APPLICABILITY AND ACCEPTANCE. These General Terms and Conditions of Sale (“Terms”) are the only terms which govern the sale of products (“Products”) by Zspec Flow Control, Inc. (“Seller”) to a Buyer (“Buyer”). No other action by Seller (including fulfillment of Buyer’s order) shall be construed as acceptance of any other terms or conditions. Buyer shall be deemed to have incorporated these terms and conditions when Buyer offers to buy the Products by issuing a purchase order. Any terms, conditions, or writing within such a purchase order shall be for Buyer’s internal purposes only, and the terms, conditions, or writing contained therein shall have no force or effect against Seller. These Terms may be waived only if Seller and Buyer agree in accordance with the Paragraph 10.
PRICE. All prices and applicable discounts are subject to change without notice. However, Buyer’s order for the Products shall be invoiced at the prices indicated in the purchase order. TAXES AND DUTIES. Buyer shall be responsible for payment of any applicable taxes or duties that may be levied by relevant government authorities, and if payable or paid by Seller, then added to the price.
PAYMENT. Unless otherwise agreed, payments are due net thirty (30) days from the date of invoice. LATE PAYMENTS. Late payments shall bear interest from the due date of payment at a monthly rate equal to two percent (2%). In the event Buyer is late on payments or Seller has reasonable cause to believe Buyer is unable to pay, Seller may (a) stop all actions under this Agreement until Seller receives either payment or satisfactory assurances of payment; (b) demand prepayment for purchase orders; or (c) delay shipments. NO SET-OFF. Buyer shall not withhold or delay payment of any amounts due and payable by reason of set-off of any claim, counterclaim, abatement, delay of customer payment, or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
DELIVERY. Products will be delivered on F.O.B. Destination unless specified otherwise by Buyer’s purchase order and subsequent Seller’s acceptance of the delivery term. NO DAMAGES FOR DELAY. In no event shall Buyer be entitled to monetary damage claim for any delay unless otherwise expressly agreed to in writing by Seller and Buyer. Buyer hereby waives and releases Seller from any claim for loss, cost, expense, or damages arising out of any delays.
TITLE AND RISK OF LOSS. Title and Risk of Loss shall pass when the Products are delivered. Seller shall retain a security interest in the products and their proceeds until paid in full. INSURANCE. Buyer agrees to maintain appropriate insurance coverage to cover its risks under this Agreement.
INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS. Buyer shall inspect the Products within ten (10) days of receipt to the “ship to” location (“Inspection Period”). If Products do not materially comply with the Purchase Order’s requirements, Buyer may reject the nonconforming products at any time during the Inspection Period. Failure to reject nonconforming products within the Inspection Period in accordance as Paragraph 7 below will be deemed acceptance.
NON-CONFORMING PRODUCTS. In the event Buyer finds any nonconforming Products, Buyer shall send written notice to Seller no later than the last day of the Inspection Period. Seller shall, in its sole discretion: (a) replace the non-conforming Products with conforming Products without additional expense to Buyer, or (b) credit or refund the price for the non-conforming Products together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the non-conforming Products to Seller or such other place Seller shall designate. Seller shall credit Buyers’ expenses for shipment once Seller confirms the non-conformance.
WARRANTY. Seller warrants to Buyer that for a period ending as of the earlier of twelve (12) months from the installation date or eighteen (18) months from the shipment date (as applicable, the ‘Warranty Period”), Products sold by Seller will be free from defects in materials and workmanship when used for the purposes for which they were designed and manufactured. No other express warranty is given, and no affirmation of Seller, by words or action, shall constitute a warranty. LIMITED WARRANTY. Seller does not warrant the Products: (i) against chemical or stress corrosion; (ii) against any other failure other than from defects in materials or workmanship; (iii) from any defective third-party products contained in, incorporated into, attached to or packaged together with the Products; (iv) any defect when the Product is altered, modified, or repaired without Seller’s prior written approval; and (v) any defect caused by Buyer’s failure to follow Seller’s oral or written instructions as to storage, installation, commissioning, use or maintenance of the Products. Further, Seller shall not be liable for a breach of the warranty if Buyer makes any further use of such Products after giving notice described in Paragraph 9 below. DISCLAIMER OF IMPLIED WARRANTY. SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
WARRANTY CLAIM. Seller shall not be liable for a breach of the warranty set forth herein unless: (i) Buyer gives written notice to Seller of the defect during the Warranty Period and, in any event, within fourteen (14) days of the time when Buyer discovers or should have reasonably discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Products, and Buyer (if requested to do so by Seller) returns such Products to Seller or such other place Seller shall designate for the examination to take place; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective. Buyer shall return (freight prepaid) the defective Product to Seller or such other place that Seller shall designate no later than ninety (90) days from Buyer’s initial written notice of defect to Seller. Upon Seller’s confirmation of Products in breach of the warranty provided herein, Seller shall credit Buyer’s expense for shipment against Buyer’s payment obligations to Seller and, if Seller exercises its option to replace such defective Products, Seller shall ship to Buyer the replaced Products and the terms set herein shall apply for such replaced Products, except that Seller shall be responsible for the shipment’s costs and expenses. Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller. If Seller determines Buyer’s claim is not covered by this Warranty, Buyer shall bear all costs associated with Seller’s service and shall indemnify Seller for any verified cost, loss, claims, and expenses Seller incurs as a result of, arising out of, or incurred in connection with the service call. EXCLUSIVE REMEDY. THE REMEDIES SET HEREIN SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE AND ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY. SELLER MAKES NO REPRESENTATIONS AND NO OTHER WARRANTIES OR CONDITIONS ON THE PERFORMANCE OF THE WORK, THE PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR WHETHER IN ANY OTHER PROVISION OF THIS AGREEMENT OR OTHER COMMUNICATION WITH BUYER.
WAIVER. No waiver by Seller of any of the provisions of these Terms or the Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise or delay in exercising any rights, remedy, power or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
RELATIONSHIP OF THE PARTIES. The legal relationship between the parties shall be that of buyer and seller, i.e., independent contractors, and shall not be understood so that either party is deemed a partner or an agent of the other party, nor will it confer upon either party the right or power to bind the other party in any contract or to the performance of any obligations as to any third party. These Terms and the Agreement are for the sole benefit of the Seller and Buyer and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. CONFIDENTIALITY. Except as required by law or as necessary to carry out this Agreement, Buyer shall not disclose to any person any business financial, or commercial information, including pricing, technical data, and information, with respect to this Agreement.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to its principles of conflicts of law. DISPUTES AND STATUTE OF LIMITATION. Disputes that may arise between the parties relating to this Agreement shall be referred exclusively to the courts of competent jurisdiction in Harris County, Texas. No action under this agreement may be brought more than two (2) years after it accrues.
SURVIVAL The provisions of these Terms and Conditions, which by nature are intended to survive termination, cancellation, completion or expiration of the Agreement (No Set-Off, No Damages for Delay; Warranty, Limitation of Liability, Intellectual Property Rights; Governing Law, Disputes; Severability) shall continue as valid and enforceable obligations of the parties, notwithstanding any such termination, cancellation, completion or expiration.
SEVERABILITY. If any term is invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, the term will be deemed reformed or deleted as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of these Terms and Conditions will remain in full force and effect.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY BUYER. MOREOVER SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO A BREACH OF THESE TERMS, WHETHER OR NOT BUYER DISCLOSED THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, OR SELLER COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. MOREOVER, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY PRODUCT EXCEED THE TOTAL OF THE AMOUNTS PAID UNDER THE APPLICABLE PURCHASE ORDER.
CLERICAL ERRORS AND PUBLISHED DATA. Stenographic and clerical errors or omissions may be corrected at any time. Seller is not liable for misinterpreted specifications after making a bona-fide effort. Buyer shall verify products and materials quoted conform to any applicable specifications and/or quantities. All published dimensions, weights, temperatures, pressure ratings, and other data are approximate.
PRECEDENCE. In the event of any inconsistent provisions in this Agreement, these Terms shall take precedence, followed by the quotation’s terms, any Sellers’s acceptance letter, and then by the purchase orders terms.