National Filter Media Corporation (“Seller”) accepts the order for goods and/or equipment of the Buyer, as specified on the acceptance copy of the Seller’s order. By Seller’s acceptance of the Buyer’s order, Buyer assents to each of the terms and conditions listed herein. These terms and conditions are the only terms that govern Seller’s sale of goods and/or equipment and will prevail over any of Buyer’s general terms and conditions:
“Equipment” means machinery, systems, components, spare parts, materials, hardware, software, instrumentation and technical documentation as expressly agreed to be supplied by Seller to Buyer under this Contract.
“Goods” means filters for liquid process filtration and dust collection.
“Start-up” means the event at which Equipment is first capable of being operated.
2. Acceptance Copy. The acceptance copy is an exact copy of Seller’s proposed manufacturing requisition. Buyer shall thoroughly inspect the same and notify Seller upon receipt of this acceptance of any problems and confirm such in writing. Buyer shall be estopped from claiming any defect in goods that conform to the specifications on the acceptance copy if Buyer does not comply with the requirement of this paragraph.
3. Price. The price(s) stated on the acceptance copy shall be valid for 30 days, unless otherwise stated, subject to increase or decrease on any portion of goods by the amount that any new federal legislation affects Seller’s cost. The price does not include any sales, use, property, value added or other taxes or charges, whether federal, provincial, state or local. Buyer shall be liable for all such taxes and charges.
4. Force Majeure. Seller shall not be liable for failure to deliver or delay in delivering the goods covered by this order where such failure is occasioned by labor disputes, fire, flood or delay is due, in whole or in part, to any cause beyond the control or without the fault or negligence of Seller, including without limitation, a severe shortage or marked increase in price of raw materials or supplies beyond the control of Seller.
5. Delivery; Shipping; Risk of Loss.
5.1 Goods. Delivery shall be made F.O.B. (Seller’s location). The risk of accidental or other loss of the ordered goods shall pass to Buyer upon Seller’s delivery of the goods into the carrier’s possession for shipment.
5.2 Equipment. Delivery shall be made F.O.B. (Seller’s location), with unloading at Buyer’s cost, unless otherwise agreed by the parties. Delivery dates shall be specified in the acceptance copy of the Purchase Order and are subject to Buyer’s timely performance of its contractual obligations, such as providing information for design and engineering and review of drawings. The risk of loss shall pass to Buyer upon delivery of the goods into the carrier’s possession for shipment. If Seller defers shipment at Buyer’s request, Buyer shall indemnify Seller against all additional costs incurred by Seller thereby, such as costs for demurrage, handling, storage and insurance. Buyer shall bear the risk of loss during storage.
6. Inspection and Rejection of Non-Conforming Goods. Buyer shall inspect the goods and tender Buyer’s written rejection of the same within thirty (30) days of Buyer’s receipt of the goods. Buyer’s failure to notify Seller in writing of non-conforming goods shall be deemed an unconditional acceptance of the goods. If Buyer notifies Seller of non-conforming goods, Seller shall, in its sole discretion, replace the non-conforming goods with conforming goods or refund the purchase price of the goods.
7. Payment. Buyer shall pay promptly for goods on the acceptance copy within 30 days, unless otherwise agreed. If payment is not made within 30 days, interest shall accrue at a rate of 18% per annum and the total amount due is payable upon demand. Buyer shall reimburse Seller for all costs incurred by Seller in collecting past due accounts and in enforcing all other terms of this order, including reasonable attorneys’ fees, whether or not suit has actually been instituted or judgment rendered.
8.1 Mechanical Warranty for Equipment.
a. Seller warrants that the Equipment will be free from defects in design, materials and workmanship under normal use, maintenance, service, and handling for a period of 12 months from Start-up or 18 months from delivery, whichever is first, unless a shorter period is specified on the acceptance copy of the Purchase Oder (“Warranty Period”).
b. Seller undertakes, at its discretion and cost, to repair or replace defective Equipment covered by the warranty, provided that Buyer has notified Seller in writing of the defects promptly following discovery and within the Warranty Period, and has given Seller the opportunity to examine and test the defective part.
c. For replacement parts provided pursuant to this warranty, a new warranty period shall be granted equal to the original one, counted from the date of installation of the replacement parts. d. All warranties (whether for replacement parts, latent defects or otherwise) shall expire no later than the earlier of 24 months from Start-up or 30 months from the last delivery.
e. For replacement of defective parts, Buyer shall carry out disassembly and reinstallation, and Seller shall be responsible for shipping. All parts of Equipment replaced in connection with warranty replacements shall become the property of Seller.
f. For rebuilt parts and equipment, this warranty applies only to the original Buyer named in the acceptance copy and only for the parts described therein. This warranty does not include any other material, labor, components or parts of the equipment other than the specific parts and components named in the acceptance copy. Seller is not responsible for existing flaws of used parts and equipment whether seen or unseen, unless they were specifically called out and repaired by Seller in accordance with the acceptance copy.
g. The Warranty shall not apply to and Seller shall not be liable for: (i) consumables or parts having a life expectancy shorter than the Warranty Period; (ii) defects, damages, losses or costs (a) resulting from ordinary wear and tear, improper or incomplete handling, storage, erection, operation, maintenance or other use of the Equipment by Buyer or third parties, or (b) caused by non-compliance with Seller’s manuals or instructions; (iii) modifications to the Equipment made by Buyer or third parties without a prior written consent of Seller, or (iv) any other acts or omission, including without limitation repairs of Buyer or third parties.
8.2 Limitation and Exclusions. SELLER MAKES NO WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF GOODS CONTAINED ON THE ACCEPTANCE COPY OF THIS ORDER. WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY SPECIFICALLY DISCLAIMED AND EXCLUDED. BUYER ACKNOWLEDGES THAT NO EXPRESS WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS HAVE BEEN MADE BY SELLER REGARDING THE ORDERED GOODS UNLESS STATED IN THIS ORDER OR INCORPORATED HEREIN
BY REFERENCE HEREON. Some of the goods sold by Seller may include goods manufactured by a third party. SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE.
9. Exclusive Remedy. Seller shall not be liable in tort or contract for the negligent or defective design and/or manufacture of the goods described in this order. SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY PROXIMATE, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, INSTALLATION EXPENSES; DAMAGES; LOSS OF PRODUCTION, DOWNTIME OR PLANT SHUTDOWNS; CLAIMS BY BUYER’S CUSTOMERS; OR DAMAGES FOR INJURY TO PERSON OR PROPERTY. BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM AGAINST SELLER SHALL BE LIMITED TO THE REPLACEMENT COST OF NON-CONFORMING GOODS. ALL LABOR INVOLVED IN THE REMOVAL AND/OR INSTALLATION OF SUCH GOODS SHALL BE AT BUYER’S EXPENSE.
10. Altered Goods. No claim whatsoever shall be asserted against Seller based upon the goods supplied pursuant to this order if the goods are unfit for resale because of soiled condition or have been altered or changed in any way by other than Seller.
a. Without prejudice to any claims available in circumstances, the Party not in breach is entitled to terminate this Contract by written notice to the other Party: (i) upon bankruptcy, insolvency, wind-up, trustee appointment, or similar proceedings or in case of dissolution of the other Party; (ii) upon an event or circumstance described in Section 4, which affects contractual performance for more than 6 months; (iii) upon failure by Buyer to pay any amount owing to Seller within 30 days from its due date; or (iv) upon any other material breach of the Contract by the other Party, which failure has not been rectified within reasonable time from the receipt of a written notice thereof from the Party not in breach.
b. (i) If this Contract is terminated or suspended by Buyer without cause, Buyer shall reimburse Seller, in a form of down and progress payments already effected and additional termination reimbursement payment for all costs incurred as a consequence of such termination, as well as for Seller’s reasonable overhead and profit allocation on such amounts. (ii) If this Contract is terminated by Buyer for cause, Seller’s maximum liability shall in no event exceed the total amount of down and progress payments already effected, which total amount Seller shall refund subject to the condition that Equipment already delivered shall first be returned to Seller.
12. Cancellation. This order is not subject to cancellation.
13.1 General. Buyer agrees to indemnify and hold harmless Seller, and each of Seller’s stockholders, directors, officers, employees and agents, and the respective successors and assigns of the foregoing, at Buyer’s sole expense, against any claim, action, legal proceeding, damages, liability, settlements, expenses (including without limitation reasonable attorneys’ fees) and other costs arising from any lawsuit brought by any third parties relating to (i) breach of any of these Terms and Conditions by Buyer; (ii) Buyer’s negligence, recklessness or willful misconduct, or (iii) any claim that any act or omission of Buyer (other than mere possession of a product in the form supplied by Seller) has infringed any intellectual property or other proprietary right of a third party.
13.2 Intellectual Property.
a. Seller warrants that the Seller designed Equipment does not infringe any existing U.S. or Canadian patent, trademark or copyright issued on or before the date of this Contract when used as specifically set out in the Contract.
b. If the use of the Equipment becomes enjoined as a consequence of a claim as set forth in 6.b, Seller shall, at its discretion and cost, do any one or combination of the following: (i) procure for Buyer the right to continue using the infringing Equipment or part thereof; (ii) replace the infringing part with noninfringing part; or (iii) modify the infringing part so that it becomes non- infringing.
c. Seller shall have no liability to Buyer for claimed or actual infringement of intellectual property rights resulting from: (i) Buyer’s own design or specification; (ii) a change or modification to the Equipment by Buyer or a third party without Seller’s prior written consent; or (iii) the use of Equipment in a manner or for a purpose other than specified in this Contract, or against Seller’s manuals or instructions.
14. Time in Which to Bring Action. Any action against Seller based upon this order or the goods supplied pursuant hereto shall be null and void unless commenced within one (1) year from the date of shipment of the goods in question.
15. Amendment and Modification. The terms of the order shall not be modified or rescinded except by a signed writing executed by Buyer and Seller.
16. Waiver. No waiver by Seller of any provisions of these terms and conditions is effective unless express and in writing. No failure to delay in exercising any rights or remedies under these terms and conditions may be construed as a waiver thereof.
17. Successors. The terms and conditions of this order shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, personal representatives, successors and assigns.
18. Governing Law. All matters relating to the interpretation and effect of these Terms and Conditions and any authorized changes, modifications or amendments thereto shall be governed by the laws of the State of Utah, USA, without giving effect to that state’s principles governing conflicts of laws.
19. Entire Agreement. The Seller’s acceptance copy of Buyer’s order and these terms and conditions comprise the entire agreement between the parties. This order cancels and supersedes any prior agreement and as of the date of the Seller’s acceptance copy comprises the entire agreement relating to the subject matters covered hereby.
20. Consideration. The terms and conditions of this order constitute an integral part of Buyer’s consideration to Seller, which fact is reflected in the final price(s) stated on the Seller’s acceptance copy.
Buyer acknowledges that it has read the above terms and conditions of this order and consents to the same.
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