VALV-TROL, LLC – TERMS AND
This agreement isintended by Valv-Trol, LLC and the Purchaser as the final expression of their agreement and isthe complete and exclusive statement of the terms and conditions thereof notwithstanding any oral representations or statements to the contrary. No modification hereof shall be effective unless in writing signed by both parties. Any additional or contradictory terms or conditions contained in any acknowledgme nt, invoice, purchase order, change or other communication, oral or written, heretofore or hereafter furnished by Purchaser is hereby objected to by Valv-Trol, LLC, and shall be of no force or effect.
PRICES AND DISCOUNTS
All prices, and any discounts, shall be exclusively set forth in the quotation submitted by Valv-Trol, LLC.
Unless otherwise agreed upon in writing by Valv-Trol, LLC, prices quoted are F.O.B. Stow, OH. Valv-Trol, LLC shall not be responsible for any storage,transportation, or similar charges incurred at destination.
In the event Valv-Trol, LLC shall be required, as a condition of the manufacture and sale of goods covered, hereby to furnish a performance bond, all bond premiums and expenses in connection therewith shall be paid by the Purchaser in addition to the quoted purchase price.
Overdue invoices shall bear interest at the rate of 1% per month on the unpaid balance from the past due date of the invoice.
Subject to establishment of satisfactory credit, terms are strictly net 30 days after date of invoice payable in U.S. currency or, in the case of overseas shipments, in negotiable instruments which are to be transacted through a mutually acceptable banking establishment. No cash discounts or other discounts for prompt payment are offered unless otherwise agreed upon between the parties in writing prior to order. Valv-Trol, LLC reserves the right to require payment in advance, C.O.D. or guarantee by letter of credit, and to otherwise modify credit terms at its discretion.
Any taxes imposed by federal, state, foreign, or local governmental authority on the sale or use of the goods covered hereby shall be paid to Valv-Trol, LLC by the Purchaser in addition to the quoted purchase price, unless the Purchaser has filed a valid tax exempt certificate with Valv-Trol, LLC
Prices quoted with reflected expiration date are firm for shipment of the goods covered or as shall be agreed upon by the parties in writing. Thereafter, prices are subject to change by Valv-Trol, LLC without notice. Delays in delivery caused by the Purchaser shall subject the prices herein to escalation. Goods held by Valv-Trol, LLC beyond delivery date at the request of the Purchaser will be invoiced on the date of completion and terms of payment will apply as from said invoice date. Goods so delayed or held will be subject to charges for storage and all other expenses incident to such delay or holding.
Valv-Trol, LLC shall attempt to make shipment within the time specified herein. However, the dates for pickup by Purchaser are approximate and estimated and are based on prompt receipt of all necessary data and specifications from the Purchaser. Valv-Trol, LLC, reserves the right to make available for shipment any one or more of the goods covered hereby and to ship from any location it may select.
Valv-Trol, LLC warrants to the original Purchaser that the goods covered hereby manufactured by Valv-Trol, LLC will be free from defects in material or workmanship for a period of one year from the date of shipment from Valv-Trol, LLC under normal use and service. This warranty shall not apply to any goods damaged through improper installation, accident, negligence, abuse, or poor operating practices. This warranty does not apply to replacement parts which are not manufactured or supplied by Valv-Trol, LLC, nor does it apply to defects or damage caused by use of parts not manufactured or supplied by Valv-Trol, LLC or by repairs not performed by Valv-Trol, LLC. If Valv-Trol, LLC determines the goods to be defective in material or workmanship, within the warranty period, the goods may be replaced or repaired at the option of Valv-Trol, LLC at its expense, including authorized transportation, but only if such claims for defects are made in writing to Valv-Trol, LLC within ten (10) days of the discovery within the warranty period stated above. Failure of the Purchaser to make a claim in writing against Valv-Trol, LLC within ten (10) days after any delivery of any of the goods covered hereby shall constitute an irrevocable acceptable of the goods comprising the particular delivery and the Purchaser's acknowledgment that the goods in said delivery meet the agreed specifications. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY VALV-TROL, LLC IN CONNECTION WITH THE GOODS. No employee, distributor, or representative is authorized to change this limited warranty in any way or grant any other warranty on behalf of Valv-Trol, LLC. This limited warranty does not extend to any component parts or individual parts not manufactured by Valv-Trol, LLC; however, Valv-Trol, LLC’s limited warranty herein shall not limit any warranties made by manufacturers of component or individual parts which may extend to Purchaser.
Valv-Trol, LLC shall not be responsible for any damage or injury resulting to or caused by any goods or services for any reason, including without limitation, by reason of installation by Purchaser, improper storage, unauthorized service, alteration of the goods, neglect or abuse or the use of the goodsin a manner inconsistent with its design. Valv-Trol, LLC shall not be liable for any delays or losses caused by Valv-Trol, LLC’s error, unless such delays and losses are caused by willful misconduct of Valv-Trol, LLC. Purchaser acknowledges and agrees that if the Purchaser identifies specific applications for the use of Valv-Trol, LLC’s goods, Valv-Trol, LLC shall not be responsible for any deviations from the applications or nondisclosure of Purchaser of any additional information, including, but not limited to Purchaser’s failure to properly install the goods. If design and specifications are specified by Purchaser, the parties agree that Purchaser is exclusively responsible for design and specification plans. Valv-Trol, LLC shall not be responsible for the correctness or adequacy of any design details, plans, or material not furnished by Valv-Trol, LLC. The parties further agree that Valv-Trol, LLC shall not be responsible for any goods which have been modified or integrated with other goods not designed or selected by Valv-Trol, LLC.
LIMITATION OF LIABILITY
IN NO EVENT SHALL VALV-TROL, LLC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS, EVEN IF VALV-TROL, LLC IS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE LIABILITY OF VALV-TROL, LLC, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND ANY AND ALL DAMAGES IMPOSED UPON VALV-TROL, LLC SHALL IN NO EVENT EXCEED THE PRICE PAID TO VALV-TROL, LLC FOR THE GOODS SUBJECT TO THE CLAIM. FURTHERMORE, IN THE EVENT THAT ANY GOODS SHALL BE MANUFACTURED AND/OR SOLD BY VALV-TROL, LLC TO MEET PURCHASER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS, VALV-TROL, LLC SHALL NOT BE LIABLE FOR ANY FAILURE TO MEET PARTICULAR SPECIFICATIONS OR REQUIREMENTS, OR ANY CLAIM FOR INFRINGEMENT OF ANY PATENT, ARISING FROM THE PURCHASER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS FOR THE GOODS. THE REMEDIES OF PURCHASER SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REMEDIES.
RETURN MATERIAL AUTHORIZATION
If any goods covered hereby manufactured by Valv-Trol, LLC are alleged to be defective under the warranty given in paragraph 10, the Purchaser shall begin the RMA process by obtaining a claim number from Valv-Trol, LLC. Valv-Trol, LLC requires all returned material to follow our outlined RMA Claim procedure for the warranty request to be considered. After receipt of Claim Number submission form, the Purchaser may return the alleged defective item as a complete valve assembly unaltered or disassembled to Valv-Trol, LLC, Stow, OH, transportation charges prepaid by the Purchaser. If found to be defective, Valv-Trol, LLC will, at its option, repair the item or replace it free of all charges, except said transportation charges. The parties hereto agree that the Purchaser's sole and exclusive remedy against Valv-Trol, LLC shall be the repair or replacement as provided above and that Valv-Trol, LLC shall have no other liability, except said repair or replacement, for any damages from any cause whatsoever. This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Valv-Trol, LLC has made or is willing and able to make said repair or replacement. Valv-Trol, LLC neither assumes, nor authorizes any other person to assume for Valv-Trol, LLC any other liability in connection with the goods covered hereby.
Valv-Trol, LLC offers an expedited service. Purchasers who wish to utilize this service will be required to pay an expedite fee charged in addition to their associated order.
All orders are firm and are not subject to cancellation or change in specifications, shipping schedules or other conditions by the Purchaser without the written consent of Valv-Trol, LLC, which will be given only upon the written agreement of the Purchaser to compensate Valv-Trol, LLC for all expenses incident to such cancellation or changes.
There will be a 35% restocking fee on all non-warranty returns with a minimum of $50.00. No returns will be accepted 30 days after invoice date, unless prior written authorization is received.
The Purchaser assumes all risks of and responsibility and liability for all losses, damages, and personal injuries which may be incurred by any of its employees, agents, independent contractors, customers, employees of its customers, or any other persons, caused directly or indirectly, by the goods covered hereby. Purchaser shall indemnify and hold Valv-Trol, LLC, its officers, employees, directors, representatives, shareholders, agents, successors and assigns harmless against any and all losses, claims, damages, judgments, liabilities, or expenses, including, without limitation, reasonable attorney fees and expenses, incurred by Valv-Trol, LLC as a result of or arising out of: (a) Purchaser’s breach of these terms, of any agreement between the parties hereto, or of any obligation to Valv-Trol, LLC; (b) actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright by reason of the use of the goods by Purchaser; (c) actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Purchaser’s action; (d) any act or omission of Purchaser or its agents, employees, representatives or subcontractors; and (e) the goods and the sale or use thereof. Purchaser shall promptly notify Valv-Trol, LLC of any suit filed against it or its Purchasers on account of any such indemnification obligation of Purchaser hereunder, and at Valv-Trol, LLC’s option, Purchaser may assume the sole responsibility for the defense of such action at Purchaser’s sole expense. Valv-Trol, LLC may be represented by their own counsel in any such suit at the expense of Purchaser, however, no settlement shall be entered into on behalf of Valv-Trol, LLC without Valv-Trol, LLC’s prior consent in its sole discretion.
Purchaser hereby acknowledges that certain of the goods will be prototypes designed for the Purchaser to be completed by Valv-Trol, LLC hereunder which are experimental, and only prototypes. As such, Purchaser acknowledges that the specifications provided to Valv-Trol, LLC are unproven, and Valv-Trol, LLC’s performance of services in creating the goods hereunder may or may not be successful. Any such prototype or sample shall be for illustration purposes only, and shall not create an express warranty that any goods will conform to the prototype or sample. Purchaser understands this risk, and agrees that the goods is a prototype, and waives and releases any and all claims against Valv -Trol, LLC for the performance hereunder.
In the event that Purchaser fails to pay any amount due to Valv-Trol, LLC, or otherwise breaches any obligation or covenant contained to Valv-Trol, LLC, Valv-Trol, LLC may, in its discretion, in addition to all other remedies to which Valv-Trol, LLC may be entitled without affecting an election of remedies, cancel or terminate all obligations to Purchaser upon notice to Purchaser, or suspend performance by Valv-Trol, LLC until Purchaser pays for such charges or amounts. Furthermore, in the event of a cancellation or termination by Valv-Trol, LLC, Valv-Trol, LLC shall be entitled to any and all damages under the Uniform Commercial Code, including, without limitation, lost profits, and all other expenses and losses incurred by Valv-Trol, LLC. Furthermore, in the event of a breach or violation by Purchaser of these terms, or any other agreement between the parties hereto, or in the event of any dispute or controversy hereunder, in such event, Purchaser shall pay Valv-Trol, LLC for any and all attorneys’ fees incurred in enforcing the terms hereof, or otherwise resolving any disputes with Purchaser.
The Purchaser acknowledges that Valv-Trol, LLC possesses certain confidential or proprietary information of Valv-Trol, LLC, and of Valv-Trol, LLC’s customers, including, without limitation, designs, data, ideas, drawings, specifications, trade secrets, formula, technical experience, financial data, financial information, and other valuable, confidential and proprietary information, the goods and other products and services of Valv-Trol, LLC, which may be disclosed to Purchaser or for which Purchaser may have access (hereafter “Confidential Information”). At all times thereafter, Purchaser agrees not to disclose to any person, firm, or entity any Confidential Information. Furthermore, Valv-Trol, LLC retains exclusive ownership of all of its Confidential Information, and Purchaser obtains no license or other rights thereto. Valv-Trol, LLC shall also have exclusive rights to any improvements, modifications, or variations of its goods or services, including, without limitation, any and all patent, copyright, trademark, trade name, or other intellectual property rights. Purchaser shall not disassemble or reverse engineer the goods or any Confidential Information. Purchaser hereby agrees that if Purchaser breaches this section, Valv-Trol, LLC shall incur irreparable injury and harm and money damages would be an insufficient remedy, and as such, and in addition to all other remedies, Valv-Trol, LLC shall be entitled to seek injunctive relief restraining Purchaser from further breach of this section.
Any legally invalid provision herein shall be considered severable, and the invalidation of any such provision shall not impair the obligations of the parties to comply with all other unaffected provisions hereof.
The Purchaser shall remain primarily liable for the purchase price. Valv-Trol, LLC shall not be obliged to accept any term or condition of payment which will shift said liability to a third person not a party to the contract of sale, whether or not such third person is the United Sates government, its agents or instrumentalities.
LAWS AND REGULATIONS
Valv-Trol, LLC represents that the goods covered hereby are not manufactured or sold in violation of any known United States federal, state or local law or regulation. Valv-Trol, LLC makes no representati on and assume s no liability regarding laws, regulations, import duties, or taxes of any foreign jurisdiction.
All designs and specifications shown in catalogs are subject to change by Valv-Trol, LLC without notice.
WEIGHTS AND DIMENSIONS
Shipping weights and dimensions given only as close to actual as practicable but are not guaranteed. No claims will be allowed because of any discrepancy between such communicated data and actual weight or dimensions of goods shipped.
SHIPPING AND PACKING
All goods are carefully packed for shipment. Valv-Trol, LLC shall not be liable for any loss,delay or damage after having received "in good order'' receipts from the transportation company. All claims by the Purchaser for loss, delay or damage shall be made directly to the carriers involved in the shipment. Valv-Trol, LLC will render all reasonable assistance to the Purchaser in securing satisfactory adjustment of such claims. Goods will be shipped by the method and via the carrier that Valv-Trol, LLC believes dependable, unless a method or carrier is specifically designated by the Purchaser in writing.
Waiver by Valv-Trol, LLC of a breach of any of the terms and conditions hereof shall not be construed as a waiver of any other breach.
Neither this agreement nor any right or obligation hereunder is assignable by the Purchaser without the prior written consent of Valv-Trol, LLC. If an assignment is approved by Valv-Trol, LLC, this agreement shall be enforceable against the assigns and successors of the Purchaser.
Paragraph headings used herein are for convenience only and are not a part of this agreement and shall not be used in construing it.
APPLICABLE LAW; VENUE
The construction, performance and completion of this agreement shall be governed by the laws of the State of Ohio. To the extent that the provisions hereof may at any time vary from the Uniform Commercial Code of the State of Ohio, the provisions hereof shall govern. In the event that any legal proceeding is commenced or arises, said legal action shall be commenced and filed in Summit County, Ohio, or the federal court with jurisdiction over Summit County, Ohio. Purchaser hereby knowingly and irrevocably waives any objection on the grounds that improper jurisdiction or venue to an action in said courts, and agrees that effective service of process may be made upon Purchaser by mail at the last known address of the Purchaser.
No liability or breach of this agreement shall result from delay in performance or nonperformance occasioned by acts of God or the public enemy, fire, explosion, flood, drought, weather conditions, war, riot, sabotage, accident, embargo, equipment breakdown, or inadequacy, shortage or failure of supply of materials or equipment, fuel, energy, or labor disputes or shortages, or plant shutdown, or inability to obtain material, equipment or transportation, government priority, requisition or allocation, or other action of any governmental authority, pandemic, epidemic, or any circumstances or causes of like or different character beyond the control of Valv-Trol, LLC in the reasonable conduct of its business and Valv-Trol, LLC shall have the right to apportion its production among its customers in such manner as it may consider to be equitable.
ACCEPTANCE AND COMPLETE AGREEMENT
Purchaser's purchase order constitutes an expression of acceptance to Valv-Trol, LLC termsand conditions as set forth herein and Purchase r shall be deemed to have agreed here to.