PCE Pacific Terms and Conditions
Acceptance of this offer is limited to acceptance of the express terms of the offer set forth in these attached Terms and Conditions of Sale, including, but not limited to, Seller’s Limited Warranty in Section 5 and Limitation of Remedy and Liability in Section 6. Any proposal for additional or different terms or attempt by Buyer to vary any of the attached terms hereof in Buyer’s acceptance by purchase order or otherwise shall not operate as a rejection of this offer to sell, but shall be deemed a material alteration thereof, and this offer shall be deemed accepted by Buyer without said additional or different terms. If this document shall be deemed an acceptance of a prior offer by Buyer, such acceptance is expressly conditional upon Buyer’s assent to any additional or different terms set forth in these attached Terms and Conditions.
Terms and Conditions of Sale for Goods and Software
These Terms and Conditions of Sale, the attendant quotation or acknowledgment, and all documents incorporated by reference therein, binds PCE Pacific, Inc., hereinafter “Seller”, and the purchaser as referenced on the face of the Purchase Order, hereinafter “Buyer”, for the sale of goods (“Goods”) and/or the license of software and/or firmware which are preloaded, or to be loaded, into the Goods (“Software”) to be provided hereunder. Unless Buyer’s Purchase Order references a written Agreement executed between duly authorized representatives of both Buyer and Seller, these Terms and Conditions constitute the entire agreement (“Agreement”) between Buyer and Seller regarding such sale of Goods and/or Software license.
- TERMS OF PAYMENT: Unless otherwise agreed by Seller, and subject to the approval of Seller’s Credit Department, terms are F.C.A. shipping point, net 30 days from date of Seller’s invoice in U.S. currency, except for applicable milestone payments set forth in Section 12 below, or export shipments for which Seller may require other arrangements. All Systems Integration and Control Systems orders will be subject to the milestone payments set forth in Section 12. If any payment owed to Seller hereunder is not paid when due, it shall bear interest, at a rate to be determined by Seller which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is received by Seller. Seller shall have the right, among other remedies, either to terminate the Agreement or to suspend further deliveries under this and/or other agreements with Buyer in the event Buyer fails to make any payment hereunder when due. Buyer shall be liable for all expenses attendant to collection of past due amounts, including attorney’s fees.
- PRICES: Unless otherwise specified by Seller, Seller’s price for the Goods and/or Software shall remain in effect for thirty (30) days after the date of Seller’s quotation or acceptance of the order for the Goods/Software, whichever is delivered first, provided an unconditional, complete authorization for the immediate manufacture and shipment of the Goods/Software pursuant to Seller’s standard order processing procedures is received and accepted by Seller within such time period. If such authorization is not received by Seller within such thirty (30) day period, Seller shall have the right to change the price for the Goods/Software to Seller’s price in effect at the time the order is released to final manufacture. Notwithstanding any of the foregoing to the contrary, the price for Goods sold by the Seller, but manufactured by others, shall be Seller’s price in effect at the time of shipment to Buyer. Freight charges may include shipping and handling charges, and Buyer shall pay all such charges.
- DELIVERY, RISK OF LOSS, AND DOCUMENTATION: All shipping dates are approximate and are based upon Seller’s prompt receipt of all necessary information from Buyer to properly process the order. Legal title to the Goods and risk of loss thereto shall transfer to Buyer upon delivery to the freight carrier at the shipping point. Seller shall provide Buyer with that data/documentation which is specifically identified in the quotation. If additional copies of data/documentation or non-standard data/documentation are to be provided by Seller, they shall be provided to Buyer at Seller’s price then in effect. In the event Buyer returns non-defective, unused Goods to Seller, Buyer agrees to pay applicable freight charges and third-party restocking fees (if any) charged to Seller by the manufacturer of Seller’s Goods.
- EXCUSE OF PERFORMANCE: Seller shall not be liable for delays in performance or for non-performance due to acts of God, war, riot, fire, labor trouble, unavailability of materials or components, explosion, accident, compliance with government requests, laws, regulations, orders or actions, or unforeseen circumstances or causes beyond Seller’s reasonable control. In the event of such delay, the time for performance or delivery shall be extended by a period of time reasonably necessary to overcome the effect of the delay.
- LIMITED WARRANTY: Subject to the limitations contained in Section 6 and except as otherwise expressly provided herein, Seller warrants that the Software will execute the programming instructions provided by Seller, and that the Goods manufactured by Seller will be free from defects in materials or workmanship under normal use and service until the expiration of the earlier twelve (12) months from the date of initial installation or eighteen (18) months from the date of shipment by Seller. Consumables, including, without limitation, glass parts and electrodes, membranes, liquid junctions, electrolytes and reagents, o-rings, plastic tubing, etc. are warranted to be free from defects in material and workmanship under normal use and service for a period of ninety (90) days from the date of shipment by Seller. Products purchased by Seller form a third party for resale to Buyer (“Resale Products”) shall carry only the warranty extended by the original manufacturer. Buyer agrees that Seller has no liability for Resale Products beyond making a reasonable commercial effort to arrange for procurement and shipping of the Resale Products. If, within thirty (30) days after Buyer’s discovery of any warranty defects during the applicable warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer’s sole and exclusive remedy hereunder, promptly correct any errors that are found by Seller to exist in the Software, or repair or replace F.C.A. point of manufacture, that portion of the Goods or Software found by Seller to be defective. All replacements or repairs necessitated by inadequate preventive maintenance, or by normal wear and usage, or by fault of Buyer, or by unsuitable power sources or by attack or deterioration under unsuitable environmental conditions, or by abuse, accident alteration, misuse, improper installation, modification, repair, storage or handling, or any other cause not the fault of Seller are not covered by this limited warranty, and shall be at Buyer’s expense. Seller shall not be obligated to pay any costs or charges incurred by Buyer or any other party except as may be agreed upon in writing in advance by an authorized Seller representative. All costs of dismantling, reinstallation and freight and the time and expenses of Seller’s personnel for site travel and diagnosis under this warranty clause shall be borne by Buyer unless accepted in writing by Seller. Failure by Buyer to give such written notice of defects within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects. Goods repaired and parts replaced during the warranty period shall be in warranty for the remainder of the original warranty period or ninety (90) days, whichever is longer. This limited warranty is the only warranty made by Seller and can be amended only in a writing signed by an authorized representative of Seller. The warranty for Control Systems software is covered in Seller’s standard license agreement referenced in Section 10 herein. Except as otherwise expressly provided in the Agreement, THERE ARE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE GOODS OR SOFTWARE.
- LIMITATION OF REMEDY AND LIABILITY: Seller shall not be liable for damages caused by delay in performance. The sole and exclusive remedy for breach of warranty hereunder shall be limited to repair, correction or replacement under the limited warranty clause in Section 5. In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall Seller’s liability to Buyer and/or its customers exceed the price to Buyer of the specific Goods manufactured by Seller giving rise to the claim or cause of action. Buyer agrees that in no event shall Seller’s liability to Buyer and/or its customers extend to include incidental, consequential or punitive damages. The term “consequential damages” shall include, but not be limited to, loss of anticipated profits, loss of use, loss of revenue and cost of capital.
- PATENTS: Subject to the limitations contained in Section 6, Seller shall defend any suits brought against Buyer based on a claim that use of the Goods manufactured by Seller or use of the Software constitutes an infringement of a valid patent of the United States, and shall pay any damages awarded therein against Buyer, provided that Buyer: promptly notifies Seller in writing of the filing of such suit or the threat thereof; permits Seller to control completely the defense or compromise of such claim of infringement; and provides all reasonable assistance and cooperation requested by Seller for the defense of such suit. In the event that only the Goods manufactured by Seller are held to be infringing in such suit and their use is enjoined, Seller shall, at Seller’s option and expense procure for Buyer the right to continue using the Goods, replace them with a non-infringing product or modify them so they become non-infringing. Buyer agrees that Seller shall not be liable for infringement, and that Buyer shall fully indemnify Seller therefore, if infringement is based upon the use of Goods in connection with goods not manufactured by Seller or in a manner for which the Goods were not designed by the Seller or if the Goods were not designed by the Seller or if the Goods were designed by the Buyer or were modified by or for the Buyer in a manner to cause them to become infringing.
- INSTALLATION: Buyer shall be responsible for receiving, storing, installing, starting up and maintaining all Goods. Seller shall provide a quotation for services to assist Buyer in these functions if requested.
- TAXES: Any tax or governmental charge or increase in same hereafter payable by the Seller because of the manufacture, sale or delivery of the Goods may, at Seller’s option, be added to the price herein specified. The foregoing shall not apply to taxes based upon Seller’s net income. Prices do not include any sales, use, excise, value added or similar taxes, which shall be the responsibility of Buyer, and Seller shall include them on all invoices unless a valid exemption certificate is received from Buyer prior to date of shipment.
- SOFTWARE AND COMPUTER PROGRAMS: Buyer is granted a nonexclusive, royalty free license only for Buyer’s use of the Software. Under this license Buyer may: (a) Use the Software with the Goods provided; and (b) Adapt the Software for Buyer’s use with the Goods. It is recognized and agreed that title to all Control Systems Software provided by Seller shall remain with Seller or applicable third party owner and that such Software shall be furnished to, and used by, Buyer only after execution of Seller’s standard license agreement.
- BUYER SUPPLIED DATA: To the extent that Seller has relied upon any specifications, information, representation of operating conditions or other data supplied in writing by Buyer to Seller in the selection or design of the Goods and/or Software and the preparation of Seller’s quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer and relied upon by Seller, any warranties or other provisions contained herein which are affected by such conditions shall be null and void, unless otherwise mutually agreed upon in writing.
- MILESTONE PAYMENTS:
- Systems Integration and Control System orders: Unless otherwise provided in Seller’s written quotation, the following periodic milestone payments shall be made by Buyer for Systems Integration and Control System orders. (a) For goods and services totaling less than $100,000, invoices shall be issued by Seller and paid by Buyer based on the following milestones: Milestone 1: 50% upon receipt of order by Seller. Milestone 2: 50% upon Factory Acceptance Test or shipment of the goods by Seller, whichever occurs first. (b) For goods and services exceeding $100,000, invoices shall be issued by Seller and paid by Buyer based on the following milestones: Milestone 1: 30% of price upon receipt of order by Seller. Milestone 2: 30% of price upon release by Seller of approved bills of material to manufacturing for assembly. Milestone 3: 40% of price upon Factory Acceptance Test or shipment of the Goods by Seller, whichever occurs first. Seller reserves the right to designate additional Milestones where the Agreement provides for engineering services in excess of $50,000.
- Control Valve orders: Unless otherwise provided in Seller’s written quotation, the following periodic milestone payments shall be made by Buyer for Control Valve orders. For orders exceeding $250,000, or for any single assembly totaling greater than $100,000, invoices shall be issued by Seller and paid by Buyer based on the following milestones: Milestone 1: 35% upon receipt of order by Seller. Milestone 2: remaining balance to be invoiced upon shipment of the goods by Seller, payable 30 days after invoice date.
- GENERAL PROVISIONS: (a) Buyer shall not assign its rights or obligations under the Agreement without Seller’s prior written consent. (b) There are no understandings, agreements or representations, express or implied, not specified in the Agreement. (c) No action, regardless of form, arising out of transactions under the Agreement, may be brought by either party more than two (2) years after the cause of action has accrued. (d) Any modification of these terms and conditions must be set forth in a written instrument signed by a duly authorized representative of Seller. (e) The Agreement is formed and shall be construed, performed and enforced under the laws of the State of Washington. However, Buyer and Seller agree that the proper venue for all actions arising under the Agreement shall be only in the USA and in the State where the Goods involved in such actions were manufactured. (f) UNLESS OTHERWISE SPECIFICALLY PROVIDED IN SELLER’S QUOTATION, GOODS HEREUNDER ARE NOT INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS. If Goods supplied hereunder are to be used in nuclear applications, including, without limitation, any power generation facility, Buyer fully indemnifies Seller pursuant to Seller’s “Special Nuclear Terms of Sale”, a copy of which is available upon request. (g) Any changes affecting the Goods/Software requested by Buyer shall only be binding upon Seller if agreed to by Seller in writing and any resulting adjustment to price, schedule, or both shall be mutually agreed in writing.