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Pressure Systems: Terms & Conditions |
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IF YOUR ORDER HAS NOT BEEN PREVIOUSLY ACKNOWLEDGED, PSI Terms and Conditions of Sale |
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| 1. | Express Acceptance. The acceptance of Buyer’s order is expressly made conditional on assent to the terms and conditions set forth herein and on attachment(s) hereto and they shall constitute the complete agreement between the parties. These PSI Terms and Conditions of Sale may not be varied, or Buyer’s order terminated in any manner, unless by a written agreement with legal consideration subsequently signed by an authorized official of Pressure Systems, Inc., (hereinafter referred to as “PSI”). Other representatives of PSI are not authorized to vary the conditions herein set forth. Failure to specifically dissent to these terms and conditions within a reasonable time or Buyer’s acceptance of any goods produced and/or distributed by PSI (hereinafter referred to as “Goods”) covered by this acknowledgment of any Buyer order or sales contract shall constitute acceptance of said terms and conditions and they shall be controlling in every case. | ||||||||||
| 2. | Offer To Sell. Any PSI quotation, correspondence or communication quoting price and/or delivery of Goods is an offer to sell such Goods. | ||||||||||
| 3. | Shipment Terms. Unless stated to the contrary on the face of any PSI communication or document invoking these PSI Terms and Conditions of Sale, all Goods furnished hereunder will be shipped (for all modes of shipment), F.O.B. PSI’s loading dock at the PSI facility in Hampton, Virginia. Title will pass to the Buyer only on receipt by PSI of payment for the full invoice price of the Goods. Risk of loss shall pass to the Buyer upon PSI’s delivery to the carrier at point of shipment. Goods will be packed to normal specification in non-returnable packaging. Transportation will be arranged at the request and at the expense of the Buyer. Where applicable, COD charges will be added to the price of the Goods. | ||||||||||
| 4. | Shipment Shortages & Damage. Shortages, defective or damaged Goods must be reported to PSI within thirty (30) days of delivery. All Goods are shipped at Buyer's risk and the Buyer consignee is required to file claims directly with the transportation company for Goods damaged or lost in transit. | ||||||||||
| 5. | Pricing Validity. Unless stated to the contrary on the face of any PSI communication or document invoking these PSI Terms and Conditions of Sale, prices for the Goods covered by this sales contract are firm for ninety (90) days from date of this sales contract acknowledgment. Any Goods which the Buyer requires to be shipped subsequent to ninety (90) days from said date are subject to price changes made from date of sales contract acknowledgment to date of shipment. | ||||||||||
| 6. | Delivery Validity. Any delivery period quoted is an estimate only and commences from PSI acknowledgment of the Buyer's order. The sole remedy of Buyer for failure of PSI to deliver in a timely manner shall be for Buyer to acquire the Goods from another source, in which case said quantity will be eliminated from this contract of sale, and Buyer shall have no claim against PSI for damages (direct, indirect or consequential). | ||||||||||
| 7. | Shipping Tolerance. For all Goods which are designed specifically for use by the Buyer and are not the normal range of Goods supplied generally by PSI (hereinafter “Buyer-specific Goods”), PSI reserves the right for a shipping tolerance of plus or minus 5% for each shipment and for the total Buyer order. | ||||||||||
| 8. | Tooling & Set-up. Tooling, set-up, fitting-up, drawings, design information and partial preparation charges when invoiced cover only part of the cost thereof to PSI. The Buyer does not acquire any right, title or interest in any tooling, set-up, fitting-up, drawings, design information or invention resulting therefrom. Tools made for the manufacture of Goods to be supplied under the contract and the patent, copyright, trademark and any intellectual property therein remain PSI property notwithstanding that the Buyer may have been debited with any sum in respect of their cost. | ||||||||||
| 9. | First Article Approval. All partial preparation charges shall be due within thirty (30) days of first article approval (if first article approval is specified in the Offer to Sell). Acceptance/rejection of the first article must be made immediately but in no event later than twenty (20) days after date of first article shipment, and such acceptance/rejection shall be based solely on the Goods meeting the specifications contained in PSI’s drawing for said Goods. Failure of the Buyer to submit in writing a rejection of first article within twenty (20) days after shipment shall be an admission by Buyer and conclusive proof that such Goods are accepted by the Buyer. | ||||||||||
| 10. | Design Change Authority. The Goods produced by PSI are typically designed by PSI. As such, PSI reserves the right to make design changes and to authorize concessions for all catalog and standard designs without Buyer notification. Customer approval will be sought on other special, Buyer-specific Goods designs when the change or concessions affects a form, fit or function characteristic. | ||||||||||
| 11. | Force Majeure. All shipping dates are tentative. PSI will not be responsible for delays or nonperformance, directly or indirectly, caused by governmental regulations or requirements, acts of God, unavailability of materials, work stoppages, slowdowns, boycotts, and other causes (whether or not similar in nature to any of these hereinbefore specified) beyond PSI’s reasonable control. No liability shall result from delay in performance or non-performance in whole or in part if performance as agreed has been made impracticable by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid, or by the occurrence of a contingency the non-occurrence of which was a basic assumption on which this contract was made, including, but not limited to, acts of God, fire, flood, accident, riot, war, sabotage, strike, labor trouble or shortage, or embargo. PSI inability to obtain at prices and on terms deemed by it to be practicable any required raw material, energy source, equipment, labor, or transportation, or any increased costs due to capital improvements for environmental protection shall also be sufficient to relieve PSI of its obligation to perform hereunder. If any of such circumstances affect only a part of PSI capacity to perform, PSI retains the right to allocate production and deliveries among all of its customers and its own requirements in a manner and at such times as PSI may determine. Quantities affected by this Article may, at the option of either party, be eliminated from the sales contract without liability, but the sales contract shall remain otherwise unaffected. | ||||||||||
| 12. | Production Schedules & Lot Delivery. PSI’s extensive line of Goods requires close coordination of the Buyer’s requirements with PSI’s production schedules to avoid possible delays in shipment. Accordingly, PSI reserves the right to ship approximately fourteen (14) days in advance of shipping date. PSI also reserves the right to deliver in more than one lot and to invoice each lot separately. | ||||||||||
| 13. | Warranty. PSI warrants that the Goods delivered hereunder shall be free from defects in material, workmanship and fabrication. The WARRANTY shall extend for a period of (a) one (1) year after date of delivery of such Goods to Buyer (except KPSI transducers, which have a three (3) year limited warranty) or (b) that period specified otherwise on the front of any PSI communication or document invoking these PSI Terms and Conditions of Sale (the greater of such periods (a) or (b) hereinbefore to be known as “Warranty Period”). PSI MAKES NO WARRANTY EXPRESS OR IMPLIED, (INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR INTENDED PURPOSE), EVEN IF THAT PURPOSE IS KNOWN TO PSI, OR ANY WARRANTY RELATING TO PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY OTHER THAN THE FOREGOING EXPRESS WARRANTY and that set forth in Article 16. Failure of Buyer to submit any claim hereunder within the Warranty Period after receipt of such Goods shall be an admission by Buyer and conclusive proof that such Goods are in every respect as warranted and shall release PSI from any and all claims for damage or loss sustained by Buyer. In the event Buyer submits a claim for breach of warranty within the required Warranty Period, the parties agree that Buyer’s sole and exclusive remedy shall be the repair or replacement of such defective Goods or a refund of the price of the defective Goods. This warranty is not intended to cover consumer products as defined in the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act 15 U.S.C. Sections 2301-12. Goods delivered hereunder are not designed, intended, or authorized for use as components in systems or other applications intended to support or sustain life, or for any other application in which the failure of PSI Goods could create a situation where personal injury or death may occur. Should Buyer purchase or use PSI Goods for any such unintended or authorized application, Buyer shall indemnify and hold PSI and its officers, employees subsidiaries, agents, and affiliates harmless against all claims, costs, damages, and expenses, and reasonable attorney fees arising out of, directly or indirectly, any claim of personal injury or death associated with such unintended or unauthorized use, even if such claim alleges that PSI was negligent regarding the design or manufacture of the Goods. This warranty does not apply to any Goods which have been damaged due to misuse, misapplication, or incorrect electrical connection, or which have been repaired or altered without express prior and written consent from PSI, or which have been subjected to misuse, negligence, or accident. In order to obtain service under the terms of the warranty, Buyer must notify PSI of any defects before the expiration of the Warranty Period and make suitable arrangements for the performance of services. PSI will provide on-site service only upon prior agreement and upon payment of all travel expenses by Buyer. In all other cases, Buyer shall be responsible for packaging and shipping the Goods to the PSI facility located in Hampton, Virginia with shipping charges prepaid. PSI shall pay for the return of any Goods to Buyer if the shipment is to a location within the continental USA. Buyer shall be responsible for paying all shipping duties, taxes, and other charges for Goods returned to any other location. | ||||||||||
| 14. | Buyer Intellectual Property Warranty. Buyer warrants that the designs and specifications furnished by it to PSI will not infringe any patent, trademark or copyright with respect to the manufacture and sale of the resulting Goods. The Buyer agrees that by purchasing Goods from PSI no intellectual property rights in such Goods (including, but not by way of limitation design, patent, trademark or copyright rights) are transferred thereby from PSI to the Buyer. | ||||||||||
| 15. | PSI Intellectual Property Warranty. PSI agrees to indemnify and save Buyer harmless from third party claims by reason of known infringement of any patent, trademark or copyright relating to Goods furnished hereunder. | ||||||||||
| 16. | Returned Material. Orders accepted by PSI cannot be countermanded or shipments deferred or Goods returned except with authorization from PSI and PSI accepts no responsibility for Goods returned without such authorization. All returned Goods must have a Returned Materials Authorization (RMA) number issued by PSI. This authorization is valid for a period of thirty (30) days from date of issuance. Returns of Goods at the convenience of the Buyer are limited to standard items, and are subject to a restocking fee, excluding freight charges. Returned materials for quality complaints will be evaluated by the PSI Quality Department and a credit issued when the complaint is approved. Buyer-specific Goods cannot be returned except for quality complaints or PSI error. When return of Goods is authorized by PSI, shipping charges on said returned Goods are to be prepaid F.O.B. Destination unless otherwise noted by PSI in its authorization to return. PSI shall not issue credit on any Goods which have been altered or defected in any way or upon which additional operations have been performed. | ||||||||||
| 17. | Order Cancellation or Change. Buyer contracts or orders are not subject to cancellation, change, reduction in amount, or suspension of deliveries except with PSI’s consent and upon terms which indemnify PSI against loss. In the event Buyer cancels any order or portion thereof or fails to meet any obligation hereunder causing cancellation or rescheduling of any order or portion thereof or requests a rescheduling of scheduled shipments and such request is accepted by PSI, Buyer agrees to pay, at PSI’s sole option, cancellation or reschedule charges as follows:
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| 18. | Total Quantity Purchase. In the event that the Buyer does not accept shipment on the total purchase quantity within twelve (12) months after receipt by PSI of Buyer’s order, PSI reserves the right to:
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| 19. | PSI Cancellation or Suspension Rights. PSI retains the right to suspend or cancel this sales contract at any time upon Buyer making an assignment for the benefit of creditors; or becoming bankrupt or insolvent; or upon a petition being filed in a court of competent jurisdiction proposing the appointment of a receiver; or in the event that the Buyer be adjudicated bankrupt or insolvent or reorganized under the provisions of any applicable bankruptcy or insolvency act. | ||||||||||
| 20. | Technical Assistance. PSI may, at Buyer's request, furnish technical assistance, advice and information with respect to the Goods supplied under this sales contract, if and to the extent that such assistance, advice and information is readily available, except for proprietary techniques or procedures. It is expressly agreed that there is no obligation to provide such information. PSI accepts no liability in contract, tort or otherwise for any damages or injury arising directly or indirectly from any error or omission in such technical data or literature. | ||||||||||
| 21. | PSI Right to Proceed. In addition to the rights and remedies reserved herein, PSI shall have all rights and remedies conferred by law and shall not be required to proceed with performance of the contract arising herefrom, if Buyer is in default to PSI under this or any other contract. | ||||||||||
| 22. | Qualification Tests. Unless specifically noted hereon, qualification tests and any test data are not included in the selling price. Qualification tests may be performed by PSI and test data supplied at the specific request and expense of the Buyer. | ||||||||||
| 23. | Payment Terms. Unless otherwise specifically noted on the front of any PSI communication or document invoking these PSI Terms & Conditions of Sale, payment terms are Net 30 Days, subject to credit approval, except where PSI stipulates Cash With Order or Cash On Delivery terms. Payment shall not be withheld on account of any claim by the Buyer against PSI. PSI reserves the right to charge interest at 1.5% per month on any sum outstanding after the due date. Any tax, duty, custom, or other fee of any nature imposed upon this transaction by any federal, state, or local government authority shall be paid by the Buyer, in addition to the price quoted or invoiced. In the event PSI is required to prepay any such tax, duty, custom or fee, Buyer will reimburse PSI. Unless specifically otherwise stated, all payments are to be made in United States Dollars (US$), with the payment check drawn on a United States Bank. All banking charges, if any, are to be pre-paid by the Buyer. PSI reserves the right, among other remedies, either to cancel this contract or to suspend further deliveries under it in the event Buyer fails to pay for any one shipment when payment becomes due. If PSI shall at any time doubt Buyer’s financial responsibility, PSI may demand adequate assurance of due performance or decline to make any further shipments except upon receipt of cash payment in advance or security. If PSI demands adequate assurance of due performance and the same is not forthcoming within ten (10) days after the date of PSI’s demand, PSI may, at its option, (a) continue to defer further shipments under this order and/or any other order from Buyer which has been accepted by PSI until adequate assurance is received, or (b) cancel this order and/or other orders from Buyer which have been accepted by PSI and recover damages. If Buyer fails in any way to fulfill the terms and conditions herein, PSI may defer further shipments until such default is corrected or cancel this order and recover damages. PSI shall have a security interest in, and lien upon, any property of Buyer in PSI’s possession as security for the payment of any amounts owing to PSI by Buyer. | ||||||||||
| 24. | Buyer Indemnification. Buyer agrees to indemnify, defend and hold PSI harmless from and against that portion of any liability, cost, expense (including reasonable attorneys' fees), claim, judgment, settlement or damage that PSI may be required to pay to any third party (including, but not limited to, any employee of Buyer who alleges or proves that he or she has been injured in the course of his or her employment while working with the Goods supplied by PSI under this sales contract), which (a) is caused or contributed to by the negligence or fault of Buyer; or (b) results from the infringement of any patent, trademark or copyright related to the Goods contributable to designs and/or specifications supplied by Buyer to PSI hereunder. In case the Buyer resells the Goods supplied by PSI under this sales contract, Buyer will obtain from Buyer’s customer an indemnification similar to the foregoing for the benefit of PSI. | ||||||||||
| 25. | PSI Liability. In no event shall PSI be liable for incidental or consequential damages or special, indirect or incidental damages arising out of, or as the result of, the sale, delivery, non-delivery, use of loss of use of Goods or any part thereof, even though PSI has been negligent. PSI shall not be liable on contract, tort or otherwise for any loss or damage suffered by the Buyer whatsoever or howsoever arising out of or in connection with the supply of Goods or services by PSI other than to supply Goods conforming to the original agreed specifications or at PSI option to refund to the Buyer any monies already paid in respect of the Goods. PSI liability with respect to this sales contract and the Goods purchased under it shall not exceed the purchase price of the portion of such Goods as to which liability arises and PSI shall not be liable for any injury, loss or damage, resulting from the handling or use of the Goods shipped hereunder whether in manufacturing process or otherwise. In no event shall PSI be liable for special, incidental or consequential damages, including, but not limited to, loss of profits, capital or business opportunity; downtime costs; or claims of customers of Buyer. Failure to give PSI notice of any claim within 30 days of delivery of the Goods concerned shall constitute a waiver of such claim by Buyer. Notwithstanding any applicable statute of limitations to the contrary, any action by Buyer relating to a claim hereunder must be instituted no later than two (2) years after the occurrence of the event upon which the claim is based. All of the foregoing limitations shall apply irrespective of whether Buyer's claim is based upon breach of contract, breach of warranty, negligence, strict liability, or any other legal theory. | ||||||||||
| 26. | PSI Labor & Affirmative Action Representation. PSI represents and warrants that with respect to the production of the Goods and/or the performance of the services stated herein, it has fully complied with all the applicable provisions of the Fair Labor Standards Act of 1938, as amended, including Sections 6, 7 and 12, regulations under section 14, and all other applicable administrative Regulations, including, without limitation, those relating to equal employment opportunities, affirmative action and health/safety. Furthermore, in connection with performance of work hereunder, PSI agrees to comply with all provisions, including specifically paragraphs (1) through (7), of Sec. 202, of Executive Order No. 11246 of September 12, 1965 as amended, and rules, regulations and orders pertaining thereto. | ||||||||||
| 27. | U.S. Government Contracting. In the event that the transaction between the parties which invokes these PSI Terms and Conditions of Sale is part of a U.S. Federal Government project or procurement, both Buyer and Seller agree, if they meet the criteria set forth in the provisions of 41 CFR Section 60-1.40, 41 CFR Section 60-250.4, 41CRF Section 741.4 and 29 CFR part 470 with respect to affirmative action program requirements, that they shall meet such requirements as set forth therein. |
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| 28. | Export Control Compliance. Buyer undertakes to Seller that any Goods, technology or software which Buyer receives from Seller will only be exported by Buyer in compliance with applicable export control laws. Buyer agrees that it will not use or knowingly support the use by others of such Goods, technology or software in the design, development, production or use of nuclear, chemical or biological weapons or ballistic missiles. |
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| 29. | Electronic Commerce. Seller may offer Goods for sale using the Internet or e-mail or similar electronic commerce methods. All sales of Goods made using any such method will be solely governed by these PSI Terms and Conditions of Sale and by any additional terms set out or referenced in Seller’s Internet site. Buyer may not share any password, access code or similar credential which may be issued to it by Seller, and Seller reserves the right to suspend or revoke any such credential. Buyer is solely responsible for ensuring the security and integrity of its ordering process. Any information provided by Seller via any Internet site or electronic communication (a) is subject to correction or change without notice, and (b) is provided for the sole use of Buyer for the purposes of facilitating individual transactions involving the purchase and sale of Seller’s Goods. |
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| 30. | Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other except that PSI shall have the right to assign to any company with which it is affiliated or to any corporation into which it shall be merged, with which it shall be consolidated, or by which it, or all or substantially all of its assets, shall be acquired. |
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| 31. | Relationship. The relationship hereby established between Buyer and PSI is solely that of buyer and seller. Neither party shall be deemed the legal representative of the other for any purpose whatsoever and neither party may assume any obligations of any kind, implied or expressed, on behalf of the other party. |
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| 32. | Waiver. PSI’s failure to insist upon the strict performance of these PSI Terms and Conditions of Sale or to exercise any right or remedy shall not be considered a waiver of PSI’s right to insist upon strict performance thereof or a waiver of any right or remedy with respect to any existing or subsequent breach or default. |
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| 33. | Governing Law. This document and the sale of all Goods transacted by any PSI communication or offer to sell shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Virginia. Buyer irrevocably submits to the jurisdiction of any Virginia court or Federal court sitting in the city of Hampton, Virginia (or within 20 miles of such city) over any suit, action or proceeding arising out of or relating to this sales contract. Buyer hereby waives, to the fullest extent permitted by law, any objection it may now or hereafter have to such jurisdiction or to the venue of any such suit, action or proceeding brought in such a court and any claim that such suit, action or proceeding has been brought in any inconvenient forum. The parties hereto waive the right to have any suit, action or proceeding arising out of or relating to any transaction between the parties subject to these PSI Terms and Conditions of Sale tried before a jury. |
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| 34. | Article Headings. The Article headings and captions in these PSI Terms and Conditions of Sale are inserted only as a matter of convenience and in no way define, limit, or extend, the scope or intent of this document or any provision hereof, or affect the meaning or interpretation of this document. |
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| 35. | Severability. In the event that any portion hereof shall violate any applicable statute, ordinance, or rule of law, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof. |
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| 36. | Entire Agreement. This sales contract encompasses the entire understanding and agreement between the parties with respect to the subject matter of the sale and purchase of the Goods and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, express or implied, affecting this instrument that are not expressly set forth herein. The sales contract invoking these PSI Terms and Conditions of Sale supersedes any and all prior agreements, written or oral, heretofore made between the parties with respect to the subject matter of such sales contract. No modification of this sales contract shall be of any force or effect unless in a writing duly executed by authorized representatives of the respective parties and no modification shall be effected by the acknowledgment or acceptance of purchase order forms containing different terms or conditions. |
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