Any of the Purchaser’s terms and conditions which are in addition to or different from those contained herein which are not separately agreed to In writing (except additional provisions specifying quantity, character of the goods ordered, and in shipping instructions) are hereby objected to and rejected. Objection to any terms and conditions contained herein shall be deemed to have been waived if written notice of such objection is not received by Seller within ten (10) days of the date of this Purchase. Purchaser will in any event be deemed to have assented to all terms and conditions contained herein if any part of the goods described herein is accepted. Please note particularly the Limited Warranty and Limitation of Remedies provisions set forth below.
2. Limited Warranty:
All goods and services sold by Seller are warranted to be free from defects in material and workmanship at the time of tender of the products to the carrier for transportation to the initial Purchaser only, under normal use and service. All replacements or repairs necessitated by, but not limited to, inadequate preventive maintenance, normal wear and usage, by fault of Purchaser, by unsuitable power supply sources, by attack, by deterioration under unsuitable environmental conditions, or by abuse, alteration, improper installation, or which have been disassembled, modified or repaired other than by Seller, or by accident, misuse, storage or handling, or any other cause not the fault of Seller are excluded from this Limited Warranty, and shall be borne at Purchasefs expense. All products purchased by Seller from a third party for resale to Purchaser (”Resale Products”) shall carry the warranty extended only by the original manufacturer, and Purchaser agrees that Seller has no liability for Resale Products beyond making a reasonable commercial effort to arrange for procurement and shipping of the Resale Products. THIS EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABIUTY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE. No agent or representative of Seller is authorized to change this warranty or to give any other warranty, express or implied, and no such agent or representative is authorized to make any representations concerning Seller’s product which are not subject to the qualifications and to the limitations of liability hereinabove expressed and all such warranties and/or representations are hereby waived.
3. Limitation of Remedies:
In the event of Seller’s liability, whether based on contract, tort, negligence, strict liability or othenuise, Purchaser’s sole and exclusive remedy will be limited to, as permitted by law, at Seller’s option, the repair, correction or replacement by Seller’s personnel or their designated representative only, of any nonconforming goods for which claim is made in writing by Purchaser, In accordance with these terms and conditions, or to the allowance of a credit for the portion of the purchase price, paid by the Purchaser, attributable to the nonconforming goods. Seller’s liability shall not exceed the total sale price under this order. Seller shall not be liable, under any circumstances, for incidental, consequential, punitive damages or any other losses such as, but not limited to, damage or expenses to loss of property or equipment, loss of revenue, cost of purchased or replacement equipment, cost of capital, labor, travel, expenses Incurred by Purchaser, or claims of a third parties other than the initial Purchaser, directly or indirectly arising from the sale, remanufacture, handling or use of the goods or from any other cause relating thereto. Any legal or equitable action or proceeding brought relating to the goods, their sale or condition, or these terms and conditions, must be commenced within one (1) year from the date such cause of action arose or within one (1) year from the date of delivery of material, whichever is shorter.
4. Patent or Trademark Infringement:
If the goods sold hereunder are to be prepared for manufacture according to the Purchaser’s specification, Purchaser shall defend, hold harmless and indemnify Seller against any claims, liability, costs or attorney’s fees incurred, in relation to any claim for patent or trademark infringement.
5. Claims-Notice of Defects:
In the event any goods to be furnished hereunder are claimed to be defective, the Seller shall be given ample opportunity for inspection, including inspection at Purchaser’s premises or upon request shall be furnished with a sample of such goods. Seller shall be liable only to repair, correct or replace defective goods or to allow credit for such item at its option up to the original cost of the product. All costs of dismantling, reinstallation and freight and the time and expenses of Seller’s personnel for site travel and diagnosis under this warranty clause shall be borne by Purchaser. Goods repaired and parts replaced during the warranty period shall be in warranty for the remainder of the original warranty period or 30 days, whichever is longer. Defective goods may be returned only upon Seller’s written approval, and Purchaser shall consult with Seller as to the proper method of identifying and returning defective goods. Any claims must be made in writing within ten (10) days of receipt of the goods sold hereunder.
6. Force Majeure:
Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part, resulting from any contingency beyond the control either of Seller or of suppliers to the Seller. Such events shall include, but not limited to, failure or delay in transportation, governmental acts or regulations, acts of God, acts of nature, acts of the Purchaser, its employees, agents, or subcontractors, fire, accident, labor disputes, strikes, shortage of fuel, raw material or machinery or technical failure. If any contingency occurs, Seller may allocate production and deliveries among Seller’s customers. Purchaser agrees to accept partial delivery of goods in Seller’s possession.
The promised delivery date is the best estimate possible of when the goods will be shipped. Seller shall not be liable for any loss, damage, incidental or consequential damage due to delays. Carrying charges may be imposed on Purchaser for shipments, which are delayed at the request of Purchaser. In the event of any delay, the date(s) for performance by Seller of this contract shall be deemed extended for a period equal to the time of delay.
8. Out-Bound Freight:
Unless otherwise specified in writing, all goods are sold FOB Shipping Point, Prepay and Add. If Purchaser does not specify in writing a preferred shipping carrier, associated account number and bill to location, method and route of shipment shall be at the Seller’s discretion. Any additional expense shall be the sole responsibility of the Purchaser. The freight charges will be applied to the Purchasers invoice with the expectation of payment to be received within the terms established by the Seller. Quoted or predetermined freight costs at time of purchase are estimated costs only, Purchaser is responsible for additional costs exceeding the estimated cost provided with the expectation of payment received within the terms established by the Seller.
9. Documentation Requests:
Requests for documentation, such as, but not limited to, Material Test Reports (MTR), Canadian Registration Number (CRN), Certificate of Conformity (COC) and NAFTA Certificate of Origin, must be specified by Purchaser, in writing, at time of order placement. Purchaser will be subject to service fees, at Seller’s option, for documentation requests made post-shipment.
Ownership of drawings, flow diagrams, specifications and other data prepared by Seller shall remain with Seller. Any drawings, manuals, literature, etc., required to be supplied to Purchaser for contracted order shall be the property of Purchaser and Purchaser agrees to use them solely for the purpose of facilitating or completing construction maintenance, operation, modification, and repair of the equipment, and agrees not to disclose the same to others for other purposes without the consent of the Seller.
In the event Purchaser’s personnel visit Seller’s plant or receives any proprietary information, such as, but not limited to, drawings, flow diagrams, specifications or other data prepared by Seller, such information shall be retained as confidential by Purchaser and not be used or disclosed to any third party without the written consent of Seller. Seller retains all rights in any drawings, flow diagrams, specifications and other data prepared by Seller, or invention, improvement, discovery or patent it conceives relating to the goods delivered hereunder.
12. Quotation, Order, Prices and Taxes:
Unless otherwise stated, all prices quoted are subject to change at any time, without notice to prices prevailing at time of receipt of Purchaser’s order. All quotations/orders shall be in United States currency. If there is a delay in completion of shipment of said order, due to any change requested by Purchaser, or as a result of any delay on Purchaser’s part in furnishing information required for completion of the order, the price agreed upon at time of acceptance of order is subject to change. All quotations are valid for a period of 30 days. Quotations are available for other specific time periods upon request. Unless specified otherwise, prices do not include Seller’s federal, state or local taxes. Such amounts shall be added to the invoice or invoiced separately at a later date in the event Seller becomes liable to pay or bear the burden thereof. A request for exemption from any such tax, duty or assessment must be accompanied by a properly executed exemption certificate prior to shipment.
13. Change Orders:
Change orders must be in writing and no change shall be made pursuant to this clause unless agreed to in writing and signed by duly authorized representatives of Seller and Purchaser. If any such change causes an increase or decrease in the cost or the time required for the performance of any part of the work, an equitable adjustment shall be made in the contract price and schedule. Seller shall have no obligation to commence any extra or changed work without written agreement as to adjustments to contract price and delivery schedules affected thereby.
14. First Time Purchasers / Wires:
First time Purchasers are expected to provide payment at time of order placement, prior to purchase/shipment material. Pre-Payments can be made via credit card or wire transfer. All wire transfers will be assessed an additional $40.00 fee that will be added to the Purchaser’s order for each wire transfer transaction. Seller retains full security interest in all goods until Purchaser renders payment in full.
15. Payment Terms / Security Interest:
Payment for orders delivered upon credit approval shall be due 30 days after the invoice date or as account terms have been established between Seller and Purchaser. All payments shall be in United States currency. Seller reserves the right, in its sole discretion, to reject purchase orders or to withhold shipment of Purchaser’s orders if Purchaser’s account is in arrears. Purchaser is responsible to Seller for all reasonable attorney fees, court costs, and/or collection agency fees should Purchaser default on payment. If, in the Seller’s judgment, the financial condition of the Purchaser at any time does not justify continuance of production, or shipment on the terms of payment originally specified by the Seller, the Seller may require full or partial payment in advance or other satisfactory adequate assurance of payment.
16. Course of Performance:
The fact that Seller may accept or acquiesce in a course of performance shall not affect the terms herein, though Seller knows of the nature of the performance and has an opportunity to object to it. In no event shall any such action constitute or be deemed a waiver of any right, claim or defense against Purchaser.
17. Representation of Solvency:
Purchaser hereby represents that it is solvent, and that on each delivery this representation shall be deemed renewed unless notice to the contrary is given in writing by the Purchaser to the Seller at or before delivery of the goods. If the Purchaser becomes insolvent, repudiates, or fails to make payment when due, before delivery to the Purchaser, the Seller shall have the right to stop delivery of the goods.
18. Right to Identify Goods:
If the Purchaser wrongfully rejects. revokes acceptance or fails to make a payment due on or before delivery or repudiates the contract in whole or in part then, notwithstanding any other remedy available to the Seller, the Seller may identify to the contract any conforming finished goods in the Seller’s possession or control at the time the Seller learns of the breach, or if the goods at such time are unfinished the Seller may either complete the manufacture and wholly identify the goods to the contract or cease manufacture and resell for scrap or salvage value or proceed in any other reasonable manner, including proceeding against Purchaser for any delinquency that may result from such identification or resale for scrap or salvage value.
19. Right of Resale:
In the event of any breach or repudiation of or under this contract by Purchaser or any failure of Purchaser to comply with the provisions hereof, Seller may resell the goods covered hereby which have not already been delivered to Purchaser, together with any goods reclaimed by Seller or as to which Seller may agree to accept return, at one or more public or private sales, at wholesale or otherwise, and recover from Purchaser the amount by which the price established in this contract exceeds the amounts so received, together with all incidental damages occasioned by the default of Purchaser.
Orders canceled or terminated by the Purchaser for reasons not the fault of Seller, are subject to cancellation charges in addition to actual costs incurred by Seller. Goods ordered that require customization, alteration or substitution of standard material parts are non-cancelable and non-returnable.
No material may be returned, nor will it be accepted without the Seller’s express written authorization. Returned products must be securely packaged to reach Seller without damages and must be accompanied by the Return Authorization Form provided by the Seller’s personnel. Purchaser is solely responsible for all inbound and outbound freight expenses associated with the return, exchange, repair or evaluation of material outside the parameters of the Seller’s warranty herein. All returns are subject to Seller’s restock fees at Seller’s discretion. Only products deemed acceptable and in resalable condition will be issued a credit up to the Purchaser’s original purchase price. Repair returns are subject to repair charges (parts and labor) prior to credit being given. Credit will be provided in the form of Purchaser’s in-house account credit, less any assessed fees, which can be applied to future orders for redemption.
The rights and remedies reserved to Seller shall be cumulative and additional to all other remedies provided by law and equity. Seller shall be entitled to recover costs and attorney fees in the enforcement or defense of any rights hereunder.
23. Entire Agreement:
This instrument contains the entire agreement of the parties relating to the subject matter hereof and may not be waived, changed, modified, extended or discharged orally but only by agreement in writing and signed by, the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.
24. Governing Law:
This agreement shall be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of Michigan, without regard to Conflicts of Law Principles. The United Nations Convention on Contracts for the International Sales of Goods, shall not apply.
No part of this acknowledgement shall be affected if any other part of it is held invalid or unenforceable.
The terms and conditions, as published on Triad Process Equipment’s Website: www.triadprocess.com, at the time of sale, are the official terms and conditions of sale between Triad Process Equipment and Purchaser and may be amended periodically, without notice, at Triad’s sole discretion.