- Acceptance of Orders
All orders are accepted and all sales are subject to the provisions of the Distribution Agreement or other written contracted between us under which your order is placed, or if no such agreement or written contract exist, all acceptances of orders and sales are conditioned upon Buyer’s assent to the following terms and conditions. In the event this document is construed as an offer to sell, then acceptance of such offer is limited to the following terms and conditions and Buyer is hereby notified of Sullair’s objection to any terms and conditions additional to or different from the following. The terms and conditions, if any, on the face here are incorporated herein by reference and made a part hereof as forth herein in their entirety.
- Prices and Quotations
All prices, whether shown in the Price List or in order acknowledgements, or otherwise, quoted upon, are in U.S. dollars and are subject to change without notice at any time prior to actual shipment of goods. Price increases will not, however, be applied to (a) goods covered by an order acknowledgment stipulating a shipment date within thirty (30) days after the effective date of the increase, or (b) charges on goods sold under a 90-day firm order accepted by Sullair prior to the effective date of the increase. Written quotations automatically expires, unless accepted, within thirty (30) days from the date quoted and are subject to termination by notice within that period.
Verbal quotations expire, unless accepted the same day they are made.
The price does not included any Federal, state or local property, license, privilege, sales, service, use, excise, value added, gross receipts, or other like taxes which may now or hereafter be applicable with respect to this transaction, the property, its purchase, sale, replacement, value, or use, or any other services performed in connection therewith. Buyer agrees to pay or reimburse Sullair, its subcontractors or suppliers any such taxes which Sullair, its subcontractors or suppliers are required to pay or collect or which are required to be withheld by Buyer.
The price shall also be subject to adjustment in accordance with the published price. Adjustment clauses, which price adjustment information shall supersede the terms of this Section 4, where inconsistent herewith.
Prices shown in published literature are maintained as general sources of information and are not quotations or offers to sell.
Sullair reserves the right to make corrects due to typographical, or engineering errors, or because of incomplete or inaccurate information from Buyer.
- Penalty Clause
No penalty clause of any description, in any specification of order, with the exception of Section 6 and 16, will be effective unless specifically approved in writing by a principal officer of Sullair.
An order once placed with and accepted by Sullair can be canceled only with Sullair’s consent and upon terms that indemnify Sullair against loss.
IN THE ABSENCE OF PROPER EVIDENCE OF EXEMPTION SUPPLIED TO Sullair, if any sales, use or similar tax is payable in connection with any transactions or part thereof, between Buyer and Sullair with respect to the goods delivered, Buyer will, upon demand of Sullair pay to the amount of any such tax.
- Terms of Payment
All products are Net Thirty (30) Days from date of invoice. Past due accounts are subject to a service charge, unless otherwise expressly agreed upon in writing signed by an authorized representative of Sullair.
In the absence of any specific designation of a payment or in the event of a failure by Buyer to make timely payment under this or any other contract with Sullair, Sullair may, at its election, apply any payments by Buyer to Buyer’s various accounts in such proportion as Sullair shall deem appropriate.
If delivery is delayed by Buyer, payment shall become due on the date Sullair is prepared to make delivery.
All installment deliveries shall be separately invoiced, and paid for without regard to subsequent deliveries. Delays in delivery or nonconformities in any installment shall not relieve Buyer of its obligation to accept and pay for remaining installments.
Buyer shall comply with Sullair’s credit terms set forth in Section 16 and 17 thereof, and as announced by Sullair from time to time.
Our contract, in regard to the goods identified on the face hereon, consists in its entirety of the terms and conditions appearing in the Distribution Agreement and on the face and back of the instrument, excluding all usages of the trade and all terms and conditions of your order which are in conflict with, or which are in addition to, the terms and conditions appearing hereon. Each delivery is a separate contract. No charges in or additions to this contract shall be of any effect unless contained in a writing signed by the party claimed to be bound thereby and no chargers or additions shall be effected by the return to you, signed or unsigned, or any hereof or other forms attached to or accompanying your order which you require us to return. Except for the written contract between us, if any, under which your order is placed, no written or oral understandings, representations or warranties predating the date hereof shall have any effect, nor shall any written or oral communication from us to your predating the date hereof be deemed with respect to it. The interpretation and effect hereof shall be governed by the laws of the State of Indiana.
- Returned Material
No product may be returned without the written permission and specific shipping instructions of Sullair.
Special products built to Buyer specifications will not be accepted for return.
Only material as currently manufactured will be considered for return unless otherwise agreed upon and approved by Sullair. Products must be securely packed so as to reach Sullair without damage.
Any cost incurred by Sullair to put products in first class condition, either for resale or with any modifications to be made by Buyer’s request for return use, will be paid by Buyer.
Replaced products become the property of Sullair.
Material accepted for return is subject to restocking charge of 15% of the billing invoice, plus all transportation charges incurred by Sullair.
All such returns shall be in accordance with procedures reasonably established by Sullair, and from time to time such procedures shall be available upon request.
- Shipping and Delivery
Delivery and shipping promises are made in good faith, shipping dates appearing on acknowledgment of orders, or given the Buyer in any other manner, are approximate. Where the Buyer delays in supplying information necessary to proceeding with the order, the date of shipment may be extended accordingly, and determined by conditions at Sullair’s factory at the time when the specifications were completed.
Sullair shall not be liable for delay in delivery due to causes beyond its reasonable control, or due to acts of God, acts of Buyer, fire, strikes, or other concentrated action of workmen, compliance with import or export regulations, flood, epidemics, quarantine restrictions, war insurrection, or riots, civil or military authority, freight embargoes, car wrecks, delays or shortages in transaction, unusually severe weather or inability to obtain necessary labor, materials, or manufacturing facilities due to such causes, and in the event of any such delay the date of delivery shall be extended for a length of time as may be reasonably necessary to compensate for the delay.
All products are carefully packed for shipment, and Sullair will assume no responsibility for delay, breakage, loss, or damage after delivery in good order has been made to the carrier.
Buyer has the responsibility to inspect shipments prior to or during unloading to identify any damage and to make appropriate notations on the delivery tickets.
All claims for loss, damage, or delay must be made to the carrier by Buyer.
Claims for shortages or other errors must be made in writing to Sullair within ten (10) days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.
- Transportation Expense
Unless otherwise stated on the face thereof, products manufactured assembled or warehoused in the continental United States are delivered F.O.B. shipping point, and products shipped from outside the continental United States is delivered F.O.B. point of entry. Where the scheduled delivery products is delayed by Buyer, Sullair may deliver such equipment by moving it to storage for the account of and at the risk of Buyer.
If Buyer requires shipment by method or routing other than that selected, Buyer shall pay any additional charges or other cost resulting from its requirement.
Cartage, stevedoring, insurance and all other transportation, handling, delivery and similar costs shall be paid by Buyer. These terms also apply where land routes are available but water transportation is specified by Buyer.
No allowance will be made in lieu of transportation if the Buyer accepts shipment at the factory freight station or otherwise supplies his own transportation.
Freight allowed to point of destination specified by Buyer will be permitted only when specifically agreed on and approved in writing by a principal representative of Sullair.
- Limited Warranty and Limitation of Remedy and Damages
Sullair will replace or repair, at its option, any goods that within Sullair’s published warranty period from the date of shipment are found defective in material or workmanship, upon notification by Buyer identifying each and every defect. Sullair’s obligation with respect to such goods shall be limited to repair or replacement, F.O.B. Sullair’s place of business without any further expense to Sullair, and except as expressly provided for herein or in a Distribution Agreement. In no event shall Sullair be liable for any other labor, transportation, installation, adjustment or other expenses which may arise in connection with such goods. This limited warranty covers the goods only to the extent and purpose for which they were manufactured and provided the product has been properly stored, installed, handled and maintained by the purchaser. Any misuse or abuse of the goods voids this limited warranty.
Sullair warranty does not extend to products not manufactured by Sullair or its affiliates. As to such products or parts, Buyer shall be entitled to proceed only upon the terms of that of that particular manufacturer’s warranty. Warranty does not apply to defects in materials provided by Buyer or design stipulated by Buyer.
Used products, products not manufactured by Sullair or affiliates are sold AS IS with no representation or warranty, and ALL WARRANTIES OF QUALITY, WRITTEN, ORAL OR IMPLIED, other than may be expressly agreed to by Sullair in writing, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MECHANTABILITY OR FITNESS ARE HEREBY DISCLAIMED.
IN NO EVENT SHALL SULLAIR BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES however arising whether in warranty, strict liability, contract, tort, negligence or Otherwise, including but not limited to loss of profits or revenue, loss of total or partial use of the products, facilities or services, downtime costs, or claims of Buyer for such or other damages whether on account of products furnished hereunder or delays in delivery thereof of services performed upon or with respect to such products. Sullair’s liability on any claim whether in warranty strict liability, contract, tort, negligence or otherwise for any loss or damage arising out of, connected with, or resulting from this contract or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, servicing, operation or use of any product covered by or furnished under this contract shall in no case exceed the purchase price allowable to the product or part thereof which giver rise to the claim. Notice of claims against Sullair hereunder for any reason, including breach of warranty, must be made to Sullair in writing within forty-eight (48) hours of discovery to afford Sullair an opportunity to make a prompt investigation of surrounding facts and mitigate any damage which might ensue, should it be determined to be Sullair’s responsibility. Failure to give such notice to Sullair shall constitute a waiver by Buyer of any right later to assert such a claim.
Any cause of action against Sullair arising out of or relating to the contract or the performance hereof shall expire unless brought within one year of the time of accrual thereof.
THE FOREGOING LIMMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Consequential Damages
Sullair shall not be liable for any consequential, contingent, special or incidental damages, claims or expenses whatsoever, which may arise as a result of the contract or otherwise.
Buyer shall defend, indemnify and hold harmless Sullair and its agents from any claims, damages or expenses, including reasonable attorney’s fees, arising or alleged to arise, from (1) any asserted deficiencies or defects in the goods caused by an alteration thereof, with or without Sullair’s consent made by Buyer, or improper handling or storage by Buyer, (2) the breach of any terms or conditions stated herein, or (3) the act or omission of Buyer, irrespective of whether such claim, damage or expense is asserted under a strict or other product liability theory or any other legal theory.
- Non-Standing Jobs
Any design requiring unusual production techniques will be charged for extra. Such jobs will be estimated and priced at Sullair’s home office.
Any and all tooling required for a particular order are to be billed to and paid for by Buyer.
- Curtailment of Production
If Sullair’s production is curtailed or suspended for any reason, deliveries may, at its option, be canceled or may be prorated during the period of curtailed production and thereafter resumed until delivery is made in full.
Any and all tooling required for a particular order are to be billed to and paid for by Buyer.
Shipments and deliveries shall, at all times, be subject to the approval and limitations set by Sullair’s credit department. Prior to any extension of credit, Buyer shall submit to Sullair an application therefore in a form acceptable to Sullair. Buyer shall execute such other instruments of documentation as Sullair shall from time to time reasonably require prior to any extensions of credit to Buyer. If buyer shall fail to make any payments in accordance with the terms and conditions thereof or of any instrument of document referred to herein, or if Sullair at any time has any doubt as to Buyer’s financial responsibility, Sullair, in addition to all other rights and remedies, but not in limitation thereof, may at its option and without notice defer shipments or deliveries hereunder, or under any other contract with Buyer, except upon receipt of satisfactory security or of cash before payment.
Upon request from Sullair, Buyer agrees to execute a security agreement covering the products sold or other assets and to perform all acts which may be necessary to perfect and assure a security position of Sullair.
A service charge will be charged on all delinquent accounts.
- Cost of Collection
Buyer shall pay all cost of collection, including buy not limited to reasonable attorney’s fees, court costs and collection agency fees involved in the collection of (a) past due accounts; (b) amounts owed to Sullair by Buyer by reason of Buyer’s breach of the Agreement, or any term or condition hereof, or any other agreement between Buyer and Sullair, (c) any amounts due for repair work not covered by Sullair’s limited warranty; and (d) any and all amounts owed by Buyer to Sullair for any other reason whatsoever.
Unless otherwise expressly agreed in writing by a duly authorized representative of Sullair and subject to the terms of any Distribution Agreement in effect between Buyer and Sullair, these terms and conditions supersede all other communications and agreements and notwithstanding any conflicting or different terms and conditions in any order or acceptance of Buyer, all sales and shipments shall exclusively be governed by these terms and conditions.
Any design, manufacturing drawings or other information or material submitted to the Buyer and not intended for dissemination by Buyer remain the exclusive property of Sullair and may not, without its consent, be copied or communicated to a third party.
This contract is not assignable or transferable voluntarily or by operation of law. The date hereon shall be prima facie evidence of the date on which this instrument was mailed or transmitted for delivery.
The provisions of any contract resulting from this order are for the benefit of the parties hereto and not for any other reason.
No waiver, alteration, or modification of any of the provision hereof shall be binding unless in writing and signed by a duly authorized representative of Sullair.
If any term of condition is found to be unenforceable by a court of competent jurisdiction, said court may sever such term or condition from this contract and the remaining terms and conditions shall be enforced by said court.
This remedies expressly provided for in these conditions shall be in addition to any other remedies which Sullair may have under the Uniform Commercial code or other applicable law.
Web Revision: 01 – 10/18/2011