Terms and Conditions

GENERAL TERMS & CONDITIONS OF SALE

Unless otherwise indicated within the details of this quotation/proposal, the following General Terms & Conditions shall apply:

PRICING NOTE – The prices quoted in this Proposal are valid for thirty (30) days, unless otherwise stated therein, and are firm for shipments made within six (6) months of the date of the Proposal. Shipments beyond six (6) months from the date of the Proposal shall be subject to escalation per U.S. indices. Prices are quoted at FOB (free on board) Seller’s plant, with freight charges extra, unless otherwise stated in the Proposal. In cases where freight is included in the Seller’s scope of supply in the Proposal, the mode of transport shall be at Seller’s discretion.

1. PROPOSAL ACCEPTANCE – This proposal is offered for acceptance within thirty (30) days from the date, after which it is subject to confirmation by the Seller and made with the understanding that if accepted by the Buyer the following conditions are agreed to. Any orders based on this Proposal and the contract of purchase and sale resulting from acceptance of the Proposal, either by delivery of a purchase order to Seller or by any order, act, or conduct by Buyer, shall be governed by and subject to the Terms and Conditions of Sale set forth herein. No modifications to the Terms and Conditions of Sale shall be affected by Seller’s receipt of acknowledgment of a purchase order, or printed forms attached thereto or different conditions. In the event of a conflict between the terms herein and terms set forth in any writing between Buyer and Seller, the terms herein shall control. Seller shall not be obligated by any promises, conditions, or terms made by the representatives or salespeople of Seller except as approved in writing by a duly authorized officer of Seller.
2. RESPONSIBILITY – Seller shall not be held responsible for any loss, damage or delay caused by Force Majeure (defined below). Authorization by Buyer to ship the apparatus and equipment shall constitute a waiver of all claims for loss and damage due to delay.

The equipment furnished hereunder is to operate under conditions specified herein, which conditions Buyer is to supply and for which conditions Buyer is to assume full responsibility. Seller’s responsibility is limited to that specifically stated herein.

Buyer will assume full responsibility for any loss or damage resulting from the operation of the apparatus. Seller assumes no responsibility for any auxiliary apparatus or work in connection with the equipment furnished hereunder, notwithstanding that Seller may have submitted recommendations pertaining hereto.

3. MATERIALS AND WORKMANSHIP – Unless otherwise stated herein, Seller will repair or replace, at its option, without charge at FOB point of shipment, any parts of its manufacture proven under Seller’s examination to be defective in material and workmanship when furnished, provided a claim is made within twelve (12) months after installation or eighteen (18) months after shipment, whichever comes first. Buyer must provide Seller with the installation date within sixty (60) days after installation and start-up is completed. Deterioration or wear occasioned by chemical, abrasive, or excessive heat shall not constitute defects. This warranty is limited to repair or replacement and excludes the cost to remove and re-install such parts or equipment and all transportation costs. Equipment and accessories not manufactured by Seller are warranted only to the extent they are warranted by their manufacturer and to the extent such warranties are assignable by Seller to Buyer.

This warranty does not cover any product which, in the judgment of Seller, has been subject to misuse, neglect, or improper maintenance; which has been repaired or altered outside Seller’s plant in any way that may have impaired its safety, operation, or efficiency; nor any product which has been subject to accident or operated in excess of design limitations.

This warranty is limited to repair or replacement and does not include incidental or consequential damages, loss of production, downtime, expenses, or loss of profit.

If any material, as furnished by the Seller is alleged by the Buyer to be defective or incorrectly manufactured and is rejected by the Buyer, the Buyer shall promptly notify Seller, and said Seller shall have the option of replacing or correcting, within a reasonable time, any defective material or fault in manufacture, at Seller’s own expense, or reimbursing the Buyer the agreed cost of such replacement or correction. Buyer shall not furnish any material or do any work for the Seller’s account without specific authorization and a definitive written agreement from Seller as to the consideration, and in no case shall the Seller be liable for more than the price charged for such material as may prove defective, and no payments shall be withheld by Buyer pending adjustment of liability or amount of cost of alleged errors.

THE ABOVE-STATED WARRANTY IS THE ONLY WARRANTY MADE BY THE SELLER. SELLER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, GIVEN IN CONNECTION WITH THE SALE OF THE GOODS SOLD HEREUNDER.

4. INSURANCE – Buyer will, while any part of the purchase price of said installation remains unpaid, maintain sufficient fire insurance, including extended coverage endorsements on apparatus and equipment shipped to Buyer to Seller hereunder, to fully reimburse Seller in case of loss or damage by fire.
5. TITLE AND RISK OF LOSS – Title shall pass to the Buyer upon delivery of the equipment to the carrier at the point of shipment and the Buyer shall assume all risk of loss and damage thereafter. Buyer acknowledges that the products and deliverables under these Terms and Conditions may contain the intellectual property of Seller (the “Seller IP”). Buyer acknowledges that it has no interest in the Seller IP except as provided herein and will not take any action to patent or otherwise claim an interest in the Seller IP. Seller hereby provides a perpetual, worldwide, royalty-free, non-assignable, non-exclusive license to use any Seller IP incorporated into the products and deliverables as contemplated in any applicable purchase order or specifications.
6. ACCESS – Authorized representatives of Seller acceptable to Buyer shall have access at all reasonable times to the installation for observing and adjusting the operation thereof.
7. TIME OF SHIPMENT – Statements as to expected dates of shipment represent Seller’s best judgment, but shipment on those dates is not guaranteed. The time of shipment shall be determined from date of receipt by Seller of all information necessary to enable Seller to proceed with its work.
8. SUBCONTRACTING – Seller reserves as its prerogative the option to subcontract all or any portion of work under contract.
9. TAXES – The prices shown do not include any taxes (sales, excise, use, etc.) or any other governmental charges. Any charges or taxes applicable to the order will be paid by the Buyer except where specifically exempt by a certificate.
10. TERMS OF PAYMENT – Unless specific other terms of payment are specified in this quotation or shown on the order acknowledgment, payment shall be due thirty (30) days from date of invoice. If shipment is delayed by the Buyer, payment shall be due thirty (30) days from date Seller is ready to ship. If manufacturing is delayed by Buyer, partial shipment is to be made based on the acknowledged price and a percentage of completion at time of notification of delay.

If in the judgment of Seller, the financial condition of the Buyer is changed and a time of construction or shipment does not warrant the terms shown on the acknowledgment, Seller may require full or partial payment in advance of construction and shipment of the order.

Seller may require immediate payment for partial shipments, on a pro-rata basis, or for shipments delayed by Buyer. Interest on overdue payments shall accrue at the rate of 1-1/2% per month until payment in full of the outstanding account, including payment of all interest accrued thereon, has been made.

11. CANCELLATION – Buyer may only cancel this order by written notice to Seller and not relieve Buyer of his obligations to accept and pay in full for Goods previously delivered or ready to ship. Any order canceled in respect to all or part of the Goods not then shipped is subject to an equitable adjustment between the parties, not less than costs incurred plus 10% of the remaining contract value, for work or materials in progress, to recover reasonable overhead and lost profit opportunities.
12. FIELD WORK – Unless otherwise noted, the following terms apply to all work to be performed at Buyer or third-party sites: (A) All work will be performed by open shop labor. Any union dispute will be the responsibility of Buyer. Any standby time resulting from such disputes will be billed at full rates; (B) Pricing only includes safety orientation meetings of no more than one (1) hour duration scheduled on the first workday. Attendance at meetings of greater than one (1) hour duration or not scheduled on the first workday will be invoiced at full rates. Any safety orientation that must be attended by a Seller representative prior to the beginning of outage work will be billed at full rates; (C) Drug tests and pulmonary function tests, if required by Buyer or end user, will be billed at cost plus 10%; (D) It is the responsibility of the Buyer to inform Seller of any flammable coating, residue, contaminants, hazardous materials, etc. that may be present within or around the housings, ductwork or any area where Seller work is to be performed or where Seller personnel may be present. It is the responsibility of the Buyer to remove and/or clean up any hazardous materials prior to Seller beginning work; (E) field Installation pricing presumes that all necessary access will be made available to Seller crews as needed to complete work as detailed herein; impediments such as, but not limited to, scaffolding, contractor tools, and/or cranes set in place by others that prevent or slow Seller field crews from completing their tasks will result in additional charges in the amount of time lost; (F) in performing the removal and installation of equipment, Seller crews will be following our normal industry accepted rigging and lifting procedures. Our standard procedures are also governed by our company safety regulations and procedures. The pricing and scheduling of this project is based on the Seller crews utilizing our standard procedures and policies to safely complete this project. Should the customer (Safety Group, Engineering, EPC or other contracted third party) require our crews to follow other policies, procedures, lifting or rigging plans (and/or require engineering-certified lifting plans & additional equipment), then the additional man-hours and other associated costs will be performed on a T&M basis and will be invoiced based on the actual hours and expense required by these changes in procedures; and (G) it is the customer’s responsibility to supply the required lubrication for all rotary equipment Seller can recommend the lubrication type if needed, and Seller will install customer-supplied lubrication upon request if our crews are onsite installing/maintaining equipment. Nevertheless, it is ultimately the customer’s responsibility to supply and ensure proper lubrication levels prior to running the equipment.

In the event any services are required at Buyer’s property or other location specified in the Proposal, the Buyer will remove all debris and obstructions at its own risk and cost to provide Seller with a clean and safe working environment.

13. REPLACEMENT PARTS – If this agreement is for replacement parts, Buyer warrants that the original components in which these replacement parts will be placed are in satisfactory working condition, and when said replacement parts are installed, the resultant installation will operate in a safe manner, at speeds and temperatures for which the original equipment was purchased.
14. SAFETY ACCESSORIES – Customer understands that Seller manufactures multifunctional goods that may or may not require safety devices, depending on the use and location of the goods. Customer warrants that it has determined what safety devices, including warning devices and notices of danger, should be placed on the goods sold hereunder, and further warrants that it has either purchased these from Seller or from another source.
15. Assignment – Neither party may assign its rights or liabilities under the contract arising from the Proposal without the express written consent of the other, provided that Seller may assign its rights and liabilities to its associated, subsidiary, or affiliated companies without the consent of the Buyer.
16. Inspection and Acceptance of Work – Buyer shall have a period of twenty (20) days from date of delivery to examine and inspect all equipment and goods shipped to Buyer by Selle pursuant to these terms and conditions and the Proposal to which they relate. Should the buyer determine that the equipment or other goods delivered fail to conform in any respect to the specifications and designs agreed upon in the Proposal, Buyer shall notify Seller of such fact in writing within ten (10) days from the end of the inspection period. Failure to timely inspect or failure to timely notify the Seller of any claimed defects shall constitute acceptance of the services, equipment, and goods by Buyer, precluding any subsequent effort by Buyer to reject said items of work. These inspection rights granted to the Buyer shall not affect in any way the time payment of the full price for the services, equipment, or goods is due under these terms and conditions and the Proposal to which they relate.
17. Delays – The performance of all work and delivery of all equipment and other goods hereunder is subject to delay or impossibilities resulting from strikes, governmental actions or regulations, accidents, delays or stoppages in transportation, inability to obtain necessary services, materials, or products from usual sources, or any other causes beyond the Seller’s control.

Delays caused by or at the request of the Buyer will be documented, invoiced, and charged to the Buyer as additional labor, overhead, and material in accordance with Seller’s then-current rates. Buyer shall, in the event of such delays, pay interest to Seller on all amounts which would otherwise be due to the Seller for the entire period of the delay, with interest of such amounts to accrue at the highest non-usurious rate. Buyer shall also pay a storage cost to Seller for such a period of delay in accordance with Seller’s current standard rate.

18. Changes in Work – Should the Buyer request any changes in the work for any reason, Seller shall have the right to adjust the contract price or delivery date or both and advise the Buyer accordingly. Upon issuance of adjustment notification to Buyer, the Seller shall not proceed with the work until written authorization is received and accepted by Seller.
19. Force Majeure – Seller shall not be responsible or liable for any loss, damage, detention, or delay caused by Seller’s inability to secure materials or complete installation work, or by reason of an Act of God, pandemic, fire, flood, inclement weather, explosion, war, riot, lock-out, strike, labor dispute, action is taken or omitted in voluntary or involuntary compliance with any laws or by any cause beyond the reasonable control of Seller or its suppliers (“Force Majeure”). In the event of a delay due to any such cause, the date of delivery or job completion shall be extended by a period equal to the time lost by reason of such delay.
20. LIMITATION OF LIABILITY – Notwithstanding anything herein to the contrary, Seller’s obligations and liability shall be limited to the order value of any accepted order from Buyer. Buyer hereby agrees to indemnify and release Seller for any claims based on products or strict liability, or intellectual property infringement, where such claim is based on a design requested or required by Buyer in any product plans, specifications, drawings, or other writings delivered by Buyer to Seller.