Terms of Sale

TERMS OF SALE

General.  The following terms and conditions, including those on each invoice, if any, shall constitute the entire Agreement for the purchase and sale of Quality Hydraulics & Pneumatics, Inc. (“Seller”) products to Purchaser (“Purchaser”) and supersede any prior or other agreements between Purchaser and Seller, if any.  Any acceptance is made expressly conditional upon Purchaser's assent to the terms which are different from, in addition to, or vary the terms contained in Purchaser's purchase order or request for quotations.  Any terms and conditions contained in Purchaser's purchase order or request for quotation which are different from, in addition to, or vary Seller' terms and conditions shall not be binding upon Seller and Seller hereby objects thereto and rejects same. No order shall be binding upon Seller until and unless accepted by Seller in writing.

Changes.  Prior to the date of delivery of any product hereunder, Purchaser shall have the right to request changes in its order provided that Seller receives written notice of the desired changes and accepts the same and provided further that Purchaser accepts the additional charge therefore as determined by Seller. Changes which interfere with or alter Seller’s production schedules will not be acceptable unless the time for performance is extended for such period as deemed necessary by Seller. Failure of Seller to accept a request to change a purchase order shall not be cause for Purchaser's cancellation of its order except upon payment of a cancellation charge to be determined by Seller.

Cancellation. 

 (a)                Seller shall have the absolute right to cancel this Agreement upon breach thereof by Purchaser, failure by Purchaser to make any payment due to Seller when due, or the insolvency or bankruptcy of Purchaser.

 (b)                A purchase order or any part thereof which is hereby accepted by Seller may not be cancelled unless and until Seller receives written notice of the request for cancellation, has determined the charge, if any, to be made as a consequence of such cancellation, and the same has been accepted and paid by Purchaser. Upon receipt of a notice of cancellation, Seller shall be entitled to take whatever action it deems necessary and advisable to minimize cancellation charges. Permitting any cancellation and the charge to be paid by Purchaser in connection with any cancellation shall be subject to the sole and absolute discretion of Seller.

 Warranty. 

 (a)                Any product or part thereof fabricated by Seller and sold by Seller to Purchaser which, under normal operating conditions on the part of Purchaser proves defective in material or workmanship within one (1) year from the date of shipment by Seller, as determined by an inspection by Seller, will be replaced or repaired, at Seller’s option, at Seller’s facility, free of charge provided that Purchaser promptly sends to Seller notice of the defect and establishes that the product has been properly installed, maintained and operated within the limit of rated and normal usage.  This warranty, as it relates to electronic control units, only applies if Purchaser has in its employ qualified maintenance personnel. If Purchaser ships or requests that Seller ship electronic control console units by other than air-ride common carrier truck, all warranties relating thereto shall be void.

 (b)                Products, or components thereof, purchased by Seller or otherwise supplied by any other party to Seller are covered only by the individual warranty of such other party, if any, and Seller hereby assigns to Purchaser any rights under any warranty of such other party, if any.

 (c)                 Seller has made or will make preliminary tests of any software included within Purchaser’s order, to assure that any computer programs and documentation, part programs, programming manuals and the like (herein called “Software Materials”) supplied to Purchaser are operative for the purposes intended. However, because users of Software Materials may employ them in applications outside the scope of those originally contemplated, and because defects in Software Materials cannot with absolute certainty be detected and removed prior to actual machine or equipment operation, within six months from the date of delivery to Purchaser of any item of Software Materials, Seller will supply free of charge a corrected version of that item under the following conditions: (i) only if Purchaser provides Seller with a detailed description of the problem or difficulty which has been experienced and Seller is able to verify that such problem or difficulty exists and (ii) only if the correction does not entail the creation of new Software Materials to serve a function not intended to be served by the original Software Materials. Purchaser shall have no rights under this subparagraph in the event any changes are made or attempted to be made, in any Software Materials by Purchaser.

 (d)                EXCEPT FOR SUCH WARRANTIES AS ARE EXPRESSLY SET FORTH HEREIN, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED (INCLUDING, WITHOUT LIMITATION, AND ANY PRIOR WRITTEN OR ORAL REPRESENTATIONS REGARDING SUCH PRODUCTS MADE BY SELLER, ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES).

 (e)                Seller reserves the right to inspect products claimed defective under warranty either at Purchaser's location or at Mundelein, Illinois. A defective product is not to be returned to Seller' plant unless authorized by Seller. Products so returned shall be returned to Seller' plant, freight prepaid by Purchaser. Any product determined by Seller to be defective due to faulty assembly by Seller or to not conforming to specifications within one year from date of shipment will be replaced or repaired free of charge. F.O.B. Seller' plant. Mundelein, Illinois. Seller assumes no liability for labor charges incidental to the adjustment service, repairing, removal or replacement of the product or other costs, or for the expense of repairs made outside of its plant except when made pursuant to Seller' prior written consent. Seller, at its option, may ship a replacement or replacements immediately under standard billing and make warranty adjustment after inspection of the defective product by means of credit memorandum.

 (f)                 Any “custom conversion” or adaptation is pursuant to Purchaser’s specific request, and Seller shall bear no risk of loss resulting therefrom.

 (g)                Seller’s warranty shall not apply to any product or component which has been repaired, modified or altered outside of Seller’s locations in any manner or has been installed or used in a manner contrary to the original manufacturer’s or Seller’s instructions. In the event Purchaser modifies the goods sold hereunder without the express written consent of Seller, Purchaser agrees to indemnify and hold Seller harmless from any and all claims, demands, actions or causes of action or costs or expenses incurred thereby.

 (h)                 Purchaser is solely responsible for the design, selection and application of fabricated equipment, products, components and materials purchased from Seller. Any drawings, specifications, or information prepared by or furnished by Seller are for reference purposes only, and Seller makes no warranty or representations concerning the accuracy of such materials or information. Seller has no responsibility for the design, selection and application of products, components and materials purchased by Purchaser.

 (i)                 Products are sold for commercial use only and are not intended for use by consumers.  Seller specifically disclaims all warranties to those defined as consumers under the Magnuson-Moss Act or any other laws, rules or regulations applicable to consumer products.

 Delays.  Seller shall not be liable for damages or delays in performance due to circumstances beyond its reasonable control, including without limiting the generality of the foregoing, any priority system established by any agency of the United States Government, fires, floods, storms, and other acts of God, accidents, strikes, insurrections, war, shortage or materials, lack of transportation, commercial impracticability or failure of performance of subcontractors and/or suppliers for similar reasons. Failure of Seller to perform for these reasons aforesaid shall not be grounds for Purchaser's cancellation of its order but the delivery date shall be extended accordingly.

 

Limitation of Liability.  Seller’s liability on any claim for loss or damage arising out of any sale to Purchaser or from the performance or breach of any agreement between them to which these terms and conditions apply, or connected with any goods or services supplied in connection with these terms and conditions, or the sale, resale, operation or use of such goods or services, whether based on contract, warranty, tort (including negligence) or other grounds, shall not exceed the price allocable to such goods or services or part thereof involved in the claim, REGARDLESS OF CAUSE OR FAULT. This limitation of liability reflects a deliberate and bargained-for allocation of risks between Seller and Purchaser and constitutes the basis of the parties' bargain, without which Seller would not have agreed to the price or terms of this contract. Seller shall not under any circumstances, be liable for any labor charges without its prior written consent. SELLER SHALL NOT IN ANY EVENT BE LIABLE whether as a result of breach of contract, warranty, tort (including negligence) or other grounds FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES including, but not limited to, loss of profits or revenue, loss of use of any goods or equipment or associated products, cost of capital, cost of substitute products, facilities or services, downtime costs, or claims of customers of Purchaser for such damage. If Seller furnishes Purchaser with advice or other assistance regarding any goods or equipment or services supplied hereunder, or any system or equipment in which any of same may be installed, and which is not required pursuant to a written agreement between Purchaser and Seller, the furnishing of the advice or assistance will not subject Seller to any liability, whether based on contract, warranty, tort (including negligence) or other grounds.

 

Purchaser’s Use.

 (a)                It is Purchaser’s responsibility to provide all proper dies, devices, tools and means that may be necessary to effectively protect all personnel from all bodily injury which otherwise may result from the method of particular use, operation, set-up or service of Seller’s products. If supplied or required, the operator’s manual or machine manual, all applicable Safety Standards, OSHA regulations, other sources and other applicable regulations should be consulted to protect personnel.

 (b)                The proposed equipment or goods may not be used without all recommended or included safety devices.

 Specifications.  Equipment quoted shall not be subject to any other specifications, which are not stated on the face of the quotation as approved and accepted by Seller. Voltage, phase, frequency and power limitations must be specified by Purchaser and approved by Seller.

 Field Engineer/Installation.  Unless otherwise specifically indicated, the quoted prices DO NOT include the services of Seller’s field engineer or other personnel to supervise the installation of equipment and instruct the operator in its proper use. Purchaser is responsible for installation and use in accordance with all applicable instructions.

 Property and Patent Rights.  

 (a)                Seller retains for itself any and all property rights, including but not limited to all patent, copyright, and trade secret rights, to the Software Materials and to all designs, engineering details, documentation, and other data pertaining to any equipment designed in connection herewith and to all right of discovery, invention or patent rights arising out of the work done in connection herewith. Purchaser expressly agrees that it will not assert any property rights herein, except the right for itself to use the equipment.

 (b)                Seller grants Purchaser a nonexclusive and nontransferable license to use one copy of the Software Materials for its own internal purposes in connection with the use of the related equipment and for no other purpose. Pursuant to such license, Purchaser shall have the right to copy the Software Materials solely for back-up and archival purposes. Purchaser expressly agrees that it will not assert any property rights in the Software Materials or the other property rights referred to herein, except the right for itself to use the equipment.

 (c)                Purchaser acknowledges that the Software Materials constitute valuable trade secrets of Seller and are unpublished works on which Seller, or Seller’s vendor, holds the sole and exclusive copyright. Purchaser agrees to maintain and protect the confidentiality of these trade secrets and agrees not to disclose them or use them for any purpose not contemplated by this Agreement. Purchaser agrees to formulate and adopt appropriate safeguards in light of its own operating activities, to insure protection of the confidentiality of these trade secrets. Purchaser shall immediately notify Seller of any information which comes to its attention which indicates that there has been any loss of confidentiality of Seller’s trade secret information.

 Indemnification. 

 (a)                Purchaser agrees to defend, indemnify and hold harmless Seller, its parent and affiliates, and their officers, agents and employees, against all claims, losses, expense and causes of action of every kind, made or asserted by any third party arising out of, or in connection with the article(s) sold in connection herewith or otherwise related to the transaction contemplated hereby.

 (b)                Purchaser agrees to indemnify Seller for all costs incurred by Seller, including legal fees and court costs, as a result of any claim brought against Seller arising from Purchaser’s conduct, including, but not limited to, Purchaser’s misuse of the product or, for any custom-designed product, design decisions or product choices made by Purchaser.

 Waivers. 

 (a)                Purchaser hereby waives, for itself and for any and all persons who may assert a claim or lien in Purchaser’s place or stead, whether by subrogation or otherwise, any and all liens or claims of lien against the Seller for payments made by Purchaser’s Workman’s Compensation insurance carrier to Purchaser’s employees for injuries alleged to have been caused by any article sold hereunder.

 (b)                Purchaser hereby waives, for itself and for any and all persons who may assert a claim or lien in Purchaser’s place or stead, whether by subrogation or otherwise, any and all claims against Seller for contribution or for indemnity, whether such claims arise under contract, statute, common law, or otherwise.

 Risk of Loss. Purchaser assumes all risk and liability for loss, damage, or destruction after delivery of the product to the carrier.

 Drawings.  Drawings will be provided by Seller only upon special request of Purchaser and subsequent approval of Seller.  Seller may provide reproducible copies of specification sheets, which list all assemblies and components. Pertinent assembly drawings will be included in the instruction manual. Seller may provide original hydraulic and electrical schematics, hydraulic power unit layout drawings (on large units only), electrical panel layouts and hydraulic and electrical connection drawings with related information.

 Material Safety Data Sheets ("MSDS").  MSDS for applicable products sold by Seller are prepared by the manufacturers and available on request.  Please contact Seller to obtain a copy of any MSDS.

 Nuclear or Other Hazardous Activities.  Unless specifically agreed to in writing by an authorized officer of Seller, Materials sold hereunder are not intended for use in connection with any nuclear facility or any other application or hazardous activity where failure of a single component could cause substantial harm to persons or property. If so used, Seller disclaims any and all liability for any nuclear damage, contamination or other damage or injury and Purchaser shall indemnify and hold Seller harmless from such liability whether as a result of breach of contract warranty, tort (including negligence) or other grounds. Seller and its suppliers shall not be liable to Purchaser or its insurers based on contract, warranty, tort (including negligence), or other grounds for onsite damage to property located at a nuclear facility.

 Miscellaneous.

 (a)                This Agreement may not be assigned or otherwise transferred by Purchaser without the prior written consent of Seller, and any such assignment or transfer without such prior written consent shall be null and of no force or effect whatsoever.

 (b)                Seller' failure to insist, in one or more instances, upon the performance of any term or terms of this Agreement shall not be constructed as a waiver or relinquishment of its right to such performance or the future performance of such terms or terms and Purchaser's obligation with respect thereto shall continue in full force and effect.

 (c)                Any notice or other communication required or permitted hereunder shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid or by overnight courier to the other party thereto at its respective address first above written. Any such notice, if so mailed, shall be deemed to have been received on the third business day following such mailing and if sent by overnight courier on the first business day after sending. Either party hereto may change its address for notice purposes by written notice to the other party.

 (d)                The paragraph headings in this Agreement are used for convenience only. They form no part of this Agreement and are in no way intended to alter or affect the meaning of this Agreement.

 (e)                This Agreement may be amended at any time by mutual agreement of the parties hereto by an endorsement to this Agreement signed by each of them.

 (f)                 The invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity or enforceability or any other of its provisions.

 (g)                This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.

 (h)                We hereby certify that these goods were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act, as amended and of regulations and orders of the United States Department of Labor issued under Section 14.

 (i)                 All reasonable legal and collection costs will be charged to Purchaser if referred for collection.

(j)                 Unless otherwise specifically stated, quoted prices do not include costs of shipping, installation, setup or instruction in use of any products.

 (k)                The terms products, equipment, goods and the like shall mean and refer to the items to be sold by Seller to Purchaser.

 Taxes.  All applicable federal, state or local sales, use, or exercise taxes are the responsibility of Purchaser and shall be in addition to the price or prices stated on the front side of this document or in any separate quote, proposal or other document unless otherwise specifically stated. Seller shall have the right to invoice separately any such tax as may be imposed at a later time. Applicable tax exemption certificates must accompany any order to which the same applies.

 Payment Terms.

 (a)                Payment Terms: unless otherwise agreed, net 30 days. A service charge at the rate of 18% per annum (or if such rate exceeds the maximum amount permitted by law, such rate shall be reduced to such maximum amount) shall be due and paid by Purchaser on balances which are not paid when due.

 (b)                F.O.B. --Shipping Point unless otherwise stated.

 (c)                Security Interest.  Purchaser, in order to provide security for the payment of the full price of all items furnished hereunder, grants Seller a purchase money security interest in all goods, equipment and other items sold by Seller to Purchaser and the products and proceeds thereof wherever located. Materials furnished by Seller shall not become a fixture by reason of being attached to real estate, until paid in full. Purchaser agrees to execute any documents or furnish information necessary to perfect this security interest. A copy of the invoice may be filed at any time as a financing and/or chattel mortgage, in order to perfect Seller’s security interest. Seller’s purchase money security interest is explicitly limited to outstanding obligations between Seller and Purchaser.

 Compliance with Laws.  Seller makes no promise or representation that the items to be sold to Purchaser will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon, in writing executed by Seller. Prices do not include the cost of any related inspections, permits or inspection fees.

Applicable Law.  This agreement, and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Illinois. THE JURISDICTION AND VENUE OF ANY LEGAL PROCEEDINGS FOR THE RESOLUTION OF DISPUTES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SALE BY SELLER TO PURCHASER SHALL BE IN THE STATE COURTS SITTING IN LAKE COUNTY, ILLINOIS OR THE FEDERAL COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION. PURCHASER HEREBY SUBMITS TO THE JURISDICTION OF ALL SUCH FEDERAL AND STATE COURTS.  THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THESE TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, CLAIMS RELATED TO BREACH OF WARRANTY OR FAILURE OF GOODS TO PERFORM.

 Export.  Purchaser represents, warrants, covenants and agrees that no equipment or software purchased or licensed from Seller is being purchased for export or will at any time be exported by Purchaser. Purchaser agrees to indemnify, defend and hold harmless Seller from any and all loss, cost, damage, claim or expense which Seller may incur or to which it may be exposed as a consequence of any export, including, but not limited to, fines, charges, attorney’s fees and costs.

Posted 05/28/2014