General Terms and Conditions

AGREEMENT means any transaction, document or agreement arising out of, relating to, or contemplated by the relationship between MARTIN and CONTRACTOR, including without limitation any purchase order(s) and/or quotation(s). The terms and conditions of this document shall apply notwithstanding any additional or different terms and conditions in any invoice or other document, including without limitation, (i) a purchase order or other ancillary instrument submitted by MARTIN SALES & MARKETING, LLC D/B/A MARTIN SOLUTIONS GROUP (“MARTIN”), (ii) any invoice, confirmation, or other document submitted by CONTRACTOR (meaning any party to a quotation and./or purchase order other than Martin), or (iii) any privacy policy, terms of use, or end user agreement. Any document signed or otherwise agreed to by persons other than an authorized representative for MARTIN shall be void and of no effect. MARTIN and CONTRACTOR are sometimes referred to herein as a “Party” or collectively as the “Parties.” By accepting any quotation or purchase order or otherwise accepting and/or receiving any goods or services from MARTIN, CONTRACTOR agrees to be bound by the terms and conditions provided herein, as the same may be unilaterally modified by CONTRACTOR from time to time without advance notice. These terms and conditions constitute a legal contract between MARTIN and CONTRACTOR, and by accepting any quotation or purchase order or otherwise accepting and/or receiving any goods or services from MARTIN, CONTRACTOR represents and warrants that it has the requisite right, power and authority to agree to and be bound by these terms and conditions and any obligations under such Agreement.

ASSIGNMENT
No Agreement may be assigned or transferred, without the written consent of MARTIN.

BREACH/WAIVER
The failure of either the CONTRACTOR or MARTIN to insist upon performance of any provisions hereof or within any Agreement shall not be deemed to be a waiver of the right to insist upon strict performance of such provision or of any other provision at any time, and waiver of any breach by CONTRACTOR or MARTIN shall not constitute a waiver of a subsequent breach.

CHOICE-OF-LAW: Any Agreement between CONTRACTOR and MARTIN and any dispute, claim, or controversy relating thereto, and all the rights and obligations of the parties shall, in all respects, be interpreted, construed, enforced and governed by and under the laws of the State of South Carolina, regardless of any conflicts of law. Both Parties agree to subject to the jurisdiction and venue of the Circuit Courts in York Country, State of South Carolina as to all matters and disputes arising or to arise under the contract and the performance thereof.

FORCE MAJEURE
Neither MARTIN nor CONTRACTOR shall be liable for any excess costs if failure to perform the contract arises out of causes beyond the control and without the fault or negligence of either party. Such causes may include, but not restricted to acts of God or of the public enemy, acts of government in either its sovereign or contractual capacity, fires, floods epidemics, quarantine, restrictions, strikes, freight embargos, and unusually severe weather conditions; but in every case, the failure to perform is caused beyond the control of both MARTIN and CONTRACTOR, and without the fault or negligence of either of them.

INDEMNIFICATION:
CONTRACTOR agrees to indemnify, defend, hold harmless and reimburse MARTIN, its customers, agents, and employees from and against any and all losses, liabilities, expenses, and all claims for damages of any nature whatsoever relating to or arising out of any negligent action or failure to act by CONTRACTOR, its subcontractors, officers, agents and employees of any of the obligations under the Agreement. Losses, liabilities, expenses and claims for damages shall include, but will not be limited to, civil and criminal fines and penalties, loss of use or services, bodily injury, death, personal injury, or injury to real or personal property, defense costs, legal fees and costs, and attorney’s fees for an appeal. CONTRACTOR also agrees to promptly notify MARTIN of any civil or criminal actions filed against CONTRACTOR or of any notice of violation from any federal or state agency, or of any claim as soon as practical, if such action relates to Agreement or any services or products covered thereby. MARTIN, upon receipt of such notice, shall have the right at its election to defend any and all actions or suits or to join in defense.

LIMITED LIABILITY; NO SPECIAL DAMAGES:
Regardless of anything in any Agreement to the contrary, in no event shall MARTIN be liable to CONTRACTOR or any third party hereunder for any sums beyond the sums received by MARTIN under the purchase order which is a part of such Agreement. Further, in no event shall CONTRACTOR be entitled to any special damages, including without limitation any punitive or consequential damages, from MARTIN.

DISCLAIMER:
MARTIN disclaims any and all representations, warranties or guarantees of any kind, whether express, implied or statutory, including without limitation (1) as to title, merchantability, fitness for ordinary purposes and fitness for a particular purpose, non-infringement, system integration, workmanlike effort, quiet enjoyment and no encumbrances or liens, (2) the quality, accuracy, timeliness or completeness of the products or services delivered hereunder, (3) those arising through course of dealing, course of performance or usage of trade; and (4) the products or services conforming to any function, demonstration or promise by CONTRACTOR or its end users.

MODIFICATION:
No modification of the Agreement shall bind MARTIN unless MARTIN agrees to the modification in writing.

SEVERABILITY:
In the event that any provision of the Agreement is determined to be void or unenforceable, all other provisions shall remain in full force and effect.

TITLE AND RISK OF LOSS:
The title and risk of loss of any goods shall not pass to the recipient thereof until the recipient actually receives the goods at the point of delivery. For clarification and avoidance of doubt, the foregoing shall mean that neither MARTIN nor its customers or agents shall assume any risks of loss or damage to any goods until the goods are received at the point of delivery.

INSURANCE:
If CONTRACTOR is providing services or materials for MARTIN, its customers and/or agents, then during the term of the Agreement, insurance shall be maintained by CONTRACTOR, in accordance with Exhibit “A” attached hereto.