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Price® Pump Company
#1 Pump Way wP.O. Box Q wSonoma, CA 95476 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
7. PATENTS
Seller agrees to assume the defense of any suit for
infringement of any 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 may, with buyers
prior consent, 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.
10. TERMS OF PAYMENT
Refer to following page for Terms of Payment.
(Terms-9B/Book 95)