Terms and Conditions of Sale - FW Murphy Production ControlsFW Murphy Production Controls

APPLICABILITY: These Standard Terms and Conditions of Sale a/k/a FW Murphy Terms and Conditions of Sale (“Agreement”) apply to all orders shipped from FW Murphy Production Controls, LLC, hereinafter referred to as “SELLER”, and provided to all Purchasers, hereinafter referred to as “PURCHASER”. This Agreement shall govern all aspects of PURCHASER’s purchase orders, except to the extent PURCHASER and SELLER have expressly agreed otherwise in writing signed by both parties.
WARRANTY FOR SERVICES: SELLER warrants that it will perform services under this Agreement and any associated contract for the specific project mentioned with a degree of high professional skill and sound practices and judgement which is normally exercised by recognized professional firms with respect to services of a similar nature. SELLER shall, at its own expense, re-perform those services deemed appropriate by SELLER which result from SELLER’s failure to perform in accordance with the above standards. Except for the re-performance of the services as provided above, no warranties or guarantees of any nature (including the warrantied of merchantability and fitness for purpose) are expressed or implied in fact or in law for the services.
CURRENCY & EXCHANGE RATE: When prices are presented without any monetary units other than a “$” designation, such prices shall be understood as being stated in United States dollars at User Net (List Price), less applicable discount or Net Price if so stated, and all payments are to be in United States dollars. Otherwise, pricing shall be in any currency expressly indicated, except that Seller may change pricing without advance notice if the currency exchange rate to United States dollars changes more than five percent (5%) from the exchange rate as of the first date that such pricing was so indicated. The Buyer accepts the bank sell exchange rate applicable at the date of the invoice as notified by the SELLER, assuming the exchange rate does not change by more than +/-5% prior to full payment.
QUOTATION VALIDITY: Verbal quotes are subject to confirmation by a written quotation from an authorized representative of SELLER. Verbal quotations expire, unless an order is accepted the same day they are made. Written quotations automatically expire in thirty (30) days from date of issuance unless otherwise stated in writing. They can be terminated by written notice within that period. Price changes apply to all orders received after the price effective date and will be billed at the latest price. Scheduled Releases on Blanket Orders will be billed at the new price on the effective date of the new price and not per the Release date.
PRICING: For Distributors, pricing shall be in accordance with the established price book in affect at the time of order. OEM Contract pricing may be negotiated on an individual basis with each OEM. All prices are subject to change without advance notice but it is our policy to attempt to give Distributors thirty (30) days advance notice and OEMs sixty (60) days advance notice. All prices are also subject to adjustment by SELLER for changes to volume forecasts, economics, shipping/taxes/duties (if SELLER paid) or exchange rate unless other price conditions are agreed upon by both SELLER and PURCHASER in writing. All prices are Ex Works (IncoTerms 2010) at the loading dock of final production facility with all risk of loss and damage to goods passing to PURCHASER upon delivery to carrier.
CLERICAL ERRORS: Clerical errors will be a basis for nullifying prices, terms, etc. upon written notification to the PURCHASER.
PRECIOUS METALS: For all catalysts, Rhodium (Rh), Platinum (Pt), and Palladium (Pd) prices are based on “spot buy” costing from the source www.platinum.matthey.com (New York at 9:30am) on the day of the quotation. PO must be received and processed on the date of the quotation for the quotation to be valid – otherwise SELLER reserves the right to nullify this quotation and re-quote.
COST OF WIRE HARNESS CABLE: Cost of cable in any wire harness quotation is based on then current market value of copper. Fluctuations in the market of +/- 5% may result in a copper adjustment being applied.
STANDARD PRODUCT LEAD TIMES: Product lead times (i.e., the minimum lead time for delivery of a product following receipt of order) will be required by SELLER, depending on products ordered and current inventory. If product lead time is critical for PURCHASER’S order, PURCHASER shall ask its sales representative for applicable product lead times.
MINIMUM BILLING / MINIMUM ORDER QUANTITY: All orders placed by PURCHASER shall be in writing and are subject to a Net Minimum billing as may be specified at any time by SELLER. SELLER will require a purchase order for the minimum order quantity and integer multiples thereof.
TERMS OF PAYMENT AND RESERVATION OF TITLE: Payment Terms are Net Thirty (30) days from date of invoice (or earlier) with approved credit. Shipments or deliveries of any products or performance of any work shall, at all times, be subject to the approval of SELLER’s credit department. PURCHASER’s credit limit shall be established based upon the payment history, purchasing history and credit checks. PURCHASER’s credit limit shall apply to all orders accepted by SELLER. SELLER reserves the right to require full or partial payment in advance of shipment where the financial condition of the PURCHASER does not justify continuance of shipment on the terms of payment once specified. Orders from PURCHASERs with unapproved credit ratings may be shipped C.O.D. with reservation of title with SELLER until purchase price shall be paid in full. Export terms will be quoted, and any longer payment terms that may be quoted will be associated with corresponding price increases. If payments are late, SELLER reserves the right to require C.O.D. or advanced payment for future shipments.
TOOLING: Payments to SELLER for any PURCHASER owned tooling (if any) shall be due thirty (30) days from the SELLER’s tooling invoice and shall be scheduled to be invoiced for one half of the total tooling charge at the time of PURCHASER’s tooling or product purchase order, and the other half of the total tooling charge at the time of first production shipment of the product the PURCHASER or the company designated by the PURCHASER.
ENGINEERING/DEVELOPMENT/CERTIFICATION CHARGES (together NRE): Payment to SELLER for all engineering related expenses, development charges, certification charges, or any other NRE-related charges shall be invoiced upon shipment.
CANCELLATION OF ENGINEERING SERVICES: SELLER reserves the right to terminate engineering services at SELLER’s sole discretion. At the time of termination, payments made to SELLER by the PURCHASER for these services will be refunded, excluding documented costs incurred by SELLER. Should the PURCHASER terminate engineering services, SELLER will provide documented expenses incurred associated with the engineering services to the PURCHASER, the PURCHASER agrees to pay these expenses incurred within 30 days of when SELLER was notified of the termination.
CHANGES: If the PURCHASER makes changes within the general scope of a purchase order or other requirements any time prior to the delivery of a product or completion of a service, in any of the following: (1) engineering change to meet newly or previously unknown requirement(s); (2) drawings, designs or specifications; (3) method of shipment or packaging, SELLER reserves the right to provide a (i) change order quote if the change requires an additional cost not covered by the original purchase order quote or (ii) new revised quotation that supersedes this document. PURCHASER agrees to work with SELLER in good faith to promptly address this change, otherwise SELLER reserves the right to cease shipment of product to the PURCHASER.
ANNUAL REQUIREMENTS: Not applicable.
TAXES: All prices, published or quoted, do not included applicable Local, State, Federal, excise or foreign taxes, tariffs, custom duties and other fees and charges attendant to the sale, delivery, or shipment of SELLER’s Products, although such may be itemized in invoices. Any applicable taxes and fees must be paid by the PURCHASER. Any taxes which SELLER may be required to pay or collect, under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of the goods applicable to this transaction, including taxes upon or measure by the receipts from the sale thereof, shall be borne by PURCHASER. PURCHASER may furnish a tax exemption certificate acceptable to the taxing authority.
TARIFF SURCHARGES: In the event that tariff increases SELLER’s costs to increase, SELLER may include tariff surcharges in invoices, irrespective of whether such surcharges were previously anticipated.
ORDERS: All orders must be bona fide commitments showing stipulated quantities, (adhering to agreed minimum order quantities and lot sizes), Purchase Order number, complete item descriptions and SELLER’s part number, quantity ordered, unit price as quoted, required shipping / delivery dates if applicable, preferred method of shipping / carrier and placed according to agreed lead times. All order shall be subject to SELLER’s acceptance. Individual order acceptance and any changes made to existing orders shall be made in writing via SELLER’s acknowledgement. We reserve the right to make qualified design changes or improvements on Standard Products without notice. Other than part numbers, quantities ordered and applicable pricing, any other terms and conditions stated in PURCHASER’s purchase order shall not control.
BLANKET ORDER PROGRAM: Not applicable.
DELIVERY SCHEDULE: SELLER is committed to on-time delivery of all products. In the event that SELLER is unable to meet scheduled delivery dates, SELLER shall make every effort to advise PURCHASER of SELLER’s new delivery date.
SHIPMENTS: All shipments shall be made Ex Works SELLER’s dock. Legal and equitable title to the goods, as well as risk of loss, shall pass to SELLER’s PURCHASER and shall conclusively be deemed to be delivered to PURCHASER upon transfer of the goods to a carrier of the PURCHASER’s choosing or SELLER’s choosing if the PURCHASER does not specify a particular carrier. SELLER will ship to the location specified by the distributor or to a location designated by SELLER. A drop shipment to any other location must be approved by SELLER at the time the order is accepted. All changes in ship location must be in writing. Packing and packaging shall be in accordance with good commercial practices or in accordance with prearranged PURCHASER defined packaging requirements.
SHIPPING CLAIMS (DAMAGE OR LOSS): Products are packaged in specially designed cartons to protect them from shipping damage. Responsibility for delivery lies in the carrier upon our delivery to him and upon his acceptance of the merchandise. PURCHASER shall inspect goods promptly upon receipt at destination for damage (either visible or concealed), shortages or defects. SELLER requires notification of any discrepancy within ten (10) calendar days of invoice date. Goods must be returned within thirty (30) days for full credit. PURCHASER must notify SELLER and obtain an RMA approval prior to return shipment. Any claims that PURCHASER has against the carrier for goods lost or damaged during shipment shall be filed directly with the carrier and SELLER shall have no liability to PURCHASER for such loss or damage. SELLER will assist insofar as is practical in securing satisfactory adjustment of claims. However, all claims for loss and damage must be made by the PURCHASER to the carrier.
EXPORT COMPLIANCE: PURCHASER agrees to not ship, transfer or export SELLER’s products into any country or use SELLER’s products in any manner prohibited by the United States Export Administration Act (Export Administration Regulations, EAR) managed by the Department of Commerce (Bureau of Industry and Security), Arms Export Control Act (International Traffic in Arms Regulations, ITAR) managed by the State Department, the Office of Foreign Assets Control OFAC managed by the Treasury Department or any other manner prohibited by any export laws, restrictions or regulations administered by any other United States governmental agencies including Homeland Security with the Bureau of Customs and Border Protection.
INTELLECTUAL PROPERTY: All Intellectual Property, trade secrets and know-how that are the property of SELLER and owned by SELLER remain so and are in no way transferred to the PURCHASER as a result of entering into agreements, supplying products, information or know-how. Moreover, any improvements to SELLER’ preexisting products or technology, and all associated intellectual property, shall be owned by SELLER if created by or for SELLER, irrespective of whether such improvements are made to adapt to PURCHASER’s environment or otherwise in response to PURCHASER’s needs or requests.
ACCEPTANCE: The PURCHASER is bound by these Standard Terms and Conditions of Sale once the PURCHASER has expressly accepted or implied acceptance of the accompanied quotation by submitting any Purchase Orders for the purpose of purchasing any products in reference to, or relying on, the quotation accompanying this document, despite any contrary language on any submitted Purchase Orders. Placing such an Order with full knowledge of SELLER’s Standard Terms and Conditions of Sale will be construed as acceptance of said Standard Terms and Conditions of Sale and will create a binding, enforceable agreement. Acceptance is expressly limited to the Standard Terms and Conditions stated herein and the terms and conditions found on the PURCHASER’s Order are expressly disclaimed if they are contrary to SELLER’s Standard Terms and Conditions of Sale. Any additional or deviating terms proposed by the PURCHASER are rejected unless expressly agreed to in writing and signed by an authorized representative of SELLER. All specifications, drawings, and data submitted to SELLER for the manufacturing of the required products are incorporated herein as part of the accompanying quotation. No Purchase Order is binding upon the company until accepted in writing and signed by an authorized representative of SELLER.
CANCELLATION AND ALTERATION: PURCHASER may for any reason terminate an engineer-to-order in whole or in part upon written notice to SELLER, which shall be no less than sixty (60) days or the Lead Time, whichever is longer, in advance of the requested delivery date. PURCHASER shall be liable for termination charges, including but not limited to, price adjustment based on quantity of product delivered, all costs incurred and committed for PURCHASER’s cancelled order and an allowance for reasonable prorated expenses, inventory purchased and associated inventory carrying costs for material on hand in support of PURCHASERs business extending up to twelve months and anticipated profits. It is our policy to not accept order cancellations within thirty (30) days of scheduled shipment; however, if orders are approved for cancellation within thirty (30) days of the scheduled shipment date, the order will be subject to a minimum cancellation charge of thirty-five percent (35%) of the purchase price and include costs, fees and expenses listed above. The cancellation of a customer designed and/or proprietary product shall have a one hundred percent (100%) cancellation fee or a total of the costs incurred to time of cancellation, including termination costs.
SHORTAGES: Shortages in shipments must be reported within fifteen (15) days of material receipt or of invoice date, whichever date is later, and must be accompanied by the packing list. We reserve the right to backorder any item unless you request, in writing, that shipment be made in full, in which case we will schedule the complete shipment at the earliest date possible.
NO PRE-PAYMENT DISCOUNT: In the event that an invoice is paid earlier than the Net Thirty (30) days Payment Terms, no pre-payment discounts will be granted. Any changes to this policy must be approved in writing by SELLER’s credit department.
SECURITY INTEREST IN DELIVERED PRODUCTS: SELLER shall retain security interest in the products delivered to the PURCHASER until such time as the price for these products has been paid in full. PURCHASER shall be responsible for all cost including reasonable attorney’s fees and any other fees associated with collecting delinquent payments.
RETURN OF PRODUCTS/EQUIPMENT: Material may be returned for credit only upon prior written approval of an authorized representative of SELLER. Accepted items require a return material authorization (“RMA”) number, must be returned all charges paid, and be sufficiently packed to prevent damage during shipment. Items must be new and unused and must have been purchased in the past six (6) months. You must cite your Purchase Order number and our invoice or order number. Items must be returned through the same channels as purchased. A fifteen (15%) percent minimum re-stocking charge will be made against all returns of “standard” (make-to-stock) items. A higher re-stocking charge will apply to all “non-standard” (assemble-to-order) items. “Custom” (make-to-order) or special purchase items are not returnable. Credit will apply to future purchases, is not refundable and will be made only after SELLER’s physical inspection of the product to determine the validity of the return. No obsolete, discontinued, customer proprietary products or products over two (2) years of age will be approved for return and credit.
PARTS SHIPPED IN ERROR: Parts shipped in error by SELLER may be returned within thirty (30) days for full credit, including freight, when accompanied by the original SELLER’s packing slip and invoice. Notification to SELLER and SELLER’s RMA number is required prior to return shipment. Amount of authorized credit shall be based on price paid as established on the PURCHASER’s Purchase Order and related SELLER’s invoice. If no Purchase Order or invoice is available, the lowest purchase price for the returned product shall apply.
PENALTIES AND DELAYS: No penalty clause of any kind will be effective unless approved in writing by an authorized officer of SELLER. SELLER will not be liable for any delay or damage caused by circumstances beyond SELLER’s reasonable control, including fire, strike, and acts of the PURCHASER, insurrection, acts of god, transportation failures, or inability to obtain labor, materials or manufacturing facilities.
FORCE MAJEURE: SELLER shall not be liable for any delay in production or delivery of goods or services if such is due to a force majeure, which shall include among other things, the inability or refusal by third party suppliers to provide parts or services or other information required for the performance by SELLER under this purchase order, government embargoes, blockades, seizure of assets, delays or refusal to grant an export license or suspension thereof or any other acts of any government that would limit the ability for contract performance, fire, earthquake, flood, severe weather conditions or any other acts of God, quarantines, epidemics, labor strikes or lockouts, civil disobedience, riots, armed conflict, terrorism or war, or any other cause whatsoever beyond SELLER’s reasonable control. If the force majeure continues longer than 120 days either SELLER or PURCHASER may terminate this purchase order and PURCHASER will pay SELLER for work performed prior to termination and reimburse all reasonable expenses incurred by SELLER as a result of the termination. In the event of delays caused by the force majeure or PURCHASER, the date of delivery shall be extended by the period of time SELLER is actually delayed or as mutually agreed and documented. PURCHASER’s sole remedy against SELLER shall be the option to cancel its purchase order and PURCHASER will pay SELLER for work performed prior to termination and reimburse all reasonable expenses incurred by SELLER as a result of the termination.
REPAIRS: Repair services are available for selected products during the applicable warranty period and non-warranty repairs may be available, subject to SELLER’S evaluation. In order to expedite all product repairs, PURCHASER shall contact SELLER to receive an RMA number, and provide SELLER with a detailed explanation of the problem. PURCHASER will be advised of applicable evaluation fees and repair details prior to the return. Items returned for repair require an RMA number and must be returned all charges paid.
WARRANTY PERIODS FOR SELLER MANUFACTURED PRODUCT (EXCEPT CATALYSTS): All SELLER’s manufactured products are warranted against defects in materials and workmanship, under normal use. The “Warranty Period” for any individual Product shall be two (2) years from delivery of the Product by SELLER to PURCHASER or its carrier or other representative (“Delivery Date”), unless otherwise expressly stated for particular Products. Different warranty periods shall apply for (i) products made by third parties that are merely resold by SELLER and (ii) third party parts used in SELLER’S products, and SELLER disclaims any (separate) warranty for as much.
WARRANTY PERIODS FOR SELLER MANUFACTURED PRODUCT (CATALYSTS): Warranty for SELLER’s catalysts shall be as set forth in SELLER’S General Warranty Terms & Conditions for EICS Permanently Sealed Catalysts. This warranty shall only apply to catalysts when used in conjunction with SELLER’S EICS System operating on the same engine.
WARRANTY FOR SELLER MANUFACTURED PRODUCT: For the duration of the Warranty Period (defined above), SELLER warrants to PURCHASER that all products shipped (i) are to be free from title defects at the time of delivery by SELLER, (ii) at the time of such delivery conform to SELLER’S written specifications for the Product that have theretofore been provided by SELLER to PURCHASER or mutually agreed in writing between PURCHASER and SELLER (“Specifications”), and (iii) are free from material or workmanship defects if always operated under Normal Use and Normal Service (as such terms are defined further herein). For reference, any Product that fails to comply with the foregoing sentence shall be referred to herein as “Defective” and as having a “Defect.” This warranty (“Warranty”) is a limited warranty provided by SELLER to each PURCHASER, is non-transferrable, and applies only with respect to products that have been manufactured by SELLER and that are hereafter supplied by SELLER to PURCHASER and fully paid for by PURCHASER (each, a “Product” and, collectively, “Products”). This Warranty is exclusive to PURCHASER and shall supersede all other warranties, whether express, implied or statutory, including, but not by way of limitation, any warranty of merchantability of fitness for any particular purpose. All other warranties or liabilities, expressed or implied, oral or statutory, including any warranty of merchantability or fitness for a particular purpose, are hereby disclaimed, terminated and waived as to PURCHASER, effective upon PURCHASER’s purchase of the Products from SELLER. As with any monitoring or control systems, the purchase, installation and use of Products is NOT AN INSURANCE POLICY, and Normal Use and Normal Care are needed for long and faithful service. “Normal Use” shall mean the intended use of the Product for which it was designed by SELLER, as may be evidenced by the corresponding Specifications and any instructions for use provided by SELLER to PURCHASER (“Instructions”). “Normal Service” shall mean all necessary servicing as recommended, suggested or required in the Instructions or otherwise by SELLER, by industry norms and standards, or by applicable laws and regulations. For returned material, which is conforming or not defective, SELLER will return material to PURCHASER via freight collect. Warranties made by SELLER for the goods sold to PURCHASER in effect at the time of shipment shall be applicable except for any warranties which, by law, cannot be excluded.

For goods, which are designed by the PURCHASER, the following warranty statement applies:

SELLER MAKES NO WARRANTY WITH RESPECT TO SUCH GOODS OF PURCHASER’S DESIGN, UNDER NO CIRCUMSTANCE SHALL SELLER PAY FOR LOSS OF TIME, INCONVENIENCE, LOSS OF USE OF THE SELLER’S PRODUCT, OR PROPERTY DAMAGE CAUSED BY THE SELLER’S PRODUCT OR ITS FAILURE TO OPERATE SATISFACTORILY, LABOR COSTS INCURRED IN DIAGNOSIS OF DEFECTS OR REMOVAL OR REINSTALLATION OF THE PRODUCTS, OR ANY OTHER INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.

WARRANTY CLAIM & SERVICE PROCEDURE: Any Warranty claim by PURCHASER must be handled according to the following procedures, and there shall be no remedies available under the Warranty unless PURCHASER follows such procedures. Before returning any Product that PURCHASER believes is Defective, PURCHASER must provide to SELLER details of the Defect and related circumstances, a complete description of the Product, details from the Model Number label attached to each Product, including Model Number, part number and date code, as well as the first Service Date for the Product. Then, assuming the Product and Defect are of the type that may be covered under the foregoing Warranty, PURCHASER will be provided a Return Material Authorization Number (RMA Number) for return to SELLER. All Products returned with an RMA must be clearly identified as “RETURNED MATERIAL”, must be accompanied by the Service Date for the Product as well as the clear description of the observed Defect, and must be to the attention of the person identified by SELLER when the RMA number is provided. PURCHASER will be advised of applicable evaluation fees. Although PURCHASER shall initially pay for the shipping charges for RMA returns, SELLER shall reimburse or credit PURCHASER for standard freight shipping charges if the Product returned is determined to be Defective by SELLER. PURCHASER agrees to accept SELLER’S reasonable determinations of whether a Product is considered Defective or whether the Product or a particular Defect is not covered under the foregoing Warranty. THE DELIVERY OF AN ALLEGEDLY DEFECTIVE PRODUCT NOT BEARING A VALID RMA NUMBER WILL BE REFUSED, AND THE SHIPMENT WILL BE RETURNED TO THE SENDER AT THE SENDER’S EXPENSE. Immediate replacement prior to SELLER evaluation requires that PURCHASER purchase a new unit. If the warranty claim is validated, a credit will be issued against the new unit purchased. A purchase order is required prior to replacement.
REMEDIES FOR WARRANTY CLAIMS & LIMITATIONS OF LIABILITY: For any Product that PURCHASER has returned to SELLER by RMA during the Warranty Period, shipping costs prepaid, and for which SELLER has reasonably determined that the Product is Defective under the terms of the foregoing Warranty, SELLER shall do one of the following as PURCHASER’s sole and exclusive remedy: either (i) refund the corresponding purchase price paid to SELLER by PURCHASER; (ii) reasonably repair the Product or commission authorized others to reasonably repair the Product; or (iii) provide a replacement Product or an alternative product with the same form, fit and function; at SELLER’ discretion. IN NO EVENT SHALL SELLER AND ITS AFFLIATES, AGENTS AND EMPLOYEES BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR INJURY OR DAMAGE TO ANY PERSON OR PROPERTY WHATSOEVER, NOR FOR DAMAGE TO ANY EQUIPMENT ON OR IN WHICH THE CUSTOMER INSTALLS THE PRODUCT, AND SELLER SHALL IN NO EVENT BE LIABLE FOR ANY OTHER FORM OF INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, LOSS OF BUSINESS, LOSS OF PRIVACY, LOSS OF USE OR DAMAGE TO ASSOCIATED EQUIPMENT RESULTING FROM ANY DEFECT ARISING FROM ANY PRODUCT, LOSS OF TIME OR INCONVENIENCE, LOSS OF INFORMATION, DATA, SOFTWARE OR APPLICATIONS OR OTHER FINANCIAL LOSS, ARISING OUT OF OR RESULTING IN ANY PRODUCT DEFECT. SUCH LOSSES ARE EXPRESSLY DISCLAIMED. SELLERS’ LIABILITY IN ALL EVENTS SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY. SELLERS’ REPAIR, REPLACEMENT OR PAYMENT OF SUCH AMOUNT SHALL BE THE FINAL AND EXCLUSIVE REMEDY IN THE EXHAUSTION OR UNAVAILABILITY OF ANY OTHER REMEDY SPECIFIED HEREIN, UNLESS EXPRESSLY DOCUMENTED IN WRITING FROM SELLER, AND SHALL NOT BE CONSTRUED OR ALLEGED BY PURCHASER TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIABILITY OF THE COMPANY SHALL CEASE WITH THE EXPIRATION OF THE WARRANTY PERIOD MENTIONED ABOVE. SELLER liability shall be limited in proportion to the degree of contribution to such damages attributable to a Defect of SELLER’S Defective Products. For all claims and liabilities arising directly or indirectly from Defective Products delivered by SELLER during any calendar year or claims SELLER determines to be caused by a single type of defect, the total aggregate compensation or other consideration payable by SELLER to PURCHASER, or its representatives, contractors or customers shall in no event exceed the lesser of (i) the purchase price for the products or services or (ii) $200,000 (USD) (the “Liability Cap”). PURCHASER waives the right to seek claims, damages or other legal or equitable remedies against or from SELLER, its principals, subcontractors, agents, vendors, suppliers and/or design professionals under any and all causes of action whether statutory, at common law or at equity, including but not limited to any claims based on implied warranties of fitness, reduction of the purchase price, negligence and/or strict liability. Under any circumstances where the Warranty is voided as to any Product(s), SELLER is immediately and forever excluded from any and all liabilities associated with such Product(s). Failure of the PURCHASER to notify SELLER in writing of a Defect within six months after a related malfunction or failure or other notice to PURCHASER waives any warranty claim identified prior to notifying SELLER. The Warranty is limited. SELLER SHALL HAVE NO LIABILITY FOR, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR AFFIRMATION OF FACT, EXPRESS OR IMPLIED, OTHER THAN AS SET FORTH IN THE WARRANTY STATEMENT, INCLUDING, WITHOUT LIMITATION (1) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (2) ANY WARRANTY OR AFFIRMATION OF FACT RELATED TO MISUSE, IMPROPER SELECTION, RECOMMENDATION, OR MISAPPLICATION OF ANY PRODUCT; AND (3) ANY WARRANTY OR AFFIRMATION OF FACT THAT THE CATALOGS, LITERATURE AND WEBSITES IT PROVIDES ACCURATELY ILLUSTRATE AND DESCRIBE PRODUCTS.
EXCEPTION FROM COVERAGE: The foregoing Warranty does not cover any other expenses such as but not limited to labor, losses, travel or administration fees. The foregoing Warranty shall not apply and be null and void with respect to, and SELLER shall have no obligation to repair or replace or provide any other remedy to PURCHASER for, any Product that: (A) has had the serial number, model number or any other identification markings removed or rendered illegible; or, in SELLER’ reasonable judgment, (B) has malfunctioned, been damaged, or otherwise has a Defect due directly or indirectly to any one or more of the following: (i) normal wear and tear; (ii) accident, neglect, misuse, abuse, or improper handling, storage, operation, or maintenance; (iii) pollution, for example in the case of UEGOs or catalysts; (iv) any deviation from Normal Use or Normal Service, including exposure to pressures, temperatures or other environmental or operating conditions outside the limits of Normal Use, and including any other failure to continually provide a suitable operating environment (including necessary ventilation, electric power supply, protection from power surges, temperature and/or humidity); (v) any modifications or repairs to non-serviceable parts or subassemblies or that are otherwise inconsistent with the Specifications or Instructions or that have been made by persons or entities not authorized by SELLER; (vi) any improper installation or failure to maintain environmental parameters; or (vii) any acts of God, wars, acts of a public enemy, acts of the governments of any state or political subdivision or any department or regulatory agency thereof or entity created thereby (whether or not valid), acts of any person engaged in subversive activity or sabotage, riots, fires, floods, explosions, or other catastrophes, epidemics or quarantine restrictions, strikes, lockouts or other labor stoppages, or any other cause beyond SELLER’ reasonable control, including chemical, electro-mechanical, electrical influences or other environmental or operational conditions not fully disclosed to SELLER prior to determining a Product’s Specifications or its suitability for meeting PURCHASER’s needs.
SPECIAL EXCEPTIONS FROM COVERAGE FOR CATALYST: In addition, Warranty obligations shall not apply for any catalyst which is exposed to: a) halogen-containing compounds, b) poisoning or masking agents found on the catalyst which originate from the application or fuel such as but not limited to the engine, cooler, compressor, well, additives, etc., including but not limited to phosphorus, silicon, silicon compounds, sulfur, sulfur compounds, arsenic and heavy metals such as lead or zinc. Additionally, warranty obligations shall not apply if the engine does not use low phosphate engine oil that has an ash content of less than 0.5 wt. % that is designed for operation with a three-way catalyst.
PERMISSIBLE VARIATION, STANDARDS, TOLERANCES: Except as PURCHASER may otherwise specify/negotiate and has been expressly agreed to by SELLER in writing, all goods referred to herein shall be produced in accordance with SELLER’s standard practices. All goods, including those produced to meet exact specification, shall be subject to tolerances and variations consistent with usages of the trade and regular manufacturing practices concerning dimensions, weight, straightness, section, composition, quality, deviations for tolerances and variation consistent with practical testing and inspection method, and regular run practices concerning over and under shipments.
CONFIDENTIALITY: PURCHASER hereby undertakes and agrees to keep secret and confidential any and all information of whatever nature and in whatever form directly or indirectly relating to SELLER’s business operations and production (including, but not limited to, all materials and any other information supplied by SELLER or derived therefrom) (“Confidential Information”), and PURCHASER shall disclose such Confidential Information only to those who need to see the same for the purpose of this matter. PURCHASER shall ensure that all such employees and permitted subcontractors are bound by obligations in relation to such Confidential Information in all respects consistent with PURCHASER’s obligations hereunder and that such employees and permitted subcontractors are made aware of such obligations. PURCHASER shall not reverse engineer, decompile or otherwise replicate products or software embedded or installed in any of the products without express written authorization from SELLER throughout the term of the purchasing relationship and ten (10) years following its termination. The obligations and restrictions in the preceding confidentiality clauses shall not apply to any information that: i) is now or subsequently becomes readily available to the public otherwise than by breach of this matter by the PURCHASER; or ii) was already in the PURCHASER’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from SELLER; or iii) was received by PURCHASER from an independent third party free of any restriction and without breach of any obligation of confidentiality owed to SELLER; or iv) is required by law to be disclosed by PURCHASER, provided however, that PURCHASER agrees to afford SELLER, if reasonably possible, an opportunity to contest the request for any such disclosure.
GOVERNING PROVISION: Except if a Supply Agreement exists between PURCHASER and SELLER, no term or condition on PURCHASER’s order or any other instrument, agreement or understanding shall be binding upon SELLER unless agreed to in writing and signed by an authorized representative of SELLER. If a Supply Agreement exists between PURCHASER and SELLER, the Terms of the Supply Agreement will take precedent over this document and any other documents referencing the products or otherwise covered by the Supply Agreement. Otherwise, in the absence of a fully executed and effective Supply Agreement, and in the event of any inconsistencies or conflicts between SELLER’s Standard Terms and Conditions of Sale and the PURCHASER’s order or any other instrument, agreement or understanding, SELLER rejects such inconsistencies or conflicting terms and conditions and SELLER’s Standard Terms and Conditions of Sale shall govern and control.
ASSIGNMENT: Neither SELLER nor PURCHASER shall be entitled to assign its rights or obligations hereunder without the other’s written consent, except that SELLER may assign its obligations to its subsidiary or commonly controlled affiliate or together with substantially all the assets of its related business.
ARBITRATION: If arbitration or other legal proceedings are commenced to enforce rights relating to this Agreement or its subject matter, the Party that substantially prevails in such proceedings shall be entitled to recover its reasonable attorneys’ fees, costs and expert witness expenses, irrespective of the rules and laws governing such proceedings. Exclusive venue for arbitration shall be in San Antonio, Bexar County, Texas, United States of America, in the English language.
LANGUAGE: Contracts are written in English; another language may be included. When a contract is written in two languages, the English language will have authority. Both SELLER and PURCHASER agree to use appropriate third-party arbitration for any language conflicts that may arise.
APPLICABLE LAW: This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Texas, United States of America in the English language. Exclusive venue for the enforcement of this Agreement shall be in the courts of Bexar County, Texas, United States of America.
AUTHORIZED DEALER: Possession of SELLER’S catalog and/or price list does not imply the right to purchase as a SELLER authorized dealer.