Standard Terms of Sale for Parts Sales and Service Work
1. LEGAL EFFECT OF QUOTATION: Seller’s quotation is not an offer to sell the goods or services noted but an invitation to the addressee hereof to purchase such goods and services on the terms and conditions here stated.
2. TAXES: Seller’s prices do not include taxes with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the material covered hereby. Any such taxes, which Seller may be required to pay or collect under any existing or future law, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer, who shall promptly pay the amount thereof to Seller upon demand, unless Buyer provides Seller with a properly executed certificate representing that Seller is not required to collect any such taxes. Buyer will indemnify and save Seller harmless from any liability, penalties or expenses incurred by Seller as a result of its reliance upon such certificate.
3. DELAYS: All orders are accepted subject to delay caused by war, acts of terrorism, riots, civil commotion, fire, labor disputes, acts of God and restrictions of any governmental agency or other causes beyond Seller’s control.
4. CANCELLATION OF PARTS ORDERS: After acceptance by Seller, Buyer’s order is not subject to cancellation, suspension, or delay except upon payment by Buyer of appropriate charges which shall include all costs incurred and commitments by Seller to date of cancellation, plus a 25% restocking charge.
5. CANCELLATION OR CHANGES TO THE DATE (S) OF SERVICE: After acceptance of an order by Seller, if Buyer cancels the order or changes the date that the service has been scheduled for with less than five business days’ notice, Buyer will pay to Seller a minimum cancellation fee of either $1400.00 or $1500.00 (depending on the type of field service time) plus reimbursement of all non-refundable commitments made on Buyer’s behalf to perform the work.
6. DELAYS CAUSED BY BUYER OR THIRD PARTIES: Seller will be allowed free and immediate access to the work. Any delays caused by Buyer or Buyer’s contractors that prohibit Seller from accessing and performing the work as scheduled will be billed to and paid for by Buyer in accordance with the rates on the Seller’s rate sheet which is made a part of this order.
7. BUYER’S RESPONSIBILITY: Buyer is responsible for proving providing cranes, tools, materials, supplies and utilities to operate the equipment as described in Seller’s proposal for the work. Buyer is responsible for the workmanship and the acts and omissions of Buyer’s subcontractors and employees.
8. INSPECTION AND ACCEPTANCE: All service performed by Seller will be inspected and accepted before Seller’s personnel leave the premises. Unless specifically agreed to in writing between the Seller and the Buyer, all work performed will be deemed to be completed, inspected and accepted by the Buyer.
9. WARRANTY: Seller warrants the parts sold hereunder against defects in workmanship and material under normal use and service excluding erosion or corrosion for a period of one (1) year from date of installation, provided Buyer notifies Seller at the time of installation. This warranty does not cover components not manufactured by Seller, which will bear only the warranty of the manufacturer. Buyer shall promptly report all asserted defects in the part to Seller within one week of date of installation and shall afford Seller a reasonable opportunity to inspect all asserted defects. Seller’s entire liability, whether under warranty, contract, negligence or otherwise, shall be limited to repair or replacement of the part found to be defective in workmanship or material within one (1) year from date of installation, labor excluded, at such location as may be determined in the sole discretion of Seller with Buyer responsible for all such delivery and related expenses.
10. LIMITATION OF LIABILITY: ANYTHING ELSEWHERE HEREIN OR IN BUYER’S ORDER EXPRESSED OR IMPLIED TO THE CONTRARY NOTWITHSTANDING, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR LIQUIDATED DAMAGES WHATSOEVER, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY. IN NO EVENT, WILL SELLER’S LIABILITY EXCEED THE VALUE OF THE PURCHASE ORDER PLACED WITH SELLER BY BUYER.
11. GOVERNING LAW: Any order and any actions arising thereunder will be governed by and construed in accordance with the laws of the State of New Jersey. Should any provision be invalid or unenforceable, such provision shall be deemed to be deleted.
12. ENTIRE AGREEMENT MUST BE IN WRITING: The entire agreement of Seller and Buyer is expressed exclusively in the terms, covenants and conditions set forth in Buyer’s purchase order and in Seller’s acceptance thereof. No agent, representative or employee of Seller has authority to agree, represent or warrant otherwise, except Seller’s officers and then only in writing. Any changes to Buyer’s purchase order or Seller’s acceptance thereof must be in writing and signed or initialed and dated by the party to be obligated thereby.
13. PAYMENT TERMS: Payment terms are due net 30 days. If payments are not made in conformance with the terms stated herein, the contract price shall, without prejudice to Seller’s right to immediate payment, be increased by 1.5% per month on the unpaid balance, but not to exceed the maximum amount permitted by law.
14. STORAGE: Any delivery which is delayed by causes within the Buyer’s control or causes which affect Buyer’s ability to receive the goods will allow the Seller to place such goods in storage for Buyer’s account and risk.
15. TITLE AND INSURANCE: Title to the goods and risk of loss or damage shall pass to Buyer upon tender of delivery, except that a security interest in the goods or any replacement shall remain in Seller, regardless of mode of attachment to realty or other property, until the full price has been paid. Buyer agrees to do all acts necessary to perfect and maintain said security interest, and to protect Seller’s interest by adequately insuring the product(s) against loss or damage from any cause with Seller named as insured or co-insured.
16. PROPOSAL: Proposal prices are firm for thirty (30) days from date of quotation unless specifically stated otherwise in Seller’s quotation.
17. PERSONNEL CHARGES: Charges for Sellers mechanical field service, process technology and electrical controls personnel will be as stated on the enclosed Aftermarket Service Rate Sheet.
18. INDEMNIFICATION: Buyer shall indemnify and hold Seller, its successors and assigns, shareholders, directors, officers, employees an agents harmless from any claims for personal injury, property damage or other damage or loss (“Losses”) caused by or incidental to Buyer’s use of goods referenced in this document. Seller and Buyer each agree to indemnify the other from all Losses from any breach of any representation, covenant, undertaking or promise set forth herein provided that neither Seller nor Buyer will be liable to the other for consequential, special, indirect or punitive damages, lost profits or similar claims. Buyer waives its rights of recovery against Seller for loss or damage arising out of or incident to this transaction, whether due to negligence of Buyer or Seller of their agents, employees, contractors, and /or invitees.
19. CONFIDENTIALITY: Buyer acknowledges that information which Seller may disclose to Buyer in a tangible form marked “Confidential” comprises proprietary or confidential information of Seller (“Confidential Information”). Confidential Information shall include all information, designs, technical details, schematics, and drawings developed by Seller with respect to the goods described hereunder. Buyer agrees not to use Confidential Information or disclose, distribute or disseminate such Confidential Information to any person except as necessary to use, install or maintain the goods and will bound those individuals by duly executed confidentiality arrangements as the Buyer is bound.
20. INTELLECTUAL PROPERTY: Seller retains for itself all proprietary and intellectual property rights including all patent rights in and to all designs, engineering details, schematics, drawings, specifications, plans and other similar data and Confidential Information which pertains to the goods referenced hereunder.
21. MISCELLANEOUS: Electronic communications regarding commercial terms that are not confirmed and accepted either in writing or by immediate electronic confirmation do not apply and are to be disregarded and will have no application to any resulting purchase order and or contract received by Seller.
