Terms & Conditions
The terms and conditions of sale outlined herein and attached hereto shall apply to the sale by Pumping Systems, Inc. (hereinafter referred to as Company) of products, equipment and parts relating thereto (hereinafter referred to as Equipment). In the event the Purchaser issues a written request or order to purchase Equipment from the Company, these terms and conditions shall exclusively apply regardless of the terms or conditions in Purchaser’s request or order. Any variation or change to these terms and conditions must be expressly accepted and agreed to by Company, in writing. No variations or changes to the terms and conditions herein shall be binding unless expressly accepted and agreed by the Company, in writing. Acceptance of delivery of the Equipment by Purchaser shall act as consent to these terms and conditions.
Title and risk of loss or damage to the equipment shall pass to the purchaser upon tender of delivery F.O.B. Origin, the place of shipment, unless otherwise stipulated in this contract, except that a security interest in the Equipment or any replacement shall remain with the company regardless of mode of attachment to realty or the other property, until full payment in cash has been made therefore. Purchaser agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect Company’s interest by adequately insuring the Equipment against loss or damage from any cause wherein the company shall be named as an additional insured.
Neither party shall assign or transfer this contract without the prior written consent of the other party. As a condition to any such written consent, such assignment shall be subject to the terms and conditions herein and no greater rights or remedies shall be available to the assignee.
4. Delivery and Delays
Delivery dates shall be quoted by the Company. Such dates shall be interpreted as estimates and in no event shall such dates be construed as falling within the meaning of “Time is of the essence”. The company shall not be liable for loss, damage, detention, or delay due to war, riots, civil insurrection or acts of the common enemy, fire, flood, strikes or the other labor difficulty, acts of civil or military authority including governmental laws, orders, priorities, or regulations, acts of the purchaser, embargo, car shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities from the usual sources, faulty forging or castings , or other causes beyond the reasonable control of the Company. In the event of delay in the performance due to any such cause, the date of delivery or time for completion will be adjusted to reflect the actual length of time as may be necessary to properly reflect the delay. The Purchaser’s receipt of Equipment shall constitute a waiver of any claims for delay.
Cancellation of a purchase order from the Purchaser shall be honored when received in writing by the Company. Purchaser shall be fully responsible for all fees and charges related to the cancellation of the purchase order, based upon any return or restock charges, unreturnable Equipment, freight costs incurred or completed billable labor or services from the Company and any costs and expenses incurred as a result of the cancellation.
Company is not obligated to accept any return of Equipment sold, and Purchaser is not entitled to any reimbursement of monies paid for Equipment purchased, but returned. All return credit authorizations shall be at the discretion of the Company and it vendors, and Purchaser shall be fully responsible for all fees and charges related to the returned Equipment, based upon condition and resale ability of the returned Equipment. Purchase shall be responsible for all freight costs incurred or any billable labor or services from the Company to evaluate or manage the return.
The price does not include any Federal, State, or local property, license, privilege, sales, use, excise, gross receipts or other like taxes which may be now or hereafter applicable to, measured by, or imposed upon or with respect to this transaction, the equipment, it’s sale, it’s value or its use or any services performed in connection therewith. Such taxes will be itemized separately to Purchaser, who shall make prompt payment to the Company is not recognized by the governmental taxing authority involved, Purchaser agrees to promptly reimburse the Company for any taxes covered by such exemption certificate which the Company is required to pay. If Purchaser is Tax Exempt, valid and documented certification from the appropriate Revenue Authority must be provided prior to purchase.
8. Set Off
Neither Purchaser nor any affiliated company or assignee shall have the right to set off against any amounts which may become payable to the Company under this contract or otherwise, for amounts which the Company may allegedly, or in fact, owe the Purchaser or any affiliated company or assignee whether arising under this contract or otherwise.
9. Occupational Safety and Health Act
The Company shall seek Equipment designed to comply with the Occupational Safety and Health Act of 1970 and applicable regulations and standards promulgated and in effect on date of the Company’s proposal. The Company shall not be responsible for any failure to so comply with such act resulting from the location, operation, use, or maintenance of the equipment or from the alteration of the Equipment by persons other than the Company or from an option or accessory to the Equipment which was available to the Purchaser but omitted at the Purchasers direction or from design or instructions furnished by the purchaser or its agents. The company’s responsibility hereunder is limited to modification or replacement of the equipment so that the Equipment conforms to the applicable regulations or standards or at Company’s option to refund the purchase price less an allowance for normal depreciation upon the return of the Equipment to Company at point of shipment at Purchasers expense. All standards promulgated with respect to noise are specifically excluded hereunder. Whether in relation to the above or otherwise, the Company will not indemnify Purchaser for any fines, penalties, nor be responsible for loss due to delay or otherwise. The Purchaser warrants that any product to be used in a mine subject to the Federal Coal Mine Health and Safety Act of 1969 will be inspected and written approval obtained by an authorized inspector of the U.S. Government before its use in such mine. The Purchaser will promptly advise the Company if for any reason the product does not obtain such approval.
The Company makes no warranties as to the Equipment, either expressed or implied, except that Purchaser will have those warranties accompanying said equipment from the manufacturer thereof. In any event, Company’s liability will be the replacement or repair of Equipment only, at Company’s option. The Company makes no other warranty or representation of any kind whatsoever, expressed or implied, except that of title, and all implied warranties, including any warranty of merchantability and fitness for a particular purpose, are hereby disclaimed.
11. Limitation of Liability
The remedies of the Purchaser set forth herein are exclusive, and the total liability of the Company with respect to this contract or the Equipment and services furnished hereunder, in connection with the performance or breach thereof, or from the manufacture, sale, delivery, installation, repair or technical direction covered by or furnished under this contract, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, shall not exceed the purchase price of the unit of Equipment upon which such liability is based. The Company shall in no event be liable to the purchaser, any successors in interest or any beneficiary or assignee of this contract for any consequential, incidental, indirect, special or punitive damages arising out of this contract or breach thereof, or any defect in, or failure of, or malfunction of the Equipment here under, whether based upon lost goodwill, lost profits, or revenue, interest, work stoppage, impairment of other goods, loss by reason of shutdown or non-operation, increased expenses of operation of the Equipment, loss of use of power system, cost of purchase of replacement power or claims of Purchaser or customer of Purchaser for service interruption whether or not such loss or damage is based on contract, warranty, negligence, indemnity, strict liability or otherwise.
Company shall maintain on-going business liability insurance as determined in the best interest of the Company. Any costs for additional insurance requirements by the Purchaser, or insurance certificates generated on the Purchaser’s behalf, will be the Purchaser’s financial responsibility.
13. Governing Law
The rights and obligations of Purchaser and Company shall be governed by the Laws of the State of Georgia.
The Company shall not be bound by any contract until approved in writing by an executive officer. The contract when so approved shall supersede all previous communications, either oral or written. No modification shall be binding upon the parties unless such modification shall be in writing duly executed by the Purchaser and approved by an executive officer of the Company.
15. Terms of Payment
Net 30 Days for approved credit. 1.5% monthly service charge on past due accounts. Pre-pay or Progress payments may be required for large orders, new customers or customers with poor credit history. Verification will be made upon receipt of customer’s purchase order and credit review. All orders in $75,000 or higher will have progress payments set out in the following plan: 50% at order, 40% prior to release of shipment and 10% Net 30 with reviewed and approved credit.