Pneumatic Conveying, Inc. Terms & Conditions
Last modified October 2019
The terms and conditions of Pneumatic Conveying, Inc.’s (“Seller”) set forth herein, as may be subsequently modified by Seller from time to time (the “Terms and Conditions”), are incorporated by reference into all quotations and invoices issued by Seller. The quotation to which these terms and conditions are attached (the “Quote”), these Terms and Conditions and any Change Orders (as defined herein) shall constitute the complete and final agreement between Buyer and Seller, superseding prior written and oral communications, and shall be referred to herein as the “Agreement”. Each order by Buyer, including shipments to Buyer in response to any telephone orders, shall be deemed an acknowledgement and acceptance by Buyer of the Terms and Conditions as then in effect.
- NO MODIFICATIONS. Seller’s provision of credit, acceptance of any purchase order and/or sale of products (“Goods”) or the performance of services (“Services”), each as particularly described in the Quote, are expressly conditioned upon the terms and conditions contained in the Agreement. SELLER OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS AND HEREBY REJECTS ANY AND ALL SUCH TERMS, WHETHER CONTAINED IN BUYERS’ PURCHASE ORDER OR COMMUNICATIONS FROM BUYER. NO TERMS OR CONDITIONS THAT ALTER OR MODIFY THE AGREEMENT IN ANY WAY SHALL BE BINDING UNLESS EXPRESSLY AGREED TO IN A WRITTEN INSTRUMENT SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE. Authorization by Buyer to furnish Goods or provide Services hereunder constitutes acceptance of the Agreement. BUYER AND SELLER AGREE THAT THE TERMS AND CONDITIONS INCLUDED IN THE AGREEMENT ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE CONTROLLING AND FINAL TERMS AND CONDITIONS, AND FURTHER AGREE THAT THERE SHALL BE NO “BATTLE OF THE FORMS” AS DESCRIBED IN SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE. IN THE EVENT OF ANY CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND THE QUOTE, THE QUOTE SHALL GOVERN. IN THE EVENT OF ANY CONFLICT BETWEEN ANY CHANGE ORDER AND THESE TERMS AND CONDITIONS OR THE QUOTE, THE TERMS OF THE CHANGE ORDER SHALL GOVERN. Seller reserves the right to modify these Terms and Conditions by updating Seller’s Terms and Conditions published at __________.
- PRICE. The purchase price of any Goods or Services sold hereunder shall be as stated on the Quote, as may be modified by any Change Order. Any Goods or Services ordered other than those specifically set forth in the Quote shall be priced at Seller’s prices then in effect. Unless otherwise indicated in the Quote, as may be revised by a Change Order, all amounts owed to Seller shall be paid within 30 days of receipt of invoice. In the event any payment is not made to Seller when due, Buyer shall pay a late charge of 1.5% (minimum of $25) per month in addition to any payment due. Seller agrees to pay all bank and other charges resulting from a check of Seller being returned for insufficient or uncollectible funds. Buyer shall pay all amounts in US dollars. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller. Unless otherwise specified in the Quote, as may be modified by the Change Order, the purchase price for the Goods is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- CHANGE ORDERS. In the event that Buyer requests any modifications to the specifications of the Goods or Services or delivery thereof, to the Services or to the type or number of Goods, Seller shall, if such modifications are commercially reasonable, prepare and deliver to Buyer a Change Order proposal describing such modifications and the changes in the Services and/or Goods necessary to effect such modifications (a “Change Order”). The Change Order will also set forth changes to the price of the Goods or Services, if any, and an estimate of the revised schedule for completion of the Services or delivery of the Goods. Seller reserves the right not to continue or complete the Services or deliver Goods until receiving a written authorization from Buyer to proceed with the additional work.
- SCHEDULING; SHIPPING. The schedule for completion of the Services and delivery of the Goods set forth in the Quote, Change Order or Buyer’s purchase order is a good faith estimate. Seller shall not be liable for any delays, loss or damage in transit. All Goods are sold FOB Seller’s place of manufacture and title and risk of loss shall pass to Buyer upon delivery to Buyer.
- INSTALLMENTS. Unless otherwise expressly stated, Seller shall have the right to make delivery in installments. All installments may, at Seller’s discretion, be separately invoiced and paid as billed without regard to subsequent deliveries. Failure of Buyer to pay for any installment when due shall excuse Seller from making further deliveries. Delay in delivery on any installment shall not relieve Buyer of its obligations to accept and pay for remaining installments.
- INSPECTION AND ACCEPTANCE OF GOODS. Buyer shall inspect the Goods within  days of installation (the “Inspection Period”) Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Goods that do not conform to the limited warranty set forth in Section 7 within the Inspection Period. The remedies set forth in Section 8 shall be the Buyer’s sole and exclusive remedy and Seller’s entire liability for nonconforming Goods.
- LIMITED WARRANTY; DISCLAIMER. Subject to the limitations set forth in this Section, and unless the Quote, as modified by a Change Order, identifies an individual Good as non-cancellable and non-returnable, Seller warrants to Buyer that for a period of 120 months from the date of acceptance of the Goods by Seller (the “Warranty Period”), that the Goods purchased hereunder will materially conform to the specifications and will be free from material defects in material and workmanship, subject to the tolerances and variations consistent with usual trade practices. Buyer makes no warranties with respect to Goods which are identified as non-cancellable and nonreturnable in the Quote, as may be modified by a Change Order or with respect to the Services. Seller shall not be liable for a breach of 4917689/1/18118.000 the warranty set forth in this Section unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within the Warranty Period; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods; (iii) Buyer does not alter or repair the Goods without the prior written consent of Seller; and (iv) Seller reasonably verifies Buyer’s claim that the Goods are defective or nonconforming. All replacements or repairs necessitated by inadequate maintenance, normal wear and usage, unsuitable power sources or environmental conditions, accident, misuse, improper installation by anyone other than Seller, modification, repair, use of unauthorized replacement parts, storage or handling, or any other cause not the fault of Seller are not covered by the limited warranty, and shall be at Buyer’s expense. EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- REMEDIES. With respect to any Good that is subject to the limited warranty set forth in Section 7, Seller shall, in its sole election, either repair or replace the Good. All costs of freight under this warranty clause shall be borne by Buyer unless accepted in writing by Seller. Goods repaired and parts replaced by Seller during the warranty period shall be in warranty for the remainder of the original warranty period or ninety (90) days from the replacement date, whichever is longer. THE REMEDIES SET FORTH IN THIS SECTION ARE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 7.
- LIMITATION OF LIABILITY. 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. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE). SELLER’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS SHALL NOT EXCEED THE TOTAL PRICE PAID TO SELLER OF THE SPECIFIC GOODS OR SERVICES PROVIDED BY SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
- INDEMNIFICATION. Except to the extent caused by Seller’s gross negligence or willful misconduct, Buyer hereby agrees to indemnify Seller from all penalties, claims, demands, losses, causes of action, suits, judgments, costs and expenses, including reasonable attorneys' fees, arising from or in connection with (i) any breach of this Agreement by Buyer; (ii) any property damage or personal injury, including death, arising out of or in connection with the use or operation of the Goods or Services; (iii) the failure of Buyer to comply with and observe all laws, orders, codes, regulations, ordinances, rules and decrees of each governmental agency or instrumentality which may be applicable to the Goods or Buyer’s business; (iv) 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 (v) 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.
- RETURNS. No goods may be returned for credit and no order may be cancelled, in whole or in part, without the prior written consent of Seller. If Seller consents to a return, Seller may assess a restocking fee of 35%.
- FORCE MAJEURE. Unless otherwise agreed to in writing by Seller, Seller does not guarantee any certain date of delivery, and any delay in or failure of performance of Seller shall not constitute default hereunder if such delays and/or failure to perform is caused by an occurrence beyond the control of Seller, including, but not limited to, acts of God, acts of war, fires, strikes, severe weather conditions, labor shortages, inability to secure material, and thefts. If Seller’s delay in or failure of performance is covered by this provision, then the time for performance by Seller shall be extended by a period of time equal to time lost by reason of such delay. Seller shall not be liable for any delays, loss or damages in transit.
- SECURITY INTEREST. Buyer grants to Seller a security interest in the Goods, as well as a security interest in any goods into which the Goods are incorporated into and the proceeds thereof, and agrees that said security interest secures any and all obligations of Buyer at any time owing to the Seller, whether now existing or hereinafter incurred. Buyer agrees, until such time as Seller has been paid in full for the Goods, that it will keep the Goods free from any adverse security interest. Seller may file a copy of the applicable invoice as a financing statement at any time.
- ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this contract without the prior written consent of Seller. Any purported assignment or delegation in violation hereof is null and void. No assignment relieves Buyer of any of its obligations under this contract.
- CONTROLLING LAW; JURISDICTION. This contract shall be governed by and construed in accordance with the laws of the State of Delaware. Any legal suit, action, or proceeding arising out of or relating to this contract shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Ontario and County of _San Bernardino, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- RELATIONSHIP OF PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.
- NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or purchase order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- WAIVER. Neither any failure nor any delay on the part of Seller in exercising any rights hereunder shall operate as a waiver of any of Seller’s rights hereunder. All rights and remedies granted herein are in addition to all remedies available at law or in equity.
- SEVERABILITY. If any section or portion of a section of these terms and conditions are deemed unlawful or unenforceable, that section or portion of a section shall be stricken, and the remaining terms and conditions shall continue in full force and effect.
- EXPORT COMPLIANCE. Buyer agrees and certifies that the Goods will not be exported outside the United States (1) into any country (or to a national or resident of any such country) as to which the U.S. has embargoed goods, (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’ s Table of Deny Orders, or (3) otherwise in violation of or as prohibited by the laws, rules, regulations or administrative order of the United States, or any unit, agency or department thereof Buyer further agrees and certifies that it is not located in, under the control of, or a national or resident of any such country, on any such list or order, or subject to any such prohibition.