These Terms and Conditions of Sale (the “Terms”) govern all sales of goods by Seller to Purchaser. The parties identified as “Seller” and “Purchaser” shall be those named in Seller’s quotation, or if not identified therein, in Seller’s order acknowledgment.
References to Purchaser’s purchase order, quotation, job name, project title, or other documentation are provided solely for reference and identification purposes and shall not be interpreted as acceptance of any terms, conditions, instructions, or requirements contained in such documents. No such terms shall apply unless expressly accepted by Seller in a written agreement.
By submitting a purchase order, issuing a notice to proceed, or ordering goods or services from Seller, Purchaser expressly agrees that these Terms govern the transaction to the exclusion of any additional or conflicting provisions, including those contained in Purchaser’s purchase orders, invoices, or other documents, all of which are expressly rejected.
These Terms, together with Seller’s related quotations, acknowledgments, and accompanying documents, constitute the entire agreement between the parties. Any quotation or offer issued by Seller is expressly limited to these Terms, and any acceptance by Seller of Purchaser’s offer is conditioned upon Purchaser’s acceptance of these Terms.
If Purchaser seeks to apply its own liability provisions, such provisions shall be effective only if expressly agreed to in a written document signed by an authorized officer of Seller. Purchaser acknowledges that any such agreement may require adjusted pricing or charges to account for the increased risk assumed by Seller.
1. WARRANTIES
The warranties set forth in this paragraph are the sole and exclusive warranties made by Seller and may be amended only by a written instrument signed by an officer of Seller. These warranties are in lieu of all other warranties, and Seller hereby disclaims any and all other warranties, whether express, implied, or statutory, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, failure of essential purpose, or conformity to models or samples, as well as any warranty arising from trade usage, course of dealing, or course of performance.
These Terms and Conditions, and Seller’s accompanying documents, constitute the entire agreement between Purchaser and Seller, and any offer by Seller is expressly limited to these Terms and Conditions. Additionally, acceptance by Seller of any offer made by Purchaser is expressly made conditional on Purchaser’s agreeing to these Terms and Conditions.
In addition, all products are sold as manufactured. Any modification or alteration made to the original product after purchase, including but not limited to welding, cutting, threading, grooving, machining, fabrication, pre-heating, post-weld heating, stress relieving, heat treating, or any other thermal process, whether intentional, incidental, or indirect, shall immediately and automatically void all warranties, whether express or implied.
In addition, Seller shall have no liability for any damages, losses, or claims arising out of, improperly handled, stored, installed, or used products.
2. DAMAGES AND LIMITATION OF LIABILITY:
In no Event shall Seller be liable to Purchaser, Customer, or any third party for any special, indirect, incidental, punitive, exemplary, or consequential damages, including but not limited to costs of removal or reinstallation, loss of goodwill, loss of profits, loss of product, business interruption, cost of capital, loss of use, injury to person or property, or any pollution or contamination, including costs of containment, cleanup, or disposal.
The foregoing limitations shall apply regardless of the cause of such damages, whether or not foreseeable, and regardless of the theory of liability, including but not limited to warranty, contract, strict liability, negligence (whether active, passive, joint, concurrent, or gross), or breach of any duty, and shall apply to Seller and any of Seller’s related or affiliated parties, including their respective owners, directors, managers, officers, employees, agents, or invitees (collectively, “Related Parties”).
Under no circumstances or in no event shall Customer or any third party have the right to recover from Seller for any loss, damage, cost of repair, or incidental, punitive, special, consequential, or liquidated damages of any kind, including but not limited to lost profits, loss of efficiency, or project delays, arising out of or relating to the design, manufacture, sale, transportation, installation, use, or repair of any goods or services sold by Seller.
NOTWITHSTANDING THE FOREGOING, Seller’s total and exclusive liability, if any, shall be strictly limited, at Seller’s sole option, to (a) replacement of the non-conforming goods, or (b) refund of the purchase price actually paid for such goods.
3. INDEMITY INSURANCE
Purchaser hereby agrees to release, indemnify, defend, and hold harmless Seller and its Related Parties, and their respective officers, employees, agents, and consultants, from and against any and all losses, causes of action, liabilities, claims, demands, damages, judgments, awards, costs, and expenses (including, without limitation, attorneys’ fees, expert fees, and witness fees and expenses) (collectively, “Claims”), arising out of, resulting from, or relating to Seller’s goods, any purchase order, or these Terms and Conditions, REGARDLESS OF HOW SUCH CLAIMS ARISE AND REGARDLESS OF THE CAUSE, including, without limitation, the negligence (whether active, passive, joint, or concurrent), strict liability, or breach of warranty, duty, or contract by Seller or any of its Related Parties, or any other theory of legal liability.
4. INSURANCE
Purchaser agrees to maintain, at its own expense, insurance coverage sufficient to support its obligations under the purchase order and these Terms and Conditions, and shall, upon request, furnish Seller with certificates of insurance evidencing that such insurance is in full force and effect.
3. WAIVERS, MODIFICATIONS, OTHER PROVISIONS
No statements, representations, or assurances made by any representative of Seller that are not expressly set forth herein shall be binding upon Seller. No amendment, supplement, or modification to any provision contained in an order acknowledgment or any other document issued by Seller shall be effective unless set forth in a written agreement signed by a duly authorized representative of Seller.
The failure of either party to enforce any right or remedy shall not be deemed a waiver of such right or remedy, nor shall it reduce or impair any obligations under these Terms and Conditions or any related agreement. Any waiver of any provision of these Terms and Conditions or any agreement shall be effective only if expressly stated and executed in writing by both parties.
If any provision of these Terms and Conditions is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the validity or enforceability of the remaining provisions. These Terms and Conditions shall be interpreted without regard to which party drafted them, and no ambiguity shall be resolved against Seller on the basis of authorship.
Seller reserves the right to modify, amend, or update these Terms and Conditions at any time, in its sole discretion. Any such changes shall apply to transactions entered into on or after the effective date of the revised Terms. The version of the Terms in effect at the time Seller accepts a purchase order shall govern that transaction.
VERSION 2018-1