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Terms and Conditions of Sale

1.0 Acceptance

These Terms and Conditions of Sale form part of the Proposal [ENTER NUMBER] submitted by the seller [ENTER NAME] (“Seller”) for the sale of equipment and/or services (“Works”) to buyer [ENTER NAME] (“Buyer”). ANY CONTRACT MADE BY AND BETWEEN THE PARTIES IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS AND TO SELLER’S REVIEW AND APPROVAL OF BUYER’S CREDIT.

Unless otherwise stated herein, Buyer has thirty (30) days from the date of the Proposal to notify Seller in writing of Buyer’s offer to enter into a contract on the basis of the Proposal and these Terms and Conditions. Upon written notification by Seller that it has accepted such an offer by Buyer, this Proposal including these Terms and Conditions shall become a valid, binding contract between Buyer and Seller.

 

2.0 Payment Terms

All accounts shall be paid in U.S. dollars at Seller’s primary offices, in accordance with the terms specified in the Proposal and/or listed on Seller’s invoice. If, in the judgment of Seller, the financial condition of Buyer at the time any equipment or materials are ready for shipment does not justify the terms of payment specified, Seller may require full payment before making shipment. A service charge of the lesser of 1.5% per month or the maximum permissible rate will be added to all past due accounts. If Seller refers a claim for payment to an attorney for collection, Buyer shall pay all costs and attorney’s fees. Neither Buyer nor any affiliated company nor assignee (if permitted) shall have the right to claim compensation or to set off against any amounts that become payable to Seller under this contract or otherwise.

 

3.0 Warranty

Seller warrants that the equipment manufactured by Seller (if applicable) and installation services described herein will be free from defects in material (if manufactured by Seller) and workmanship for a period of the lesser of: (1) 18 months from date of shipment by Seller, or (2) 12 months from the date of installation of the Works by Seller as determined by Seller, whichever comes first (the “Warranty Period’). Upon delivery, the Works shall be deemed accepted by the Buyer. If, within the Warranty Period, Seller receives written notice from Buyer no later than 24 hours after the discovery of any such alleged defect in the equipment manufactured by Seller (if applicable) or workmanship in the Works warranted by Seller as set forth herein, and Buyer has stored, installed, maintained and operated such Works in accordance with good industry practices and has complied with any and all specific recommendations and instructions of Seller, Seller shall correct each such defect, at Seller’s option, either by (1) making available F.O.B. Seller’s plant repair or replacement part(s); or (2) correcting such nonconformity by repair to such Works as determined by Seller. Notwithstanding anything herein to the contrary, (1) the Warranty Period is not renewed or extended due to any repair or replacement of the Works whatsoever, (2) Equipment or materials manufactured by Seller’s suppliers and vendors (but not Seller) carry only the manufacturer’s warranty (if any) supplied by the manufacturer thereof, which warranty Seller will assign and transfer to Buyer, if and to the extent permissible, without recourse to Seller whatsoever. For the avoidance of doubt, any repaired, modified, or replaced equipment, Work, or any correct Works, shall not extend any warranty beyond the original Warranty Period. Seller shall not be liable for any repairs, replacements, or adjustment to the Works, or any costs of labor performed by Buyer or others without Seller’s prior written approval. Equipment returns for any reason will be refused without Seller’s prior written approval. Samples supplied by Seller are solely for the purpose of evaluating the suitability of such material for potential use and, as such, the samples are not intended to serve as warranties of any type, either express or implied. This warranty shall not apply to Works that have been altered, modified, or repaired by anyone other than Seller or to equipment that has been damaged through accident, misuse, neglect, or lack of proper maintenance. The effects of corrosion, erosion and normal wear and tear on the Works are specifically excluded from this warranty.

 

Except otherwise expressly set forth herein, Seller MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR REPRESENTATIONS OF ANY KIND WHATSOEVER AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. Liability of Seller under this warranty is conditioned upon the Works being handled, erected, operated, and maintained properly and in accordance with written instructions provided or approved in writing by Seller. Seller makes no warranties whatsoever regarding any possible damage to the Works if the Works are operated above rated capacities or in an otherwise improper manner. Seller’s sole responsibility for defects in material and workmanship in Works, and Buyer’s exclusive remedy hereunder, shall be limited as provided herein.

 

4.0 Taxes

Except as specifically set forth in the Proposal, the price does not include any present or future Federal, State, or local property, license, privilege, sales, use, gross receipt or other excise, transportation, occupational, like taxes or assessments which may be applicable to, measured by, imposed upon, or result from this transaction or any services performed in connection therewith. Any taxes itemized separately to Buyer on Seller’s Proposal, order acknowledgment or invoice shall be paid promptly to Seller in accordance with the terms of this Contract. All other taxes incurred by the Buyer through performance of the contract shall be the Buyer’s responsibility to pay directly to the proper taxing authority. In the event that Seller pays any applicable taxes on Buyer’s behalf, Buyer shall promptly reimburse Seller according to the payment provisions set forth herein, and title shall not pass to Buyer until Seller is fully reimbursed for such taxes. Seller will accept a valid exemption certificate from Buyer, if applicable.

 

5.0 Security Interest

If Buyer fails to make payment in accordance with the terms hereof, Seller reserves the right, at its sole option, to remove and reclaim the Works at Buyer’s cost upon tender to Buyer of the whole sum paid to Seller by said Buyer on account of the purchase price of said Works and thereby terminate any and all liability of Seller to the Buyer on account of the purchase and use of the Equipment. If, in the judgment of Seller, the financial condition of the Buyer at the time the Equipment is ready for shipment does not justify the terms of payment specified, Seller may require full payment before making shipment. Buyer here by grants to Seller a security interest in the Equipment to secure its obligations hereunder, regardless of mode of attachment to realty or other property, until full payment has been made therefor. Buyer agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect Seller’s interest by adequately insuring the Equipment against loss or damage from any cause wherein Seller shall be named as an additional insured. All the cost incurred in conjunction with such insurance shall be borne by the Buyer.

 

6.0 Delivery Dates and Force Majeure

Delivery dates shall be interpreted as estimated and in no event shall dates be construed as falling within the meaning “time is of the essence.” Seller shall not be liable for any loss or delay due to acts of God, war, riots, casualty, fire, flood, strikes or other labor difficulty, shutdown of Seller’s production facility(ies) due to a pandemic/epidemic (including without limitation COVID-19), quarantine restrictions, acts of government, civil or military authority including governmental laws, orders, priorities or regulations, substantial changes in general economic conditions, acts of the Buyer, embargo, shortage of transportation facilities or delay in transportation, or inability to obtain necessary labor or materials from usual sources, other contingencies of manufacture or shipment, or other causes beyond the reasonable control of Seller. In no event shall Seller be liable for any loss or delay, unless caused by Seller’s own gross negligence. Seller shall not be liable for any loss or delay caused by any third party. For the avoidance of doubt, acts, and omissions of, or any defects in or failures of systems, hardware, software, or networks owned or operated by, Buyer or Buyer’s Personnel (or any third person) shall be deemed to be causes within Buyer’s control. In the event of delay in performance due to any such cause, the date of delivery or time for completion shall be adjusted to reflect the actual length of time lost by reason of such delay. Buyer’s receipt of the Works shall constitute a waiver of any claims for delay. Seller will use all reasonable efforts to comply with Buyer’s request as to method of shipment, but Seller reserves the right to use an alternate method of transportation or route of shipment if substantial delay might otherwise occur. In such cases Seller will notify Buyer of such changes as soon as reasonably possible. If the Buyer declines or is unable to take delivery at the time(s) specified, Seller will have the Works stored at Buyer’s risk and account and subject to the fees set out at Section 14, and the equipment/materials shall be considered “shipped.” In such circumstance, the shipment shall be deemed to be accepted on the date on which the equipment/materials are deemed “shipped,” and all risk of loss shall pass to the Buyer on the “shipped” date specified by Seller. Seller’s liability for any loss or delay shall in no event exceed that set out in Section 25 below, and Seller shall not be liable for any lost profits or other consequential damages arising out of any loss or delay, regardless of fault. Title to the Works shall pass to Buyer when the price is fully paid.

 

7.0 Cancellation

Buyer may request to cancel this contract only upon 30 business days advance written notice to Seller and only upon such terms as will fully reimburse Seller for all losses or damages resulting therefrom, including without limitation, any costs and expenses incurred or to which Seller has become committed for fulfillment of the contract prior to cancellation (including but not limited to all engineering work, work in progress, raw materials, supplies, services or other labor, and administrative expenses) as well as Seller’s total anticipated overhead and profit on the Works. Notwithstanding anything herein to the contrary, if any portion of the Works is identified as “special” or “Made to Order” or otherwise customized, Buyer’s order shall not be canceled or cancelable by Buyer after acceptance by Seller, except upon payment in full of the purchase price to Seller.

 

8.0 Laws and Regulations

Except as expressly set forth herein, Seller does not assume responsibility for compliance with federal, state, or local Laws and regulations. All laws and regulations expressly referenced herein shall refer only to those editions or versions thereof in effect on the date of the Proposal. In the event of revisions or changes thereto subsequent to the date of this Proposal, Seller assumes no responsibility or liability for compliance therewith. Any request by Buyer to modify the Works to comply with any such revisions or changes shall result in a Change Order pursuant to Section 10 below (provided that Seller and Buyer mutually agree in writing to such changes in the contract price and delivery schedule).

 

9.0 Occupational Safety and Health Act

If installation services are provided as part of the Works, then Seller also warrants that the Works furnished hereunder shall, to the extent such Works is used in accordance with Seller instructions, comply with safety requirements of the Occupational Safety and Health Act of 1970 regulations, as amended, (OSHA requirements) in effect on the date of Seller’s Proposal. Seller shall not be responsible for failure to comply with OSHA requirements which result from the location, operation, use or maintenance of the Works or from alteration of the Works by persons other than Seller or from an option or accessory attached to the Works that was available to the Buyer but omitted at the Buyer’s direction or from design or instructions furnished by the Buyer. Seller’s responsibility for breach of this warranty is limited to modification or replacement of the Works cited as violating OSHA requirements only. All OSHA requirements with respect to noise are specifically excluded from this warranty. The remedies and warranty provided herein are the entire and exclusive responsibility of Seller with respect to OSHA requirements. This OSHA warranty is also subject to the conditions and limitations in the warranty applicable to the Works as more fully set forth in Section 3.

 

10.0 Change Orders

Buyers may request to make changes, within the general scope of work included in this Proposal, to the plans, Works or specifications, included in this Proposal by giving written notice in a Change Order Request. Within thirty (30) days from receipt of such Change Order Request, Seller shall submit the Buyer the changes required to the contract price and delivery schedule resulting from such a Change Order Request, including whether such Change Order Request can in fact be executed. Seller shall have no obligation to proceed with such Change Order Request unless and until Seller and Buyer mutually agree in writing to such changes in the contract price and delivery schedule. Changes to Standard Products air filtration orders after completion of any such product engineering shall be subject to additional engineering fees and will result in delays of shipment (assuming such Change Order Request can in fact be executed). Seller is not liable for any penalties or other compensation, which may arise due to any such delay arising from any Change Order Request.

 

11.0 Bonds

In addition to the price specified herein, Buyer shall pay the cost of any bonds which Buyer requires Seller to obtain.

 

12.0 Buyer Supplied Data

Buyer acknowledges that Seller has relied upon all specifications and other data supplied by Buyer (conditions) to Seller in the selection and design of the Works and the preparation of this Proposal. In the event the conditions differ from those represented by Buyer and relied upon by Seller, any warranties or performance guarantees contained herein affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing, and Buyer shall pay Seller for the additional costs of such differing conditions on the Works, plus a 15% markup.

 

13.0 Subcontracts

Seller may subcontract any portion of the fabrication and erection of the Works included in the Proposal.

 

14.0 Storage

If Buyer declines or is unable to take delivery at the time(s) specified in the Proposal, Seller will have the Works stored for Buyer at Buyer’s risk and account. Buyer will pay storage, handling, and re-handling charges to Seller at Seller’s cost plus a 15% markup, and Buyer will continue to make payment according to the remaining payment terms contained herein.

 

15.0 Delivery/Freight Rates/Shipment/Title

Price does not include freight charges and installation services unless otherwise specifically stated. If freight is to be pre-paid and added, it will be done at actual cost plus 18%. For equipment/materials that is to ship via common carrier there will be an additional fee for packaging/crating equipment/materials for transportation in a common carrier. Risk of loss or damage to the Works shall pass to the Buyer upon tender of delivery F.O.B. Seller’s factory or other place of manufacture. Notwithstanding the foregoing, any claim by Buyer against Seller for shortage or damage occurring prior to such delivery must be made in writing ten (10) days after receipt of shipment and accompanied by original transportation bill signed by carrier noting that carrier received goods from Seller in the condition claimed. Any claim by Buyer for damage occurring during shipment shall be made directly against the freight carrier in writing, with a copy of such claim forwarded to Seller within ten (10) days. If Buyer fails to provide written notification of the claim to the freight carrier and Seller within 10 days, such claim shall be invalid unless expressly agreed otherwise by freight carrier and Seller. Any shipments returned to Seller as a result of Buyer’s unexcused delay or failure to accept delivery will require Buyer to pay all additional costs incurred by Seller. Title shall pass when the price is fully paid. Any increases or decreases in freight charges between the effective date of Seller’s Proposal and the date of final shipment will be Buyer’s full responsibility. Seller shall have the right to ship all of the goods at one time or in portions from time to time within the time of shipment. This contract shall be deemed separable as to the goods sold. Buyer may not refuse to accept any lot or portion of goods hereunder on the grounds that there has been a failure to ship any other lot or that any goods in any other lot were nonconforming. Any such default by Seller will not substantially impair the value of this contract as a whole and will not constitute a breach of contract as a whole.

 

16.0 Confidential Information

All drawings, patterns, prints, brochures, specifications and information included in the Proposal, and all information otherwise supplied by Seller relating to the Works, including but not limited to the design, erection, operation, and maintenance of the Works, are intended for the confidential use by Buyer, shall remain the property of Seller, and shall not be disclosed or used to the detriment of Seller’s competitive position, and are protected against unlawful use or disclosure by common law and federal and state statutes that cover copyright, patents, trademarks, and trade secrets. Any unauthorized use, printing, copying, disclosure, or dissemination of such information may be subject to legal restriction or sanction. In the event of a breach or threatened breach of this Section 16, Seller shall be entitled to an injunction restraining Buyer from disclosing, in whole or in part, any of such Confidential Information or from rendering any service to any person to whom such Confidential Information has been disclosed or is threatened to be disclosed, and Seller shall also be entitled to recoup the attorney’s fees and costs it incurs from Buyer. Nothing herein shall be construed as prohibiting Seller from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of damages.

 

17.0 Promotional Material

All of Seller’s drawings, descriptive matter, weights, dimensions, the descriptions, and illustrations contained in Seller’s catalogues, and price lists or advertisements, are approximate only and intended merely to give a general idea of the goods described therein and shall not form part of this contract. Because Seller is continually researching and improving its products, it reserves the right to improve, correct and/or further modify its designs and specifications upon notification and mutual agreement between Seller and Buyer.

 

18.0 Price

Prices quoted include standard packing according to Seller’s specifications. Buyer shall pay for special packaging requested by Buyer, including packaging for exports, and any such additional charges shall be paid by Buyer as an additional charge.

 

19.0 Inspection and Acceptance

Seller shall have the right to inspect, after prior notification, the Works supplied by it when in operation, and prior to operation when deemed necessary by Seller. Buyer shall have the right to inspect goods upon receipt and shall have the opportunity at that time to run sufficient tests to determine whether goods shipped conform to the specifications of the contract. Buyer shall reimburse Seller, at the contract price, for all goods used in testing. Buyer shall bear any expense incurred in the inspection of the goods used in testing whether the goods are nonconforming. Failure to inspect the goods or inform Seller in writing that the goods are nonconforming within ten (10) days of the receipt of the goods by the Buyer shall constitute a waiver of Buyer’s rights of inspection and notification of nonconformity and shall be equivalent to an irrevocable acceptance of goods by the Buyer.

 

20.0 Waiver of Subrogation

Buyer further agrees to waive all rights of subrogation that would otherwise be available to its insurers, regardless of the theory of recovery, relating in any way to the design, testing, manufacture, sale or installation of any goods, any components, related services, or the Works.

 

21.0 Restocking Charges

Return goods must be pre-authorized in writing by an officer of Seller and returned by Buyer at Buyer’s sole cost to a designated point of manufacture within the specified time. Return goods may be subject to restocking and freight charges by Seller.

 

22.0 Buyer’s Use.

Buyer hereby agrees as part of Seller’s consideration to sell the Works to Buyer that Buyer shall use and require all persons operating the Works to use any and all proper, safe operating procedures set forth in operator’s manual, American National Safety Standards, OSHA Regulations, and instruction sheets relating to the Works, and any and all available, feasible and practical point of operation safety devices consistent with Buyer’s use of the Works; and Buyer shall not remove or modify any device, warning sign, operator’s manual or work handling tools installed thereon or attached thereto. In all events, Buyer shall notify Seller in writing within ten (10) days after the occurrence of any accident or malfunction involving any Equipment which results in injury to or death of persons, including Buyer’s agents or employees, or damage to property, including Buyer’s property, or the loss of use thereof; and Buyer shall cooperate fully with Seller in investigating and determining the cause of any such accident or malfunction. Buyer shall not operate any part of the Works that is considered to be defective without first notifying Seller in writing of its intentions to do so. Any such use of the Works shall be at Buyer’s sole risk and liability. Buyer agrees to indemnify, defend, and hold harmless, at Buyer’s sole cost and expense, Seller, and the Indemnified Parties (defined below) and each of them from any loss, liability, cost and damages imposed upon or resulting to them, attributed to the failure of Buyer to abide by the provision of this Section.

 

23.0 Assignment.

Notwithstanding anything herein to the contrary, Buyer shall not assign or transfer this contract without prior written consent of Seller.

 

24.0 Supervisory Personnel

Supervisory personnel will be supplied, upon request by the Buyer, on a per diem basis in accordance with the Seller’s standard rates in effect at the time of the request.

 

25.0 Limitation on Liability

Notwithstanding anything else in the contract or otherwise, the remedies of Buyer set forth herein are exclusive, and the liability of Seller with respect to this contract or the Works and services furnished hereunder, in connection with the performance or breach thereof, or from the manufacture, sale, delivery, installation, repair or technical direction covered by or furnished under this contract, whether based on contract warranty, negligence, indemnity, strict liability or otherwise, shall not exceed the purchase price of the WORKS. THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. SELLER (INCLUDING SELLER’S AFFILIATES AND SUBSIDIARIES AND PARENTS) AND ITS SUBCONTRACTORS, CONSULTANTS, AND SUPPLIERS SHALL IN NO EVENT BE LIABLE TO BUYER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE OF THIS CONTRACT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT OR ANY BREACH THEREOF, OR ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE WORKS HEREUNDER, WHETHER BASED UPON LOSS OF USE, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION, COST OF PURCHASE OF REPLACEMENT POWER OR CLAIMS OF PURCHASER OR CUSTOMERS OF PURCHASER FOR SERVICE INTERRUPTION WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any claim by Buyer with reference to the Works sold hereunder for any cause shall be deemed waived by Buyer unless submitted to Seller in writing pursuant to the timelines sent out in these terms and conditions, and in any events no later than thirty (30) calendar days from the date Buyer discovered (or should have discovered) any claimed breach. It is further agreed that Seller shall have no liability whatsoever for any claims that are covered by workman’s compensation of Buyer. It is further agreed that Seller is not responsible for any negligence or improper acts that cause damage, which negligence or improper acts are those caused in whole or in part by Buyer’s employees, agents, officers, or other contractors.

 

26.0 Contract Interpretation

Any contract resulting from this Proposal shall be constructed and the legal relations of Seller and Buyer shall be determined in accordance with the laws of the State of Indiana. Buyer hereby agrees that it has read and fully understands this contract, including the Proposal and these Terms and Conditions, and that all prior proposals, negotiations, and representations, oral or written, made by or between Seller and Buyer regarding this subject matter are superseded by this contract, and that this contract may not be modified, amended or changed in any way except in a writing signed by the parties hereto and no oral communications, unless confirmed in writing by the Seller, shall be recognized.

 

27.0 Waiver

Seller’s failure to enforce its rights under the contract, or failure to act against Buyer for any breach of the contract, shall not be construed as a waiver of any breach. Failure to exercise any right arising from any default hereunder shall not be deemed a waiver of any rights under the contract, which may be exercised at any time.

 

28.0 Jurisdiction

Any legal proceeding brought by any party in conjunction with any of the terms or provisions of this transaction shall be brought exclusively in the applicable federal or state courts in Johnson County, State of Kansas. In the event Buyer’s place of business is in a country that has ratified the United Nations Convention of the International Sale of Goods (1980) (“Convention”), the parties agree to exclude application of the Convention. It is agreed that no court of any other jurisdiction shall hear or rule upon any aspect of this transaction.

 

29.0 WAIVER OF JURY TRIAL

EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS CONTRACT OR THE TRANSACTIONS RELATING TO ITS SUBJECT MATTER. THE WAIVER OF JURY TRIAL CLAUSE PROVIDES THAT THE PARTIES WAIVE THEIR SEVENTH AMENDMENT RIGHT TO A TRIAL BY JURY IF THERE IS ANY DISPUTE ARISING OUT OF OR RELATING TO THE CONTRACT OR THE TRANSACTION. ALL DISPUTES ARE STILL HANDLED BY THE COURT SYSTEM, WITH ALL DISCOVERY AND APPELLATE RIGHTS, BUT ANY TRIAL WILL BE DECIDED BY A JUDGE, AND NOT A JURY.

 

30.0 Severability

In the event that any one or more (or any portion thereof) of these terms or conditions are held invalid, illegal, or unenforceable, such provisions (or portion thereof) shall be construed in such a way as to make it valid and enforceable to the maximum extent possible, and such invalidity, illegality or unenforceability shall not affect any other provision of this contract.

 

31.0 Indemnification

Buyer shall indemnify, defend, and hold harmless Seller, its parent, subsidiary and affiliated companies, their agents, employees, representatives, officers, directors, stockholders, members, managers, suppliers, consultants, and subcontractors (the “Indemnified Parties”), from and against all liability, claims, injuries, damages, losses, costs and expense (including but not limited to reasonable attorney’s fees, expert fees and costs of defense) for which the Indemnified Parties may be held liable by reason of injury (including death) to any person (including Seller’s employees) or damage to any property of whatsoever kind or nature arising out of or in any manner connected with alleged defects in or failures of the Works where such defects or failures are the result, in whole or in part, of the actions of persons other than Seller, even for, and if caused, in whole or in part, by any act, omission, negligence, or strict liability of the Indemnified Parties.

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