Reference is made to the purchase order referenced on the front of this document (the “Order”) relating to the products described on such Order (the “Products”). This instrument sets forth the terms and conditions (“Terms and Conditions”) of sale of the Products pursuant to such Order. The purchaser under such Order is referred to herein as the “Buyer” and GC Valves, LLC. is referred to herein as the “Seller.” Any terms set forth on the face of such Order, or on the reverse side thereof, or attached to or accompanying such Order, other than the specifications of the Products, the quantity, price and desired delivery date, are hereby rejected. The following terms shall be in the nature of a counter-offer to the Buyer, and upon fulfillment of the Order, these shall be the exclusive terms governing the Order.
1. TERMS OF PAYMENT: Terms are net thirty (30) days from the date of Seller’s invoice in U.S. currency. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, Seller reserves the right to charge a late payment penalty in the form of interest at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the Products theretofore delivered.
2. TAXES/DUTIES: Any tax or governmental charge (or increase in same) affecting Seller’s costs of production, sale, or delivery shall be for Buyer’s account and shall be added to the price. Prices do not include any duties, customs costs, or other charges which may be applicable to foreign shipments. It shall be Buyer’s responsibility to pay or reimburse Seller for same.
3. SHIPMENT AND DELIVERY: Deliveries are made F.O.B. Seller’s shipping point. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by a common carrier. Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier. While Seller will use commercially reasonable efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Delayed delivery beyond the proposed delivery date shall not entitle Buyer to any damages whatsoever. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.
4. ACCEPTANCE: Seller’s responsibility to Buyer ceases upon receipt from carrier of a bill of lading or other receipt for goods. All goods are shipped at Buyer’s expense and risk; all claims for damage or shortage in transit must be filed by Buyer against carrier and prosecution of such claims shall be Buyer’s sole responsibility. Buyer agrees to examine and inspect each shipment of goods for any damage, defect, or shortage promptly upon receipt of such shipment; all claims for damage, defect, or shortage prior to shipment must be made in writing, and must be received by Seller at its principal business location in Charlotte, North Carolina within 15 days after receipt of goods by Buyer, specifically describing Buyer’s claim and making reference to Seller’s bill of lading and order number. Failure of Seller to receive such written notice of any claims within such time shall be deemed an unconditional acceptance of the goods by Buyer and waiver by Buyer of all such claims.
5. PRODUCT RETURNS: New and unused product(s) returned for credit will not be accepted unless written permission has been given by Seller. Product(s) must be securely packed to reach Seller without damage. A restocking charge not to exceed 25% will be made on all product(s) accepted for credit.
6. LIMITED WARRANTY; LIMITATION OF REMEDY AND LIABILITY: Subject to the limitations on remedies and liabilities set forth below, Seller warrants that the Products manufactured by Seller will conform to the specifications provided by Seller and will be free from defects in material or workmanship under normal use and regular service and maintenance for twelve (12) months from the date of sale by Seller to Buyer. Determination of the suitability of the Products for the use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall have no responsibility in connection with such suitability. The warranty set forth in this paragraph is Seller’s sole warranty with respect to the Products.
SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT.
Buyer agrees to examine and inspect the Products at once upon arrival at their destination, and if the Products fail to comply with the warranty provided here under, Buyer shall promptly give detailed written notice of such failure to Seller. Any claim under this warranty shall conclusively be deemed waived by Buyer unless written notice thereof is given to Seller promptly after discovery, but in no event later than twelve months from the date of sale. Seller’s responsibility and Buyer’s exclusive remedy under this warranty is limited to the repair or replacement of the Products or the refund of the amount of the purchase price paid by Buyer, at Seller’s option, upon the return of any nonconforming Products to Seller at Buyer’s expense.
This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, Buyer’s negligence or intentional conduct, unauthorized modification or alteration, use beyond rated capacity, or improper installation, maintenance or application. To the extent that Seller has relied upon any specifications, information, representations of operating conditions or other data supplied by Buyer or its agents to Seller in the design or manufacture of the Products, and/or in the event that actual operating conditions or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are affected by such conditions shall be null and void. It is understood and agreed that Seller’s liability hereunder or in connection with the MANUFACTURE OR sale of THE PRODUCTS described herein, whether in contract, in tort, FOR INFRINGEMENT, under any warranty, in negligence or otherwise shall not exceed the return of the amount of the purchase price paid by BUYER. Under no circumstances shall Seller be liable for special, incidental, indirect or consequential damages (INCLUDING,
WITHOUT LIMITATION, ANY LOSS OF ANTICIPATED PROFITS INCURRED BY BUYER). The price stated for the PRODUCTS is a consideration in limiting Seller’s liability. It is agreed and understood that Buyer shall not make warranties or representations concerning the Products that have not been made or approved by Seller and shall not alter or modify any warranty supplied by Seller. Buyer shall so instruct all employees, subdistributors and agents with respect to representations and warranties concerning the Products and hereby agrees to indemnify and hold harmless Seller for all loss, cost and expense incurred by Seller directly or indirectly resulting from the extension by Buyer, its officers, employees, agents, subdistributors or representatives of representations or warranties not authorized by Seller or the alteration or modification (or attempted alteration or modification) of any warranty extended by Seller. The provisions of this paragraph shall survive termination, for whatever reason, of the Order.
7. EXCUSE OF PERFORMANCE (FORCE MAJEURE): Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; terrorism or other criminal conduct; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders or actions; unavailability of or delays in utilities or transportation; default of suppliers; or unforeseen circumstances or any other events or causes beyond Seller’s reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer in the event of any of the foregoing, but the remainder of the agreement shall otherwise remain unaffected as a result of the foregoing.