PALM
TECHNOLOGY STANDARD TERMS AND CONDITIONS OF
1.
2. Price. Prices and
other information shown in any Seller publication (including product catalogues
and brochures) are subject to change without notice and confirmation by
specific quotations. Such publications
are not offers to sell and are maintained only as a source of general
information. Acceptance of any quotation
is limited to the terms and conditions of the quotation and the provisions herein. Quotations are valid for 60 days from issue
unless otherwise stated in writing. All
typographical and clerical errors are subject to correction. Except where expressly agreed otherwise in
writing, all prices exclude miscellaneous freight and energy surcharges, goods
and services, sales, use, occupation, license, customs, excise and other taxes
in respect of the manufacture, sale, storage, consumption, transportation, or
delivery of Product sold hereunder, all of which shall be paid by Buyer as additional
charges.
3. Shipment. Product will
be shipped F.O.B. Seller’s plant or warehouse unless otherwise stated in
writing. Method of shipment and carrier
will be selected by Seller unless Buyer has specified in writing a method and
carrier satisfactory to Seller. Any
charges for packing, storage, and transportation (including insurance) to point
of delivery are deemed to be separate charges for the account of Buyer unless
otherwise stated in writing. Requested
shipment dates are subject to acceptance by Seller. At Seller’s option, Product may be shipped in
advance of a requested shipment date and/or in installments or partial
shipments. Buyer expressly acknowledges
that Seller will not be liable and shall be excused for a Force Majeure (as defined herein). Buyer agrees to make an inspection,
examination, and test of each shipment of merchandise upon delivery. Buyer’s failure to give Seller written notice
of any objections within ten (10) days after date of delivery shall constitute
a waiver by Buyer of all objections with respect to such shipment and shall
constitute an acceptance by Buyer if not previously accepted. Buyer shall make all claims for damage to or
loss of Products while in transit directly to the carrier; Seller shall have no
liability whatsoever for such damage or loss, and Buyer shall hold Seller
harmless from and against any claims or liability resulting from any such
damage or loss. Seller will not be
liable to Buyer or any third party for any damage whatsoever on account of late
delivery for any reason. Buyer shall
hold Seller harmless from and against any claims or liability resulting from
such late delivery.
4. Terms of
Payment. Payment for Products and Services is due
thirty (30) days from the date of shipment or as otherwise specified in
writing. Seller may require prepayment.
Pro-rata payments shall be made on partial shipments. If shipments are delayed by Buyer, Seller
reserves the right to issue invoices and obtain payment on Products ready to
ship, or invoice progress payments based on the full contract price and percent
of completion, which payments will be considered advance payments only, and
shall not discharge Buyer from obligations of the contract. Seller may charge Buyer interest on all
amounts unpaid after thirty (30) days at the annual rate of one (1) percent per
month (12% per annum) from the date of shipment of the Products or the highest
interest rate permitted by law, whichever is lower. If any invoice is not paid when due, Seller
may, at any time, suspend delivery or other performance with respect to any
Products or Services, without liability or penalty, and take all other action
permitted under applicable law. Buyer
agrees to be responsible for all costs of collection, including attorney fees,
collection fees, and court costs incurred to collect amounts due.
5.
Returns/Order Cancellation. All returns of Product will be subject to
prior Seller approval. Non-warranty
returns of unused and salable Products for credit will be subject to Seller’s
return policies in effect at the time, including applicable restocking charges
and other conditions of return. Shipping
containers must be clearly marked per Seller’s instructions and shipped freight
prepaid F.O.B. Seller’s warehouse by Buyer.
An order may be cancelled by Buyer prior to shipment only by written
notice and upon payment to Seller of reasonable cancellation and restocking
charges, including reimbursement for direct costs. Cancellation charges associated with orders
for custom Products or Products specially manufactured to the customer’s
specification may equal the actual selling price of the Products.
6.
Permits/Certifications. All permits, licenses, and governmental
approvals of whatever nature relating to the possession, storage, processing,
maintenance, handling, labeling, installation, use and/or disposition of
Products or Services, including professional engineering certification, shall
be obtained and paid for by Buyer in advance of delivery or Service. Buyer shall furnish copies of same to Seller
upon request.
7. Title and Risk of Loss. Title to and
risk of loss for Products sold hereunder will pass to the Buyer upon delivery
by Seller to the carrier transporting the Products. Buyer agrees to hold Seller harmless for all
claims arising out of the transportation of the Products subsequent to their
delivery to the carrier.
8. Warranty. A. Limited
Equipment Warranty for Equipment Manufactured by Seller. Equipment manufactured by Seller is warranted
to be free from defects in material and workmanship for a period of twelve (12)
months when operated under design conditions within the specifications outlined
in the Operating Manual. Seller’s sole
liability and Buyer’s sole remedy for failure of equipment under this limited
warranty shall be either repair or replacement, at Seller’s option, of the
equipment found to be defective. Seller
shall have no liability under this warranty unless it receives written notice
of the claimed defect within the earlier of thirty (30) days from the date of
discovery by Buyer or the termination of the Warranty Period. This warranty will not apply to equipment
failures due to ordinary wear, misuse, neglect, misapplication, improper
installation, abuse, shipping damage, equipment modification, improper
maintenance, usage contrary to Operating Manual, or failure to provide a
suitable operating environment. Buyer
shall obtain approval prior to returning Products for warranty service. Products returned for warranty service must
be properly packed and shipping containers clearly marked per Seller’s
instructions. Returned Products shall be
shipped freight prepaid F.O.B. Seller’s warehouse by Buyer.
B. Warranty
for Equipment Distributed by Seller. To the extent the manufacturer of equipment distributed
by Seller provides a warranty, said warranty shall pass to Buyer, and shall be
subject to the manufacturer’s conditions and interpretation. The warranty, if any, provided by the
manufacturer of products distributed by Seller shall be the sole warranty
available to Buyer. SELLER SPECIFICALLY
EXCLUDES ANY ALL OTHER WARRANTIES ON PRODUCTS MANUFACTURED BY OTHERS, INCLUDING
THE WARRANTY OF MERCHANTABILTY AND THE WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
C. Disclaimer
of Other Warranty. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
SELLER DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES,
EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF PERFORMANCE, COURSE
OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
THE WARRANTY OF NON-INFRINGEMENT. BUYER
ACCEPTS FULL RESPONSIBILITY FOR THE SELECTION AND USE OF THE PRODUCTS TO
ACHIEVE RESULTS. Because Seller does not
have control over Buyer’s solutions nor total knowledge of the chemistry
involved in the evaporative systems located in the field, it is imperative that
Buyer be certain the materials of construction of the Max-Evap,
heaters, pumps, and side tanks be chemically compatible with the solutions
being processed. Furthermore, Max-Evap performance data is based on actual efficiency rates
logged in the field under ideal performance conditions. Data is provided as a guideline only. Efficiency rates will vary based on variables
such as humidity, solution temperature, air flow, specific chemistry of the
solution, and other environmental conditions of which Seller has no knowledge
or control.
9. Security
Interest and Reclaiming Material. Seller reserves a purchase money security
interest in Products, and all proceeds from the sale thereof, until full
payment is received. Buyer hereby agrees
to sign upon request any documents necessary to perfect Seller’s security
interest in said Products. Upon default
in payment, Seller shall have all rights and remedies of a secured party,
including the right to enter Buyer’s premises and take possession of and
reclaim Products using self help. Buyer
agrees to protect and secure products purchased from Seller and to make its
premises available to Seller for such purpose.
10. Limitation
of Liability and Indemnification. Buyer assumes all risk and liability for
loss, damage, or injury to persons or to Product or to property of Buyer or
others arising out of or relating to the handling, storage, presence, or use of
the Products shipped hereunder or Services rendered, whether in manufacturing
processes or otherwise, or from the failure to make appropriate warnings. Seller expressly assumes no responsibility or
liability for the correctness of drawings or specifications of equipment
components not manufactured by Seller.
Seller does not warrant and will not be liable for any design,
materials, or construction criteria furnished or specified by Buyer and
incorporated into the Products. Buyer
covenants and agrees to indemnify and hold Seller harmless from and against any
and all liabilities, losses, damages, costs or expenses, including attorney
fees and court costs, which Seller hereinafter may incur, suffer or be required
to pay by reason of death, personal injury or property damage, claims of third
persons or of Buyer, its agents and employees, whether groundless or not,
arising from an accident or other cause relating to, arising out of, or
occurring in connections with the sale, handling, transportation, storage or
use of Product sold to Buyer hereunder.
The total liability of Seller to Buyer from any cause whatsoever,
whether arising under contract, warranty, tort (including negligence), strict
liability, products liability or any other theory of liability, will be limited
to the lesser of Buyer’s actual damages or the purchase price paid to Seller
for the Products or Services that are the subject of Buyer’s claim. However, this limitation of liability does
not apply to damages resulting from personal injury caused by Seller’s gross
negligence. Buyer’s limitation or
liability and remedies provided herein shall be Buyer’s sole and exclusive
remedy and no other course of action may be maintained. Seller shall not under any circumstances, be
liable for any indirect, special, incidental or consequential damages,
including by way of illustration and not of limitation, loss of use, and loss
of work in progress, downtime or loss of profits. All claims hereunder against Seller must be
brought within one (1) year after the cause of action arises and Buyer
expressly agrees to this one (1) year period and waives any other statute of
limitations which might apply by operation of law or otherwise.
12. Patents. Buyer shall
hold Seller harmless against any expense or loss resulting from infringement of
patents or trademarks arising from compliance with Buyer’s designs,
specifications, or instructions. The
sale of Products or Services by Seller does not convey any license, by
implication, estoppel, or otherwise, under patent
claims covering combinations of said Products with other devices or
elements. Seller grants no patent or
data rights to Buyer through the quotation or contract.
13. Force Majeure. Seller shall not be considered in default in
the performance of its obligations hereunder or be liable in damages or
otherwise for any failure or delay in performance which is due to strike,
lockout, concerted act of workers or other industrial disturbance, fire,
explosion, flood, or other natural catastrophe, civil disturbance, riot or
armed conflict whether declared or undeclared, curtailment, shortage, rationing
or allocation of normal sources of supply of labor, materials, transportation,
energy or utilities, mechanical breakdown, equipment failure, accident, Act of
God, delay of subcontractors or vendors, sufferance of or voluntary compliance
with acts of government and government regulations (whether or not valid),
embargo, or due to any other cause whether similar or dissimilar to any of the
causes or categories of causes described above and which is beyond the Seller’s
reasonable control. Promptly upon
learning of such event and ascertaining that it has or will affect its
performance hereunder, Seller shall give notice to the other party, stating the
nature of the event, its anticipated duration and any action being taken to
avoid or minimize its effect.
14. Impairment
of Credit. Unless otherwise required by law, if a
petition is brought by or against Buyer under any present or future bankruptcy
or insolvency laws seeking any reorganization, arrangement, readjustment,
liquidation, dissolution or similar relief with respect to Buyer, or if Buyer
shall make any assignment for the benefit of creditors, or if a receiver is
appointed for Buyer, or if Buyer shall fail to make payments in accordance with
the terms of this Agreement, or if, in Seller’s opinion, Buyer’s credit is or
has been impaired, Seller may, at its option, terminate any Sales Contracts it
by have with Buyer by written notice to Buyer or impose such payment terms,
including case on delivery or letters of credit, as it deems adequate to
protect its interests. The election of
any option under Section 8 shall not preclude Seller’s exercise of any other
rights, remedies, or options.
15. Federal
Contract Compliance. To the extent applicable, the provisions of
Executive Order 11246 (FAR 52.222-26, Equal Opportunity), 38 U.S.C. 4212 (FAR
52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the
Vietnam Era, and Other Eligible Veterans), and 29 U.S.C. 793 (FAR 52.222-36,
Affirmative Action for Workers with Disabilities) are incorporated by
reference, and Buyer certifies compliance.
16.
Miscellaneous. No modification, amendment, revision,
discharge, abandonment, or waiver of these and other terms and conditions of
sale shall be binding upon the Seller unless set forth in writing and signed by
an Officer of Seller. The Terms and
Conditions contained herein, together with all documents incorporated by
reference, including the quotation and purchase order, shall constitute the
entire agreement between the parties.
The failure of either party at any time to require performance by the
other party of any provision of these Terms and Conditions shall in no way
affect the right to require such performance at any time thereafter, nor shall
the waiver of either party of a breach of any provision herein constitute a
waiver of any succeeding breach of the same or any other provision. These Terms and Conditions may not be
assigned by Buyer without the prior written consent of Seller. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of the parties hereto. This Agreement and the rights and obligations
of the parties hereto shall be governed by and construed in accordance with the
laws of
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