The following Standard Terms and Conditions (“Agreement”) apply to any and all procurement by Buyer of all makes and models of equipment, parts, software and components for such equipment (“Equipment”), repair services, refurbishment or warranty work or other services (“Services”) described in an invoice, lease, proposal, quote, purchase order acknowledgment, sales acknowledgement, drawing, exceptions document, or other instrument to which this Agreement is attached, or to which reference is made or to any purchase order, transactional document, or any other communication between the parties regardless of whether this Agreement is referenced therein. Equipment and Services shall be collectively referred to as “Products”. Seller objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Buyer to Seller, unless specifically agreed to in a single writing signed by the Parties hereto. This Agreement constitutes the entire, integrated agreement between the Parties related to the subject matter of this Agreement and any and all discussions, understandings, agreements, representations, courses of dealings, customs, and usages of trade heretofore made or engaged in by the Parties with respect to the subject matter hereof are merged into this Agreement, which alone fully and completely expresses the Parties’ agreement. Seller will not be liable to Buyer, for representations and warranties made by Seller’s distributors and sales agents which are inconsistent or in conflict with this Agreement.
- Definitions. Definitions. “Seller” means the entity names on the purchase order - Flow Management Devices LLC, any of its affiliates. “Buyer” or “Buyers” means, as applicable, the purchaser or lessee of Products.
- Terms of Sale.
- The Equipment shall transfer by Seller to the shipping carrier per the Incoterms set forth in the applicable quotation (“Quote”), at which point title and all risk of loss or damage to Equipment will pass to Buyer. If not specified in the Quote, shipping terms shall be ExWorks, from Seller facility, for domestic and international shipments.
- Buyer shall conduct an inspection of the Products promptly upon delivery and shall promptly notify Seller in writing of any defects. If Buyer fails to promptly notify Seller of any defects, whether or not any such inspection and acceptance has been performed by Buyer, the Products shall be considered accepted. Buyer’s sole and exclusive remedy for rejection of Equipment is as set forth in Section 3 (Product Warranty).
- Product Warranty.
- Seller warrants that for a period of one (1) year following shipment the Equipment will: (i) be free from defects in materials and workmanship; and (ii) conform to the specifications agreed to by the Parties in writing. Seller warrants that Services will be performed in a workmanlike manner and such warranty shall be limited to a period of one (1) year from date of service (other than warranty services and services performed gratis). Buyer’s sole and exclusive remedy for any breach of warranty related to Equipment will be limited to, at Seller’s option, replacement, repair or refund of the purchase price of the Equipment that does not conform with the warranties, provided that Buyer notifies Seller of such defect in writing within ten (10) days after Buyer knows or has reason to know thereof, and provided further that inspection of the Equipment by Seller discloses that the defect developed under normal and proper use of the Equipment. Wear part(s) including, but not limited to, seals and/or services related to seals, additionally shocks, belts, bearings, and gaskets are not warranted and are provided “AS-IS”. Seller does not warrant any equipment, components, or parts sold to Buyer and not manufactured by Seller, this includes motors, instruments, sensors, relays, power supplies, clutches, and portable prover equipment such as trailers, swivels, fittings, and hoses; however, to the extent that Seller lawfully do so, Seller assigns to Buyer any warranty transferable by the manufacturer. Seller warrants that the program disks (or other media) on which the Software is recorded, and the documentation provided will be free of defects in materials and workmanship under normal use. Seller warrants that the Software will be free from errors in program logic, clerical program preparation and transcription and will execute accordingly when installed in accordance with Sellers’ instructions. The warranty shall not apply when the Software is operated concurrently with other software programs not supplied by Seller or if defects occur as a result of interaction from software. In the event Buyer submits Equipment for warranty services and Seller determines that the defect is not a warranty item, Buyer agrees to pay Seller for the repair services and any associated materials.
- This warranty will not apply to Equipment that: (i) is damaged due to misuse, abuse, negligence or accident occurring during or after shipment; (ii) is changed or modified (unless the change or modification is made by or in accordance with written instructions of Seller); (iii) deteriorates due to erosion, abrasions or chemical action; (iv) fails due to improper installation (except for installation provided or supervised by Seller), operation or maintenance; (v) fails due to any non-Seller equipment, or system with which Equipment is used; or (vi) Buyer operates in any manner other than in accordance with Seller’s manual, guidelines, operating instructions or other material.
- Equipment will not be returned to Seller without Seller's written permission. Provision of a replacement part or component will not operate to extend the warranty period for any Equipment. Seller reserves the right to inspect Equipment that is subject to warranty claims and to require the return of such Equipment that is subject to warranty claims to Seller’s Warehouse at Buyer’s expense; provided, however, that it is determined that the issue with returned Equipment is covered by warranty, Seller will reimburse Buyer for freight charges associated with the return of such Equipment to Seller’s Warehouse. Seller also reserves the right to use reconditioned parts and components for warranty replacements.
- THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.
- Seller does not cover service labor or travel costs associated with any warranty part replacements. All warranty labor and travel costs are quoted upon request to Seller.
- Limitation of Liability. SELLER WILL NOT BE LIABLE TO BUYER, FOR SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DOWNTIME, LOSS OF BUSINESS AND FROM ANY CLAIM, ACTION OR CAUSE WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE, HANDLING, REPAIR, REPLACEMENT OR USE OF PRODUCTS.
IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM, EVEN IF SELLER IS ADVISED OR PLACED ON NOTICE OF THE POSSIBILITY OF SUCH PENALTIES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
In no event shall Seller be liable for late delivery or other penalties.
- Intellectual Property. All patent, technology, copyright, trade secret or other similar proprietary or intellectual property rights in or related to the design, production, delivery, operation, use, application or performance of Products, or other Confidential Information of Seller, and all improvements thereto, are and will remain the sole and exclusive property of Seller.
In no event may Buyer make a patent or other claim to Seller’s Products and/or Seller’s technology or processes or include or reference any Confidential Information of Seller in any patent or other claim. Nothing in this Section 5 precludes Buyer from incorporating a description or reference to Seller’s Products and/or non-confidential aspects of Seller’s technology or processes where necessary to support a patent or other claim to Buyer’s product, provided, however, that no use of Seller’s name, trademarks or logos may be made without Seller’s prior written consent. Nothing in this Agreement will be construed as granting to Buyer any license or grant of intellectual property rights with regards to the Products’ or its processes.
- Seller Indemnity.Seller shall defend, indemnify and hold harmless Buyer against third party claims for personal injury or tangible property damage to the extent caused by a defect in any Equipment. Seller’s obligations to Buyer hereunder shall be subject to and conditioned upon Buyer giving Seller written notice of such claim (including all known material facts related thereto) within ten (10) days after it is asserted against Buyer (provided that the failure to give Seller written notice of a claim as provided herein shall relieve Seller from its obligations hereunder only if and to the extent Seller is prejudiced thereby) and Buyer granting Seller exclusive direction and control of the investigation, defense and settlement of such claim, including, but not limited to, selection of legal counsel to represent Buyer at Seller’s expense.
- Equipment Changes. Seller reserves the right, in its sole discretion and without prior notice, to make changes to Equipment at any time that do not materially affect form, fit or function.
- Buyer Requested Change, Delay or Cancellation; Liquidated Damages.
- If Buyer requests a change to Equipment, Seller may impose additional equitable charges.
- Delivery reschedules, or delays, will only be permitted through the Change Order Process. No changes will be allowed within 60 days of the ship and/or FAT date; provided by Seller at time of order acknowledgement. Any changes by Seller of the FAT and or ship date will be communicated with Buyer.
- Any cancellation of Equipment and/or Materials by Buyer after Seller’s receipt of purchase order will be subject to cancellation fees. The cancellation fee schedule is i) 15% after Buyer’s order placement to Seller, ii) 25% after Seller’s submittal of approval drawings to Buyer, iii) 50% after Seller’s order placement of major material(s), and iv) 80% after Seller’s commencement of assembly. If Buyer does not accept delivery of Seller’s Equipment and/or Material, Buyer will be responsible for a cancellation fee of (80%), plus any shipping/handling costs incurred by Seller. Cancellation fees shall be payable immediately.
- If any Equipment and/or Materials do not ship to Buyer, or Buyer’s specified location, within 30 days of the ship date, Buyer agrees to pay Seller $100/ per day to store the Equipment and/or Materials until the Equipment and/or Materials ship from Seller’s facility to Buyer’s specified location.
- Any Equipment production holds imposed by the Buyer totaling a cumulative delay over 90 days gives the Seller the right to cancel the order as per Section 8.c. Reasons for production holds include, but are not limited to, configuration changes, delays in drawing approvals, payment delays, specification or approved vendor list clarifications, or delays in shipment/Equipment pickup caused by the Buyer.
- Confidential Information. For purposes of this Agreement, “Confidential Information” shall include all information furnished under this Agreement which is designated as confidential or proprietary, or which the receiving party knows or should know is being disclosed on a confidential basis, including without limitation pricing information, proposals, prints, drawings and all information in or related to the design, development, production, delivery, operation, use, application or performance of any of a party’s technology, equipment, parts, or maintenance/services. Confidential Information does not include information which: (a) is known or independently developed by the receiving party prior to its disclosure by the other party, as evidenced by receiving party's records; (b) becomes a part of the public domain without breach of this Agreement by the receiving party; (c) is received from a third party without restriction and under conditions permitting its disclosure to others; or (d) which is disclosed pursuant to judicial action or government regulations provided the receiving party notifies the disclosing party prior to such disclosure, and cooperates with the disclosing party in the event it elects to legally contest and avoid such disclosure.
For a period of five (5) years from the date of receipt, Confidential Information shall be maintained in confidence by the receiving party, shall not be disclosed to any third party, other than Seller’s suppliers who have a reason to know, without prior written approval of the disclosing party, and shall be protected with the same degree of care as the receiving party normally uses in the protection of its own confidential and proprietary information, but in no case with any less degree than reasonable care. Notwithstanding the foregoing, the Parties’ obligation to protect trade secrets is perpetual or for so long as such information remains a trade secret under applicable law, whichever occurs first.
- Force Majeure. Seller is not liable for any failure to perform its obligations under this Agreement resulting directly or indirectly from or contributed to by, acts of God, acts of civil or military authorities, riots or civil disobedience, terrorism, wars, strikes or labor disputes, accidents, floods, fires, or inability to secure material or transportation facilities, dissolution of a supplier’s business, acts or omissions of carriers, or any other circumstance beyond Seller’s reasonable control; provided, however, that, Buyer agrees to take delivery and make payment for finished Equipment or component as of the date of the Force Majeure event.
- Waiver.No failure or delay by either party to insist upon strict performance of any rights or powers under this Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law, unless agreed to by that party in writing. Any waiver of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
- Assignment. This Agreement may not be transferred or assigned by Buyer without the prior written consent of Seller. Seller may assign its rights and obligations under this Agreement in whole or in part to an affiliate company or third party acquirer in the event of a merger, acquisition or sale of all or substantially all its assets.
- Specific Performance. Buyer agrees that monetary damages may not be sufficient to remedy a breach hereunder and that Seller shall be entitled to seek specific performance and injunctive or other equitable relief.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this contract shall remain in effect.
- Export/Import. Buyer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, unless otherwise specified under the applicable Incoterms agreed to by the parties. Buyer shall comply with all laws, rules and regulations, and making all arrangements related to the export or import of Equipment supplied by Seller. Equipment and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations and other applicable laws. Buyer shall strictly comply with all such export controls, shall fully cooperate with Seller in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Equipment or related technical information, data, documents or materials to any party or destination or for any use that is subject to an embargo or otherwise prohibited pursuant to such controls, unless and until Buyer obtains all required governmental and regulatory approvals, authorizations, licenses and permits.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Arizona without regard to its conflict of law provisions and shall not be governed by the U.N. Convention on the International Sale of Goods.
Payment. Quoted prices exclude taxes, freight and insurance, any duties and brokerage charges, and installation. All of which shall be the sole liability and responsibility of Buyer. If Buyer claims an exemption from any tax, a valid and proper tax exemption certificate must accompany order. Unless otherwise set forth in Seller’s invoice, proposal, lease, or purchase order acknowledgment, all payments shall be made in the currency specified in the Quote. Any payments not received by the Seller provided due date may incur late payment fees. These fees will accumulate until the payment is received. Buyer’s delinquent payment(s) to Seller could result in delayed shipment of Equipment and/or Materials. Any delinquent payment resulting in delayed shipment could incur an additional fee of $100 per day until the Equipment and/or Materials ship from Seller’s facility to the Buyer’s specified location.
- Domestic: Any deposit or graduated payment schedule shall be set forth in the Quote and invoiced accordingly. If not addressed in the Quote, Equipment will be invoiced and due as follows: 50% up front and 50% prior to shipment.
- International: Any deposit or graduated payment schedule shall be set forth in the Quote and invoiced accordingly. If not addressed in the Quote, Equipment will be invoiced and due as follows: 50% net 15 after submission of outline drawings wiring diagrams and manuals and remaining balance due Net 30 before shipment or irrevocable letter of credit.
Seller retains a security interest in the equipment furnished by it under the contract until the full purchase price has been paid. All amounts not paid and received in full by the due date are subject to a finance charge at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or, if less, at the maximum rate permitted by law, from the date due until paid in full. Prices set forth in a Quote are subject to being adjusted due to extraordinary market conditions. As used herein, “extraordinary market conditions” means any increase in the cost of materials caused by changes in the market or for any other reason that is outside of Seller's control such as tariffs, surcharges, and fluctuations in currency and raw materials, which results in an overall price increase of the Equipment in excess of two percent (2%) above the price listed in the Quote. Each shipment is a separate sale and is subject to credit arrangements or to receipt of cash. If payment is not made in accordance with Seller’s payment terms, or if at any time, in Seller's sole judgment, Buyer's credit standing has been impaired, Seller may withhold shipment of any Equipment or the provision of any Services, until cash or credit arrangements have been established to Seller’s sole satisfaction.
Revision: 000-116115-DOC Rev. E 02/02/2023