CONTRACT ACCEPTANCE. Western Valve’s sale to Buyer is limited to and expressly made conditional on BUYER’S ASSENT TO WESTERN VALVE’S TERMS AND CONDITIONS OF SALE CONTAINED HEREIN. The terms and conditions form a part of the agreement to sell to Buyer and supersedes and rejects all prior writings, representations, and negotiations with respect to any conflicting terms and conditions or verbal or written statement to the contrary. Buyer’s written purchase order or verbal agreement for purchase of goods from Western Valve operates as acceptance by Buyer of these terms. In case of conflict between Western Valve terms and the terms of Buyer’s purchase order or acceptance, Western Valve terms govern; any difference or conflicting terms submitted by Buyer shall be deemed objected to by us and shall be of no effect. Any variance, modifications, concessions or exceptions to WV Terms (if any) are specifically listed on the face hereof and resultant Seller’s authorized order acknowledgement to Buyer. Western Valve’s published or quoted terms and conditions are subject to change without notice prior to acceptance of order.
QUOTATION AND PRICES. Unless otherwise noted on the face hereof, Western Valve’s quotation for product to Buyer is subject to prior sale. All prices are shown in U. S. dollars and are F.O.B. Seller’s shipping point. Clerical and mathematical errors are subject to correction. Documentation pertaining to traceability requirement for raw materials or products, documentation required for any routine or special processes and on-site Buyer or Buyer’s representative production audits must be identified by the Buyer at the time of quotation (if any). Any alteration subsequent to Seller’s acceptance of Buyer’s order may void and/or change the originally quoted price and Seller’s acceptance of respective order.
DELIVERY. Quoted delivery dates for the furnishing of services and/or delivery or shipment of goods are approximate only and subject to change prior to and during the production process. Production is calculated from the later of the date of Seller’s order acceptance or receipt date of Buyer’s complete technical data and engineering approvals, as such may be necessary. Seller shall not be liable, directly or indirectly, for any delay in or failure to perform caused by carriers or suppliers or delays from labor difficulties, shortages, strikes or stoppages of any sort, failure or delay in obtaining materials, customer requested order changes, fires, floods, storms, accidents, causes designated as acts of God, or acts of terrorism or force majeure by any statute or court of law or other causes beyond our reasonable control.
SHORTAGE, DAMAGE, ERRORS IN SHIPMENT. Western Valve’s responsibility ceases upon transfer of goods to carrier. Risk of loss, injury or destruction of property, shall be borne by Buyer upon transfer to carrier, and such loss, injury or destruction shall not release obligation of Buyer to pay Seller for unprocurable goods. Buyer shall not give a receipt for goods with non-conforming bill of lading. Claim is to be made by Buyer against such carrier for any shortage, damage or discrepancy in the shipment per the ICC Code for Freight Claims promptly. Buyer shall inspect and examine all items and goods covered by bill when unpacking crated or boxed goods, and if damage is discovered, leave as is until the carrier’s agent makes examination and notation on freight or express bill of concealed damage. Seller will render assistance to help trace and recover lost goods and collect just claims as a business courtesy, but without obligation. We do not guarantee safe delivery.
TAXES. Western Valve prices do not include sales, use, excise, occupation, processing, transportation or other similar taxes which may be required to pay or collect with respect to any of the materials covered hereby under existing or future law. Consequently, in addition to the price specified herein, such taxes shall be paid by Buyer, unless Buyer provides seller with a valid tax exemption certificate acceptable to the appropriate taxing authorities. Buyer also assumes and pays any import or export duties and taxes, with respect to the materials covered by the order, and shall hold harmless and reimburse Western Valve there from.
CREDIT AND PAYMENT. Unless otherwise agreed to in writing by Western Valve, payment for goods shall be prior to delivery in US dollars. We reserve the right to extend credit and at any time to suspend credit or to change terms provided herein, when, in our sole opinion, your financial condition warrants. Failure to pay invoices at maturity date, at our election, makes all subsequent invoices immediately due and payable irrespective of terms and we may withhold all subsequent deliveries until the full account has been settled and we shall not, in such event, be liable for non-performance of contract in whole or in part. Seller reserves the right to place a service charge on past due accounts at the highest rate permitted by law.
CANCELLATIONS AND CHANGES. Orders which have been accepted by Western Valve are not subject to your cancellation or changes in specifications, except upon our written consent. Seller may require, as a condition of such consent to change, appropriate adjustment in price, delivery schedule and other relevant terms, and in the case of cancellation, cancellation charges up to the full price of the order, as permitted by law.
DEFERRED SHIPMENTS. If shipment is deferred at your request, payment of the contract price shall become due when Buyer is notified that the product is ready for shipment. If Buyer fails to make payment and furnish shipping instructions, we may either extend time for doing so or cancel the contract. In case of deferred shipment at your request, storage and other reasonable expenses attributable to such delay shall be payable by Buyer.
LIMITED WARRANTY. Products, auxiliaries and parts thereof Western Valve manufactures are warranted from the original buyer for a period of eighteen (18) months from shipment or packing list date, whichever expires first, against defective workmanship and material but only if properly installed, operated and serviced in accordance with Western Valve’s recommendations. A Buyer’s purchase order is required by Western Valve to review possible warranty issues. After review, if it is ascertained that the material is covered under warranty, the Buyer’s purchase order will be voided and repair or replacement, at our option, for items of Western Valve manufacture will be made free of charge. Warranty is FOB our facility; removal, transportation and installation at Buyer’s cost, if proved to be defective within such time and this is your sole remedy with respect to such products. Equipment or parts manufactured by others, but furnished by Western Valve will be repaired and replaced only to the extent provided in and honored by the original manufacturer’s warranty to Western Valve, in each case subject to the limitations contained herein. No claim for transportation, labor or special or consequential damages or any other loss, cost or damage shall be allowed. You shall be solely responsible for determining suitability for use and in no event shall Western Valve be liable in this respect. Western Valve does not guarantee resistance to corrosion, erosion, abrasion or other sources of failure, nor does Western Valve guarantee a minimum length of service. Buyer’s failure to give written notice to us of any alleged defect under this warranty or attempts by someone other than a Western Valve authorized representative to remedy the alleged defects therein. Failure to return product or parts for repair or replacement as herein provided, or failure to install and operate said products and parts according to instructions furnished by Western Valve. Misuse, modification, abuse or alteration of such product, accident, fire, flood or other Act of God, or failure to pay entire contract price when due shall be a waiver by Buyer of all rights under this warranty. The foregoing guarantee shall be null and void if after shipment from our factory, the item is modified in any way or a component of another manufacturer, such as, but not limited to, an actuator, is attached to the item by anyone other than Western Valve authorized personnel or representative. All orders accepted shall be deemed accepted subject to this limited warranty binding on Western Valve, despite anything contrary contained in the Buyer’s purchase order or represented by any agent or employee of Western Valve, in writing or otherwise, notwithstanding, including but not limited to implied warranties. The aforementioned warranty states Western Valve’s entire liability and Buyer’s exclusive remedy for any claim in connection with the sale of furnishing services, goods or parts, design, suitability for use, installation or operation.
INTELLECTUAL PROPERTY. Western Valve shall indemnify and hold you harmless from any amount that you are required to pay to a third-party pursuant to final, non-appealable court orders as a result of such third-party’s claim that a product sold hereunder infringes upon any United States patent or copyright of such third-party. Western Valve’s obligation is contingent upon (a) your notifying us of any such claim within twenty (20) days of receipt thereof (b) your providing us with exclusive control of the defense and/or settlement thereof, and (c) your cooperating with us in such defense and/or settlement. In the event of such a successful infringement claim by the third-party, at our option, we shall either (i) modify the product sold hereunder so that it performs comparable functions without infringement, (ii) obtain a royalty-free license for you to continue using the infringing product, or (iii) refund to the then-depreciated fair market value of the infringing component. We shall have no obligation under this Section to the extent the claim is based upon (a) the combination, operation or use of the product with equipment, products, hardware, software, systems or data that was not provided by us, if such infringement would have been avoided in the absence of such combination, operation or use, or (b) your use of the product is in any manner inconsistent with our written materials regarding the use of such product.
LIMITATION OF LIABILITY. In no event shall Western Valve be liable for any direct, indirect, special or consequential damages whatsoever and Western Valve’s liability, under no circumstances, will exceed the contract price for the goods and/or services for which the liability is claimed. Any action for breach of contract by you must commence within 12 months after the date of sale.
GOODS FOR EXPORT. If the ultimate destination of the goods is outside the United States, Buyer must designate such country on its purchase order. In the event that Buyer purchases goods for export without so notifying us, Buyer will have sole liability and shall defend and indemnify Western Valve for any loss or damage (including without limitation, claims of governmental authorities) arising from the export from the United States or import into another country of such goods, including without limitation, those related to packaging, labeling, marking, warranty, contents, use or documentation of the goods. Buyer has sole responsibility for obtaining any required export licenses. Buyer will not take, and will not solicit us to take, any action which would violate any anti-boycott or any export or import statutes or regulations of the United States or other governmental authorities and shall defend and indemnify us for any loss or damage arising out of or related to such actions.
PROPRIETARY INFORMATION. We retain title to all engineering and production prints, drawings, technical data and other intellectual property, information and documents that relate to the goods and services sold to you. Unless advised by us in writing to the contrary, all such information and documents disclosed or delivered by us to you are deemed proprietary to us and shall be used by you solely for the purpose of inspection, installation and maintenance and not used by you for any other purpose.
ARBITRATION. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction hereof. The venue for such proceedings shall be Bakersfield, CA USA.
APPLICABLE LAW. The rights and duties on the parties shall be governed by the laws of the United States and State of California.
NO OTHER CONTRACT PROVISIONS: OTHER. This is the entire agreement with respect to the Western Valve products. Terms and conditions of Buyer’s order shall be without force and effect, except to the extent identified herewith. No dealer, broker, branch manager, agent, employee or representative of Western Valve has any power or factory for our approval and acceptance on the modification of terms herein. There are no representations, agreements, obligations, or conditions, expressed or implied, statutory or otherwise, relating to the subject matter thereof, other than herein contained. “Western Valve”, “The Company” and “Seller” shall refer to Western Valve, Inc., a California corporation. If any provision hereof is invalid or not enforceable under applicable law, the remaining provisions shall remain in full force and effect. Any assignment of your rights hereunder without our consent (which shall not be unreasonably withheld) shall be void. These terms shall be binding on your successors and assigns. Our failure to require your performance of any of these terms shall not serve as a waiver or diminish our rights to require strict performance of such provision or these terms.