- TERMS OF PAYMENT
Payments are to be made in U.S. Funds in the United States unless otherwise specified. All invoices shall be payable within thirty (30) days of the receipt of such invoice by Buyer. . A late payment charge of 1% per month on all past due invoices and unpaid balances will be added to the balance owed by Buyer. Shipments and deliveries hereunder, shall at all times be subject to the judgment of Seller that the financial condition of Buyer at all times justifies continuance of shipments and deliveries hereunder. If Buyer shall fail to make any payments in accordance with the terms and provisions hereof, Seller, in addition to its rights and remedies, but not in limitation thereof, may at its option, defer shipments or deliveries hereunder, or under any other contract with the Buyer, except upon receipt of satisfactory security or of cash before shipment. Prices relating to products are F.O.B. point of manufacture. Seller reserves the right to adjust the purchase price at any time in accordance with increases in the cost of goods, change of specification, labor rates and services used in the manufacture of the products. All quotations issued by Seller for the supply of products (excluding Manifold Products (defined below)) shall remain open for the acceptance period specified in the quotation or, if no acceptance period is specified, then for thirty (30) days for any products sold hereunder (excluding Manifold Products). All quotations issued by Seller for the supply of Manifold Products shall remain open for sixty (60) days.
Seller warrants products of its manufacture for a period of (1) year from date of shipment (sixty (60) days from date of shipment for Manifold Products (as defined below)), to the extent that Seller will, in its sole discretion, repair, modify or replace, F.O.B. point of manufacture, or furnish credit for products paid for by Buyer for any such products, which in Seller's sole judgment, are proven to be defective under normal use and service because of defects in material or workmanship; provided, however, that Seller does not in any manner whatsoever warrant seals or packing materials in equipment handling special or corrosive fluids or operating at unusual temperatures or pressure.
As used herein, "Manifold Products" shall from time to time include the following: (i) any Manifold Trailers, (ii) Ground Manifolds, and (iii) multiple valve configuration Dual Choke Manifolds.
- If in Seller's opinion repair or replacement will not remedy a claimed product deficiency, or if a product of Seller's manufacture does not comply with the description or specification set forth on Seller's Order Acknowledgement, Seller's liability shall be limited to repayment of any amounts paid on the purchase price, cancellation of order and acceptance of the product F.O.B. point of manufacture, however, if the product has been in use for a period of excess of 30 days, Seller reserves the right to make a reasonable depreciation charge for such use. All claims for shortages must be made within 30 days after shipment.
- Seller does not guarantee any product not of Seller's manufacture or special plating, coatings, or heat treatment applied to Seller's product. Seller recommends against and will not assume any responsibility for rebuilding, repairing, special plating, coating, welding, or heat treating done outside Seller's plant by or at the request of the Buyer.
- Buyer agrees that Seller shall have no liability with respect to any third party machinery, equipment, parts or materials incorporated into, accompanying or forming any part of the products ("Third Party Products"), and that the warranty provisions of this Section shall not apply to any Third Party Products. To the extent applicable, Seller will pass through or assign to Buyer, the original manufacturer's warranty related to the Third Party Products.
- Notwithstanding anything to the contrary contained herein, Seller will warrant any Third Party Products incorporated directly into Manifold Products ("Manifold Third Party Products") solely for a period of sixty (60) days from date of shipment of the Manifold Products to the Buyer. To the extent practicable, after the expiration of the 60 day warranty period applicable to Manifold Third Party Products, Seller will provide Buyer with information reasonably required to make a claim on the Manifold Third Party Products, including the name of the third party manufacturer that supplied or manufactured the Manifold Third Party Products, the third party manufacturer's contact information, and any other details regarding the third party manufacturer's warranty of any Manifold Third Party Products sold to Buyer.
- Notwithstanding anything to the contrary contained herein, the Seller shall have no obligation hereunder if the products or parts become defective in whole or in part as a result of removal, improper use, operation above specified performance, or misapplication thereof after delivery to Buyer.
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED ON AN "AS-IS" BASIS AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS, GUARANTEES AND/OR ASSURANCES, EXPRESS OR IMPLIED, RELATING TO OR ARISING OUT OF THE PRODUCTS, ANY ORDER, AND/OR THESE TERMS AND CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES, COVENANTS AND/OR GUARANTEES AS TO ACCURACY, UNINTERRUPTED OR ERROR-FREE OPERATION, ACCESSIBILITY, SECURITY, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OR TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ANY AUTHORIZED REPRESENTATIVE OF SELLER SHALL CREATE A REPRESENTATION, WARRANTY, COVENANT, GUARANTEE AND/OR ASSURANCE. ANY SUCH INFORMATION OR ADVICE IS GIVEN AND ACCEPTED AT BUYER'S OWN RISK.
- LIMITATION ON LIABILITY
THE SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY ORDER OR THE INSTALLATION, USE, OPERATION, REPAIR, REPLACEMENT OR SERVICE OF ANY PRODUCTS FURNISHED, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON THE SELLER UNDER OR IN CONNECTION WITH ANY ORDER. CONSEQUENTIAL DAMAGES FOR PURPOSES OF ANY ORDER SHALL INCLUDE WITHOUT LIMITATION LOSS OF USE, INCOME OR PROFIT, OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON, OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION PROPERTY HANDLED OR PROCESSED BY THE USE OF THE PRODUCT.)
Shipment dates are approximate and are based upon the receipt of all necessary information and the actual date that the order is placed. Seller will not be liable for any late penalty charges, any liability for special, indirect and consequential damages, such as economic loss, due to delay whatsoever. Delivery terms are subject to change after notice from Seller to Buyer. Seller reserves the right to change the details, such as specifications or components, of any products provided that such change shall not impair the performance or critical dimensions of the products.
- EXCUSABLE DELAY
Seller shall not be liable to Buyer for any loss or damage suffered by the Buyer, directly or indirectly, as a result of Seller's failure to perform, or delay in performing, any obligation under this order, where such failure or delay is caused by fires, floods, labor troubles (including, without limitation, strikes, slow downs and lockouts), war, civil disturbances, government regulations, inability to obtain or revocation of export or import licenses, inability to obtain goods or services from our suppliers, interruptions of or delay in transportation, material shortages, power failures, accidents, acts of God, or other causes of like or different character beyond Seller's control.
Seller will provide Buyer with dimensions, weights, temperature and pressure ratings for the products of Seller's manufacture, which are sold to Buyer hereunder. Seller guarantees that products of Seller's manufacture will conform to Seller's specifications.
- TITLE AND INSURANCE
The risk of loss or destruction of, or damages to, the product shall be on the Buyer from and after delivery of the product to the Buyer or carriers, whichever first occurs. All material is sold F.O.B. point of manufacture. No allowance is made for pickup at factory. Seller assumes no responsibility for insuring shipments unless specifically requested by Buyer and then only at Buyer's expense and valuation.
Buyer shall pay the amount of any sales, use, compensation, intangibles, gross income or like tax, import duties, export duties, and similar charges levied by any government authority in connection with this order, but not including taxes payable on Seller's net income.
- ORDER CANCELLATION
Buyer's order for products sold by Seller hereunder (excluding Manifold Products and Manifold Third Party Products) will be subject to cancellation with Seller's prior written consent and only upon payment to Seller of reasonable cancellation charges, which shall take into account expenses already incurred, commitments made by Seller and Seller's anticipated profit. Products incorporating variations from catalog items or specifications, including but not limited to Manifold Products and Manifold Third Party Products, are considered special and are subject to cancellation only with Seller's prior written consent and upon payment to Seller of any cancellation charges, as determined by Seller.
Items delivered as ordered may be returned unused for credit within ninety (90) days of shipment or up to one hundred eighty days (180) days upon Seller's written consent. No item will be accepted for credit after one hundred eighty days (180) days from date of shipment. All returns are subject to a fifteen percent (15.0%) restocking charge, are to be prepaid to location designated by Seller and must be accompanied by an approved RMA number. Products incorporating variations from catalog items or specifications, including but not limited to Manifold Products and Manifold Third Party Products, are considered special and may be returned only with Seller's prior written consent and upon payment of any restocking charges, as determined by Seller.
- SECURITY INTEREST
Title to the products supplied under this order, and to any and all additions and accessories thereto and substitutions therefore, shall remain in Seller as a security interest until Buyer has completed payment of the purchase price, plus accrued interest if any. Seller reserves the right to retain possession of the products until the purchase price is fully paid.
Except in the care of articles, materials and designs furnished or specified by the Buyer, Seller will defend at its own expense any action brought against Buyer, to the extent that it is based on a claim that the products furnished by Seller infringe a U.S. patent, and Seller will pay those costs and damages finally awarded against Buyer in any such action which are attributable to any such claim, but such defense and payments are conditioned on the following: (a) that Seller shall be notified promptly in writing by Buyer of any notice of such claim and assist in every reasonable way in the conduct of such defense, and (b) that Seller shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; and (c) should the products become or in Seller's opinion be likely to become the subject of a claim of infringement of a U.S. Patent, Buyer shall permit Seller at its option and expense to either (i) procure for Buyer the right to continue using the products, (ii) to replace or modify the same so that it becomes noninfringing or (iii) accept the return of the product from the Buyer, in which event the Seller shall refund the Buyer the purchase price less depreciation at the rate of 15 percent per year (measured form the date Seller shipped the product). The foregoing states the entire liability of Seller with respect to infringement of patents by the goods or any part thereof. Buyer shall hold Seller harmless against any expense, judgment or loss on account of any actual or alleged infringement of any patents, copyrights, or trademarks which result from Seller's compliance with Buyer's designs, specifications or instructions.
- SAFETY ISSUES
It is understood that Seller has relied upon data furnished by and on behalf of Buyer with respect to the safety aspects of the products supplied hereunder and/or representation by or on behalf of Buyer that such product will not be applied or used by Buyer or its customers in such a way as to detract materially from, their safety in use, including, without limitation, in the manufacture of a product of which such products will be a part, and that it is the Buyer's responsibility to assure that such products, when installed and put in use, will be in compliance with safety requirement fixed by applicable law, as well as normal and customary industry standards and practices, and will be otherwise legally adequate to safeguard against injuries to persons or property. BUYER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER, AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AGAINST ANY AND ALL LOSSES, COSTS, DAMAGES, CLAIMS, LIABILITIES OR EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY'S FEES ARISING OUT OF ANY INJURY TO ANY PERSON OR DAMAGE TO ANY PROPERTY CAUSED BY THE INADEQUACY IN THE PRODUCTS SUPPLIED HEREUNDER OF THE SAFETY FEATURES, DEVICES OR CHARACTERISTICS SPECIFIED HEREIN, OR IN THE INSTALLATION, USE OR OPERATION OF SUCH PRODUCTS, EXCEPT CLAIMS SOLELY FOR REPAIR OR REPLACEMENT OF DEFECTIVE PARTS COVERED BY THE WARRANTY SET FORTH IN SECTION 2 HEREOF.
A valid agreement binding upon Seller will only come into being as of the time a formal written acknowledgment of a purchase order is sent to Buyer by Seller. Such agreement is not assignable by Buyer without written approval of Seller. Waiver by Seller of a breach of any of the Terms and Conditions of this or any other agreement with Buyer shall not be construed as a waiver of any other breach.
- ENTIRE AGREEMENT
These Terms and Conditions constitute the entire agreement between Seller and Buyer, and such agreement may not be modified or amended except by a writing executed after the date hereof by an authorized officer of Seller. Seller shall not be bound by any terms of Buyer's purchase order, forms or other documents which attempt to impose condition at variance with these Terms and Conditions unless the same shall be specifically agreed to in writing by an authorized officer of Seller. Seller's failure to object to the provisions contained in any of Buyers forms shall not be deemed a waiver of the provisions of these Terms and Conditions, which shall constitute the entire agreement between, the parties.
- CHOICE OF LAW & FORUM
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES OF AMERICA AND WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. BUYER AGREES TO INITIATE ANY DISPUTE RESOLUTION PROCEEDING IN SUCH DESIGNATED STATE AND IRREVOCABLY CONSENTS TO EXCLUSIVE OF THE COURTS LOCATED IN COOK COUNTY, ILLINOIS. EACH PARTY CONSENTS TO THE PERSONAL JURISDICTION OF THE STATE AND WAIVES ANY OBJECTION THAT SUCH COURTS ARE INCONVENIENT FORUM. ANY CLAIM AGAINST THE SELLER SHALL BE INITIATED BY BUYER WITHIN ONE YEAR AFTER THE CLAIM ARISES, OR BE BARRED.
The parties agree to hold in confidence and not to disclose, or use for any purpose other than the sale of products by Seller to Buyer hereunder, all confidential or proprietary information, technical data, know-how, business related information including but not limited to pricing, manufacturing or marketing, research, designs, samples, methods, processes, specifications, drawings, results, models, or any work product which is: (i) received or ascertained by one party, directly or indirectly, from the other party; or (ii) was originated or otherwise acquired by a party in connection with, as a result of, or incident to the sale of products by Seller to Buyer hereunder. Nothing herein shall preclude a party from providing such information to any court of competent jurisdiction, or any federal, state, or local agency. This Section shall not apply to any information lawfully acquired by a third party not under an obligation of confidentiality and who possesses the legal right to disclose such information.
Upon termination of these Terms and Conditions, Buyer may request that Seller return or destroy Buyer's confidential information, and Seller may request that Buyer return or destroy Seller's confidential information. Notwithstanding the foregoing, the parties may retain one copy of all such documents and information as necessary to comply with the requirements of these Terms and Conditions, or any law, rule, or regulation.
Last Updated March 2012