Entire Contract -This document represents the entire contract between the parties and which may not be amended, modified or rescinded, except by written agreement signed by an authorized representative of Seller, which expressly refers to this document. The Seller hereby objects to any conflicting or additional terms or conditions contained in Buyer’s documents. This Purchase Order constitutes an offer and not an acceptance of any offer from Buyer. Buyer shall be deemed, at Seller’s option, to have accepted this offer within the earlier of 10 days after receipt or upon the manufacture, fabrication, provision or delivery of any goods or services contemplated or upon Buyer’s execution of this document. Seller may, at any time, correct any mathematical or clerical errors contained herein. Prior Sale, Inventory – All goods are offered subject to prior sale and/or availability of current inventory and Seller shall have no liability whatsoever from a failure to provide goods because of prior sale or unavailability. Prices – Unless otherwise specified herein, prices noted on the face of this document are firm for thirty (30) days, provided, however, that if, before shipment of this order, Seller should receive increases from its manufacturers or suppliers, Seller may adjust the above price to those in effect at time of shipment without notice. Delays – Whether or not due to Seller’s fault, Seller shall not be responsible for any failure or delay in delivery due to fires, floods, labor trouble, breakdowns, delay of carriers, manufacturers delay, total or partial failure for any reason of sources of supply or transportation, requirements, or requests of any government or subdivision thereof, or any similar or dissimilar cause beyond the Seller’s direct control. In the event of inability of the Seller, for any cause beyond Seller’s direct control, to supply the total demands for any materials specified in this order, Seller may allocated its available supply among any or all buyers on such basis as Seller, in its sole discretion, may decide without liability for any failure to perform the contract. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER RESULTING FROM ANY FAILURE OR DELAY IN DELIVERY, WHETHER OR NOT FROM CA– USES BEYOND SELLER’S DIRECT CONTROL. Payment and Credit -Shipment, deliveries and performance of work shall at all times be subject to the approval of the SELLER’S credit department. Invoices submitted by Seller under this order are payable at par in legal tender of the United States of America in the city designated in the remittance address, upon the payment terms and in the amounts herein set forth. Whenever reasonable grounds for insecurity should arise with respect to due performance by the Buyer, Seller may demand different terms of payment from those specified on the face of this order and may demand satisfactory security for the performance of Buyer obligations. Seller may, upon making such demand, suspend shipments hereunder. If, within the period stated in such demand, Buyer fails or refuses to agree to such different terms of payment, or fails or refuses to give adequate security for due performance, Seller may, at its option, treat such failure or refusal as a repudiation of any portion of order which has not been fully performed. AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, BUYER SHALL BE OBLIGATED TO PAY ON ALL ACCOUNTS NOT PAID ON THE DUE DATE THEREOF THE LOWER OF (I) 1-1/2% PER MONTH ON THE OUTSTANDING ACCOUNT BALANCE OR (II) THE HIGHEST RATE PERMITTED BY LAW TOGETHER WITH ALL ATTORNEYS ‘FEES INCURRED BY SELLER IN CONNECTION WITH THE COLLECTION OF ANY DELIQUENT ACCOUNTS. Buyer agrees that notwithstanding any endorsements or legend appearing on Buyer’s checks, drafts or other orders for payment of money, they do not, solely because of such endorsement of legend or otherwise, constitute payment in full or settlement of the account. No failure of the Seller to exercise any right, accruing from any default of the Buyer, shall impair Seller’s right in case of that or any subsequent default of the Buyer. Standard , Tolerance -Except in particulars specified by the Buyer expressly agreed to in a writing signed by Seller, the goods furnished hereunder are produced in accordance with standard manufacturing practices at the country of origin. All materials are subject to manufacturing tolerances and variations, consistent with normal manufacturing practice with respect to dimension, weight, straightness, section, composition and mechanical properties, normal variations in surface and internal conditions and in quality to deviations in tolerances and variations consistent with practical testing and Seller is not responsible for any deterioration in quality which may result from processing, operations or use by the Buyer. Changes – Orders may not be canceled or changed except with Seller’s written consent and upon terms that will indemnify the Seller against all loss. Postponement of delivery will not be made without Seller’s approval first being obtained. Seller assumes no responsibility for any changes in specifications unless such changes are accepted in writing by Seller. Any price increases resulting from such changes shall become effective immediately upon the acceptance of such changes. Delivery; Discounts – Delivery terms are as stated on the face of this document. Unless indicated otherwise on the face of the document, all shipments are made F.O.B. Shipping Point. Freight will be allowed on delivered prices only to the extent set forth on the face of the invoice. Cash discounts provided for in this order shall apply only to the discount value as indicated on the face of the invoice. In the case of pick up by the Buyer, Buyer’s truck is destination and Seller will not deliver or bear any cost of shipment or transportation or make any allowance with respect thereto. Seller will in no event be responsible for spotting, switching, drayage or other local charges in destination. Inspection; Waiver – Where Buyer is to inspect, inspection and acceptance must be made within ten days of receipt. Any and all claims relating to this transaction which Buyer may have against Seller must be filed in a court or competent jurisdiction within 1 year after delivery or shall be forever barred and waived. Warranty and Limitation of Remedies – Each product manufactured by Nashville Pump & Power, LLC is warranted to be free of defects in material and workmanship for one (1) year after the product is first put into operation or eighteen (18) months after the date of shipment, whichever is less, when the product is in the hands of the original owner and the product has been used properly for the purpose which sold; and provided that Seller shall be notified within thirty (30) days from the earliest date on which an alleged defect could have been discovered, and further that the defective good(s) or part(s) shall be returned to the Seller, freight prepaid by such user, at Seller’s request. No material will be accepted at Seller’s plant without a Return Material Authorization (RMA) number first obtained from Seller. All material returned must be clearly marked with such RMA number. Unless expressly stated otherwise, warranties in the nature of performance specifications furnished in addition to the foregoing on a product manufactured by Nashville Pump & Power, LLC, if any, are based on laboratory test corrected for field performance. Due to inaccuracies of field-testing, if any conflict arises between the results of field testing conducted by or for the user, and laboratory tests corrected for field performance, the latter shall control. No equipment shall be furnished on the basis of acceptance by results of field testing. Upon receipt of definite shipping instructions from Seller, Buyer shall return all defective goods to Seller after inspection by Seller. The goods returned must be returned in the same conditions as when received by the Buyer. Defective goods so returned shall be replaced or repaired by the Seller without an additional charge or, in lieu of such replacement or repair, Seller may, at its option, refund the purchase price applicable to such defective goods. Seller agrees to pay return transportation charges not exceeding those which would apply from original destination on all defective goods. However, Seller shall not be liable for such charges when the goods are not defective and Buyer shall be liable for such charges. SELLER’S LIABILITY SHALL BE LIMITED SOLELY TO REPLACEMENT OR REPAIR, OR AT SELLER’S OPTION, TO REFUNDING THE PURCHASE PRICE APPLICABLE TO DEFECTIVE GOODS OR SERVICES. SELLER SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES. THIS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS, EXPRESS OR IMPLIED BY OPERATION OF LAW, INCLUDING ANY WARRANTY OF MERCHATABILITY OF FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL HAVE NO LIABILTY ARISING FROM DESIGN FURNISHED BY OTHERS OR FROM ENGINEER’S OR ARCHITECT’S ERRORS OR OMISSION. Taxes – Buyer shall be liable for all taxes of any sort now or hereafter imposed by any federal, state, municipality or other government agency that may be levied against this transaction. Source of Materials – Unless otherwise expressly agreed to in a writing signed by Seller, Seller has the right to obtain material from any source at its discretion. Delivery Date – The scheduled delivery dates) shall be, not be earlier than a time reasonably convenient to Seller after, if applicable, final drawing approval. Patents – If any goods shall be sold by Seller to meet Buyer’s specifications or requirements and is not a part of Seller’s standard line offered by it to the trade generally in the usual course of Seller’s business, Buyer agrees to defend, protect and save harmless Seller against all suits at law or in equity and from all damages, claims and demands for actual or alleged infringement of any United States or foreign patent and to defend any suits or action which may be brought against Seller for any alleged infringement because of the sale of any such material. Waivers – No waivers by the Seller of any breach of any provisions hereof shall constitute a waiver of any other breach of such provision. Seller’s failure to object to provisions contained in any communication from the Buyer shall not be deemed an acceptance of such provisions or as a waiver of the provisions of this document. Timing of Billing to Buyer – Seller will invoice Buyer upon shipment from its supplier or facility, unless otherwise indicated on the face of this document. Storage of Material for Buyer – If, at Buyer’s request, goods covered by this document are held at Seller’s facility or service provider for more than 21 days after they are available for shipment, Buyer shall accept Seller’s invoice and pay said invoice based on payment terms set forth herein. Material Reservation – Seller will only reserve material for 30 days with receipt of an excecuted purchase order, quote or order acknowledgement acceptable to Seller. After that time, material availability, price and shipment date may be adjusted, at Seller’s option.
