“Document” or “contract” means this document, including any attached pages and the terms and conditions contained herein. “Seller”, “us” or “we” means Nightwine Valves & Actuation, “Buyer” or “you” means the buyer identified in this Document. “Goods” means the goods, equipment, materials, parts, supplies and/or services supplied by us to you as described in this document.
This document contains the complete and exclusive agreement between you and us regarding the terms of the sale of the Goods by us to you. This document supersedes and replaces all previous requests, quotations, orders or agreements concerning the Goods. Any additional or different terms will not become part of the contract or agreement for the sale of the Goods unless expressly made in writing and signed by an authorized representative of both Seller and Buyer.
All prices quoted are estimates only and are subject to change without notice. Our standard conditions for freight charges are prepaid and added to the order, unless otherwise specified by us. Any applicable taxes or other governmental impositions, which we may be required to pay or collect, will be added to the Buyer’s purchase price unless we receive a valid exemption certificate. All prices and/or discounts are based on receiving an order for the quantities specified. Any change in quantity may result in a change in price and/or discount at Seller’s sole election.
Unless otherwise specified, delivery points shall be F.O.B. shipping point, and title to the Goods and liability for loss or damage in transit or thereafter shall pass to Buyer upon our delivery of the Goods to a common carrier for shipment. Shipping dates are not guaranteed.
Claims for Goods delivered short, damaged or defective (not due to fault of carrier) shall be filed with Seller within ten days after date of shipment. Buyer’s claims for shortages shall detail shipment weights and method of counting the Goods. Claims for Goods delivered short, damaged or defective as a result of the fault of the carrier will be handled by Buyer directly with the carrier. PAYMENT: Full cash payment is due within thirty days from the invoice date. Orders are subject to final approval by Seller’s credit department, which may require full or partial advance payment. If Buyer delays order processing, partial payment based on the portion of the order completed shall then be paid. Pro rata payments shall be due as shipments are made. In the event Buyer delays shipment, full payment shall be due thirty days from the date Seller could have otherwise shipped the Goods. Storage shall be at Buyer’s risk and charges therefore shall be paid before shipment. If Buyer does not pay on time, Seller reserves the right to charge Buyer and Buyer hereby agrees to the assessment of interest thereon at the rate of 1-½% per month on the unpaid balance until paid. Credit Card payments may be subject to a processing fee.
When drawings, plans and specifications are involved, you are responsible to verify our interpretation of them. When we offer substitutes on any proposal, you are responsible for their acceptability. If we deliver to you any literature concerning the Goods, you are responsible for becoming familiar with it.
No liability shall result from delay in performance or non-performance, directly or indirectly caused by circumstances beyond our control, which include, but are not limited to, Acts of God, fire, explosion, flood, war, act of or authorized by any Government, accident, labor trouble or shortage, or inability to obtain material, equipment or transportation. Quantities so affected may be eliminated from the agreement without liability, but the agreement shall remain otherwise unaffected.
Seller warrants only to you that it has good title to the Goods sold hereunder and/or used to perform services, and will use its reasonable commercial efforts to obtain from each manufacturer, in accordance with the manufacturer’s warranty, the repair of replacement of Goods that may prove defective in material or workmanship. Except as stated in the previous sentence, seller makes no other warranties concerning the Goods whatsoever. SELLER DISCLAIMS AND EXCLUDES ALL OTHER EXPRESSED WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding the foregoing, to the extent we are permitted and able, we will pass on and make available to you any warranties made by the suppliers and manufacturers of such Goods. In addition, we warrant our labor and workmanship for a period of 90 days after substantial completion of the services. Our obligations under this warranty are conditioned upon you notifying us of any alleged defect in our labor and workmanship promptly after discovery and in any event not later than 90 days after substantial completion of the services, and our independent determination upon inspection that the warranty has been breached. In the event of a breach of this warranty, we will correct the defective labor or workmanship at our expense or, at our discretion, give you a credit in a reasonable amount on account of the defect, but in no event in an amount greater than the paid price of the services hereunder.
YOU AGREE THAT OUR OBLIGATION DESCRIBED IN THE PRECEDING PARAGRAPH IS YOUR SOLE AND EXCLUSIVE REMEDY, AND THAT OUR TOTAL LIABILITY TO YOU, YOUR CUSTOMERS OR TO ANY OTHER PERSON, RELATING TO THIS DOCUMENT, ITS PERFORMANCE OR NON-PERFORMANCE, OR FROM THE USE OF GOODS FURNISHED, IS LIMITED TO THE PRICE OF THE GOODS AND/OR SERVICES GIVING RISE TO THE CLAIM. THE PRICE STATED FOR THE GOODS IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY. EXCEPT AS TO TITLE, SUCH OBLIGATION AND LIABILITY SHALL TERMINATE AT THE END OF THE MANUFACTURER’S WARRANTY PERIOD FOR THE APPLICABLE GOODS, SELLER AND ITS SUPPLIER WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PENAL DAMAGES INCURRED IN CONNECTION WITH THE GOODS, WHETHER ANY CLAIM FOR RECOVERY IS BASED UPON OR ARISES OUT OF THEORIES OF CONTRACT, NEGLIGENCE, TORT, (INCLUDING STRICT LIABILITY) OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO BACK CHARGES, LABOR COSTS, COSTS OF REMOVAL, REPLACEMENT, TESTING OR INSTALLATION; LOSS OF EFFICIENCY; LOSS OF PROFITS OR REVENUES; LOSS OF USE OF THE GOODS OR ANY ASSOCIATED PRODUCTS; DAMAGES TO ASSOCIATED PRODUCTS; LATENESS OR DELAYS IN DELIVERY; UNAVAILABILITY OF GOODS; COST OF CAPITAL; COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICE, DOWNTIME; OR CLAIMS FROM YOUR CUSTOMERS OR OTHER PARTIES TO YOU OR DIRECTLY TO US FOR SUCH DAMAGES.
You assume all risk and liability resulting from Goods delivered hereunder, whether used singly or in combination with other products. Unless otherwise agreed to by us in writing, Goods sold under this contract are not intended for use in connection with “safety-related” applications within any nuclear facility or any other hazardous activity such as aircraft, space exploration or other critical applications where failure of a single component could cause harm to persons or property. We disclaim any and all liability if our standard commercial products are used in any such applications.
If you purchase Goods for sale to any U.S. government, state or local government agency, you are responsible to notify us of all government procurement conditions applicable to the sale when you request our quotation. We will review the conditions and advise you of our ability to comply. If any government action should place or continue limitations on the price provided for in this document such that it would be illegal or against public or government policy for us to charge, assess or receive the full amount or to increase such prices as determined by this document, then we shall have the option to (1) continue to perform under this document subject to such adjustments in prices that we may deem necessary to comply with such government action, (2) revise this document, subject to your approval, in order to most nearly accomplish the original intent of this document or (3) terminate performance of the affected portions of this document without liability for any damages.
If you export any of the Goods sold hereunder, it is your responsibility to comply with all United States export control rules and regulations. We cannot be named as shipper or exporter of record for such Goods.
Special orders may not be canceled. Other orders may be canceled upon written notice by Buyer within 7 days of the order; subject to a cancellation charge as determined by us based upon a percentage of the total amount due under the order.
You may not assign or transfer this Document without our consent, which will not be unreasonably withheld. We may assign or transfer this contract and our rights and obligations hereunder.
You must obtain a written return material authorization (RMA) from us before returning any items and Buyer shall pay any resulting restocking charges as determined by us. We reserve the right to refuse delivery on all items returned to us without a valid RMA. Any RMA will be valid for 30 days from date of issuance. Returned material must be received within that 30 day period, or the RMA is void. You must prepay all freight. We will issue credit for freight where incorrect shipments have been made by us. All returned items must be new and unused. Special orders cannot be canceled or returned. All returned items must either be stock or non-stock items that we can return to the manufacturer.
This document and any subsequent contract referred to herein shall be governed by and construed in accordance with the laws of the State of Ohio, including the Ohio Uniform commercial Code. The agreed upon venue, in the event of any dispute whatsoever between the parties, whether instituted by either party, including, but not limited to, contract terms, payment terms, delivery, and delivery type, defects or sufficiency of product, shall be The Court of Common Pleas, Lake County, Ohio.
Invalidity of any of the terms provided herein shall not affect the validity of any other term.
Waiver by us of your performance, or inaction with respect to your breach of any provision of this document, or failure of us to enforce any provision of this document, will not be deemed a waiver of future compliance herewith or a course of performance modifying such provision, and such provision will remain in full force and effect as written.
Independent of Seller’s rights to elect to proceed under applicable lien laws, Seller hereby reserves to itself and Buyer hereby grants unto Seller a security interest in the equipment and parts furnished by it pursuant to the Contract to secure to Seller the full payment of the Contract price and any claim for damages on account of a breach of the Contract by Buyer. By accepting delivery of the equipment or parts, Buyer grants to Seller a security interest in such equipment and parts to secure the full and prompt payment for such equipment and parts until the agreed price (including any notes therefore) for such equipment and parts has been fully paid in cash. In the event of default in payment, Seller shall have all rights of repossession and other rights available to a secured party under the laws applicable hereto. In addition and notwithstanding any other provision hereunder, if at any time Seller shall determine that its prospect of recovering the full purchase price payment is insecure, Seller may retain possession of, and have a security interest in such equipment and parts until Seller receives payment thereof in cash or solvent credit. The Buyer agrees that no part of the equipment or parts furnished under the proposal shall be considered a fixture or a part of any realty by reason of its being attached to real-estate, and any equipment or parts may execute and deliver to Seller (and Buyer hereby irrevocably constitutes and appoints Seller as its attorney-in-fact to execute, deliver and file with the appropriate filing office or offices on Buyers behalf) all assignments, financing statements and other documents which Seller may require to evidence or perfect such security interest in accordance with applicable laws.
In the event that the Buyer becomes insolvent or defaults in the performance of any term or condition of the Contract, the entire unpaid portion of the purchase price shall, without notice or demand, shall become immediately due and payable. In such event Seller at its’ option, without notice or demand, shall be entitled to the following alternate and cumulative remedies: (1) to sue for said balance of the purchase price and for reasonable attorneys’ fees plus out-of-pocket expenses and interest associated therewith, (2) to enter any place or location under the ownership, possession, or control of Buyer where said equipment or parts are located and to take immediate possession of that equipment and thereafter remove payments previously made as compensation for the use of said equipment or parts with or without legal process; (3) to retain all payments previously made as compensation for the use of said equipment or parts. (4) to resell said equipment at public or private sale without notice or demand for and on behalf of the Buyer and (5) to apply the net proceeds from such sale (after deduction from the sale price of all expenses of such sale and all expenses of retaking possession, repairs necessary to put said equipment in salable condition, storage charges, taxes, liens, collection and attorney’s charges and all other expenses in connection therewith) to the balance then due to Seller for said equipment and parts and to receive from the Buyer the deficiency between such net proceeds of sale and such balance. The Buyer hereby waives all trespass, damage and claims resulting from any such entry, repossession, removal, retention, repair, altercation and sale and expressly consents to any such action on the part of the Seller. The remedies provided in this paragraph are in addition to and not in limitation of any other available remedy or remedies of Seller, and each and every other such remedy shall be cumulative and shall be in addition to every other remedy under the Contract, now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right, remedy or power accruing upon any default shall impair any such right, remedy, or power or shall be construed as a waiver thereof, but such right, remedy or power may be exercised from time to time and as often as may be deemed expedient at the sole and exclusive discretion of Seller.