STANDARD TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS AND OR PRODUCTS AND SERVICES
Ray Camp Company (Seller) offers to sell products and or products and services subject to the Terms and Conditions stated herein, which are also located on our website www.pilotfilters.com. The Customer (Buyer) which the Seller makes an offer to sell products or products and services via Seller’s quotation acknowledges acceptance of the Seller’s Terms and Conditions by issuing a purchase order to Seller covering the quotation completing a contract between Seller and Buyer.
- ACCEPTANCE. Acceptance of the Seller’s quotation by Buyer issuing a purchase order shall create a contract between Ray Camp Company (“Seller”) and Buyer for the products and or products and services offered. By accepting this offer as set forth in the quotation, Buyer agrees to accept all of the terms and conditions herein. To the extent Buyer’s purchase order or any other statement of Buyer contains any terms and conditions in addition to or different from the terms of this Agreement, such terms and conditions are hereby rejected by Seller and hereby waived by Buyer and such terms and conditions shall not affect this contract nor be binding upon Seller absent an express written statement by Seller to the contrary. THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCTS AND OR PRODUCTS AND SERVICES AND SUPERSEDES ANY OTHER NEGOTIATIONS, AGREEMENTS AND REPRESENTATIONS BETWEEN THE PARTIES, WRITTEN OR ORAL NO MODIFICATION OF THIS CONTRACT SHALL BE OF ANY FORCE OR EFFECT UNLESS IN WRITING AND SIGNED BY SELLER. IN THE EVENT OF ANY CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND THE CONTRACT, THE TERMS OF THE QUOTATION SHALL GOVERN.
- TAXES, INVOICES AND PAYMENTS. Buyer shall pay to Seller the fees and purchase prices set forth in the contract. Any Product ordered other than those specifically set forth in the contract, including additional copies of data/documentation or non-standard data/documentation shall be priced at Seller’s prices then in effect. If Seller ships items on behalf of Buyer, shipping, handling and insurance charges shall be in addition to the charges set forth in the contract and will be charged to Buyer as separate items on the invoices. All taxes and governmental charges payable by Seller due in connection with the sale or delivery of the Goods and Services (other than income taxes payable by Seller), shall be invoiced to and paid by Buyer unless the Buyer provides Seller with a tax exemption certificate acceptable to Seller and the applicable taxing authority. Seller shall issue an invoice to Buyer after each shipment of product and or service amounts due under the contract and Buyer shall pay such amounts within 30 days of receipt of such invoice. Any amount which is not paid when due shall bear interest at the rate of 1.5% per month or portion thereof from the date such amount became due through the date on which payment is received by Seller. Payment of Invoices is not subject to unilateral discounting, reductions, deductions or setoffs by Buyer.
- DELIVERIES. All shipping dates are approximate and are based upon prompt receipt of all necessary information from Buyer to process the order. Seller shall deliver to Buyer the Goods described in the contract. Unless otherwise provided in the contract, all deliveries from Seller to Buyer shall be F.O.B. shipping point. Notwithstanding any provisions to the contrary in the contract, and regardless of how prices were quoted, legal title and risk of loss with respect to such deliveries shall pass to Buyer upon delivery of the Goods to the freight carrier at the shipping point. Buyer shall be responsible for all storage and transportation costs. Buyer’s sole remedy for lost Goods, damage caused during shipment or any delay attributable to shipment shall be an action against the carrier. Seller reserves the right to withhold any and all deliveries in the event Buyer fails to pay any invoice in accordance with this contract or Seller has reason to believe Buyer does not have the financial ability to pay any future invoice when due. Seller shall not accept return of the Goods unless otherwise agreed in writing.
- CONTRACT ADDENDUM. In the event that Buyer requests any modifications to the Services or to the type or number of Products, Buyer shall prepare and deliver to Seller a purchase order describing such modifications and the changes in the Services and/or Products necessary to effect such modification which shall be in accordance with Seller’s new quotation in response to Buyers request.
- TERMINATION AND SUSPENSION. Either party may terminate this contract by providing notice to the other party (a “Termination Notice”). Notwithstanding the “Notices” provision hereof, a Termination Notice shall not be effective until actually received by the non-terminating party (the “Termination Date”). Seller shall cease performance of the Services and delivery of the Goods as soon as is reasonably possible following receipt of a Termination Notice from Buyer. Should Buyer request modification, return, termination or suspension, Seller is entitled to payment for all costs and expenses incurred for work, materials and Goods rendered unnecessary or unusable, all expenses and non-cancelable commitments incurred by Seller prior to or in connection with such termination including, without limitation, the cost of all Products and all processing, handling and cancellation charges incurred from manufacturers Products (collectively, the “Termination Payment”). Additionally, all returns of unmodified stock Products are subject to a 35% restocking charge and both modified and non-stock Products are not returnable.
- LIMITATION OF LIABILITY; INDEMNIFICATION.
- NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, BUYER AGREES THAT SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY DELAY IN PERFORMANCE NOR SHALL SELLER’S LIABILITY INCLUDE INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES WHETHER OR NOT SELLER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH CLAIM INCLUDING, WITHOUT LIMITATION, LOSS OF TIME, OR LOSS OF ANTICIPATED PROFITS OR REVENUE. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY HEREUNDER SHALL BE LIMITED TO RE-PERFORM THE SERVICES, REPAIR, OR REPLACEMENT OF THE PRODUCTS, AT THE ELECTION OF THE SELLER IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILLITY, OTHER TORT OR OTHERWISE), SHALL SELLER’S LIABILITY TO BUYER AND/OR BUYER’S CUSTOMERS EXCEED THE PRICE OR FEES PAID TO SELLER FOR THE SPECIFIC PRODUCTS OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
- Buyer hereby agrees to indemnify and hold Seller harmless from and against penalties, claims, demands, losses, cause of action, suits, judgments, costs and expenses, including reasonable attorney’s and paralegals’ fees arising from or in connection with: (i) the failure of Buyer to keep, perform and observe its obligations hereunder, (ii) any injury, sickness or death of a person other than any employees, contractor, subcontractor, agent of or other person acting on behalf of or otherwise engaged by Seller (a “Seller Representative”) or damage to property to the extent not caused by the negligent act or omission of a Seller Representative; (iii) any injury, sickness or death of a Seller Representative not caused by the negligent act or omission of a Seller Representative; (iv) the failure of Buyer to comply with and observe all present and future laws, orders, codes, regulations, ordinances, rules and decrees of each governmental agency or instrumentality which may be applicable to the Product or Buyer’s business; (v) any actual or alleged infringement of any third party’s
- intellectual property rights to the extent arising from designs, design information, specifications, processes or formulas supplied by Buyer, and (vi) specifications, design information, processes or other information or representation supplied or made by Buyer which proves to be inaccurate or which was not supplied by Buyer but should have been under the circumstances.
- LIMITED WARRANTY. Subject to the limitations contained in Section 6 herein, Seller warrants that the Products will be free from defects in materials or workmanship under normal use and care and services will be performed by trained personnel using proper equipment and instrumentation for the particular Service provided. Additionally, the foregoing warranties will apply until the expiration of the applicable warranty period. Products are warranted for twelve (12) months from the date of initial installation. Services are warranted for a period of ninety (90) days from the date of shipment or completion of the Services. Products purchased by Seller from a third party for resale to Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer. Buyer agrees that Seller has no liability for Resale Products beyond making a reasonable commercial effort to arrange for procurement and shipping of the Resale Products. If Buyer discovers any warranty defects Buyer must notify Seller thereof in writing during the applicable warranty period. All replacements or repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable power sources or environmental conditions, accident, misuse, improper installation, modification, repair, use of unauthorized replacement parts, storage or handling , or any other cause not the fault of Seller are not covered by this limited warranty, and shall be at Buyer’s expense. Seller shall not be obligated to pay any costs or charges incurred by Buyer or any other party except as may be agreed upon in writing in advance by Seller. All costs of dismantling, reinstallation and freight and the time and expenses of Seller’s personnel and representative for site travel and diagnosis under this and parts replaced by Seller during the warranty period shall be in warranty for the remainder of the original warranty period. This limited warranty is the only warranty made by Seller.
- DEFAULTS. In the event that Buyer fails to comply with any of the terms and conditions hereof, or, in Seller’s reasonable opinion, Buyer’s ability to make timely Payments hereunder is impaired, or Buyer becomes insolvent, bankrupt, or makes an assignment for the benefit of creditors, or Borrower is subject to a bankruptcy proceeding, then in any such event Seller may, (a) require cash payment and/or other assurances before providing further Services and Products, (b) declare the Termination Payment and all other sums payable to Seller hereunder to be immediately due and payable, (c) if full payment for the Products has not been received, enter upon Buyer’s premises or any other place where the Products are located and repossess all of the Products without notice, hearing, court order or further process of law and/or (d) pursue any other remedy available to Seller at law or in equity. Buyer shall reimburse Seller for all costs and expenses (including reasonable attorneys’ and paralegals’ fees and expenses) incurred by Seller in collecting any amount due to Seller or enforcing any provision of this Agreement.
- BUYER’S OBLIGATIONS AND SUPPLIED DATA. Buyer shall provide Seller ready access to the site where Services are to be performed and adequate workspace and facilities to perform the same. Buyer agrees to allow Seller to stop and start equipment as necessary to fulfill the terms of the Contract. Buyer shall not require Seller or its employees, as a condition to site access or otherwise, to further agree or enter into any agreement which waives, releases, indemnifies or otherwise limits or expands any rights or obligations whatsoever. Any such agreements shall be null and void. Buyer shall inform Seller, in writing, at the time of order placement, of any known hazardous substance or condition at the site, including, but not limited to, the presence of asbestos or asbestos containing materials, and shall provide Seller with any applicable Material Data Safety Sheets regarding same. Any losses, costs, damages, claims and expenses incurred by Seller as a result of Buyer’s failure to so advise Seller shall be borne by Buyer. Buyer personnel shall cooperate with and provide all necessary assistance. Seller shall not be liable or responsible for any work performed by buyer. Buyer accepts and assumes all liability and responsibility for all safety warnings in connection with the Products and for compliance of the Products with all applicable laws. Buyer shall be responsible for receiving, storing, installing, starting up and maintaining the Products. To the extent Seller has relied upon any data or information supplied by Buyer to Seller (“Data”) in the selection or design of the Products and/or provision of the Services and the preparation of the Seller’s quotation, and the Data is inaccurate or incomplete, any warranties or other provisions contained herein which are affected by such conditions shall be null and void.
- CONFIDENTIALITY. Buyer shall not use or disclose, or authorize anyone else to use or disclose, any of the terms of this Contract, including but not limited to prices, supplies, parts, equipment, correspondence, files, forms, reports, proposals, financial, information or confidential information or matter relating to any aspect of the business of Seller (collectively, “Confidential Information”) without the prior written consent of Seller. Confidential information shall not include information which: (a) is or becomes publicly known through no wrongful act on Buyer’s part, (b) is known to Buyer prior to receiving such information from Seller, (c) is independently developed by Buyer without referenced to or use of the Confidential Information or (d) is disclosed pursuant to an order of a governmental or judicial authority, after prior notice to Seller and affording Seller reasonable opportunity and cooperation to object to the disclosure or obtain a protective order, at Seller’s expense. Upon Seller’s request, Buyer shall immediately deliver to Seller all papers, books, manuals, lists, correspondence, documents and other materials relating to Confidential information, together with all copies and embodiments of all of the foregoing, including, but not limited to, electronically stored records, databases, programs, computer disks and computer software, irrespective of whether the parties created the same or were involved with the same, and shall neither copy, use nor take any such material. This term does not supersede any previous confidentiality agreements of Buyer to Seller, but instead supplements any such prior agreements with the intent of providing Seller with the maximum protection possible. If any of the terms, conditions or other provisions of any such prior Agreements are inconsistent with or contrary to this term, then this term shall control.
- INTELLECTUAL PROPERTY. Seller makes no representations or warranties regarding the intellectual property rights of Buyer in any invention, discovery, design or product provided hereunder (collectively, the “Products”). Buyer shall receive any manufacturer’s warranty regarding intellectual property that Seller receives from the applicable manufacturer to the extent such warranty may be assigned by Seller to Buyer.
- FORCE MAJEURE. Seller shall not be liable for delays in performance or non-performance due to failure or interruption of computer or telecommunication systems, acts of God, war, riot, fire, terrorism, labor trouble, unavailability of materials or components, explosion, accident, flood, sabotage, the shortage of or inability to obtain from anticipated sources adequate materials, parts or Goods, or transportation facilities, compliance with governmental requests, law, regulations, orders or actions, the breakage or failure of machinery or apparatus, national defense requirements or any other event beyond the reasonable control of Seller, or in the event of labor trouble, strike, lockout or injunction affecting Seller or its supplies, Sellers or transporters which event makes impractical the provision of the Services or the manufacture, procurement, transportation, delivery, acceptance or use of the Goods. In the event of such delay, the time for performance or delivery shall be extended by a period of time reasonably necessary to overcome the effect of the delay.
- RELATIONSHIP OF THE PARTIES. Each party is, and is intended to be, engaged in its own and entirely separate business.
- NOTICES. All notices and other communications given hereunder shall be in writing and deemed to have been given when (a) personally delivered, (b) one business day after delivery to a nationally recognized overnight courier service, (c) upon the written confirmation of receipt following the transmission of a telecopy or (iv) three (3) days after being mailed by certified mail, postage prepaid, to the addresses of Seller or Buyer as set forth in the Proposal or to such other addresses as either party may request by notice given in accordance with this paragraph.
- GENERAL PROVISIONS. Buyer shall not assign its rights or obligation under the Contract without Seller’s prior consent. There are no understandings, agreements or representations, express or implied, not specified in the Contract. Any modification of these terms and conditions must be set forth in a written instrument signed by a duly authorized representative of Seller. If any provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed omitted without affecting the validity of the remainder of the Contract. Any failure by either party to enforce any provision of the agreement or of any order shall not constitute a waiver of the provisions or prejudice the right of either party to enforce the provision at any subsequent time.