“Customer” means the company, partnership, person, or entity purchasing the Products from the Seller identified in the Purchase Documents;
“Products” means the Product parts and materials or equipment being purchased by the Buyer from the Seller as more particularly identified in the Purchase Documents;
“Purchase Documents” means the documents accompanying these Terms and Conditions which more fully describe the Products and/or Services, including, as applicable, the Buyer's request for quotation, purchase orders, and the Seller's quotation;
“Seller” means Puffer-Sweiven LP;
“Services” means the services of any description or kind to be provided by the Seller in relation to the Products as more particularly identified in the Purchase Documents;
“Terms and Conditions” means these standard terms and conditions.
These Terms and Conditions are the only terms and conditions applicable to the sale of the Products to the Customer. ANY REPRESENTATIONS, PROMISES, WARRANTIES, OR STATEMENTS BY SELLER'S AGENT OR EMPLOYEE THAT DIFFER IN ANY WAY FROM THESE TERMS AND CONDITIONS SHALL BE GIVEN NO FORCE OR EFFECT. The person accepting Terms and Conditions on behalf of Customer hereby warrants and represents that such person has actual authority to do so and to bind Customer to the terms hereof and that all corporate (or equivalent) action required to accept such Terms and Conditions by Customer has occurred. Any additional or different terms or conditions set forth in any communications, including without limitation a telephone order, a request for quotation, or purchase order form from Customer are objected to by Seller and shall not be effective or binding unless expressly assented to in writing by an officer of Seller. All shipments are made pursuant to these Terms and Conditions. No other terms or additions are acceptable. These Terms and Conditions are intended as a final and complete expression of the agreement between Seller and Customer.
A sales confirmation or similar form issued by Seller pursuant to a Customer's purchase order constitutes an expression of acceptance of such purchase order, but such expression of acceptance is expressly conditioned upon Customer's assent to these Terms and Conditions.
3. PRICES AND QUOTATIONS:
All prices are F.O.B. Seller's warehouse in Stafford, Texas or such other of Seller's locations as Seller may choose, unless otherwise specified. Except as otherwise provided therein, Seller's prices for the Product shall remain in effect for thirty (30) days from the date of Seller's quotation. All prices quoted by Seller are subject to any addition which may be necessary to cover any taxes or charges or any applicable increase in same hereafter becoming effective, such as, for example, the payment of any applicable sales, use, excise or other taxes, or import duties, documentation charges, freight, insurance, packing charges, or similar costs or charges.
4. PAYMENT TERMS:
a) Subject to the approval of Seller's Credit Department, and unless otherwise agreed in writing, terms of payment are net thirty (30) days following the date of invoice.
b) All payments shall be made in U.S. currency to Seller at its offices in Stafford, Texas, or as Seller otherwise directs.
c) The amount of any invoice shall be deemed to be accurate unless Seller receives written notification from Customer disputing the amount or validity of any such invoice before the payment due date and before payment has been made. Any such notification shall be sent to Seller at 4230 Greenbriar Drive, Stafford, Texas 77477, Attn.: Accounts Receivable. Any such notice shall include the invoice number and a description of the alleged error.
d) Seller shall have the right, among all other available legal remedies, to terminate and/or to suspend deliveries if Customer fails to make any payments to Seller when due.
Prior to acceptance of the Product, Customer may terminate its order for any or all of the Product covered by these Terms and Conditions, provided that (a) Seller is given reasonable advance written notice of such termination and (b) Seller is paid termination charges which shall include all costs and expenses already incurred or commitments made by Seller in connection with the processing, purchasing, handling and fabrication of the Product, and a reasonable profit thereon plus any losses or damages resulting from such cancellation or termination. Seller’s determination of such termination charges shall be conclusive.
6. DELIVERY AND DOCUMENTATION:
a) Customer shall bear the risk of loss for damage to or destruction of the Product from the earlier of the time that Seller delivers such Product to the carrier or to Customer or Customer’s agent. Any claims for loss or damage after risk of loss has passed to Customer shall be filed with the carrier. Customer shall give written notice to Seller of any claim for shortage, error in Product shipped or error in charges within thirty (30) days after receipt of Product or such claim shall be deemed waived.
b) Quoted delivery dates are approximate estimates determined at the time of quotation and are subject to revision at any time.
c) All shipping dates are approximate and are based upon prompt receipt by Seller of all necessary information from Customer to properly process the order.
d) Delivery dates are subject to changes caused by additions to or modifications of the original order agreed to by both Seller and Customer.
e) Under no circumstances shall Seller have any liability whatsoever for loss of use or for any indirect or consequential damages as a result of delayed delivery.
f) Unless otherwise agreed in writing Seller shall have the option of partial or complete shipment of the Product.
g) Seller shall provide Customer with such data or documentation, if any, as specified in the quotation. If additional copies of such data or documentation are requested by Customer, Seller will provide such additional copies at Customer’s expense. If Customer requests different or non standard data or documentation, Seller, at its sole option, may provide such different or non standard data or documentation at Customer’s expense.
Subject to these Terms and Conditions regarding cancellation and warranties, all sales are final. Customer may request to return Product by contacting its account salesperson to request a return authorization number. No Product will be accepted for return without a valid return authorization number clearly noted on the outside of the shipment. Any return shipments must be made freight prepaid unless Seller has expressly authorized Customer in writing to ship such Product to Seller at Seller's expense. Any returns of Product authorized by Seller are subject to Seller's standard restocking charges as such are then effective. Seller's current minimum restocking charges are the greater of 20% of the invoiced price or $50 per item. Special orders or non-stock items are subject to higher restocking charges.
8. INSTALLATION, MAINTENANCE, ETC.:
All Product shall be installed by and at the expense of the Customer. Customer shall be responsible for receiving, storing, installing, starting up and maintaining all Product. Customer may request the Seller to provide a quotation for providing Services to assist Customer in all or part of these duties.
Except for non-warranty repair services, services rendered by Seller, whether with or without charge, are only technical or advisory in nature and are merely incidental to the sale of the Product. When any such services are rendered, Customer will retain full responsibility for and full control, custody and supervision of the Product and the installation, selection of material therefor, use or operation thereof, and a representative of Customer shall be present with full authority to direct operations. If Seller furnishes technical or other advice to Customer, whether or not at Customer's request, with respect to Customer's process or Product, such advice shall be made in good faith, and Customer assumes all risk of such advice and the results thereof.
10. LIMITED WARRANTY AND DISCLAIMER:
a) As set forth herein, different warranties may apply to different categories of Product. AS TO ALL PRODUCT, INCLUDING SERVICES, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE PRODUCT. The warranties made in this section are in lieu of any other warranty, express or implied, and are expressly subject to Section 12 and these Terms and Conditions. The warranties made in this section are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller.
b) “Resale Products" shall mean any portion of the Product purchased by Seller from a third party for resale. If the Resale Products are subject to the manufacturer's or other third party warranties, Seller hereby assigns to Customer all of Seller's rights and remedies under such warranties to the extent that such rights and remedies are assignable.
c) "Puffer Products" shall mean any portion of the Product manufactured or fabricated by Seller. Subject to these Terms and Conditions, Seller warrants that all Puffer Products will be free from defects in materials or workmanship under normal use and service until the expiration of twelve (12) months from the date of shipment by Seller. Puffer Products are prepared solely as a convenience to Customer according to instructions and specifications provided by Customer.
d) "Consumables" shall mean that portion of the Product which is depleted or expected to rapidly deteriorate in ordinary use of the Product including, without limitation, glass parts and electrodes, membranes, liquid junctions, electrolytes and reagents, o-rings, plastic tubing, etc. Subject to these Terms and Conditions, Consumables which do not constitute part of Resale Products are warranted by Seller to be free from defects in material and workmanship under normal use and service for a period of ninety (90) days from the date of shipment by Seller.
e) "UPO Product" shall mean unused, previously owned products which are not covered by a manufacturer's warranty on the date of shipment by Seller. Subject to these Terms and Conditions, Seller warrants that UPO Product shall be free from defects in material and workmanship under normal use and service for a period of twelve (12) months from the date of shipment by Seller.
f) "Used Product" shall mean previously sold, used products which may or may not have been refurbished, repaired, modified, reconfigured, or cleaned by Seller or a third party. Used Product shall include, but not be limited to, Product such as that sold through the ENCORE program. If any portion of the Used Product is subject to a third party warranty, Seller hereby assigns to Customer all of Seller's rights and remedies under such warranty to the extent that such rights and remedies are assignable. If any portion of the Used Product is not subject to any other warranty as of the date of shipment by Seller, and subject to these Terms and Conditions, Seller warrants that such portion of the Used Product shall be free from defects in material and workmanship under normal use and service for a period of six (6) months from the date of shipment by Seller.
g) Subject to these Terms and Conditions, Seller warrants that any portion of the Product consisting of Software will execute the programming instructions provided by Seller for a period of ninety (90) days from the date of shipment. The foregoing warranty shall not apply to any such software which is covered by a third party warranty. If any such portion of the Product consisting of Software is subject to the manufacturer's or other third party warranties, Seller hereby assigns to Customer all of Seller's rights and remedies under such warranties to the extent that such rights and remedies are assignable.
h) Subject to these Terms and Conditions, Seller guaranties the workmanship in all non-warranty service, including, without limitation, repair and maintenance service, performed by Seller for a period of ninety (90) days from the date of the service.
i) Subject to these Terms and Conditions and unless otherwise expressly provided herein, Seller warrants title to all Product (other than software) provided under these Terms and Conditions.
j) Customer must notify Seller in writing of any warranty defects within thirty (30) days after discovery thereof. Failure by Customer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Customer's claim for such defects. If timely written notice of such defects is given to Seller and Seller concludes that such defects are covered by a warranty made by Seller in these Terms and Conditions, Seller shall, at its option and as Customer's sole and exclusive remedy hereunder, repair or replace F.O.B. point of manufacture, that portion of the Product found by Seller to be defective or reperform any non-conforming services in a commercially reasonable manner. In the event that Seller determines that it is not commercially reasonable to repair or replace any non-conforming Product or to reperform any non-conforming services, then Seller may, at its option, accept a return of the Product and return the purchase price paid. Customer agrees that Seller shall have no liability for warranty defects alleged to exist in Resale Products; however, Seller agrees to make a reasonable commercial effort, if requested to do so by Customer, to arrange for procurement and shipping of replacement Resale Products, at Customer's expense. Product repaired and parts replaced by Seller during the warranty period shall be subject to the warranties made by Seller in these Terms and Conditions for the remainder of the original warranty period.
k) The warranties made by Seller in these Terms and Conditions do not apply to replacements or repairs necessitated by inadequate preventative maintenance, or by normal wear or usage, or by fault of Customer, or by unsuitable power sources or by attack or deterioration under unsuitable environmental conditions, or by natural disaster, sabotage, abuse, accident, alteration, misuse, improper installation, modification, repair, storage or handling, or any other cause not the fault of Seller. The warranties made by Seller in these Terms and Conditions do not apply to (i) any Product which has been modified or subjected to unauthorized repair; or (ii) any item which is a component part of the Product where such item is furnished by Customer.
l) Seller's obligation to repair or replace defective Product, to reperform non-conforming services, or, at Seller’s option, to accept a return of the Product and return the purchase price paid, constitutes agreed and liquidated damages and the sole remedy for any breach of warranty by Seller. Seller shall have the right to inspect any Product claimed to be defective and shall have the right to determine the cause of such claimed defect. All Product replaced or repaired by Seller under its warranty shall be replaced or repaired F.O.B. Seller's warehouse, Stafford, Texas, or such other location as Seller may designate.
m) For purposes of these Terms and Conditions, "date of shipment by Seller" shall mean the earlier of the date that the Product is delivered for shipment or the date of delivery to Customer if Customer (or Customer's agent) picks up or otherwise takes delivery of the Product without shipment by Seller.
11. CUSTOMER DATA/SPECIFICATIONS:
To the extent that Seller has relied upon any specifications, information, representation of operating conditions or any other data supplied in writing by Customer to Seller in the selection or design of the Product or otherwise in connection with these Terms and Conditions or the preparation of Seller's quotation, and in the event that the actual operating conditions or other conditions differ from those supplied by Customer and relied upon by Seller, ANY WARRANTIES OR OTHER TERMS AND CONDITIONS CONTAINED HEREIN WHICH ARE AFFECTED BY SUCH CONDITIONS SHALL BE NULL AND VOID.
12. SOFTWARE AND INTELLECTUAL PROPERTY:
Notwithstanding anything herein to the contrary, any third party software (including firmware), whether open source, proprietary or otherwise (collectively, “Software”), that is embedded or included with any Product or otherwise provided by Seller is not being sold by Seller hereunder; instead, all such Software shall be separately licensed by Customer from the third party provider of such software and/or its licensors and is subject to all of the license terms and restrictions provided by such party. No Software is being licensed from Seller hereunder, and Customer is solely responsible for obtaining and complying with any applicable third party license terms and restrictions. Any and all materials, work product, writings, designs, formulations, drawings, ideas and/or other intellectual property created by Seller and/or its employees, agents or contractors (“Seller Work Products”) shall be the exclusive property of Seller, and all rights, title and interest therein shall belong exclusively to Seller from the time of their creation. Customer and Seller agree that all rights, title and interest, including trademarks, patent rights, copyright interests and other forms of intellectual property, in and to the Seller Work Products, Seller’s business methods, Seller’s Services and all related intellectual property of Seller are and shall remain the exclusive property of Seller.
13. LIMITATION OF REMEDY AND LIABILITY:
CUSTOMER'S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND SELLER'S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY AND ALL CAUSES WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT AND/OR SERVICES IN RESPECT OF WHICH SUCH CAUSE ARISES OR, AT SELLER'S OPTION, THE REPAIR OR REPLACEMENT OF SUCH PRODUCT OR THE REPERFORMANCE OF SUCH SERVICES, AND IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE. NOTWITHSTANDING THE FOREGOING, SELLER SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. The term "Consequential Damages" shall include, but not be limited to, loss of anticipated profits, loss of use, loss of revenue and cost of capital. Seller shall not be liable for, and Customer assumes liability for, all personal injury and property damage connected with the handling, transportation, possession, use, further manufacture, or resale of the Product. No costs or charges incurred by Customer will be paid by Seller unless authorized in writing in advance by Seller.
14. EXCUSE OF PERFORMANCE:
a) Deliveries may be suspended, delayed, or canceled by Seller, without liability to Customer or any other person, in the event of: Act of God, war, riot, fire, explosion, accident, flood, natural disaster, sabotage, equipment or computer failure: acts, omissions, or failures by Seller's suppliers or other third parties; lack of or delays in obtaining adequate fuel, power, raw materials, components, labor, containers, or manufacturing or transportation facilities; compliance with governmental requests, laws, regulations, order or actions; breakage or failure of machinery or apparatus; force majeure; national defense requirements or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller; or in the event of labor trouble, strike, lockout or injunction (provided that Seller shall not be required to settle a labor dispute against its own best judgment); which event makes impracticable the manufacture or delivery of a shipment of the Product or of a material or component upon which the manufacture of the Product is dependent.
b) If Seller determines that its ability to supply the total demand for the Product or obtain any or a sufficient quantity of a material or component used directly or indirectly in the manufacture of the Product, is hindered, limited or made impracticable, Seller may allocate its available supply of the Product or such material or component (without obligation to acquire other supplies of any such Product, material, or component) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure or delay of performance which may result therefrom.
c) Deliveries suspended or not made by reason of this section shall at Seller's option, either be canceled or the time for delivery shall automatically be extended for a period equal to the suspension period, without liability, but these Terms and Conditions shall otherwise remain unaffected.
15. WAIVERS AND RELEASES:
Except as provided in Section 10 and except for the willful misconduct or gross negligence of Seller, its employees or agents, Customer hereby releases Seller, its employees, agents and "controlling persons" (within the meaning of Section 20(a) of the Securities Exchange Act of 1934, as amended) from all liabilities, claims, costs, expenses, losses and damages of any and every kind arising out of or resulting, directly or indirectly, from any defect or failure of the Product or any act, omission, error or delay in the performance, or nonperformance of Seller's obligations and duties under these Terms and Conditions. To the extent, if any, that Seller, its employees, agents or "controlling persons" shall have any liability under these Terms and Conditions, Customer's exclusive remedy shall be as set forth in Section 12. CUSTOMER WAIVES ALL CLAIMS FOR CONSEQUENTIAL DAMAGES AND ALL CLAIMS REGARDING LOSS OF REVENUE, INCOME, PROFIT AND USE OR DAMAGES, WHETHER SAME BE DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL.
16. GOVERNING LAW, VENUE AND LIMITATIONS:
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Texas without regard for its conflict of law provisions. Each of the parties hereto submits irrevocably to the exclusive jurisdiction of the courts of the State of Texas, in Harris County, as regards any claim or matter arising under these Terms and Conditions. No action or claim, regardless of form, arising out of transactions under these Terms and Conditions may be brought by either party, more than two years after the cause of action or claim has accrued.
17. OTHER TERMS AND CONDITIONS:
a) Customer shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of Seller, and any attempted assignment or delegation by Customer without such consent shall be void. Seller may exercise its rights and perform its obligations under these Terms and Conditions through subcontractors, contractors and contracted third parties.
b) Seller reserves the right to modify the design of any Product without obligations or notifications, and Seller is not obligated to so modify Product previously or subsequently sold.
c) Should any clause, sentence or part of these Terms and Conditions be held invalid, such holding shall in no way affect the validity of the remainder, which shall remain in full effect. Failure to enforce any or all of the provisions of these Terms and Conditions in a particular instance or instances, shall not constitute a waiver or preclude subsequent enforcement thereof.
d) Until one year following the last purchase of Products or Services hereunder, Customer shall not hire, seek to hire or in any way participate in an attempt to hire any employee of Seller on Customer's own behalf or on behalf of another, and Customer shall not in any other manner attempt to directly or indirectly influence, induce or encourage any employee of Seller to leave the employment of Seller. For purposes of this section, “employee” means any permanent employee, temporary employee, independent contractor, or consultant who was employed by, doing business with, or associated with Seller within six (6) months of the time of the attempted solicitation or hiring.