Everlasting Valve Company, Inc. Terms and Conditions of Sale December 2018
1 – ACCEPTANCE:
Acceptance of Purchaser’s orders by Everlasting Valve Company, Inc. (“Seller”) is expressly conditioned on Purchaser’s acceptance of these terms, and Seller objects to any contrary terms on Purchaser’s forms. In accepting the goods described in this order acknowledgement or invoice, the Purchaser assents to these terms and conditions stated herein notwithstanding any contrary terms in any purchase order issued by the Purchaser. There are no understandings or agreements other than as set forth herein and no additions, deletions or modifications of these terms or any other matter set forth on the face hereof proposed by Purchaser in its printed forms or otherwise shall bind Seller unless accepted by Seller, in writing, regardless of whether such other terms would materially alter the terms hereof. Purchaser agrees that if Purchaser accepts the goods delivered hereunder, such acceptance satisfies all of the obligations of Seller and Purchaser shall have no remedy against Seller whatsoever except that provided in the Limited Warranty and Remedy provisions below.
2 – PRICES:
Prices are FOB (Domestic) or Ex Works (International) Seller’s plant and are subject to change without notice at any time prior to Seller’s acceptance of Purchaser’s order. Unless specifically mentioned, prices quoted do not include the amounts of any applicable sales, use, transfer or excise taxes or other similar taxes, tariffs or custom duties, and Purchaser will be charged for any such taxes, tariffs or custom duties levied upon the sale, transfer, import or use of the goods sold hereunder. Any quotation made by Seller shall expire thirty (30) days after its date, and may be reinstated only by written confirmation by Seller.
3 – TERMS:
Unless otherwise stated in writing, terms of payment to Seller are Net 30 days from invoice date. All payments shall be made in United States Currency. Payment shall not prejudice claims on account of omissions or shortages in shipment, but no such claim will be allowed unless made within 30 days after receipt by Purchaser. A carrying charge of 1-½% per month will be added on past due accounts. Such carrying charge shall accrue whether or not it is specifically assessed by invoice. Actions to collect accounts due may be brought in a court of competent jurisdiction in Middlesex County, New Jersey or the United States District Court for the District of New Jersey. In any action to collect accounts, Seller shall be entitled to costs of collection, including attorney’s fees. Failure to comply with terms of payment may result in extra costs and delivery delays.
4 – DELIVERY:
Specified delivery dates represent Seller’s good faith estimate of delivery dates for orders. Delivery dates are not guaranteed unless such guaranty is made expressly in writing. Weight, if given, is the net shipping weight or Seller’s best estimate thereof Under no circumstances should Seller be responsible for delays or non-performance due to (a) delays in receipt of final specifications from Purchaser, (b) changes in specifications from those on which Seller’s quotation was based, (c) Force Majeure or circumstances beyond Sellers’s reasonable control, including, without limitation, acts of GOD, fire, flood, embargo, disruption of utilities or freight service, labor disruptions, unusually severe weather and other similar circumstances. In no event shall Seller be liable for incidental, consequential or special damages arising out of a delay or failure to deliver. Risk of loss during shipment shall be borne by Purchaser.
5 – INSTALLATION:
All costs of installation of the goods at Purchaser’s plant shall be borne by Purchaser..
6 – CANCELLATION:
Cancellation or modification, in whole or in part, of any accepted order must be made in writing and only with the consent of Seller. Orders for finished standard catalog items, if cancelled by the Purchaser, will be subject to a 20% restocking charge. If Purchaser cancels special non-catalog items, Purchaser will incur a cancellation charge to the total extent of labor and unique material costs incurred by Seller at time of cancellation along with a reasonable profit. Customized and unique material is the property of the Purchaser when acquired by the Seller for production and, upon written request, will be sent to Purchaser at Purchaser’s cost after payment of cancellation charges.
7 – DRAWINGS AND PRINTS:
Insofar as goods are to be procured and/or manufactured in accordance with Purchaser’s specifications, Purchaser represents that the drawings, prints and parts, if any, submitted in connection with its order, reflect Purchaser’s latest revision of specifications. Any drawings, prints, specifications and information furnished to Purchaser by Seller in connection herewith is confidential for use of Purchaser only and Purchaser will be responsible to Seller for any loss or damage caused by wrongful use or disclosure of any such matters by Purchaser. All descriptive and shipping specifications, drawings and particulars of weight and dimensions provided by Seller are approximate only.
8 – CHANGES IN SPECIFICATIONS OR DESIGN: If Purchaser requests changes in specifications or design of any goods covered by any Contract with Seller, Seller will determine in its sole discretion whether it will undertake to make such changes. If Seller determines not to do so, the contract will nevertheless remain in full force and effect. If Seller determines to undertake to make such changes, Seller may revise the delivery schedule and increase or decrease the price of the goods to the extent necessary in Seller’s reasonable judgment to take account of such changes. Subject to the foregoing sentence, all terms of the contract shall remain in full force and effect notwithstanding changes in the specifications or design of the goods.
9 – LIMITED WARRANTY AND REMEDY:
Seller warrants that the goods covered by its quotation and sold to Purchaser (excluding components supplied by Purchaser) will be manufactured in accordance with specification provided by the Purchaser and be free from defects in materials and workmanship for a period of 12 months following the date of installation or 15 months following the date of shipment from Seller’s plant thereof, whichever is shorter. [THE FOREGOING WARRANTY (THE “WARRANTY”) WILL BECOME VOID, AND SELLER WILL HAVE NO OBLIGATIONS WHATSOEVER WITH RESPECT TO, ANY GOODS THAT ARE NOT USED IN THE NORMAL AND CUSTOMARY MANNER, OR MAINTAINED IN A NORMAL AND PROPER MANNER OR UNDER RECOMMENDED CONDITIONS, OR THAT ARE MODIFIED, ALTERED, OR REPAIRED BY PERSONS OTHER THAN SELLER OR SELLER’S ASSIGNEE. SELLER SHALL HAVE NO LIABILITY HEREUNDER FOR CLAIMS MADE UNDER THIS WARRANTY WHICH ARE NOT IN WRITING AND WHICH HAVE NOT BEEN DELIVERED TO SELLER WITHIN 30 DAYS AFTER TERMINATION OF THE WARRANTY. THIS WARRANTY EXTENDS ONLY TO THE ORIGINAL PURCHASER AND SELLER’S OBLIGATION UNDER THIS WARRANTY IS LIMITED TO, AT THE SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF THE PART OR PRODUCT DETERMINED BY THE SELLER TO BE DEFECTIVE, EXCLUDING LABOR OR ANY OTHER COST TO REMOVE OR INSTALL THE PART OR PRODUCT AT THE PURCHASER’S PLANT, OR THE REPAYMENT OF THE PURCHASE PRICE. PACKAGING AND SHIPPING COSTS, IF REQUIRED, ARE TO BE PAID BY PURCHASER. SELLER SHALL NOT BE LIABLE FOR WARRANTY ON NORMAL WEAR AND TEAR ITEMS, AS WELL AS CORROSION AND EROSION.]
This Warranty is only valid after Seller receives full payment for the goods and services.
Purchaser, in writing, must immediately inform Seller of any warranty issues within the warranty period. The Purchaser may not make any repairs, purchases of service or parts without the prior written consent of the Seller. If the Purchaser fails to comply with any of the above, in whole or in part, the warranty immediately becomes null and void.
The foregoing warranty comprises seller’s sole and exclusive warranty obligations and liability o in respect of the goods sold by Seller to Purchaser, and all other representations or warranties, express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose, specific output or other measures of performance under any operating conditions are hereby expressly excluded. In no event shall seller be liable to purchaser for special, direct, indirect, incidental or consequential damages, including, but not limited to, loss of profit, loss of use, loss of production, or interruption of business activity.
10 – INSPECTION:
If an inspection is required by the Purchaser or a third party, all costs will be to the Purchaser’s account. The Seller will not be held responsible for late shipments due to inspections of the goods or any part of the order thereof.
11 – LIMITATION OF ACTIONS:
Any action for a breach of contract arising out of Seller’s acceptance of Purchaser’s order must be commenced within one (1) year after the cause of action has accrued.
12 – PATENT INFRINGEMENT:
Seller shall have no liability or responsibility with respect to any material or part thereof supplied by or manufactured to the design of Purchaser infringing any United States or foreign patent, and Purchaser will indemnify and save Seller harmless from any such claim of infringement including payment of Seller’s attorney’s fees.
13 – GOVERNING LAW:
The rights and obligations of the parties hereto and the construction and effect of any contract formed pursuant hereto shall be governed by the laws of the State of New Jersey.
14 – INDEMNIFICATION – SAFE OPERATION:
Purchaser shall comply with and require its employees and/or end users to comply with directions set forth in documented inspection and maintenance instructions, manuals, drawings, safety notices and warnings and other instructions, furnished by Seller and shall use and require its employees and/or end users to use reasonable care and all safety equipment or component in the operation and maintenance of the goods. Purchaser shall not remove any safety equipment or warning signs.
If Purchaser removes or permits anyone to remove any safety equipment or component or warning signs, or fails to observe any condition in this section, or if any injury or damage is caused, in whole or in part, by Purchaser’s failure to comply with applicable federal, state or local safety requirements, Seller shall have no obligations to Purchaser and Purchaser shall indemnify and hold Seller harmless against any claims, loss or expense for injury or damage arising from the use of the goods. Seller specifically disclaims any and all liability arising out of the operating of the goods other than liability based upon the warranty liabilities expressed herein to the original Purchaser.
“PURCHASER ACKNOWLEDGES THAT HE/SHE/IT HAS READ AND UNDERSTANDS THE FOREGOING TERMS AND CONDITIONS OF SALE.”
Last Revision: December 2018