Terms & Conditions
RYAN HERCO FLOW SOLUTIONS STANDARD TERMS & CONDITIONS OF SALE eff. August 1, 2014
1. ACCEPTANCE. Unless otherwise stated in a writing signed by Seller's* duly authorized agent, all quotations covering Seller's products (“Goods”) or any material management, assembly and kitting services, and engineering and design services (“Services”), whether performed by RHFS or a subcontractor, are made and all contracts or orders for said products are accepted and all shipments are made on the condition that the Standard Terms and Conditions of Sale set forth herein shall be applicable. Any term in Buyer's purchase order or acceptance in addition to or not identical with these Terms and Conditions of Sale shall be ineffective and is expressly objected to and these Terms and Conditions of Sale shall not be varied, qualified, modified, amended or interpreted by any prior course of dealing between the parties or by any usage or trade or in any manner other than by writing signed by Seller's duly authorized agent. All orders or contracts must be approved and accepted by a duly authorized agent of Seller. These Terms and Conditions of Sale shall be applicable whether or not they are attached to or enclosed with the Goods to be sold or Services to be performed hereunder.
If Buyer has submitted or will submit additional and/or different terms and conditions to RHFS, or submit a counteroffer to RHFS, RHFS’s subsequent performance will not be construed as either acceptance of Buyer’s additional and/or different terms and conditions or Buyer’s counteroffer, nor will RHFS’s subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof. Sale of any Goods or Services is expressly conditioned on Buyer’s acceptance of these Standard Terms & Conditions of Sale.
*The term “Seller” refers to Ryan Herco Flow Solutions, its affiliates Flow Solutions Holdings, Inc., and all successors in interest, and assigns. “Seller” may also be referred to herein as “Ryan Herco Flow Solutions” and “RHFS.”
2. PRICES. Prices are subject to change without notice, and Seller's price in effect at the time of shipment will apply.
3. CANCELLATION. An order once placed with and accepted by Seller can be cancelled only with Seller's consent and upon payment to Seller of reasonable cancellation charges (which shall include, but are not limited to, expenses already incurred and commitments made).
(a) Unless otherwise specified on the invoice, all accounts are due and payable thirty (30) days from the date of invoice. Accounts extending beyond the terms will be subject to a service charge of 1.5% per month (18% per annum) or such greater amount as may be authorized by law and specified in the invoice. Discounts for prompt payment do not apply to labor and shipping charges, and no discounts other than those noted on the invoice are authorized. Shipments, deliveries and performance of work shall at all times be subject to the approval of Seller's credit department, and the Seller may at any time decline to make any shipments or deliveries or perform any work, except upon receipt of payment or upon terms and conditions of security satisfactory to such department. All lien rights are reserved until full payment of the invoice has been made.
(b) If, in Seller's judgment, the financial condition of the Buyer at any time does not justify continuation of production or shipment on the terms of payment originally specified, the Seller may require full or partial payments in advance and in the event of Buyer’s bankruptcy or insolvency or in the event any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, the Seller shall be entitled to cancel any order then outstanding and shall receive reimbursement for its cancellation charges.
(c) Should Seller initiate any legal action or proceeding to collect on any unpaid invoice or to enforce any of the terms hereof, Seller shall be entitled to recover from Buyer all costs and expenses incurred in connection therewith, including court costs and reasonable attorney's fees.
5. DELIVERY. All sales are F.O.B. Shipping Point / FCA Shipping Point (Ex Works RHFS’ facility per INCOTERMS 2010 for international shipments). All claims for damages must be filed with the carrier. Shipping dates are approximate and are based upon prompt receipt from Buyer of all necessary information. In no event will Seller be liable for damages of any kind arising out of delay or non-delivery, due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil or military authority, war, riots, fire, explosion, flood, strike, lockout, injunction, accident, breakage of machinery or apparatus, or inability to obtain fuel, power, raw materials, labor, containers or transportation facilities. In the event of any such delay, the date of delivery shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay.
BUYER MUST CHECK FOR DAMAGE & VERIFY CONTENTS UPON RECEIPT.
ANY OBVIOUS DAMAGE TO THE CARTON OR PACKAGES SHOULD BE IMMEDIATELY BROUGHT TO THE ATTENTION OF THE CARRIER DELIVERING THE SHIPMENT TO YOU AND NOTED ON THE DELIVERY RECEIPT. IF CONCEALED DAMAGE IS DISCOVERED WHEN MERCHANDISE IN UNPACKED, SAVE THE PACKAGES AND NOTIFY THE CARRIER FOR INSPECTION. YOUR CLAIM FOR DAMAGED MATERIALS SHOULD BE FILED AT ONCE WITH THE TRANSPORTATION COMPANY, AS THE RESPONSIBILITY OF Ryan Herco Flow Solutions CEASES UPON DEIVERY TO THE CARRIER AT THE SHIPPING POINT.
CLAIMS FOR SHORTAGES OR INACCURATE FILLING OF ORDERS MUST BE MADE TO Ryan He rco Flow Solutions WITHIN FIFTEEN (15) DAYS AFTER RECEIPT OF GOODS.
6. TAXES. The amount of any present or future sales, revenue, excise or other tax applicable to the products covered by this order, or the manufacture or sale thereof, shall be added to the purchase price and shall be paid by the Buyer or, in lieu thereof, Buyer shall provide Seller with an appropriate tax exemption certificate.
RHFS shall have and retain all right, title, and interest in and to any and all trade secrets, technical data, sales service and product plans, methodologies, techniques, designs, molds, tools, samples, systems, know-how, expertise and other proprietary information that it may use pursuant to or in connection with any Goods or Services, and Buyer shall not obtain a license to, or any other property rights in, any such RHFS property pursuant to or in connection with this Agreement.
8. EXPORT CONTROLS; AVAILABILITY; LAW
(a) Certain Goods may be subject to export controls under the laws, regulations and/or directives of the United States and various other countries. Buyer must comply with such laws and regulations and not export, re-export, or transfer these Goods to any country to which such export, re-export or transfer is forbidden without first obtaining all required authorizations or licenses.
(b) Due to government regulations, pre-existing agreements, and product availability, not all goods sold by RHFS may be available in every area.
(c) Buyer hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Goods and Services. For purposes hereof, “Laws” means any international, multinational, national, foreign, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statues, codes, ordinances, rules, regulations, judgments or order of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
9. CLAIMS AND RETURNS.
(a) Claims for shipping damages shall be made against the carrier on all products shipped F.O.B. shipping point. On products shipped F.O.B. destination, Buyer shall notify Seller of shipping damages within ten (10) days from date of receipt and afford Seller a reasonable opportunity to inspect the products. No products shall be returned without Seller's consent.
(b) Claims for shortage or inaccurate filling of orders shall be submitted to Seller within fifteen (15) days after Buyer's receipt, accompanied by a copy of the invoice or shipper on which the products were purchased. Buyer will then receive from Seller a Returned Goods (RG) authorization number. Products returned without the RG authorization number will be refused. If Seller in good faith determines that any error was not Seller's, a minimum 15% restocking charge will be made to Buyer on any resalable products returned for credit or exchange.
(c) Claims or notices asserting a defective product must be given to Seller within fifteen (15) days upon discovery of such defect, and must include a copy of the invoice or shipper on which the products were purchased, evidence that such products were inspected within ten (10) days after Buyer's receipt, and the details of the defect(s) claimed, and afford the Seller a reasonable opportunity to inspect the products.
(d) Seller is under no obligation to take back material for credit or exchange when the reason for the return was anything other than the Seller's error. At Seller's sole discretion, should a return of this nature be authorized, the items returned must be of current manufacture, in its original packaging with all original manuals and/or documentation, and be in resalable condition. A minimum 15% restocking charge will apply as well as any additional charges necessary to restore items to a resalable condition. RETURNED GOODS WILL BE ACCEPTED ONLY WITH PRIOR APPROVAL FROM SELLER.
(e) Buyer’s EXCLUSIVE remedy against RHFS for any claim for, or arising out of any Good tendered to Buyer is the repair or replacement of the Good or, alternatively, at RHFS’ sole discretion, a refund of the purchase price of the Good. Buyer’s EXCLUSIVE remedy against RHFS arising out of any defect in, or in connection with, any Service provided hereunder is the re-performance of that Service or, at RHFS’ sole discretion, a refund of the purchase price of the Service. Any Good returned to RHFS for repair, replacement or refund under this Section 9e must be returned by Buyer in accordance with RHFS’ return material authorization procedures then in effect. Returns for a refund may be subject to restocking fees.
10. LIMITATION OF LIABILITY
(a) LIMITATION ON LIABILITY AND/OR DAMAGES. In no event shall any liability of Seller exceed the purchase price of the product and Seller shall not be liable for incidental, special or consequential damages with respect to the sale or use of the product, including without limitation, labor charges, lost profits, expenses of repair, other costs incident to replacement, or transportation costs incurred in shipping products to or from Seller's shipping point.
(b) INFORMATION. Seller does not, by any advice or information it may provide regarding the use of any product by Buyer, make any warranty beyond the description on the face of the product including of merchantability or fitness for a particular purpose or assume any liability for such advice or information given, orally or in print, or for the results obtained by Buyer. Buyer assumes all risk and liability which may result from the use of any products, whether singly or in combination with other products. No suggestion for product use shall be construed as a recommendation for use in infringement on any existing patent.
Buyer will indemnify, defend and hold harmless RHFS, its shareholders, parent companies, successors, assigns, affiliates, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, but not limited to, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with any transaction between Buyer and Seller in connection with these Standard Terms and Conditions of Sale and/or any Goods, or Services (including, without limitation, Losses arising in connection with the performance of Services on Buyer’s premises by RHFS’ employees, representatives, agents, or subcontractors), regardless of whether such Losses are incurred directly by Buyer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not RHFS or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Buyer need not indemnify RHFS for RHFS’ obligation, if any, to Buyer under Section 9e above. For the avoidance of doubt and without limitation, this indemnification obligation requires Buyer to pay any judgments against RHFS or any other indemnified party resulting from any Claim, any court costs of RHFS or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by RHFS or any other indemnified party in RHFS’ defense of any Claim. RHFS will have the sole and exclusive right to conduct the defense of any Claim at Buyer’s sole and exclusive cost and expense. Buyer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against RHFS, Buyer or any third party.
12. LIMITED WARRANTY ON PRODUCTS MANUFACTURED BY SELLER. The Seller warrants to the original purchaser that products of its own manufacture to be delivered hereunder will be free from defects in materials or workmanship under normal use and service for a period of one year from date of shipment. Seller's obligations under this Warranty are limited to (at Seller’s option and in Seller’s sole discretion) replacing or repairing or giving credit for any of said products which shall, within one year after shipment, be returned to Seller's plant of origin, transportation charges prepaid, and which are, after examination, determined to Seller's satisfaction to be thus defective. Buyer shall bear the costs of access for Seller’s remedial warranty efforts (including, but not limited to, removal and replacement of systems, structures or other parts of Buyer’s facility, de-installation, decontamination, re-installation and transportation of defective products). This Warranty does not apply to defects caused by shipping damages, or to any products manufactured by Seller which have been subject to improper installation, misuse, neglect, accident, ordinary wear and tear, or Buyer's attempts to use any product beyond its mechanical, thermal or electrical capacity. The aforementioned provisions do not extend the original Warranty period of any product that has either been repaired or replaced by Seller.
The warranties and remedies are conditioned upon (i) proper storage, installation, use, operation, and maintenance of Goods, (ii) Buyer maintaining accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records, and (iii) modification or repair of Goods or Services only as authorized by Seller in writing. Failure to abide by these conditions renders the warranty null and void. Seller is not responsible for normal wear and tear.
THIS LIMITED WARRANTY OF SELLER, SUBJECT TO THE LIMITATION ON DAMAGES, IS EXCLUSIVE AND IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED BEYOND THE DESCRIPTION ON THE FACE SUCH PRODUCT, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER LIABILITIES OR OBLIGATIONS ON THE SELLER'S PART, AND SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF THE SAID PRODUCTS. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, APPLIES. THIS LIMITED WARRANTY MAY NOT BE VERBALLY CHANGED OR MODIFIED BY ANY REPRESENTATIVE OF SELLER.
13. DISCLAIMER OF SELLER'S WARRANTY ON PRODUCTS MANUFACTURED BY OTHERS. Products not manufactured by Seller are covered, if at all, by the original manufacturer's warranty, copies of which are available on Buyer's request. Seller makes no warranty or representation whatsoever, expressed or implied, beyond the description on the face of such product (including the warranty of merchantability and fitness for a particular purpose), with respect to products not manufactured by Seller.
14. BINDING AUTHORITY
Any director, officer, employee, representative or agent of Buyer entering into this agreement of Standard Terms and Conditions of Sale represents and warrants to Seller that he or she is duly authorized to enter into this agreement and accepts the Standard Terms and Conditions of Sale set forth herein on behalf of Buyer.
15. APPLICABLE LAW. The validity, performance and construction of these terms and all sales there under shall be governed by the laws of the state in which Buyer's order is accepted by Seller.
16. ASSIGNMENT. Seller may assign or novate its rights and obligations under this agreement of Standard Terms and Conditions of Sale, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this agreement to any party without Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete Seller’s assignment or novation. Seller may subcontract its obligations hereunder. The delegation or assignment by Buyer of any or all of its rights or obligations without Seller’s prior written consent (which consent shall not be unreasonably withheld) shall be void.
17. SEVERABILITY/ENFORCEABILITY. If any provision of these Standard Terms and Conditions of Sale is found to be void or unenforceable, the remainder shall not be affected. Buyer and Seller shall endeavor to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable.
18. MISC. These Standard Terms and Conditions of Sale represent Buyer’s and Seller’s entire agreement with regard to the terms and conditions of the sale of Goods and Services. Buyer’s rights and remedies arising from or related to Goods and Services sold under or in connection with this agreement of Standard Terms and Conditions of Sale are limited to the rights and remedies set forth herein. No modification, amendment, rescission or waiver shall be binding on either party unless agreed to in writing.