Chester Valve Corporation Standard Terms & Conditions of Sale
The terms and conditions of sale (the “Terms”) contained herein apply to all quotations made and purchase orders received by Chester Valve Corporation (“Seller”) and are the exclusive binding agreement between the parties regarding the products sold by Seller (“Products”). THE ACCEPTANCE OF ANY OR ALL OF THE BUYER’S (“BUYER”) PURCHASE ORDERS IS CONDITIONAL UPON BUYER’S ASSENT TO THESE TERMS IN LIEU OF THE TERMS CONTAINED IN BUYER’S PURCHASE ORDER. Seller hereby rejects all provisions contained in communications from Buyer that conflict with or are inconsistent with the terms contained herein. Seller’s failure to object to any of the provisions contained in Buyer’s documentation shall not be deemed a waiver of these provisions.
- Prices/Taxes. Unless otherwise specified in Seller’s quotation, quoted terms are not binding until a purchase order is accepted or acknowledged in writing by Seller and Buyer will be billed at the prices stated at the time of order acceptance. All prices are subject to adjustment on account of specifications, quantities, shipment arrangements or other terms and conditions, which are not part of the original price quotation. If the prices are based on the purchase of a particular quantity of goods and Buyer fails to purchase that quantity which would justify the pricing granted, Seller shall have the right, in addition to any other remedies at law or equity, to recover from Buyer the difference between the stated price and Seller’s standard prices for such goods in the quantity actually purchased by Buyer. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all such applicable duties and taxes (exclusive of taxes on Seller’s income). If exemption from such taxes is claimed, Buyer must provide a certificate of exemption at the time the Purchase Order is submitted to Seller, and Buyer agrees to indemnify Seller for any unpaid taxes in the event such exemption is not applicable.
- Terms of Payment. The terms of payment are cash upon delivery (C.O.D) or Letter of Credit, except where credit terms have been previously approved by Seller, in which case terms of payment are as provided by Seller in writing, or if not provided by Seller in writing, net thirty (30) days from the date of Seller’s invoice. Seller reserves the right to modify credit terms. Any late payments are subject to a finance charge of the lesser of 2% per month (24% per annum) or the maximum amount allowed by law. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. Buyer agrees to accept partial shipments in satisfaction of a single Purchase Order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. If Seller accepts partial payment in an amount less than the full amount of any invoice, such acceptance shall neither constitute a waiver of Seller’s right to collect the balance nor an accord and satisfaction, notwithstanding Seller’s endorsement of a check or other instrument. In the event of Buyer’s bankruptcy or insolvency, Seller shall be entitled to cancel any order then outstanding without waiving any claims in law or equity. If Buyer fails to comply with these payment terms, Seller reserves the right to withdraw credit, suspend or cancel performance under any or all Purchase Orders or agreements and all Buyer’s obligations to Seller shall become immediately due and payable. Buyer shall have no right to withhold any amount due Seller under these Terms because of a claim Buyer may have against Seller.
- Title and Delivery; Inspection. (a) All shipping dates are approximate and are based upon Seller’s prompt receipt of all necessary information from Buyer to properly process an order. Shipment shall be EXW (Incoterms 2010) Seller’s location and the manner of shipment shall be at Seller’s option, unless specified by Buyer at the time of order acceptance. Buyer shall be responsible for all shipping charges, including but not limited to shipping, transportation, duties and insurance costs. All claims for loss or damage during shipment must be filed by Buyer with the carrier. The sale of any of Seller’s products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property license whatsoever, except as may be granted by the Seller in the materials which accompany the Products upon delivery. Seller expressly reserves its rights under any such claim, and asserts that additional restrictions may apply to the use of the Products, as set forth in the in the materials which accompany the Products. It is the responsibility of Buyer to arrange for and obtain insurance coverage for the Products, if so desired.
(b) Buyer shall inspect the Products upon delivery and shall notify Seller within ten (10) days of Buyer’s receipt of any damage or defective Products or under-shipment by Seller. If Buyer timely notifies Seller of any nonconforming Products during the aforementioned inspection period, Seller shall, in its sole discretion, (i) replace such nonconforming Products with conforming Products, or (ii) credit or refund the Price for such nonconforming 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 nonconforming Products to Seller’s requested facility. Upon Seller’s confirmation of the nonconforming nature of the nonconforming Products, Seller shall credit the Buyer’s expense for such shipment against the Buyer’s payment obligations to Seller.
- Warranty/Disclaimers/Warnings. (a) Seller warrants that the Products are, at the time of shipment by Seller, free from defects in material and workmanship and conform to the specifications listed on the applicable order. If no specifications are listed, the Products are warranted to conform to Seller’s currently published specifications, which specifications may be changed from time to time without notice. The warranty period is one year from the date of shipment to the Buyer. If the warranty period has expired, Seller shall not be liable for any damages of any kind whatsoever. The terms of this warranty do not apply to any specification required by Buyer and no warranty is given for Products or components which have been subject to misuse, neglect, improper installation, corrosion, damage by accident or which have been disassembled, modified or repaired other than by Seller. Deviations from published specifications which do not materially affect performance of the Products covered hereby shall not be deemed to constitute defects of material or workmanship or a failure of the Products to comply with such specifications. The warranties contained herein shall extend only to Buyer and shall not apply to Buyer’s affiliates or customers.
(b) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN SELLER’S QUOTATION, SELLER’S PRODUCTS ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR AVIATION APPLICATIONS. Buyer (i) accepts the Products in accordance with the restriction set forth in the immediately preceding sentence, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from use of the Products in any nuclear, aviation or medical applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
(c) WARNING; HEALTH AND SAFETY. The Products are mechanical devices that will eventually become inoperable, unsafe, or not function properly, due to normal wear and tear, corrosion, aging and deterioration of materials and components. Many factors such as Product use and handling, environmental conditions, and maintenance will determine the safe service life of the Products. Regular inspection, maintenance and repair are essential to the avoid serious injury and property damage. With respect to Products which are used in connection with toxic, flammable or dangerous liquids and gases or other hazardous substances, such substances must be handled by experienced and trained personnel only, using accepted governmental and industrial safety procedures. Buyer shall ensure that: (i) the Products are suitable and safe for Buyer’s and subsequent purchasers’ and users’ intended use; (ii) the Products are handled in a safe manner, (iii) containers, packaging, labelling, equipment and vehicles provided by Buyer comply with all applicable safety regulations and (iv) all required or appropriate warnings are included with products, systems or applications into which the Products are incorporated. Buyer (x) accepts the Products subject to the requirements and warnings set forth in this subsection (c), (y) agrees to communicate such warnings in writing to any and all subsequent purchasers or users and (z) agrees to defend, indemnify and hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, caused by Buyer’s or subsequent purchasers’ and users’ equipment, products, systems or handling of hazardous substances.
(d) SELLER’S LIABILITY SHALL BE LIMITED SOLELY TO, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF, OR APPROPRIATE CREDIT OR REFUND FOR THE PRICE OF, THE PRODUCT UNDER THE WARRANTY CLAUSE HEREIN IF THE APPLICABLE WARRANTY PERIOD DESCRIBED HAS NOT EXPIRED. BUYER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS CONTAINED IN THIS WARRANTY CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO IT WITH REGARD TO THE PRODUCTS. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION, SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM OR TRADE AND INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER.
- Limitation of Liability. SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. THE REMEDIES OF BUYER SET FORTH IN THESE TERMS ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXCEED THE PRICE TO BUYER OF THE SPECIFIC PRODUCTS PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE INCLUDING, WITHOUT LIMITATION, COSTS TO PURCHASE SUBSTITUTE PRODUCTS, STOPPAGE OF WORK OR IMPAIRMENT OF ASSETS OR LOST PROFITS.
- Rescheduling/Cancellation. Orders received and accepted by Seller may not be changed or cancelled except on terms satisfactory to Seller and which prevent Seller from incurring any loss. Seller will not accept changes or cancellations of Products, whether standard, non-standard or special, without full reimbursement of all related expenses incurred to date. Buyer must request all cancellations and change orders in writing, and must be signed by an authorized representative of Seller to be effective. Seller reserves the right to cancel any orders placed by Buyer, or to refuse or delay shipment thereof, if Buyer: (a) fails to make any payment as provided in these Terms or under the terms of payment set forth in any invoice or otherwise agreed to by Seller and Buyer, (b) fails to meet reasonable credit or financial requirements established by Seller, including any limitations on allowable credit, or (c) otherwise fails to comply with these Terms. Buyer may not cancel for Seller’s default unless Buyer has provided Seller with thirty (30) days written notice alleging such breach and such breach has not been remedied by Seller within such time period.
- Any Product return shall be returned to Seller ONLY upon assignment of a Return Merchandise Authorization (RMA) Number by Seller. Any Product returned to Seller without a RMA Number will be refused and returned to Buyer at Buyer’s expense. Returns will not be accepted by Seller for any reason other than for: (i) verifiable Product defects or damage occurring within the warranty period, or (ii) mishandled shipments directly caused by Seller. Return requests involving mishandled shipments must be brought to Seller’s attention within five (5) days of original ship date. Seller reserves the right to reject any request regarding mishandled shipments submitted more than five (5) days after the original ship date.
- Intellectual Property Rights. All copyrights, patents, trademarks, trade secrets, know-how and other intellectual property or proprietary rights pursuant to the laws of any jurisdiction worldwide (“IP Rights”) associated with or relating to the Products shall belong solely and exclusively to Seller. Seller will retain all IP Rights used to create, embodied in, used in and otherwise relating to the Products and any of their component parts, and Buyer shall not acquire any ownership interest in any of Seller’s IP Rights. No license, either express or implied, is granted in any IP Rights of Seller. Buyer shall not reverse engineer, decompile disassemble or otherwise attempt to derive Seller’s proprietary or confidential information or know how. If Buyer acquires any IP Rights in or relating to any Product by operation of law or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller without further action. Buyer shall, at Seller’s expense, execute such documents and do such things as are necessary to enable Seller to protect its IP Rights.
- Infringement Indemnification. Subject to the limitations set forth herein, Seller shall defend any suits brought against Buyer based on a claim that use of the Products manufactured by Seller constitute an infringement of a valid patent of the United States, and shall pay any damages awarded therein against Buyer, provided that: Buyer promptly notifies Seller in writing of the filing of such suit or the threat thereof; the claim is made within three (3) years from the date of delivery of the Product; Buyer permits Seller to control completely the defense or compromise of such claim of infringement; and Buyer provides all reasonable assistance and cooperation requested by Seller for the defense of such suit. Buyer agrees that Seller shall not be liable for infringement, and that Buyer shall fully indemnify Seller therefore, if the infringement claim is based upon (i) the use of Products in connection with goods not manufactured by Seller or in a manner for which the Products were not designed by the Seller; (ii) Buyer’s design of, or required specifications for, the Products; (iii) use (either by Buyer or its customers) in a manner to cause the Products to become infringing.
- Security Agreement. Buyer hereby grants to Seller, its successors and assigns, a security interest in the Products to secure payment of the purchase price of the Products. Default in payment of such price or any part of the price when due shall permit Seller, in its sole discretion, to declare all obligations of Buyer immediately due and payable, and in such event, Seller shall have all the rights and remedies of a secured party under applicable law. In connection with the security interest granted herein, Seller is expressly authorized, at its discretion, to file one or more financing statements or other notices under applicable law naming Buyer as debtor and Seller as secured party. Buyer agrees to execute such documents requested by Seller to record and otherwise perfect this security interest.
- Trade Control Laws. Buyer understands that exports and re-exports of the Products and any related part, component, technical data, service, or technical assistance (individually, an “Item” and, collectively, the “Items”) may be subject to U.S. and other applicable export, import, customs, antiboycott and economic sanctions laws, regulations, rules and orders (collectively, “Trade Control Laws”). Buyer and its customers shall not export, re-export or otherwise transfer or provide any Item, or any product incorporating the Item, in contravention of any Trade Control Law, including to Iran, Syria, Sudan, North Korea, Cuba, or Crimea or to any other embargoed destination, to anyone listed on any prohibited persons list published by the U.S. Departments of Commerce, Treasury, or State (a “Prohibited Party”), or for a prohibited end-use (such as research on or development of chemical, biological, or nuclear weapons, unmanned air vehicles or missiles; or nuclear explosive or fuel cycle activities or unsafeguarded nuclear activity). The Products and Items may only be used for non-military, peaceful purposes, unless otherwise specifically agreed to in writing by Seller. By submitting an order for Products to Seller, Buyer certifies that it is not a Prohibited Party and that it is not owned, directly or indirectly (50% or more) by one or more Prohibited Parties, or located in, under the control of, or a national or resident of any embargoed country. In addition to any other remedy it may have, Seller may suspend and/or cancel the export, delivery, installation, and/or any maintenance or repair service of any Product or Item if (a) Seller has not received all export-related documentation requested by Seller, (b) Seller has not received the governmental approvals that Seller deems to be required, or (c) Seller believes that such activity may violate any Trade Control Laws or Seller’s own compliance policies. Seller will not be liable to Buyer for any loss or expense if Buyer fails to comply with any Trade Control Law or with the provisions set forth herein. Buyer shall indemnify Seller for all losses, costs, claims, damages and expenses (including attorneys’ fees and expenses) arising from Buyer’s violation or alleged violation of any Trade Control Law or of the provisions set forth herein.
- Force Majeure. Seller shall not be liable for any loss, delay or failure to perform resulting from any circumstance, direct or indirect, reasonably beyond its control including, without limitation, fire, flood, accident, explosion, mechanical breakdown, strike or other labor trouble, plant shutdown, unavailability of or interference with the usual means of transporting the Product or compliance with any law, regulation, order, recommendation or request of any governmental authority. In addition, Seller shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any material necessary for manufacturing the Product. In the event that there should be a shortage of any Product, Seller may apportion its available Product among itself, its affiliates and all its customers in such equitable manner as it deems fair and reasonable. Any delivery date may be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event.
- Confidential Information. All Confidential Information (as defined below) of Seller disclosed to or observed by Buyer, whether disclosed orally or by observation, or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms is confidential, solely for the use of fulfilling the order to which these Terms apply and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all Confidential Information received from Seller. Seller shall be entitled to injunctive or other equitable relief for any violation of this Section. For purposes of these Terms, “Confidential Information” means all non-public, confidential or proprietary information of Seller including, but not limited to, business affairs, business plans, trade secrets, intellectual property, specifications, samples, patterns, designs, client information, customer information, supplier information, technical data, developments, properties, systems, procedures, services, processes, methods, drawings, knowhow, equipment, tooling, development plans, documents, manuals, strategies, training materials, costs, pricing, discounts or rebates, inventions, discoveries or any other confidential matters acquired in respect of the Seller or the Products.
- Applicable Law. (a) These Terms shall be governed by and construed according to the laws of the Commonwealth of Pennsylvania without regard to conflict of laws provisions. Subject to the arbitration provision provided below, each party consents to jurisdiction in the state and federal courts located within Allegheny County, Pennsylvania. In the event that neither the Buyer nor any of its affiliates or subsidiaries has any presence within the United States of America, then all disputes arising out of or in connection with these Terms, including those concerning their validity, interpretation, performance and termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single, English-speaking arbitrator appointed in accordance with said Rules. Such arbitration shall be conducted in Pittsburgh, Pennsylvania and the language of the arbitration proceedings shall be English. Each party will be required to prove the facts it relies on in each of their claims or defenses, but the arbitrator may, at any time during the proceedings, require that a party produce other documents, exhibits or any evidence that the arbitrator deems necessary or appropriate.
(b) The parties hereby acknowledge that the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply hereto and shall not be used for interpretation of the sale of Products hereunder. BUYER KNOWINGLY AND VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY LEGAL PROCEEDING RELATING TO THESE TERMS, THE PRODUCTS AND THE RELATIONS BETWEEN THE PARTIES.
- Waiver. No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
- Modification. No modifications to these terms and conditions herein shall be enforceable except when in writing and signed by both parties, unless otherwise expressly stated herein.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between Seller and Buyer, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. These Terms 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.
- Notices. Any notice or report required or permitted by these terms and conditions shall be in writing and shall be deemed given if delivered personally or if sent by either party to the other by confirmed overnight delivery or by certified or registered mail, return receipt requested, postage prepaid, addressed to the other party to its address as set forth on the Purchase Order or at such other address as such party shall designate by notice hereunder. Where Buyer is giving notice to Seller, all notices shall be sent to the attention of Seller’s VP Sales.
- Severability. If any of these Terms are determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Assignment and Setoff. Buyer shall not assign any rights or obligations under these Terms without the prior written consent of Seller. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for any Products sold to Buyer under these Terms or any other agreement with Seller.
- Entire Agreement. These Terms constitute the entire agreement between Buyer and Seller with respect to the Products purchased, and supersede all prior or contemporaneous negotiations, understandings and agreements.
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