TERMS & CONDITIONS
The conditions stated below shall constitute a part of the agreement resulting from the acceptance of an order unless expressly accepted in writing on our acknowledgement.
1. Acceptance and Binding: All purchase orders are subject to acceptance at our factory, and Seller shall have no liability until and unless they are so accepted. Sales representatives are not authorized to bind us. Clerical errors are subject to correction. The Seller shall not be bound by any representations which are not expressly set forth in writing.
2. Prices and Taxes - Unless otherwise acknowledged in writing: All prices and quotations are subject to change without notice. Goods will be billed at the prices in effect at the time of shipment. Prices are quoted F.O.B. factory. Taxes of any kind levied against the Seller with reference to this transaction, excepting only taxes imposed upon the net income of Seller, shall be the account of Purchaser and be added to the price quoted.
3. Terms and Credit: Terms of payment shall be as stated on our order acknowledgement. In the event payment is not made promptly when due, Buyer agrees to pay interest at the rate of 1½% per month, or as limited by individual state laws, from the due date. Partial shipments on quantity orders shall be deemed a separate and independent contract for billing and payment. Terms are subject to the continuing review of the Purchaser's credit by the Seller.
4. Attorney's Fees: Purchaser(s) agree(s) to pay to Seller the reasonable costs of collection of any past due amount, including but not limited to Seller's reasonable attorney's fees in the amount of fifteen percent (15%) of the past due amount, and any out of pocket filing and court charges.
5. Returned Checks: Purchaser(s) agree(s) to pay to Seller a handling fee of $20.00 on any returned check.
6. Shipment: Shipping dates are approximate and may be contingent upon the prompt receipt from the Purchaser of drawing and data approval, or written release for procurement and fabrication. Seller shall not be liable for any delay caused by strikes, accidents, delay in receipt of raw materials, or any other cause beyond the Seller's control. If the Seller is prepared to make shipment, and the Purchaser delays delivery, terms of payment shall apply as though delivery had been effected as of that date. All costs associated with handling, care and custody of the material shall be to the account of the Purchaser. The acceptance of the material by the Purchaser shall constitute a waiver of all claims for delay.
7. Cancellation and Changes: Orders shall not be subject to cancellation unless cancellation charges are borne by the Purchaser for all work done by the Seller, and for any other obligations incurred by the Seller in connection with the order. Acceptance of change orders is contingent upon price renegotiation. Scheduling changes requested by the Purchaser are subject to renegotiation of price and terms of payment.
8. Save Harmless: The Purchaser agrees to save the Seller, harmless from any and all liability, and to pay all costs and attorney fees for injury or damage to persons or property caused in any manner by said material while in possession of the Purchaser or the Purchaser's successor in interest.
9. Corrosion, Allowance and Anti-Corrosive Materials: The Seller shall have no responsibility for the determination of any corrosion allowance for anti-corrosive materials of construction in any equipment which it builds or quotes, with no exception. This decision is left to the good judgement, experience in operation and discretion of the Purchaser. Seller shall not be liable for loss or damage resulting from any failure to provide corrosion allowance or anti-corrosive materials.
10. Installation, Initial Operation and Service: All material shall be installed by and at the expense of the Purchaser. Should the Purchaser request the services of the Seller, such service shall be rendered and charged at the established rate at the time of performing said service, plus all other expenses including travel, hotel bills and living expenses. All such field services shall be considered advisory and Seller's personnel shall endeavor to guard against deficiencies in the work and erection techniques but Seller does not guarantee the performance of Purchaser's field labor and is not liable for quality or timeliness of performance or damages arising out of such performance or delays encountered.
11. Warranty: The equipment and/or services will be warranted against defects in materials and workmanship for a period of one year after delivery to Buyer in accordance with the following statement of warranty. Seller warrants that the equipment and/or services to be delivered will be of the kind and quality described in the agreement and will be free from defects in workmanship and material. If any failure to conform to this warranty appears within one year after the date of delivery, the Seller will upon notification thereof, if the equipment has been stored, installed, maintained, and operated in accordance with the Seller's recommendations and standard industry practice, correct such failure by suitable repair or replacement of materials, at its election, and the Purchaser shall incur costs for reinstallation. Seller shall not be responsible for damage caused by defective material nor for any corrective action initiated by the Purchaser without Seller's written authorization. Finish materials and accessories purchased from other manufacturers are warranted only to the extent of the original manufacturer's warranty. Seller does not make and shall not be responsible for any expressed or implied warranties and, as to Seller, Purchaser(s) purchase(s) the goods and equipment in its "as is" condition. No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the goods and equipment sold under this written Terms of Sale and, unless as affirmation, representation, or warranty made by an agent, employee, or representative of Seller is specifically included within this written Terms of Sale, it shall not be relied upon, or enforceable, against Seller by Purchaser(s). It is agreed that NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS MADE BY SELLER, AND ANY SUCH WARRANTY HEREBY EXPRESSLY IS EXCLUDED BY THE PARTIES FROM THIS TERMS OF SALE. Except as otherwise agreed to by the Seller in writing, THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY WARRANTY OF MERCHANT-ABILITY FITNESS FOR PURPOSE OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESSED OR IMPLIED.
12. Limitation of Remedies: In the event of any breach of warranty, the exclusive remedy of the Buyer shall be the correction of nonconformities in the manner and for the period of time as provided for in the "WARRANTY" section above.
13. Limitation of Liability - Except as otherwise agreed to by the Seller in writing: (a) The liability of the Seller with respect to this agreement or anything done in connection herewith such as the performance of breach of this agreement, or in connection with the manufacture, sale, delivery, installation or technical direction of installation, repair or use of any equipment or services covered by or furnished under this agreement, whether such liability is based upon contract, tort, negligence, "strict liability", or other basis, shall not exceed the price of the equipment or part as to which such liability is asserted. (b) The Seller shall not be liable for special, incidental, or consequential damages, such as (but not limited to) damage or loss of other property or equipment, loss of profits or revenue, loss of use of other property or equipment, or claims of customers of the Buyer for interruptions in the Buyer's operations. (c) Seller shall not be liable for damages resulting from any inadequacy in Purchaser's specifications relating to design conditions such as (but not limited to) air volume, temperature, gas chemistry, dust loading, and particle size, unless the Seller has agreed in writing to review such specifications and to approve them as being suitable for Purchaser's intended use, or fit for a particular purpose, as specified in such writing, and even where the Seller has made such an agreement, its liability under that agreement shall not exceed the price of the equipment or parts described in those specifications, unless the Seller has agreed otherwise in such writing. This limitation of liability is independent of any warranty provisions in the agreement, and will apply regardless of what remedy or remedies the Buyer may be held entitled to pursue.
14. Explosion Atmosphere and Pressure Relief Designs and Devices - Limited Warranty: Explosions and other excess pressure conditions within equipment are not predictable as to timing, intensity, total energy capacity, location, rate or rise, and the like. In addition, they are frequently a function of a process or operation totally dependent upon he user. We affirm our best knowledge as being applied to any normal or any special requirement for safety venting protection of equipment to be supplied. Our designs and/or devices are totally subject to the approval and acceptance of the Purchaser. Therefore, we make NO GUARANTEE OR WARRANTY, EXPRESSED OR IMPLIED, as to the degree of protection such designs and devices will provide. Our warranty, limitation of remedy and limitation of liability are set forth in paragraphs 9, 10, and 11 above.
15. Explosion and/or Fire Hazard: Explosion and/or fire hazard may be present with any type of dust. The potential of either is dependent on the type of dust, its concentration, method of dust storage, and the potential for an ignition source to be present. The determination of the eed for and supply of auxiliary equipment for the venting of explosions or the sensing and suppression of fire are the total responsibility of the owner/user. DUSTEX makes no guarantee, expressed or implied, that its equipment will not be subject to fire or explosion damage and accepts no liability for direct or indirect consequences of such events.
16. Waiver: Waiver of any provisions of this Terms of Sale by any party hereto shall constitute a waiver of that provision on that occasion only, and it shall not constitute a waiver of any other provisions herein with respect to any other occasion or party.
17. Severability: Should any provision of this Terms of Sale be declared to be invalid for any reason or have ceased to be binding upon the parties hereto, such provision shall be severed, and all other provisions shall continue to be effective and binding.
18. Entire Agreement: This Terms of Sale contains the entire agreement of the parties, and there are no representations, inducements, or provisions other than those expressed herein in writing. All changes, additions, or deletions hereto must be in writing signed by all of the parties. This Terms of Sale is the joint undertaking of the parties hereto and results from their common enterprise and negotiations.
19. Conflict of Laws: Law of the Agreement: Jurisdiction: The Purchase Order has been accepted by Seller, and this Terms of Sale is deemed to have been executed in, Mecklenburg County, North Carolina, and shall be construed, interpreted, and enforced pursuant to and under the laws of the State of North Carolina. Purchaser is a _____ corporation. This Terms of Sale has been accepted in the State of North Carolina, and it will be governed by and construed in accordance with the laws of the State of North Carolina. In light of the possible conflict of state laws which might apply to this Terms of Sale, the parties knowingly and intentionally intend to, and do, adopt the laws of the State of North Carolina to govern the validity, construction, effectiveness, and performance of their obligations under this Terms of Sale, including the contractual rights and obligations of the parties hereunder, and all third parties in every respect. The parties request that full faith and credit be given to the law of the State of North Carolina, in connection with any construction, interpretation, and enforcement of this Terms of Sale. Furthermore, the parties agree to accept service of process and to litigate any dispute between or among them arising out of or connected with this Terms of Sale, or Seller in any other respect, in the District or Superior Court Division of the General Court of Justice of the State of North Carolina, in Mecklenburg County, North Carolina, submitting to the jurisdiction of such court, and they waive any right to object to or contest service of process or such jurisdiction and to litigate elsewhere, as well as any right to a trial by jury.
20. Subsequent use of Dustex Corporation design drawings and/or information for the purpose of building air pollution control equipment is expressly prohibited without the written authorization by, and payment to, Dustex Corporation.