Model LT Vertical Page 7of 8 I&O IN162LTV 10/20/99
w21775 8th Street East wP.O. Box Q wSonoma, CA USA 95476-0329 w(707) 938-8441 wFax (707) 938-0764
GENERAL TERMS OF SALE FOR PRODUCTS Effective: January 1, 1993
1. GENERAL
A. Seller's price is based on these sales terms and (i) this
document together with any additional writings signed by
Seller shall represent the final, complete and exclusive
statement of the agreement between the parties and may not
be modified, supplemented, explained or waived by parol
evidence, Buyer's purchase order, a course of dealing,
Seller's performance or delivery, or in any other way except
in writing signed by an authorized representative of Seller,
and (ii) these terms are intended to cover all activity of
Seller and Buyer hereunder, including sales and use of
products, parts and work and all related matters (references
to products include parts and references to work include
construction, installation and start-up). Any reference by
Seller to Buyer's specifications and similar requirements are
only to describe the products and work covered hereby and
no warranties or other terms therein shall have any force of
effect. Catalogs, circulars and similar pamphlets of the
Seller are issued for general information purposes only and
shall not be deemed to modify the provisions hereof.
B. The agreement formed hereby and the language herein
shall be construed and enforced under the Uniform
Commercial Code as in effect in the State of California on
the date hereof.
2. TAXES
Any sales, use or other similar type taxes imposed on this
sale or on this transaction are not included in the price.
Such taxes shall be billed separately to the Buyer. Seller
will accept a valid exemption certificate from the Buyer if
applicable; however, if an exemption certificate previously
accepted is not recognized by the governmental taxing
authority involved and the Seller is required to pay the tax
covered by such exemption certificate. Buyer agrees to
promptly reimburse Seller for the taxes paid.
3. PERFORMANCE, INSPECTION AND
ACCEPTANCE
A. Unless Seller specifically assumes installation,
construction or start-up responsibility, all products shall be
finally inspected and accepted within thirty (30) days after
arrival at point of delivery. Products not covered by the
foregoing and all work shall be finally inspected and
accepted with thirty (30) days after completion of the
applicable work by Seller. All claims whatsoever by Buyer
(including claims for shortages) excepting only those
provided for under the WARRANTY AND LIMITATION
OF LIABILITY and PATENTS Clauses hereof must be
asserted in writing by Buyer within said thirty (30) day
period or they are waived. If this contract involves partial
performance, all such claims must be asserted within said
thirty (30) day period for each partial performance. There
shall be no revocation of acceptance. Rejection may be
only for defects substantially impairing the value of products
or work and Buyer's remedy for lesser defects shall be those
provided for under the WARRANTY AND LIMITATION
OF LIABILITY Clause.
B. Seller shall not be responsible for non-performance or
for delays in performance occasioned by any causes beyond
Seller's reasonable control, including, but not limited to,
labor difficulties, delays of vendors or carriers, fires,
governmental actions, or shortages of material, components,
labor, or manufacturing facilities. Any delays so occasioned
shall affect a corresponding extension of Seller's
performance dates which are, in any event, understood to be
approximate. In no event shall Buyer be entitled to
incidental or consequential damages for late performance or
for a failure to perform. Seller reserves the right to make
partial shipments and to ship products, parts or work which
may be completed prior to the scheduled performance date.
C. In the event that Seller has agreed to mount motors,
turbines, gears, or other products which are not
manufactured by Seller and which are not an integral part of
Seller's manufactured product, and a delay in the delivery of
such products to Seller occurs that will cause a delay in
Seller's performance date, Seller reserves the right to ship its
product upon completion of manufacture and to refund an
equitable portion of the amount originally included in the
purchase price for mounting without incurring liability for
non-performance.
D. Seller reserves to itself the right to change its
specifications, drawings and standards if such changes will
not impair the performance of its products, and parts, and
further that such products, and parts, will meet any of
Buyer's specifications and other specific product
requirements which are a part of this agreement.
E. The manufacture and inspection of products and parts
shall be to Seller's Engineering and Quality Assurance
standards plus such other inspections, tests of
documentation as are specifically agreed to by Seller.
Requirements for any additional inspection, tests,
documentation, or Buyer witness of manufacture, test,
and/or inspection shall be subject to additional charges.
4. TITLE AND RISK OF LOSS
Title and risk of loss shall pass to buyer upon delivery of
products at the designated Ex Works place (Incoterms 1990)
unless other wise agreed by the parties.
5. EROSION AND CORROSION
It is specifically understood that products and parts sold
hereunder are not warranted for operation with erosive or
corrosive fluids. No product or part shall be deemed to be
defective by reason of failure to resist erosive or corrosive
action of any fluid and Buyer shall have no claim
whatsoever against Seller therefore.
6. WARRANTY AND LIMITATION OF LIABILITY.
A. Seller warrants only that its product and parts, when
shipped, and its work (including installation, construction
and start-up), when performed will meet all applicable
specifications and other specific product and work
requirements (including those of performance), if any, of this
agreement, and will be free from defects in materials and
workmanship. With respect to products, parts and work not
manufactured or performed by Seller, Seller's only
obligation shall be to assign to Buyer, to the extent possible,
whatever warranty Seller requires from the manufacturer.
All claims for defective products or parts under this
warranty must be made in writing immediately upon
discovery and, in any event, within one (1) year after initial
start-up or eighteen (18) months after shipment, whichever
first occurs, and all claims for defective work must be made
in writing immediately upon discovery and in any event,
within one (1) year of completion thereof by Seller.
Defective items must be held for Seller's inspection and
returned to the original f.o.b. point upon request. THE
FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES WHATSOEVER, EXPRESS, IMPLIED
AND STATUTORY, INCLUDING WITHOUT
LIMITATION, THE IMPLIED, WARRANTIES OF
MERCHANTABILITY AND FITNESS.
B. Upon Buyer's submission of a claim as provided above
and its substantiation, Seller shall at its option either (i)
repair or replace its product, part or work at the original
place of delivery, or (ii) refund an equitable portion of the
purchase price.
C. THE FOREGOING IS SELLER'S ONLY
OBLIGATION AND BUYER'S EXCLUSIVE REMEDY
FOR BREACH OF WARRANTY AND, EXCEPT FOR
GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND
REMEDIES PERMITTED UNDER THE
PERFORMANCE, INSPECTION AND ACCEPTANCE
AND THE PATENTS CLAUSES HEREOF, THE
FOREGOING IS BUYER EXCLUSIVE REMEDY
AGAINST SELLER FOR ALL CLAIMS ARISING
HEREUNDER OR RELATING HERETO WHETHER
SUCH CLAIMS ARE BASED ON BREACH OF
CONTRACT. TORT (INCLUDING NEGLIGENCE) OR
OTHER THEORIES. BUYER'S FAILURE TO SUBMIT
A CLAIM AS PROVIDED ABOVE SHALL
SPECIFICALLY WAIVE ALL CLAIMS FOR DAMAGES
OR OTHER RELIEF, INCLUDING BUT NOT LIMITED
TO CLAIMS BASED ON LATENT DEFECTS. IN NO
EVENT SHALL BUYER BE ENTITLED TO INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, NOR FOR DAMAGES FOR LOSS OF USE,
LOST PROFITS OR REVENUE, INTEREST, LOST
GOODWILL, WORK OR PRODUCTION STOPPAGE,
IMPAIRMENT OF OTHER GOODS, INCREASED
EXPENSES OF OPERATION, OR THE COST OF
PURCHASING REPLACEMENT POWER OR OTHER
SERVICES BECAUSE OF SERVICE INTERRUPTIONS.
FURTHERMORE, IN NO EVENT SHALL SELLER'S
TOTAL LIABILITY FOR DAMAGES OF BUYER
EXCEED THE PURCHASE PRICE OF THE PRODUCTS
OR PARTS MANUFACTURED BY SELLER AND
UPON WHICH SUCH LIABILITY IS BASED. ANY
ACTION ARISING HERE-UNDER OR RELATED
HERETO, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR
OTHER THEORIES, MUST BE COMMENCED WITHIN
ONE (1) YEAR AFTER THE CAUSE OF ACTION
ACCRUES OR IT SHALL BE BARRED.
7. PATENTS
Seller agrees to assume the defense of any suit for
infringement of any patents brought against Buyer to the
extent of such suit charges infringement of an apparatus or
product claim by Seller's product in an of itself, provided (i)
said product is built entirely to Seller's design, (ii) Buyer
notifies Seller in writing of the filing of such suit within ten
(10) days after the service of process thereof, and (iii)
Seller is given complete control of the defense of such suit,
including the right to defend, settle and make changes in the
product for the purpose of avoiding infringement of any
process or method claims, unless infringement of such
claims is the result of following specific instruction
furnished by Seller.
8. EXTENT OF SUPPLY
Only products and listed in Seller's proposal are included in
this agreement. It must not be assumed that Seller has
included anything beyond same.
9. MANUFACTURING SOURCES
To maintain delivery schedules, Seller reserves the right to
have all or any part of the Buyer's order manufactured at any
of Seller's or its licensee's plants on a world-wide basis.
(Terms3-/93Bob )
