless otherwise noted on the quote.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Seller reserves the right to add any other tax imposed on sold Equipment to the Price, as required by law.
7. Payment Terms.
(a) Buyer shall pay Seller all amounts due within thirty (30) days after the date of receipt of Seller’s invoice. All payments hereunder shall be in U.S. dollars and made by electronic funds transfer, wire transfer, or other immediately available funds to the account designated by Seller, or by such other form of payment expressly approved in writing by Seller. Seller reserves the right to require pre-payment in its sole discretion. All first-time Buyers shall be required to pay the Price of Equipment in advance and must furnish credit references to Seller before any credit may be issued.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of one and a half percent (1.50%) per month or the highest rate permissible under applicable law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Equipment if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
8. Limited Warranty. Seller warrants to Buyer that, for a period of twelve (12) months from the date of shipment of the Equipment (the “Warranty Period”), the Equipment will be free from material defects in material and workmanship (the “Equipment Warranty”). The Equipment Warranty shall only apply to Equipment that has been properly installed, operated, and maintained under normal use and service conditions. The Equipment Warranty under this Section 8 does not apply to, or include, as applicable: (i) Equipment that has been subject to abuse, misuse, neglect, negligence, accident, improper storage, overloading, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Seller, or improper testing, installation, storage, handling, repair, or maintenance; (ii) Equipment that has been reconstructed, repaired, or altered by anyone other than Seller or its authorized representative; (iii) ordinary wear and tear; (iv) labor required to remove and/or reinstall Equipment components; or (v) special finishes.
9. Buyer’s Exclusive Remedy for Breach of Warranty. During the Warranty Period:
(a) Buyer shall notify Seller, in writing, of any alleged warranty claim within ten (10) days from the date Buyer discovers, or upon reasonable inspection should have discovered, the reason for the claim (but in any event before the expiration of the applicable Warranty Period);
(b) If Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Equipment does not conform with the limited warranty set forth herein, Seller, in its sole discretion and at its expense (subject to Buyer’s compliance with this Section 9), shall repair or replace the Equipment, FOB factory within the continental United States. All export taxes, fees and duties occurring from Equipment Warranty shipments beyond the continental United States will be the sole responsibility of the Buyer;
(c) If Seller exercises its option to repair or replace, Seller shall, after receiving Buyer’s shipment of such Equipment, ship to Buyer, at Buyer’s expense and risk of loss, the repaired or replacement Equipment to a location designated by Seller; and
(d) Buyer has no right to return for repair, replacement, credit, or refund any Equipment except as set forth in this Agreement. The Equipment Warranty shall be null and void unless Seller receives notice of such Equipment Warranty claim prior to the expiration of the Warranty Period. No Equipment may be returned without the prior written approval of Seller and a validly issued return merchandise number (a “RMN”). Any Equipment returned without a valid RMN clearly marked on the packaging may be refused by Seller and returned to Buyer at Buyer’s sole expense. All Equipment being returned by Buyer must be received by Seller within ninety (90) days of the Seller’s shipment of the Equipment to the Buyer and must be in resalable condition, unless the return is covered under the Equipment Warranty. Seller reserves the right to inspect all returned Equipment prior to acceptance and to reject any Equipment that does not comply with this Section 9(d). All returns shall be subject to a restocking charge, and any other return expenses incurred by Seller, and must be returned to Seller FOB destination, freight prepaid.
(e) THIS SECTION 9 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9.
10. WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9 OF THIS AGREEMENT.
11. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Indemnification. Buyer will defend and indemnify Seller and its affiliates, and their respective directors, managers, members, officers, and employees, from and against third‑party claims, demands, suits, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent arising out of or relating to: (a) Buyer’s specifications, designs or instructions for the Equipment; (b) storage, handling, transportation after delivery, installation, integration, or other site operations performed by or on behalf of Buyer; (c) use, loads, wind exposure, environmental conditions, or applications beyond Seller’s published ratings or the Order Confirmation; (d) modifications, repairs, field drilling or welding, or combinations with items not supplied by Seller; or (e) Buyer’s violation of applicable laws, permits, or domestic‑content, export, or sanctions requirements. Buyer’s obligations are conditioned on prompt written notice and reasonable cooperation, and shall not apply to the extent a claim is caused by a defect in the Equipment as delivered by Seller. This Section 12 is in addition to, and not in lieu of, any insurance maintained by Buyer and does not expand Seller’s liability under this Agreement.
13. Cancellations. Buyer may not cancel, postpone, or modify any Order Confirmation for Equipment without the prior written consent of the Seller, which may be granted or withheld in Seller’s sole discretion. If Seller consents to any cancellation or modification of an Order Confirmation, Seller may charge Buyer for any resulting costs, expenses, and losses incurred.
14. Compliance with Law. Buyer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use of the Equipment. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, insurance, licenses, and permits necessary and required to conduct its business relating to the purchase or use of the Equipment and (b) not engage in any activity or transaction involving the Equipment, by way of shipment, use, or otherwise, that violates any law.
15. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Seller operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Seller precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Seller.
16. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 16 in addition to any other remedies available at law or in equity, without any requirement to post bond or other security. This Section 16 does not apply to information that is: (a) in the public domain prior to disclosure; (b) known to Buyer at the time of disclosure, as demonstrated by reasonable documentation; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party (each, a “Force Majeure Event”). During a Force Majeure Event, Seller may make commercially reasonable substitutions and allocate available inventory among customers. If a Force Majeure Event continues for more than ninety (90) consecutive days, either Party may terminate the affected Order Confirmation upon written notice to the other Party, and Buyer shall pay for any completed and in‑process items (including committed materials for Equipment) and reasonable close‑out costs incurred by Seller in connection with this Agreement.
18. Assignment. Buyer’s rights, interests, or obligations under this Agreement may not be assigned, transferred, or delegated by Buyer without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 18 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
19. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
20. No Third-Party Beneficiaries. Except as set forth in Section 12, this Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
21. Governing Law; Jurisdiction; Jury Trial Waiver. This Agreement is governed by, and construed in accordance with the laws of the State of Alabama without giving effect to any conflict of laws provisions thereof. All legal proceedings shall be instituted in the state or federal courts of the State of Alabama. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
22. Notices. All notices shall be in writing and addressed to the Parties at the addresses set forth on the face of the Order Confirmation or to such other address for either Party as that Party may designate by written notice to the other Party. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).
23. Severability. If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.