STANDARD TERMS AND CONDITIONS
1. CONTROLLING TERMS AND CONDITIONS – Equigas International, Inc (The “Seller”) agrees to sell the goods covered herein (“Goods”) to Buyer on the following terms and conditions of sale (the “Terms and Conditions”) which supersede any other or inconsistent terms of Buyer. These terms and conditions of sale are applicable to all quotations and purchase orders and are the only
conditions applying to the sale of Seller’s products or services, except conditions relating to prices, quantities, delivery schedules, terms of payment, invoicing, shipping instructions, and the description and specifications of the products or services, together with other written conditions which may be mutually agreed upon by the parties in writing. Acceptance by Buyer of Seller’s quotation is expressly and exclusively limited to the terms, conditions and limitations contained herein, with the exceptions described, which terms and conditions supersede all prior statements, proposals, negotiations, representations and agreements and shall constitute the entire agreement between Seller and Buyer with respect to the subject matter hereof.
2. EXCLUSIVE WARRANTY – Seller warrants that Goods will be of the kind and brand described in the quotation. Seller shall attempt to obtain, in its subcontracts with each supplier of products a provision that the subcontractor’s standard warranty, if any, shall survive Seller’s inspection, acceptance, and payment and shall run to Seller, its successors, assigns, and customers. Technical Assistance – Seller warrants that services shall be provided in a professional manner. Seller’s obligation hereunder is limited to the providing of services by its employees or agents at the time and place, and to the extent specified in this Agreement. THERE SHALL BE NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY BEYOND THE EXPRESS TERMS OF THIS AGREEMENT UNLESS EXPRESSLY AGREED TO BY SELLER IN WRITING. SELLER DOES NOT WARRANT ITS GOODS AS TO THEIR FITNESS FOR ANY SPECIAL USE OR FUNCTION OR AS TO THEIR LIFE AFTER SALE TO BUYER AND/OR TO SUBSEQUENT BUYERS OR USERS OF THE GOODS. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WHICH EXTEND BEYOND THE FACE OF THIS AGREEMENT. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF ITS GOODS.
3. NO CONSEQUENTIAL DAMAGES – As a material inducement for Seller to sell the goods to Buyer at the stated price, Buyer agrees that Seller shall in no event be liable for any loss, expense or damage for (i) loss of revenue, profits, savings, business or goodwill and (ii) exemplary, proximate, consequential or incidental damages and expenses of any type or nature, on account of any breach or default hereunder by Seller or on account of the use or nonuse of the goods.
Further, Seller’s maximum total liability under this Agreement for damages and expenses arising from any default or defaults, breach or breaches of warranty or failure to deliver goods in conformance with this Agreement (regardless of the form of action, whether in contract or in tort) shall not exceed Buyer’s actual damages or the difference between the price actually paid by Buyer to Seller for the particular goods involved in the occurrence giving rise to such liability and the price paid by the Seller to its supplier, whichever is less. The period of such liability shall not extend beyond the warranty period under this Agreement. The limitations set forth in this paragraph shall not be affected by the failure of the repair remedy provided in Paragraph 1 hereof. Neither Buyer nor any affiliated company or assignee shall have the right to claim compensation or to set off against any amounts, which become payable to Seller under this Agreement or otherwise. In no event shall Buyer, its customers, successors or assigns, commence any action under this Agreement or arising out of the sale, delivery or use of the goods, and regardless of the form of the action, later than one year after the cause of action has accrued. BUYER’S REMEDIES AND MEASURE OF DAMAGES AS SET FORTH IN THIS AGREEMENT SHALL BE EXCLUSIVE.
4. PRICE – Unless otherwise specified, prices include domestic packaging. Buyer will pay any additional special packaging or crating. Prices do not include any foreign, federal, state, or local taxes, assessments, or import duties applicable to the sale, ownership, production, transportation or use of goods sold. Any such tax or duties shall be separately itemized on Seller’s invoice and paid by Buyer or, in lieu thereof, buyer shall furnish Seller with a valid tax exemption certificate. In the event Seller is required to any such tax or assessments. Buyer shall reimburse Seller upon demand, plus interest on such amount at the rate of ten percent (10%) per annum from-the date paid by Seller. Seller shall be under no obligation to contest the validity of any such tax or assessments or to prosecute any claims for refunds or returns. Any personal property taxes or similar taxes or assessments against the goods or on account of materials segregated for the Buyer and being held by the Seller at Buyer’s request shall be paid by Buyer.
5. SHIPMENTS AND PACKAGING – Unless otherwise agreed in writing, all shipments shall be EXW (Ex-Works) (per Incoterms® 2010) place indicated in the quotation, and title passed to Buyer upon delivery to carrier at such point, and packaging will be accomplished in accordance with Seller’s standard commercial practice for domestic shipments. Seller may ship goods to the Buyer’s place or business according to seller instructions. Buyer accepts all risk of loss or damage thereto, upon delivery of goods by Seller to a carrier, shipper, forwarding agent, transporter, or Government mail box or post office, whether selected by Buyer or Seller. In no event shall Seller be responsible for any goods after delivery to such shipping means.
6. TERMS OF PAYMENTS – Terms of payment are stated on Seller’s quotation and accepted by Buyer with the purchase order. Any payment due which is delayed in whole or in part, other than payments delayed as a result of non-performance by Seller, shall bear interest on the unpaid amount at the rate of 1.5% per month
7. CANCELLATION – This agreement is subject to cancellation only upon Seller’s accepting such cancellation in writing, and the effective date of such cancellation shall be the date of such acceptance. Upon acceptance of cancellation, Seller shall commence efforts to terminate purchase, rental, service, and employment commitments relating to the order, and Buyer shall be liable for the costs of terminating such commitments, as well for the payment for completed work, work in process at the time of cancellation, lost profits. Payment of cancellation charges shall be made by Buyer upon receipt of statement of same. Cancellation charges shall not exceed the purchase price of the canceled portion of the Agreement.
8. ACCEPTANCE – Buyer shall inspect all goods immediately upon their delivery to the destination stated in the Agreement and shall within thirty (30) days provide written notice to Seller at its principal place of business of any claim that the goods do not conform to the terms of the Agreement. Any such notice shall specify with particularity each alleged defect or nonconformity. If Buyer shall fail to give such timely notice, the goods shall be conclusively deemed to conform to the terms and specifications of this Agreement and shall constitute an irrevocable acceptance of the goods. Any use by Buyer of the goods other than solely for test purposes, or any alteration of the goods by Buyer without Seller’s prior written consent, shall be conclusive and binding evidence that the goods conform to the terms and specifications of this Agreement. If Buyer accepts or is deemed to have accepted the goods as hereinabove provided, Buyer shall not be entitled to revoke acceptance thereof at a subsequent time in the event Buyer timely rejects the goods in accordance with the terms of this Agreement, Buyer shall hold the goods without charge to Seller for a reasonable time until Seller give instructions to Buyer with respect to the goods. Should Buyer sell or dispose of the goods, such sale or disposition shall constitute an unequivocally acceptance of the goods, notwithstanding any prior rejection of the goods.
9. EXCUSABLE DELAYS – Seller shall not be in default for failure to deliver or delay in delivery arising out of causes beyond its control and without its negligence, including, but not limited to: Acts of God or the public enemy, Acts of the Government in either its sovereign or contractual capacity, fires; floods; epidemics; quarantine restrictions; strikes; shortage of materials or supplies; labor disputes; freight embargoes; delays in transit; and unusually severe weather. If the delay or failure to deliver is caused by a delay or failure to a subcontractor or supplier of Seller, and if subcontractor or supplier were obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule using reasonable effort. Any of the above excusable delays shall not terminate
this Agreement, and Seller shall deliver the goods as promptly as practical thereafter. The time of the delivery set forth in the Agreement shall be extended, in the event of any change order or request for modification requested by buyer, for such period as is reasonably necessary for Seller to comply with any such change order or request for modification. In the event of a failure to deliver timely the goods, Buyer shall not have any right to procure goods from any other source except at Buyer’s sole expense; provided, however, that after payment to Seller of the contract price for any completed goods and work in process; according to the terms of this Agreement, Buyer may procure such goods or portions thereof with Seller’s written approval, and at Buyer’s expense, the price of which shall not exceed the amount still owing under this Agreement after required payments for such completed goods and work in process that have been subcontracted therefrom. Buyer’s acceptance of late delivery goods shall constitute complete and satisfactory performance by Seller.
10. BUYER DELAYS – Buyer shall respond within two (2) business days to all of Seller’s written requests for information and/or approvals, and Seller shall give Buyer not less than seven (7) business days advance notice of readiness to ship. No payment otherwise due to Seller shall be delayed or withheld, and no liquidated damages shall be assessed, on the basis of any delay caused by Buyer’s failure to timely respond to such requests by Seller, by delays in shipment
where Buyer is responsible for arranging shipment or by delays due to lack of site preparation by Buyer.
11. SHIPPING DELAYS – If equipment is ready to ship in accordance with the terms of sale and Buyer is not ready to take possession of same, the equipment will be «Shipped in Place» (as commonly defined by generally accepted accounting principles), and Buyer will there upon assume all responsibility for and risk of loss or damage to the equipment. At Buyer’s option, Buyer may obtain insurance coverage in case of loss or damage to the equipment Shipped in Place. Title transfer to the equipment will occur at time of invoice. Upon Shipment in Place, Seller will be entitled to receive payment due upon shipment in accordance with the Payment Terms. If Buyer requests, the equipment will be stored by Seller for up to thirty (30) days without charge, after which the storage charge will be six-tenths of one percent (.06%) of order value per day. Upon Buyer’s request, Seller will arrange to deliver the equipment to a freight forwarder or warehouse for storage. All transport and storage costs shall be the responsibility of Buyer. Buyer shall bear all risk of loss or damage during transport and storage.
12. PROPRIETARY RIGHTS – The prints, drawings or specifications of Seller or its suppliers attached hereto or hereafter furnished by Seller to Buyer in connection with the obtaining or the performance of this Agreement are the property of Seller or its suppliers and represent a proprietary article with respect to which Seller or its suppliers retains all United States or foreign letter patent, trademarks or copyrights, including exclusive rights of use, manufacture and sale. Possession by Buyer of such prints, drawings or specifications does not convey any permission to manufacture, use or sell any goods shown thereon, and such information is disclosed to Buyer on a confidential basis.
13. TERMINATION – If Buyer fails to comply with any of the provisions hereto, or becomes the subject of a proceeding under state or federal law for relief of debtors, or makes an assignment for the benefit of creditors, Seller shall have the right to hold Buyer in default and, in addition to any other rights it may have, may cancel this Agreement in whole or in part.
14. EFFECT OF INVALIDITY – The invalidity in whole or in part of any provision hereto shall not affect the validity of any other provision.
15. CREDIT – Seller reserves the right at any time to alter or suspend credit, or to change credit terms provided herein, when it is sole opinion the financial condition of the buyer so warrants. In such case, in addition to any other remedies herein or by law provided, cash payment or satisfactory security from Buyer may be required by Seller before shipment, or Seller may, at its option, defer further shipments to Buyer until Buyer reestablishes satisfactory credit, cancel the unshipped portion of the order without any liability for failure to ship, or make shipments to Buyer on a prepayment or COD basis. Payments made by trade acceptances, notes, securities, postdated checks, etc., are unacceptable unless first approved in writing by Seller.
16. DISPUTES – Any action to enforce or interpret the terms of this Agreement or arising out of this Agreement shall be brought and maintained exclusively in the principal trial court in the state and county in which Seller’s principal offices are located or in the Federal District Court for the District in which Seller’s principal offices are located. Buyer and Seller each irrevocably submits to the exclusive jurisdiction of the aforesaid courts and agrees not to commence any action, suit, or proceeding except in such courts. Buyer and Seller irrevocably and unconditionally waive, and agree not to assert, by way of motion or as a defense, counterclaim, or otherwise, in any action or proceeding arising out of or relating to this Agreement (a) any claim that is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure lawfully to serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts, and (c) to the fullest extent permitted by law, that (i) the suit, action or proceeding in any such court is in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. The laws of the state in which Seller’s principal offices are located, other than the conflict of law provisions, shall govern the formation, performance and construction of this Agreement. Buyer and Seller agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
17. ASSIGNMENT – Buyer may not assign this Agreement, or any portion thereof without the express prior written consent of Seller. Subject always to the foregoing, this Agreement insures to the benefit of, and is binding upon, the heirs, legatees, personal representatives, successors and assigns of the parties hereto, in no event shall assignment relieve Buyer of liability for performance of the obligations imposed by this Agreement.
18. CONFORMANCE WITH LAW – Buyer assumes all responsibility for conformance of the goods with laws, rules, regulations and ordinances of any governmental or quasi-governmental agency applicable to the use or operation of the goods.
19. ENTIRE AGREEMENT – This Agreement shall constitute the entire understanding of the parties with reference to the subject matter hereof, and it is agreed that there are no understandings, promises, representations or agreements, whether oral or written, heretofore entered into between Seller and Buyer which have any force or effect. This Agreement may be amended only by a writing signed by the parties. No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, promise, representation or warrant concerning the goods, and any such affirmation, promise, representation or warranty shall be of no force or effect unless set forth in this Agreement.