1. Customer’s order is binding only when accepted in writing by an authorized representative of Franklin Valve (FV). The terms and conditions of sale are only those stated below and on the second page of this form. If any other terms and conditions are in Customer’s order, they are hereby rejected unless independently approved in writing by an authorized representative of FV. The parties agree there are no agreements between the parties, oral or written, with respect to the goods sold hereunder (including any made from past dealings, quotations or correspondence) except as expressed herein.
2. Shipping dates are estimates only and are not guaranteed. FV will use its best efforts to ship the items on schedule. FV may make partial shipments. FV will not be liable for delays in shipping due to Force Majeure. Force Majeure means an occurrence beyond the control of FV including, but not limited to, acts of God or the public enemy, fires, floods, unusually severe weather, expropriation or confiscation, delays caused by governments (including government priorities, preferences or allocations), changes in law, regulations or order of any governmental agency, war, rebellion, riots or acts of terror, strike or civil unrest, delays of suppliers in furnishing materials and services, and any other causes or occurrences that are beyond FV’s control.
3. If the items ordered are to be exported from the United States, the quoted shipping dates are subject to receipt of all export documents and authorizations. Regardless of ultimate destination, the prices quoted are based on packing for domestic shipment unless otherwise stated. Any export or other special packing or special transportation charges shall be charged to and paid by Customer.
4. FV will not be liable for any damages or losses caused in whole or in part by Customer’s failure to comply with these terms and conditions or any other agreement of the parties (including, but not limited to, Customer’s failure to pay or provide all necessary information).
5. Prices quoted, unless otherwise stated in FV’s Quotation, are F.O.B. FV’s Plant (Ex-works), and do not include sales, use, excise or similar taxes or duties, freight transportation, insurance, shipping, storage, handling, demurrage, or similar charges. Customer will pay these items directly if the law permits or will reimburse FV if FV is required to pay them. Customer will provide tax exemption certificates or evidence of tax payment on request. All items should be inspected and tested as soon as received. If any damage is discovered, a claim should be filed with the carrier. A full report of the damage must be promptly furnished to FV. Title to items ordered and risk of loss passes to Customer when transferred to a carrier, and FV is not responsible for damage or loss in transit.
6. In the event credit has not been established, FV reserves the right to require payment due net thirty (30) days from the date of the invoice, or the issuance of an irrevocable letter of credit, in advance of shipment. Any amounts not paid when due shall bear interest at the rate of 1 ½% per month, or at the highest rate permitted by law (whichever is less), from the date of shipment until paid. FV reserves a purchase money security interest in each product shipped, which will be satisfied by payment in full. FV has the right to file a copy of this document as a financing statement.
7. Customer’s order will be deemed a representation that Customer is solvent and able to pay for the items ordered. If Customer fails to make payments when due or if bankruptcy or insolvency proceedings are instituted by or against Customer or if Customer makes an assignment for the benefit of Creditors, Customer will be deemed in default and FV will have the right to terminate its obligations by written notice to Customer, but such termination will not affect Customer’s obligations to pay for items delivered and work in progress. Upon Customer’s failure to timely pay any indebtedness when due to FV, FV may declare all outstanding amounts owed by Customer immediately due and payable. In the event of Customer’s insolvency or any failure by Customer to make a payment to FV when due, FV may enter upon Customer’s premises and reclaim or repossess all items for which FV has not received payment, and Customer waives all claims for any damages resulting therefrom. Such repossession shall not preclude recovery of any deficiency from Customer in the event of suit by FV.
8. Customer agrees that it will store FV items in accordance with FV’s specifications and storage procedures. FV will not be liable for any damages or loss relating to or arising out of Customer’s failure to store FV items in accordance with FV’s specifications and storage procedures.
9. Orders placed with and accepted by FV may not be cancelled. Orders placed with and accepted by FV may not be changed unless FV consents in writing.
10. In the event Customer requests delivery of the items be delayed beyond the stated shipping date, FV will invoice Customer for the full amount of the order, and payment will be due as previously determined by FV. Title to the items will pass to Customer as of the time of the invoice. As a fee for storing the items, FV shall be entitled to collect from Customer a fee of 1 ½% of the order per month to be paid by Customer on the first of each month. FV will not be liable for any damages or losses resulting from the storage of the items at its facility.
11. If the items quoted are to be used in fulfilling a contract with the United States Government, FV agrees to use reasonable efforts to comply with applicable government contract provisions that are mandatory under federal law and regulations such as provisions respecting equal opportunity employment, military security requirements, Walsh-Healy Act and the Fair Labor Standards Act of 1938, provided Customer has given FV notice of the applicable provisions and FV has not objected in writing to them.
12.FV makes no other warranties or representations whatsoever as to the nature of quality of any goods manufactured by FV and sold hereunder except that FV shall, at its option, either repair or replace defects in workmanship or materials reported in writing to FV within twelve (12) months after date of shipment. Any defects or errors not so reported shall be deemed waived. Resale items shall carry only the warranty offered by the original manufacturer, unless specified otherwise in the offering or agreed upon by FV. FV’s warranty shall not apply to equipment that has been improperly installed or damaged by accident, abuse, or failure to maintain in accordance with manufacturer’s specifications or good practice. FV will only repair goods that Customer reports to be defective at FV’s place of business. At its sole discretion, FV may replace goods that are reported to be defective. All labor costs are the responsibility and the expense of Customer.
LIMITATION OF DAMAGES
13. IN NO EVENT SHALL FV BE LIABLE IN CONTRACT OR IN TORT, OR FOR STRICT LIABILITY, OR UNDER LAWS RELATING TO THE PROTECTION OF THE ENVIRONMENT, OR UNDER ANY OTHER LEGAL THEORY, FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER FV WAS INFORMED ABOUT THE POSSIBLY OF SUCH DAMAGES, AND IN NO EVENT SHALL FV’S LIABILITY FOR DIRECT DAMAGES OR ANY OTHER KIND OR NATURE OF DAMAGE CLAIMS EXCEED AN AMOUNT EQUAL TO THE SALES PRICE FOR THE PRODUCT ON WHICH THE CLAIM IS BASED, AS STATED IN THIS AGREEMENT.
14. THE EXPORTATION FROM THE UNITED STATES OF ITEMS, COMMODITIES OR TECHNICAL DATA SOLD, FURNISHED OR DELIVERED TO CUSTOMER BY FV AND THE RE-EXPORTATION OF SUCH ITEMS FROM ANY OTHER COUNTRY MAY BE PROHIBITED OR RESTRICTED UNDER U.S. FEDERAL LAWS AND REGULATIONS. ACCORDINGLY, NO EXPORTATION OF SUCH ITEMS, COMMODITIES OR TECHNICAL DATA FROM THE UNITED STATES AND NO RE- EXPORTATION THEREOF FROM ANY OTHER COUNTRY SHALL BE PERMITTED, EXCEPT IN ACCORDANCE WITH U.S. LAW. This provision constitutes an independent covenant and continuing obligation of Customer which will survive the termination of this agreement.
15. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this agreement, but this agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable.