GENERAL TERMS AND CONDITIONS OF SALE
Seller expends considerable effort to deliver quality merchandise in good condition to its Buyers, Should a problem arise with any of the Goods, Seller can assist Buyer with servicemen backed by technical service engineers available at Seller’s standard hourly or daily rate. Any parts needed for repairs will be expedited as much as possible to make timely repairs or replacement.
Seller’s goal is to help you keep your system operational and minimize downtime or schedule disruption; however, all expenses incurred in such efforts are subject to conditions in Seller’s warranty.
1.1 “Goods” mean all or any part of the goods, equipment, products and materials, including any services thereon performed by Seller, sold by Seller to Buyer, except that Seller’s warranty as to “Goods” does not include any warranty from Seller on any parts purchased by Seller from manufacturers of suppliers’ instead, a manufacturer’s warranty may apply as provided in these Terms.
1.2 “Terms” mean these General Terms and Conditions of sale and any terms appearing in Seller’s written quotation and invoice
2.0 SELLER’S ACCEPTANCE.
2.1 Seller’s acceptance of Buyer’s purchase order is expressly made conditional on Buyer’s assent to these Terms which take precedence over Buyer’s purchase order(s) and all other oral or written agreements between Buyer and Seller. Seller’s acceptance of Buyer’s purchase order whether by Seller’s sales order acknowledgment or otherwise, shall be deemed an acceptance by Buyer of all of Seller’s Terms which expressly limit acceptance of Seller’s Terms. Any additional or inconsistent terms to be binding upon Seller, Buyer must notify Seller in writing within ten days after receipt of Seller’s acknowledgement and Seller must expressly agree in writing to such inconsistent and/or additional terms.
2.2 No Agent, employee or representative of Seller has any authority to bind Seller to any affirmation, promise, representation, or warranty concerning any of the goods sold, and unless such affirmation, promise, representation or warranty is made a part of these Terms in writing, it does not form a basis of this bargain, has not been relied on by Buyer and shall not be enforceable against Seller.
3.0 PRICE AND PAYMENT
3.1 All prices and specifications are in accordance with Seller’s quotation. All prices are listed in U.S. Dollars, F.O.B. point of shipment, and shall remain fixed for 30 days from the date of Seller’s quotation subject to Seller’s right to modify any listed price to correct any stenographic or clerical errors.
3.2 At Seller’s discretion, acceptance of Buyer’s order(s) may be subject to progress payments at time of order placement and/or letter of credit or other satisfactory credit arrangements.
4.1 Buyer shall pay all sales, use, excise or other tax payable as a result of this sale. All such taxes shall be added to the purchase price at time of invoicing. Should any taxing authority hereafter determine that taxes are due with respect to this sale transaction, Seller reserves the right to bill and collect from Buyer the amount of the tax applicable to this sale.
5.0 SHIPMENT AND DELIVERY
5.1 All shipments are made F.O.B. point of shipment. Buyer shall insure against any risk of loss until final payment to Seller.
5.2 Any shortages in shipments must be reported to Seller’s Manager of Customer Service at Seller’s Tulsa office within 20 days after receipt of the Goods. References to sales order and purchase order must be included. A shortage of cartons must be noted on the freight bill when the Goods are received.
5.3 Seller may make partial shipments. Each shipment shall be considered a separate and independent transaction, and such shipments may be treated separately for the purposes of invoicing.
6.0 DELAYS IN PERFORMANCE
6.1 Any times given for Seller’s performance, including shipping dates, are estimates only. Seller shall not be liable for any delay in its performance or any damages suffered by Buyer by reason of such delays, when such delays are directly of indirectly caused by priorities or allocations imposed by governmental orders or regulations, by manufacturing difficulties, transportation delays, acts of God or of a public enemy, laws, acts of government in either its sovereign or contractual capacity, court order, labor dispute, labor shortage, strike, lockout, fire, flood, epidemic, quarantine restriction, unusually severe weather, insurrection, riot, war, embargo, civil commotion, inability of Seller to obtain raw materials or supplies, accidents, governmental interference, breakdowns, fuel or power shortages, or any other cause or causes due to any act or omission of Buyer of third party (whether or not similar in nature to any herein specified) beyond Seller’s control (an “Excusable Delay”). Seller’s time for performance shall be extended to cover any loss, damage, detention or delays arising, in whole or in part, from an Excusable Delay.
6.2 No excusable Delay shall constitute grounds for Buyer’s cancellation or offset of this contract. In the event of an Excusable Delay, Seller may allocate its supply of Goods among its present and future buyers and itself on such basis as Seller deems fair and reasonable without liability for failure to deliver any Goods to Buyer. Buyer will accept delivery and invoicing of orders based on order of acceptance as soon as Seller is ready to ship the items. Every effort will be made to complete Seller’s obligations within the time stated, but under no circumstances will Seller be responsible for, or Buyer be entitled to, any damages, special, consequential, incidental or whatsoever arising out of or owing to any Excusable Delay.
6.3 Buyer’s failure to perform any obligation under this sale of Goods shall be at the sole expense of Buyer and shall not be a cause for delay in payment by Buyer regardless of whether the Goods have been delivered to Buyer.
6.4 In the event that shipment of the Goods is postponed or delayed at Buyer’s request, the Goods shall, nonetheless, be regarded, as having been delivered to Buyer and payment shall become due accordingly. Buyer shall pay Seller for any reasonable storage fees. Storage shall be at Buyer’s risk.
7.0 CANCELLATION; MODIFICATION AND RETURNS
7.1 Buyer’s purchase order, once accepted by Seller, may not be cancelled or modified except as provided in these Terms and these Terms may not be modified, nor may delivery be delayed by Buyer, without the written consent of Seller upon terms which indemnify Seller against any and all loss or damage occasioned by cancellations or modifications.
7.2 Seller reserves the right to change or modify the design or the construction of, or the materials in, any Goods without incurring any obligations to notify Buyer in advance or to furnish or install such changes or modifications on any Goods previously or subsequently sold.
7.3 Goods specially manufactured by Seller may not be returned for credit. All other Goods can be returned for credit or exchange only after written authorization is first obtained from Seller’s Tulsa office. Goods returned without written authorization from Tulsa will be returned at Buyer’s expense. A handling charge may be deducted for any Goods accepted for return based on the condition of the Goods upon return.
7.4 Returned Goods must be tagged with Sellers return Authorization number. Delivery charges on returned Goods shall be prepaid by Buyer. All risk of loss during and after delivery to the carrier until return to Seller shall be borne by Buyer.
8.0 LIMITED WARRANTY AND LIABILITY
8.1 SELLER’S WARRANTY SHALL EXTEND TO BUYER AND BUYER’S CUSTOMER ONLY AND DOES NOT RUN TO THIRD PARTIES.
8.2 LIMITED WARRANTY: Seller warrants only new Goods manufactured by Seller against defective workmanship and materials, under normal and proper use, for a period of 12 months from the date Seller delivers possession of the Goods to the carrier for shipment to buyer.
8.3 Seller guarantees that Goods of its own design and fabrication will perform in accordance with the performance specifications contained in its quotation while the Goods are in a clean condition and properly operated within the stated and customary design limits of such Goods.
8.4 Upon delivery of the Goods, Buyer shall immediately examine the Goods for defects. To assert an alleged breach of warranty, Buyer must promptly notify Seller in writing of such breach and specifically identify the breach within the warranty period and shall provide Seller with an opportunity to test and examine the Goods. Upon Seller’s written request, Buyer, at its expense, shall return the defective Goods to Seller for testing, refund, or replacement.
8.5 Seller’s obligation to remedy defective materials or workmanship is limited to Seller’s option to either replace the defective Goods at Seller’s Tulsa office or refund the purchase price as to the Goods affected. No allowance shall be granted for repairs or alterations made by Buyer without Seller’s prior written consent.
8.6 Seller’s warranty does not apply to Goods requiring replacement because of normal wear and tear, corrosion or erosion.
8.7 This warranty shall be voided as to any part of the Goods which have been subject to abuse, misuse, improper installation (to the extent not installed by Seller), operation or maintenance, accident, negligence, use other than as designed or intended, or modification not specifically authorized by Seller.
8.8 Seller shall defend any suit or proceeding brought against Buyer to the extent such is based on a claim that any Seller-designed Goods constitute an infringement of any United States patent directly caused by Seller’s Goods, actions, representations and production, if notified promptly in writing and given authority, information and assistance for the defense of same. Seller’s obligation to defend is limited to actions ending in a final and binding judgment and does not include defending any claims which result in a settlement and does not include defending the appeal of any final judgment.
8.9 Seller’s warranty does not cover, or grant any allowance for, repairs, alternations, work done or expense incurred in connection with any repairs, alterations or replacements except those done in accordance with specific written authority from Seller.
8.10 Seller’s maximum liability to Buyer, whatever the cause, is specifically limited to the purchase price of the Goods affected.
8.11 Seller’s warranty does not apply to Goods purchased by Seller on account of Buyer. Seller agrees, however, to pass through to Buyer any and all manufacturer’s warranty to the extent not prohibited by the manufacturer. Seller further agrees to provide all owners manuals and materials provided to Seller by the manufacturer.
8.12 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH BUYER EXPRESSLY DISCLAIMS AND WAIVES. THIS LIMITED WARRANTY CONSTITUTES SELLER’S SOLE AND EXCLUSIVE WARRANTY FOR DEFECTIVE GOODS AND FOR PATENT INFRIGEMENT AND SHALL CONSTITUTE BUYER’’ SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE GOODS AND FOR PATENT INFRIGEMENT AND SHALL BE IN LIEU OF ALL OTHER LIABILITIES OF SELLER ARISING OUT OF THE USE OF OR OPERATION OF THE GOODS SOLD BY SELLER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, EXPRESS OR IMPLIED SUCH AS, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT, INJURY OR DAMAGE TO PERSONS,LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT, OR COST OF REPLACEMENT EQUIPMENT. BUYER AGREES TO INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINXT ANY AND ALL CLAIMS (INCLUDING DEMANDS, LAWSUITS, EXPENSES OR SETTLEMENTS) FOR ANY LOSS, INJURY. DEATH. OR PROPERTY DAMAGE INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF BUYER’S FAILURE TO COMPLY WITH THESE TERMS
9.0 PARTIES IN INTEREST
9.1 These Terms, including the sale of Goods and all associated rights, are intended for the sole benefit of the parties and nothing in these Terms provides any legal rights to, or creates any liability for, anyone not a party except as specifically set forth herein. Buyer may not assign the quotation or any rights in this sale of Goods without first obtaining Seller’s written consent.
10.0 PROPRIETARY INFORMATION
10.1 All drawings, data, designs, specifications, quotations and other information, if any supplied by Seller shall remain the property of Seller and shall be held in confidence by Buyer. Buyer shall not reproduce, use or disclose such information to others without Seller’s prior written consent.
11.0 GOVERNING LAW
11.1 The rights, obligations and remedies of Buyer and Seller, the interpretation of these Terms and the sale of Goods shall be governed by Oklahoma law, without regard to any rules of conflicts of laws
12.0 ENTIRE CONTRACT
12.1 The Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior proposals, negotiations and communications, oral and written, between the parties with respect to the subject matter hereof. The Terms may not be modified by any course of dealing or performance or usage of trade between the parties. Any additions, modifications or corrections to the Terms must be in writing and signed by an Officer of the Company. In the event any provision of the Terms shall be held invalid or unenforceable, such holding shall not invalidate or render any other provision hereof.
13.0 PROGRESS REPORTS
13.1 Regular periodic detailed forecasts and progress reports for Buyer’s orders already in production are not available. Unpriced copies of Seller’s purchase orders to suppliers of rough or finished materials are likewise not available