BVA, LLC. Standard Terms and Conditions of Sale
- Definitions; Scope As used herein “Seller” shall mean BVA, LLC.; “Order” shall mean Seller’s Sales Order Acknowledgement; “Contract” means the agreement arising from the acceptance of this written Order and its attachments; “Equipment” means the goods specifically set forth and described in Seller’s quotation/bid, this Order, and its attachments; “Services” means supervision, testing, repair, or other services of Seller that are specifically set forth and described in Seller’s quotation/bid, this Order, and its attachments; and “Buyer” means the buyer whose name is set forth in this Order and its attachments. Delivery, scope of supply/services, and any changes to the same shall be based upon Seller’s quotation/bid and any expressly agreed upon changes.
- Acceptance. Buyer’s acceptance of any Equipment, drawings, or Services from Seller shall constitute full acceptance of Seller’s quote and these terms and conditions. No term and/or condition (including any requirement) in Buyer’s order that is inconsistent with or contrary or in addition to Seller’s terms and conditions shall be binding upon Seller unless specifically agreed to in writing by Seller’s authorized officer.
- Testing and Inspection. When quoted by Seller and/or otherwise expressly agreed upon by the parties in writing as part of the Order, Seller will conduct the agreed upon test(s) and/or schedule the agreed upon inspection(s) or review(s) by Buyer of the Equipment or Services; tests and inspections/reviews shall be at Buyer’s risk and cost. Buyer will be given written notice at least three (3) business days prior to such testing and/or inspection of Equipment. Buyer may witness such testing at Buyer’s risk and expense. If Buyer waives or refuses attendance, tests and/or inspections/reviews conducted in the absence of Buyer will be deemed to have been made in its presence.
- Title & Risk of Loss. Unless otherwise quoted/specified in the Order/Contract by Seller, Equipment is being purchased EXW (Origin/Factory), Incoterms 2000. Delivery to/for the initial carrier shall constitute delivery to Buyer and title and risk of loss shall transfer to Buyer upon such delivery (or when delivery should have taken place but for a delay by Buyer or Buyer’s representative(s)/agent(s)/carrier(s)). If a different delivery point is quoted or expressly agreed upon by the parties, title and risk of loss shall transfer to Buyer upon delivery of the Equipment/goods to such F.O.B./Incoterm point, and freight shall be “pre-pay and add” unless otherwise quoted and mutually agreed upon. If delivery is at a point other than EXW (origin), Seller shall have full control of shipping/freight, and Buyer agrees to fully document (with photos where possible) and promptly advise Seller of any damage or freight claims. Equipment/goods that are not promptly and properly rejected by Buyer upon delivery shall be deemed irrevocably accepted; accepted Equipment/goods shall be subject to Section 5 (Warranty) below.
- Warranty. Seller assigns to the original Buyer all original manufacturers (OEM) warranties relating to the products sold hereunder. Seller extends no warranties and expressly disclaims all warranties, express or implied in law, including but limited to any warranties of merchantability or fitness for a particular purpose. 5.1 The defective/non-conforming parts(s)/Equipment must be returned to Seller free of all contaminants and, in the event of replacement, will become the property of Seller unless Seller instructs otherwise. The warranty does not include the costs of removal of the defective part(s)/Equipment or the costs of fitting new parts or other Equipment. For parts, components or other goods not manufactured by Seller, Buyer will only be entitled to such warranty benefits by the manufacturer as are assignable and transferred by Seller. Seller expressly disclaims any representation or warranty that the Equipment and/or Services shall be deemed to guarantee or lead to specific results or standard of performance unless such results or standards have been quoted and expressly agreed to in writing by Seller. If Seller opts to perform any warranty obligations in-place, Buyer shall, without cost to Seller, during a specified time period agreed upon by the parties, provide access by disassembling, removing, replacing, and reinstalling any equipment, materials, structures, or other obstructions to the extent necessary to permit Seller to perform its warranty obligations. 5.2 OEM Limited Warranty. BVA, LLC assigns to the original Buyer that all manufactured filters goods will be free from defects in materials and workmanship for twelve (12) months from the date of shipment, if properly installed maintained and operated under normal conditions. OEM does not warrant against damages due to corrosion, abrasion, normal wear and tear, product modification or product misapplication. OEM also makes no warranty whatsoever as to any goods manufactured or supplied by others. After OEM has been given adequate opportunity to remedy any defects in material or workmanship, OEM retains the sole option to accept return of the goods, with freight paid by the Buyer, and to refund the purchase price for the goods after confirming the goods are returned undamaged and in usable condition. Such repair, replacement or refund will be OEM’s sole obligation and Buyer’s exclusive remedy. OEM shall not be liable for any other costs, expenses or damages whether direct, indirect, special, incidental, consequential or otherwise. The terms of this warranty may be modified only by a special warranty document signed by a Director, General Manager or Vice President or Director of OEM Supplying Company. Since a variety of factors can affect the use and performance of the goods in a particular application, some of which are uniquely within the Buyer’s knowledge and control, Buyer is responsible for determining whether or not the goods are fit for a particular purpose and suitable for Buyer’s equipment, process and application. THERE EXIST NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES EXCEPT AS STATED IN THIS PARAGRAPH AND ALL OTHER WARRANTIES INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. 5.3 Seller also does not warrant (a) any product, components or parts not sold or provided by Seller, (b) defects caused by failure to provide suitable installation or application environment for the Products, (c) damage caused by use of the Products for purposes other than those for which they were intended, (d) damage caused by disaster such as fire, flood, wind and lightning, (e) damage during shipment, (f) damage caused by unauthorized modification of the Products, or (g) any other abuse or misuse by Buyer. 5.4 THERE ARE NO WARRANTIES, GUARANTEES, REPRESENTATIONS, OR REMEDIES THAT EXTEND BEYOND THE FACE OF THESE TERMS AND CONDITIONS, AND ALL OTHER WARRANTIES, GUARANTEES, REPRESENTATIONS, OR REMEDIES (EXPRESS OR IMPLIED) NOT EXPRESSLY SET FORTH HEREIN WITHIN THESE TERMS AND CONDITIONS ARE FULLY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE WARRANTIES, GUARANTEES, REPRESENTATIONS, AND REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN PLACE OF ALL OTHER WARRANTIES, GUARANTEES, REPRESENTATIONS, AND REMEDIES (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE). SELLER’S WARRANTIES DO NOT COVER ANY EQUIPMENT OR SERVICES THAT HAVE BEEN ALTERED OR SUBJECTED TO MISUSE OR ACCIDENT, OR IMPROPER STORAGE, INSTALLATION, ASSEMBLY, COMMISSIONING, MAINTENANCE, OR APPLICATION. SELLER DOES NOT WARRANT THAT THE EQUIPMENT, OR ANY PART OF THE EQUIPMENT, WILL RESIST THE ACTION OF EROSIVE OR CORROSIVE GASES, LIQUIDS, OR SOLIDS, OR PRODUCE RESULTS IN COMPLIANCE WITH ANY LAWS, DECREES, OR OTHER LEGAL STANDARDS, AND NO PART(S)/EQUIPMENT WILL BE DEEMED DEFECTIVE OR NON-CONFORMING BY REASON OF ITS FAILURE TO RESIST SUCH ACTION OR PRODUCE SUCH RESULTS.
- Installations and Assembly. Unless otherwise expressly quoted, and agreed upon by Seller and Buyer, it is understood and agreed that Seller is only the supplier of the Equipment and shall have no responsibility for the assembly and installation of Equipment. All of the Equipment shall be assembled and installed by Buyer at its expense and in accordance with general assembly or erection drawings and/or instructions which Seller furnishes to Buyer, if applicable.
- Excusable Delays. Seller shall not be liable nor in breach or default of its obligations under the Contract to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, terrorism, war (declared or undeclared), epidemics, material shortages, insurrection, acts (or omissions) of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. The delivery or performance date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If Seller is delayed by any acts (or omissions) of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable price and performance adjustment.
- Buyer Materials (if Applicable) Delays. Material which is to be furnished by Buyer to be mounted on or shipped with Equipment supplied by Seller must be received at Seller’s facility in accordance with the delivery schedule expressly agreed upon by both Buyer and Seller. If shipment of Buyer’s material to be fabricated by Seller is delayed or lost, Seller reserves the right to: (i) Invoice and hold shipment awaiting Buyer’s material or (ii) invoice and ship less Buyer’s material. Buyer shall reimburse Seller for all damages, losses, and liability (excluding consequential damages therefore) incurred by Seller directly or indirectly as a result of any such Buyer delay.
- Insurance. Seller shall maintain the following insurance coverage (within the USA) during the on-site work: (1) Commercial General Liability with limits of $1,000,000 combined single limit occurrence for Bodily Injury, Physical Property Damage of third party property, and Contractual Liability coverage, subject to an annual aggregate not to exceed $2,000,000; (2) Automobile Liability – Bodily Injury/Physical Property Damage in the amount of $1,000,000 combined single limit each occurrence; and (3) Workers Compensation Insurance – statutory, as to Seller’s employees. If requested, Seller will provide an ACORD form of certificate confirming such coverage. Seller shall have no other or further obligations related to insurance or coverage.
- Indemnification. Subject to the terms of the Contract, Seller shall indemnify Buyer against any damages, costs and expenses arising out of any suit, claim, or proceeding (a “Claim”) alleging that Products or Services infringe a patent in effect in the U.S., an EU member state or country of delivery (provided there is a corresponding patent issued by the U.S. or an EU member state), or U.S. copyright or copyright registered in the country of delivery; provided that: (a) Buyer promptly notifies Seller in writing of any such Claim; (b) Buyer makes no admission of liability and gives Seller sole authority, at Seller’s expense, to direct and control all defense, settlement, and compromise negotiations; and (c) Buyer provides Seller with full disclosure and assistance that may be reasonably required to defend any such Claim. 10.1 Seller shall have no obligation or liability with respect to any Claim to the extent based upon: (a) any Products or Services that have been altered, modified, or revised; (b) the combination, operation, or use of any Products or Services with other products when such combination is part of any allegedly infringing process; (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim; (d) unauthorized use of Products or Services, including, without limitation, a breach of the provisions of the Contract; or (e) Products or Services made or performed to Buyer’s specifications. 10.2 Should any Product or Service, or any portion thereof, become the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using the Product or Service, or portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back Products or Services and refund any fees received by Seller attributable to the infringing Product or Service. 10.3 This states Seller’s entire liability for indemnification for patent, trademark, copyright, and trade secret infringement for Products and Services. 10.4 Notwithstanding the foregoing, with respect to any Products or Services, or portions thereof, which are not manufactured/developed by Seller, only the indemnity of the manufacturer/developer, if any, shall apply. 9.5 Seller shall indemnify, defend and hold Buyer, its affiliates, directors, officers, employees and agents (“Indemnified Parties”) harmless from and against all claims, loss, damages, liability, costs, attorney’s and paralegal fees and expenses sustained or incurred by any of the Indemnified Parties on account of injury to or death of any person or damage to Buyer’s or a third party’s property to the extent such bodily injury, death, or property damage is attributable to the negligent act or omission of Seller, a subcontractor of Seller, or an employee or agent of Seller or any subcontractor of Seller. Buyer shall have the right to have its representatives present when any claims are settled under this Section.
- Force Majeure; Shipment and Delays. Seller shall not be liable for damages or delay in performance arising from causes beyond its control or without its fault or negligence, including, but not limited to, acts of God or the public enemy, acts of Government in its sovereign capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and/or severe weather. If Buyer requests that Seller store Equipment pending delivery to Buyer (at a future date acceptable to Seller), or if delivery instructions are not promptly received from Buyer upon Seller’s ready-to-ship notification, Seller may provide for storage of the Equipment at Buyer’ s risk and expense . If Seller will not obtain or continue such storage, Buyer must provide for suitable storage facilities at Buyer’s cost and risk. Shipments held beyond the scheduled date at the request or fault of Buyer may be billed immediately to Buyer including reasonable expenses incident to such delay, and Buyer shall assume title and risk of loss thereof. Liquidated/delay damages shall not apply to this order
- Taxes & Duties. Buyer shall be responsible for payment of all sales, use, and excise taxes, duties, and fees levied or imposed by any governmental authority upon the Equipment and/or Services. It is Buyer’s responsibility to ensure that any Canadian provincial sales tax and/or other foreign taxes/duties/fees that may apply to this Order are remitted to the appropriate taxing authorities.
- Payment of Purchase Price. Buyer shall pay all invoices within 30 days from the date of Seller’s invoice. Seller does not waive rights or claims, except claims for payment to the extent that such payments have been received by Seller. Seller reserves the right to charge late fees at the lesser of (i) the rate of 1.5% per month or (ii) the maximum amount permitted by law for all amounts not paid within 30 days of invoice date, and Buyer shall pay all of Seller’s collection costs, including collection agency fees, legal fees, and court costs for overdue invoices. If, in Seller’s reasonable opinion, Buyer’s financial condition or payment position may jeopardize full or timely payment, Seller may (i) require full or partial payment as a condition to commencing or continuing manufacture of Equipment or performance of Services (including in advance of any shipment/release) or (ii) recover Equipment from the carrier, if shipment has been made.
- Overriding Exclusions of Damages/Remedies, Waiver, Limitation of Liability, Survival & Validity Notwithstanding any other provisions or requirements within or without these terms and conditions or this Order/Contract, the following shall apply, govern, control, and survive at all times and to the fullest extent permitted by law: 14.1 Seller shall not be liable for any loss of profit, loss of business, loss of contracts, or for any special, indirect, economic, incidental, consequential, or punitive damages or losses, whether based on contract, warranty, indemnity, statute, tort (including negligence), or otherwise pursuant and/or related to this Order/Contract (including without limitation the Order/Contract itself and/or any of the underlying or related transactions, acts, obligations, and/or omissions). Buyer (and any third party beneficiaries, if any) expressly waive(s) the right to claim or recover any of the foregoing types of damages from Seller arising out of, in connection with, and/or related to this Order/Contract (including without limitation the Order/Contract itself and/or any of the underlying or related transactions, acts, obligations, and/or omissions) to the fullest extent permitted by law. 14.2 Except to the extent this limitation is prohibited by law, Seller’s total liability pursuant and/or related to this Order/Contract (including without limitation the Order/Contract itself and/or any of the underlying or related transactions, acts, obligations, and/or omissions), whether for breach of contract or by reason of any tort (including negligence), statute, warranty, indemnity, or otherwise, shall in no event exceed the total price of the Order under this Contract. 14.3 For the purposes of this Section 16 only, the term “Seller” shall include its employees, officers, agents, and/or affiliates. To the fullest extent permitted by law, the warranties and remedies by Seller set forth in these terms and conditions are sole and exclusive, and in place of all other rights, warranties, remedies, and guarantees available to Buyer. All rights, warranties, remedies, and/or guarantees provided by Seller are subject to the conditions, exclusions, and limitations of this Section 14 to the fullest extent permitted by law. This entire Section 14 as well as the exclusions, limitations, disclaimers, and conditions set forth in Section 5 (Warranty) and Section 11 (Force Majeure/Shipment and Delays) shall survive any breach, default, termination, cancellation, or dissolution of these terms and conditions and/or the Order/Contract. To the fullest extent permitted by law, Seller shall have no warranty, insurance, hold harmless, defense, and/or indemnification liability/obligation(s) beyond those that are expressly set forth within these terms and conditions, and any additional or conflicting provisions or requirements shall not be enforceable. If any provision of these terms and conditions of this Order/Contract or part thereof shall for any reason be held by any judicial determination to be invalid or unenforceable, the valid or enforceable parts of these terms and conditions shall continue in full force and effect. Buyer shall not be entitled to any unjust enrichment.
- Intellectual Property. Seller’s intellectual property rights and proprietary information (including those incorporated into drawings, schematics, specifications, etc.), whether in hard copy or in electronic format, remain the property of Seller. Notwithstanding any other provisions or requirements of this Order/Contract, no intellectual property or proprietary information is being sold, granted, transferred, licensed, or assigned; there are no works-made-for-hire or unrestricted use (any government rights shall be “limited rights”). Seller shall not be required to provide, or provide access to, any confidential or proprietary area, information, data, drawings, or documentation. 8. PATENT INDEMNITY – Except (i) to the extent of designs, specifications, and/or other intellectual property designed, provided, and/or required by or through Buyer and/or its agent(s)/affiliate(s)/beneficiary(ies)/representative(s) and/or (ii) to the extent that Equipment is altered or combined (by someone other than Seller) with equipment/goods not manufactured by Seller, Seller will indemnify Buyer from claims, suits, or actions by third parties against Buyer based upon allegations that any standard item of Equipment ( or part t hereof) manufactured by Seller and sol d hereunder, in and of itself infringes any United States patent . The duty to indemnify is conditioned upon Buyer: (i) providing prompt and detailed notice to Seller of any such claim, suit, or action; (ii) tendering its defense and settlement to Seller; and (iii) providing full cooperation, authority, and assistance to Seller. If in any suit/action an injunction is issued against the further use of said item of Equipment or any part thereof, Seller will, at its option and expense: (i) procure for Buyer the right to continue using said item of Equipment for the purpose for which it was provided by Seller; or (ii) replace the same with non-infringing Equipment or modify it so that it becomes non infringing for the purpose provided by Seller or (iii) remove said item and refund the purchase price and the transportation costs thereof.
- Dispute Resolution, Governing Law. Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be resolved in accordance with this paragraph and will be settled, if possible, by negotiation of the parties. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management of each party, to be held within twenty (20) business days after giving notice. If the dispute is not resolved within thirty (30) business days after the date of the meeting of higher management, or any later date to which the parties may agree, the dispute shall be brought in the U.S. District Court for the District of Kansas, or in the event that court lacks jurisdiction to hear the claim, in the appropriate state courts of Johnson County, Kansas, and the parties irrevocably consent to the exclusive jurisdiction of those courts for such claims. Each party submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to its person and property, and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery to the party or by registered or certified mail, postage prepaid, to its address for notice under the Contract.
17 Other On-Site /Services Provisions (if Applicable). Unless, and then only to the extent, otherwise expressly quoted by Seller: (i) Seller’s normal invoicing practices shall apply, and service rates and expenses shall be based upon Seller’s then current field service rate sheet(s) applicable to such work (not a fixed price); (ii) Seller shall not be required to have, provide, or have any obligation regarding licenses, permits, third party training, certificates, or any third party job/site pre-approvals or obligations (and the same are limited to Seller’s quoted scope of work only); and (iii) Seller shall not be required to provide, or have any obligation with respect to, any letter of credit, waiver, release, or discharge, or any bond, surety, certificate, filing, or other security/form/document. Each party shall only be required by the Order/Contract to comply in all material respects with applicable U.S. statutes, acts, ordinances, regulations, codes, and laws that would otherwise normally apply to such party as imposed by federal, state, and local governments of the U.S. that have personal and subject matter jurisdiction over such party and acts. Seller is not acting as a general or special contractor. Seller’s employees (and subcontractors/representatives, if applicable) shall be given reasonable and unobstructed access to the site and the work. Buyer shall be charged for time and expense for any delays caused by anyone other than Seller’s on-site personnel. Any agreed upon job/site requirements or procedures shall only apply to Seller where applicable to, and only to the extent of, the scope of Seller’s on-site services. Seller is an independent contractor and will not be responsible for any enforcement obligations, or oversight of work or property of others, including with respect to health, safety, or security. Seller is not providing any supervision of Buyer’s employees, subcontractors, or other agents (other than providing technical advice if/where part of Seller’s quoted scope of work). If Seller’s employee, subcontractor, or agent fails to materially comply with applicable site/safety rules, laws, or procedures of the site, Buyer’s sole remedy shall be its right to have the offending individual(s) removed from the site. Buyer shall advise Seller (including each of Seller’s on-site employees and/or subcontractors/ representatives, if applicable) in advance of all known and/or suspected hazardous/unsafe conditions, exposures, materials, and risks, and shall furnish adequate, safe, and proper working conditions. None of Seller’s employees, subcontractors, or agents shall be required by the Order/Contract to take (or refrain from taking) any action, or to enter or remain in any area, where he/she reasonably determines that it would be dangerous, unlawful, or otherwise imprudent. Except as required by law, Seller shall not be required to provide any personal, private, financial, or confidential information about its employees, subcontractors, agents, or any other person or entity. In any event, any such information, shall only be used for the express purpose(s) provided, treated as confidential, returned or destroyed upon request (except as prohibited by law), and will be protected and kept safe by Buyer and its employees, subcontractors, and/or agents (as applicable). Without limiting the foregoing, Buyer and its employees, subcontractors, and agents shall comply with all applicable U.S. statutes, acts, ordinances, regulations, codes, and laws, including without limitation those related to privacy, credit, reporting, and confidentiality. Buyer shall be responsible for any damage to, or loss of, Seller’s (or its employees, subcontractors and agents) testing equipment or other property to the extent that such damage or loss is not caused by Seller (or its employees, subcontractors, or agents). All on-site service/work is subject to availability and shall be scheduled and confirmed with Seller’s service department.
- Entire Contract; Governing Law & Forum; No Third Party Beneficiaries Assignment. These terms and conditions of sale cannot be amended, superseded, or modified except by a written document signed by Seller’s duly authorized officer and Buyer’s duly authorized representative. Any additional, conflicting, or contravening term or condition set forth or proposed by Buyer (in the past, present, or future) is hereby objected to, rejected, and shall have no force or effect. Governing law and forum of the terms of this Order/Contract and all related matters shall be the laws (and exclusive forum) of the State of Kansas (USA), despite any conflicts of laws. The parties agree to exclusive venue in Johnson County, Kansas and/or United States District court of Kansas. To the fullest extent permitted by law, Buyer and Seller agree that this Order/Contract is between them alone, and there are no intended rights or benefits being provided hereunder to any third party. In satisfying this Order, Seller may subcontract with third parties for the manufacture and/or purchase of all or part of the Equipment and/or Services. Other than Seller’s ability to use its vendors/subcontractors, neither party may transfer or assign this Order/Contract, in whole or in part, without the other party’s express advance permission (which shall not be unreasonably delayed or withheld), and any assignment/transfer without proper consent shall be null, void, and of no force or effect.
EUV Rev. 12/01/2013