Terms of Sale
TERMS AND CONDITIONS OF SALE
1. Acceptance of Orders/Terms: All orders are subject to acceptance by Liquidyne Process Technologies Inc. Liquidyne reserves the right to reject any order. Possession of a price list does not constitute an offer to sell. Acceptance of any order by Liquidyne is expressly conditioned on Customer’s assent to the terms and conditions set forth herein (“Terms”) and the waiver by Customer of any terms and conditions contained in any order form, confirmation, or any other communication of Customer whether previously or hereafter delivered to Liquidyne, which either add to, differ from, modify, conflict with or are otherwise inconsistent with any term or condition herein. Liquidyne hereby gives notice of its objection to any additional or different terms or conditions in any such order form, confirmation or communication. Customer’s failure to object in writing to these Terms prior to the earlier of customer’s acceptance of the products ordered or fifteen (15) days after delivery thereof to Customer will constitute agreement by Customer to these terms. 2. Product Changes: Liquidyne reserves the right to discontinue the manufacture or sale of any product at any time or to alter, modify or redesign its products. 3. Prices: All prices are subject to change without notice. Should any governmental action or request prevent Liquidyne from implementing any price or continuing any price already in effect, Liquidyne may at its option cancel Customer’s order or any part thereof. 4. Taxes/Duties: All federal, state or local sales, use or other taxes, and all duties, import fees or other assessments imposed on materials sold hereunder, or on the manufacture, sale or delivery thereof, shall be for Customer’s account. 5. Credit Approval: Customer credit approval is required prior to any shipment. If Liquidyne determines at any time that Customer’s financial condition does not justify the extension of credit to Customer, then Liquidyne may at its option require cash payments in advance of other satisfactory security prior to delivery. If payment is made by credit card, a 3% transaction fee will be applied. 6. Cancellation/Change Orders: Orders for standard products may only be revised or canceled by Customer prior to the date of loading at the place of shipment, and only with Liquidyne’s prior consent. Orders for nonstandard or custom products may only be revised or canceled by Customer prior to the commencement of production and only with Liquidyne’s prior consent. Any product which Liquidyne has the capability of producing but does not have in inventory or does not have the capability of producing is considered a nonstandard or custom product. 7. Packaging/Shipping/risk of Loss: Unless otherwise agreed by Liquidyne in writing (i) Liquidyne shall select the method of shipment, (ii) Liquidyne shall ship materials FOB (Liquidyne’s point of shipment) and (iii) costs for special packaging and/or handling requested by Customer shall be the responsibility of Customer. In the event of any general freight increase or any governmental ruling or regulation that results in increased freight costs, such additional costs shall be for Customer’s account. Title to, and the risk of loss, damage or shortage of, such materials shall pass to Customer upon delivery to the carrier regardless of notice to Customer. Liquidyne assumes no responsibility for insuring shipments unless specifically agreed to in writing by Liquidyne in which case the cost of insurance shall be for Customer’s account. 8. Delivery: Quoted shipping and/or delivery dates are based on estimates at the time of quotation. Liquidyne shall use reasonable commercial efforts to meet such shipping and/or delivery dates, but Liquidyne shall not be liable for any direct or indirect costs or damages, including without limitation incidental or consequential damages, resulting from late deliveries. For orders with indefinite delivery dates, Liquidyne shall have the right to manufacture or procure the materials covered thereby and hold such materials for Customer’s account pending receipt of definite shipping instructions. Except as expressly provided otherwise herein. Customer agrees to purchase and pay for all material ordered. 9. Claims for Loss, Damage or Shortage: Upon delivery, shipments must be inspected by Customer for damage loss or shortage prior to acceptance from the carrier. If damage, loss or shortage exists with respect to any shipment and it is not concealed, Customer shall secure a notation of such damage, loss or shortage from the carrier on the freight bill or delivery receipt. If damage, loss or shortage is concealed, Customer must notify the carrier within 15 days, hold the merchandise for its inspection and secure a signed report from the carrier acknowledging the damage, loss or shortage. No claims for damage, loss or shortage will be allowed unless they are accompanied by an inspection report or signed delivery receipt noting such damage, loss or shortage signed by a representative of the carrier and forwarded to Liquidyne within 30 days of the invoice date. Any claims for damage, loss or shortage should also be filed by Customer with the carrier in writing immediately upon receipt of the materials. In no event shall Liquidyne be liable for damage or loss to a shipment caused by a carrier. 10. Payment: All invoices, whether partial or in full, shall be due and payable in full by Customer net 30 days from the date of shipment unless otherwise agreed to in writing by Liquidyne. If Customer (i) becomes insolvent, files or has filed against it a petition in bankruptcy, makes any assignment for the benefit of creditors, or has a receiver or trustee appointed for it or its property, (ii) takes action to liquidate or otherwise cease doing business as a going concern, (iii) undergoes a change in ownership, (iv) fails to provide adequate assurance or security for credit extended, or (v) takes any other action that Liquidyne determines in its sole discretion aversely impacts the conditions under which credit was extended, then all amounts outstanding from Customer hereunder shall at Liquidyne’s option become immediately due and payable. All payments, whether under the standard payment terms or otherwise, shall be considered received by liquidyne’s designated payment location. Customer shall pay all undisputed invoices regardless of any dispute that may exist as to other delivered or undelivered goods. With respect to any disputed invoice, Customer shall pay all amounts not in dispute. 11. Returned Materials: Material may only be returned with the prior approval of Liquidyne. Material returned without such approval will not be accepted and such approval may be conditioned upon customer paying a restocking charge, of up to 50%, and freight costs of returned material. All returned materials must arrive at the point of return designated by Liquidyne in salable condition, as determined by Liquidyne before any credit will be issued. 12. Warranty/Limitation of Liability: Except for products for which Liquidyne has established a specific written warranty, the goods delivered hereunder are sold by Liquidyne without any guaranty and/or warranty, oral or written whether or not such goods remain in the form in which they are originally delivered to customer or are fabricated by customer or any other party to produce a finished product). The warranty provided by Liquidyne gives customer specific legal rights, and customer may also have other rights which vary from jurisdiction to jurisdiction. 13. Remedies for Non-Warranty Claims: The sole and exclusive remedy of customer and the sole and exclusive obligation of Liquidyne for any breach of contract claim that materials delivered do not otherwise conform to the accepted order shall be either the return of consideration paid by customer to Liquidyne related to the breach, or upon Liquidyne’s election. The delivery of conforming products to customer, with respect to Liquidyne’s noncompliance with any other obligation of exclusive obligation of Liquidyne will be as Liquidyne in its discretion will determine as follows: (1) Liquidyne may elect to cure such noncompliance within a reasonable period of time, or (2) if Liquidyne fails to cure such noncompliance, customer may recover an equitable amount not to exceed such charges as were previously paid to Liquidyne by customer hereunder. Customer waives all other remedies, statutory or otherwise, including, without limitation, the remedies of specific performance. Any action brought by customer in connection with Liquidyne’s performance hereunder must be commenced within six (6) months after such cause of action accrues or it will be deemed waived. Liquidyne’s liability to customer, regardless of whether such liability arises in contract, tort (including, without limitation, negligence or strict liability) or otherwise, shall in no event exceed amounts paid by customer to Liquidyne for the products involved and customer releases Liquidyne from all claims and liabilities in excess of this limitation. In no event shall Liquidyne be responsible for consequential, incidental, indirect or special damages of any kind. 14. Excused Performance: Liquidyne shall not be liable for nor be deemed to be in default of these Terms on account of any failure to perform its obligations or attempt to cure any breach thereof if Liquidyne has been delayed or prevented from doing so by any cause or condition beyond Liquidyne’s reasonable control. If Liquidyne determines that its ability to supply the total demand for the products, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the products, is hindered, limited or made impracticable, Liquidyne may allocate its available supply of the products or such material (without obligation to require other supplies of any such products or material) among itself and its customers as Liquidyne determines in its sole discretion without liability for any failure of performance which may result therefrom. Delivery suspended or not made by reason of this action shall be canceled without liability, but these Terms shall otherwise remain unaffected. 15. Fair Labor Standards Act: Liquidyne hereby certifies that the materials sold hereunder that were produced in the United Stated were produced in compliance with all applicable requirements of Section 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof. 16. Change In Terms and Conditions of Sale: The terms and conditions contained herein constitute the entire agreement between Liquidyne and Customer and supersede any and all prior representations, agreements or understandings, whether oral or written, relative to the materials delivered hereunder. No modification of these terms and conditions shall be effective unless made in writing and executed by Liquidyne. 17. General: This agreement shall not be assigned by Customer without the prior written consent of Liquidyne, and any assignment made without such consent shall be null and void. This agreement shall inure to the benefit of and are binding upon the parties hereto and their respective successors and permitted assigns. This agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to its conflicts of law provisions. The courts located in Colorado shall have exclusive jurisdiction of all matters relating to or arising out of any sale of materials by Liquidyne to Customer hereby consents to the jurisdiction of such courts.