
Price® Pump Co. Model XJ & JB Series Page 9of 8 I&O IN164 12/14/01
21775 8th Street East wP.O. Box Q wSonoma, CA 95476-0329 w(707) 938-8441 wFax (707) 938-0764
GENERAL TERMS OF SALE FOR PRODUCTS Effective: January 1, 1993
1. GENERAL
A. Seller's price is based on these sales terms and (i)
this document together with any additional writings
signed by Seller shall represent the final, complete and
exclusive statement of the agreement between the
parties and may not be modified, supplemented,
explained or waived by parol evidence, Buyer's purchase
order, a course of dealing, Seller's performance or
delivery, or in any other way except in writing signed by
an authorized representative of Seller, and (ii) these
terms are intended to cover all activity of Seller and
Buyer hereunder, including sales and use of products,
parts and work and all related matters (references to
products include parts and references to work include
construction, installation and start-up). Any reference by
Seller to Buyer's specifications and similar requirements
are only to describe the products and work covered
hereby and no warranties or other terms therein shall
have any force of effect. Catalogs, circulars and similar
pamphlets of the Seller are issued for general
information purposes only and shall not be deemed to
modify the provisions hereof.
B. The agreement formed hereby and the language
herein shall be construed and enforced under the
Uniform Commercial Code as in effect in the State of
California on the date hereof.
2. TAXES
Any sales, use or other similar type taxes imposed on
this sale or on this transaction are not included in the
price. Such taxes shall be billed separately to the Buyer.
Seller will accept a valid exemption certificate from the
Buyer if applicable; however, if an exemption certificate
previously accepted is not recognized by the
governmental taxing authority involved and the Seller is
required to pay the tax covered by such exemption
certificate. Buyer agrees to promptly reimburse Seller
for the taxes paid.
3. PERFORMANCE, INSPECTION AND
ACCEPTANCE
A. Unless Seller specifically assumes installation,
construction or start-up responsibility, all products shall
be finally inspected and accepted within thirty (30) days
after arrival at point of delivery. Products not covered
by the foregoing and all work shall be finally inspected
and accepted with thirty (30) days after completion of
the applicable work by Seller. All claims whatsoever by
Buyer (including claims for shortages) excepting only
those provided for under the WARRANTY AND
LIMITATION OF LIABILITY and PATENTS Clauses
hereof must be asserted in writing by Buyer within said
thirty (30) day period or they are waived. If this contract
involves partial performance, all such claims must be
asserted within said thirty (30) day period for each
partial performance. There shall be no revocation of
acceptance. Rejection may be only for defects
substantially impairing the value of products or work and
Buyer's remedy for lesser defects shall be those provided
for under the WARRANTY AND LIMITATION OF
LIABILITY Clause.
B. Seller shall not be responsible for non-performance
or for delays in performance occasioned by any causes
beyond Seller's reasonable control, including, but not
limited to, labor difficulties, delays of vendors or
carriers, fires, governmental actions, or shortages of
material, components, labor, or manufacturing facilities.
Any delays so occasioned shall affect a corresponding
extension of Seller's performance dates which are, in any
event, understood to be approximate. In no event shall
Buyer be entitled to incidental or consequential damages
for late performance or for a failure to perform. Seller
reserves the right to make partial shipments and to ship
products, parts or work which may be completed prior to
the scheduled performance date.
C. In the event that Seller has agreed to mount motors,
turbines, gears, or other products which are not
manufactured by Seller and which are not an integral
part of Seller's manufactured product, and a delay in the
delivery of such products to Seller occurs that will cause
a delay in Seller's performance date, Seller reserves the
right to ship its product upon completion of manufacture
and to refund an equitable portion of the amount
originally included in the purchase price for mounting
without incurring liability for non-performance.
D. Seller reserves to itself the right to change its
specifications, drawings and standards if such changes
will not impair the performance of its products, and
parts, and further that such products, and parts, will meet
any of Buyer's specifications and other specific product
requirements which are a part of this agreement.
E. The manufacture and inspection of products and
parts shall be to Seller's Engineering and Quality
Assurance standards plus such other inspections, tests of
documentation as are specifically agreed to by Seller.
Requirements for any additional inspection, tests,
documentation, or Buyer witness of manufacture, test,
and/or inspection shall be subject to additional charges.
4. TITLE AND RISK OF LOSS
Title and risk of loss shall pass to buyer upon delivery of
products at the designated Ex Works place (Incoterms
1990) unless other wise agreed by the parties.
5. EROSION AND CORROSION
It is specifically understood that products and parts sold
hereunder are not warranted for operation with erosive
or corrosive fluids. No product or part shall be deemed
to be defective by reason of failure to resist erosive or
corrosive action of any fluid and Buyer shall have no
claim whatsoever against Seller therefore.
6. WARRANTY AND LIMITATION OF
LIABILITY.
A. Seller warrants only that its product and parts, when
shipped, and its work (including installation,
construction and start-up), when performed will meet all
applicable specifications and other specific product and
work requirements (including those of performance), if
any, of this agreement, and will be free from defects in
materials and workmanship. With respect to products,
parts and work not manufactured or performed by Seller,
Seller's only obligation shall be to assign to Buyer, to the
extent possible, whatever warranty Seller requires from
the manufacturer. All claims for defective products or
parts under this warranty must be made in writing
immediately upon discovery and, in any event, within
one (1) year after initial start-up or eighteen (18) months
after shipment, whichever first occurs, and all claims for
defective work must be made in writing immediately
upon discovery and in any event, within one (1) year of
completion thereof by Seller. Defective items must be
held for Seller's inspection and returned to the original
f.o.b. point upon request. THE FOREGOING IS
EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES WHATSOEVER, EXPRESS,
IMPLIED AND STATUTORY, INCLUDING
WITHOUT LIMITATION, THE IMPLIED,
WARRANTIES OF MERCHANTABILITY AND
FITNESS.
B. Upon Buyer's submission of a claim as provided
above and its substantiation, Seller shall at its option
either (i) repair or replace its product, part or work at the
original place of delivery, or (ii) refund an equitable
portion of the purchase price.
C. THE FOREGOING IS SELLER'S ONLY
OBLIGATION AND BUYER'S EXCLUSIVE
REMEDY FOR BREACH OF WARRANTY AND,
EXCEPT FOR GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, AND REMEDIES PERMITTED
UNDER THE PERFORMANCE, INSPECTION AND
ACCEPTANCE AND THE PATENTS CLAUSES
HEREOF, THE FOREGOING IS BUYER
EXCLUSIVE REMEDY AGAINST SELLER FOR
ALL CLAIMS ARISING HEREUNDER OR
RELATING HERETO WHETHER SUCH CLAIMS
ARE BASED ON BREACH OF CONTRACT. TORT
(INCLUDING NEGLIGENCE) OR OTHER
THEORIES. BUYER'S FAILURE TO SUBMIT A
CLAIM AS PROVIDED ABOVE SHALL
SPECIFICALLY WAIVE ALL CLAIMS FOR
DAMAGES OR OTHER RELIEF, INCLUDING BUT
NOT LIMITED TO CLAIMS BASED ON LATENT
DEFECTS. IN NO EVENT SHALL BUYER BE
ENTITLED TO INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES,
NOR FOR DAMAGES FOR LOSS OF USE, LOST
PROFITS OR REVENUE, INTEREST, LOST
GOODWILL, WORK OR PRODUCTION
STOPPAGE, IMPAIRMENT OF OTHER GOODS,
INCREASED EXPENSES OF OPERATION, OR
THE COST OF PURCHASING REPLACEMENT
POWER OR OTHER SERVICES BECAUSE OF
SERVICE INTERRUPTIONS. FURTHERMORE, IN
NO EVENT SHALL SELLER'S TOTAL LIABILITY
FOR DAMAGES OF BUYER EXCEED THE
PURCHASE PRICE OF THE PRODUCTS OR
PARTS MANUFACTURED BY SELLER AND
UPON WHICH SUCH LIABILITY IS BASED. ANY
ACTION ARISING HERE-UNDER OR RELATED
HERETO, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHER THEORIES, MUST BE COMMENCED
WITHIN ONE (1) YEAR AFTER THE CAUSE OF
ACTION ACCRUES OR IT SHALL BE BARRED.
7. PATENTS
Seller agrees to assume the defense of any suit for
infringement of any Canadian patents brought against
Buyer to the extent of such suit charges infringement of
an apparatus or product claim by Seller's product in an of
itself, provided (i) said product is built entirely to
Seller's design, (ii) Buyer notifies Seller in writing of
the filing of such suit within ten (10) days after the
service of process thereof, and (iii) Seller is given
complete control of the defense of such suit, including
the right to defend, settle and make changes in the
product for the purpose of avoiding infringement of any
process or method claims, unless infringement of such
claims is the result of following specific instruction
furnished by Seller.
8. EXTENT OF SUPPLY
Only products and listed in Seller's proposal are included
in this agreement. It must not be assumed that Seller
has included anything beyond same.
9. MANUFACTURING SOURCES
To maintain delivery schedules, Seller reserves the right
to have all or any part of the Buyer's order manufactured
at any of Seller's or its licensee's plants on a world-wide
basis.