GALLAGHER FLUID SEALS, INC. Terms & Conditions

GENERAL TERMS AND CONDITIONS OF SALE

1.    Acceptance of Orders/Terms.  These terms and conditions of sale (“Terms”) govern the sale of all goods of any kind (“Products”) from Gallagher Fluid Sales, Inc. (“Seller”) to any person or entity (“Buyer”).  Acceptance of Buyer’s order is conditioned upon Buyer’s acceptance of these Terms and Buyer’s waiver of any contrary terms contained in any purchase order, confirmation or other communication of Buyer, whether previously or hereafter delivered to Seller, which in any way adds to, differs from, modifies or conflicts with these Terms.  Seller hereby gives notice of its objection to any additional or different terms or conditions.  Buyer’s failure to object in writing to these Terms prior to Seller’s delivery of Products for shipment shall constitute Buyer’s agreement to these Terms.  Seller reserves the right to refuse to accept or fulfill any order based on Buyer’s rejection of any of these Terms, Buyer’s credit, or any other circumstance deemed material by Seller.  These Terms shall be binding upon the parties’ successors and assigns.

2.    Price.  Buyer shall pay the price set forth in Seller’s quotation, or as stated in Seller’s published price list in effect at the time of Seller’s acceptance of Buyer’s order. Seller shall have the right to include in the price Seller’s charges for tooling, set-up and other charges for specialized or custom Products, and for special packing or packaging done at Buyer’s written request.  Prices shall be firm for 30 days, and may be thereafter increased by Seller at any time previous to delivery of the Products for shipment.  All prices are exclusive of sales, use, excise and any similar taxes, duties and other charges of any kind imposed by a government authority, all of which shall be Buyer’s sole obligation.  Seller may add such sums as may be required to satisfy such obligations to the invoice price of the Products. 

3.    Payment.  Payment terms are net 30 days from the date of delivery to Seller’s shipping point.  Buyer shall pay interest on all late payments at the rate of 1.5% per month, calculated daily, and shall be responsible for all of Seller’s costs incurred in collecting any late payments including, without limitation, attorney’s fees.  Seller shall be entitled to suspend the delivery of Products upon Buyer’s failure to make payment when due.  Buyer shall not withhold any payment by reason of any claimed set-off or dispute with Seller. 

4.    Delivery.  Unless otherwise agreed in writing by Seller and Buyer, Seller shall deliver the Products to a carrier at Seller’s shipping point using Seller’s standard domestic packing and bulk packaging, at which time all Products shall be deemed to have been delivered to Buyer, and all risk of loss or damage in transit shall pass to Buyer.  Seller shall not be liable for any delays in delivery, non-delivery, or loss or damage in transit.  Seller may, in its sole discretion, without liability or penalty, make partial shipments, and Buyer shall fully pay for the Products shipped whether such shipment is in whole or partial fulfillment of Buyer’s order. 

5.    Inspection and Rejection of Non-Conforming Products.  Buyer shall inspect the Products within five (5) days after receipt (“Inspection Period”).  Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller.  “Nonconforming Products” means only Products that are different than identified in Buyer’s purchase order or Seller’s quotation. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products or (ii) credit or refund the price for such Nonconforming Products, together with any with reasonable shipping and handling expenses incurred by Buyer in connection therewith.  Buyer acknowledges and agrees that the remedies set forth herein are Buyer’s exclusive remedies for the delivery of Nonconforming Products.  Except as otherwise provided herein, all sales of Products to Buyer are final. 

6.    Cancellation.  Upon Buyer’s written request, cancellations of orders shall be accepted in Seller’s sole discretion.  Buyer shall be responsible for payment for all Products that have been completed or are in process, as well all materials purchased for manufacturing the Products as of the date of acceptance of cancellation. 

7.    Returns.  Buyer may request the right to return Products in writing within thirty (30) days from the date of shipment.  No Products shall be accepted for return without Seller’s prior written authorization. Returned Products are subject to inspection and acceptance by Seller. 

8.    Limited Warranty

          a.    Seller warrants to Buyer that the Products will materially conform to Seller’s description and specifications provided by Seller to Buyer respecting the Products, and that the Products will be free from defects in material and workmanship. 

          b.    Except for the warranty set forth immediately above, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. 

          c.    Subject to the foregoing, in the event any Products do not conform with the above limited warranty, Seller shall, in its sole discretion, either: (i) repair or replace such Products or (ii) credit or refund the price of such Products, provided that if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller.  THE REMEDIES SET FORTH HEREIN SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN. 

9.    Limitation of Liability

          a.    IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), REGARDLESS OF WHETHER SUCH DAMAGES WERE FORSEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

          b.    IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, WHETHER ARISING OUT OF OR RELATING TO CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER. 

10.    Compliance.  Buyer shall comply with all applicable laws and regulations of any jurisdiction in which Buyer may conduct business.  Buyer shall be responsible for compliance with all export and import laws and regulations. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products. Buyer shall defend, indemnify and hold Seller harmless against any claims or liabilities arising from the violation of any laws, regulations or standards. 

11.    Assignment. Buyer shall not assign any of its rights or delegate any of its obligations without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void.

12.    Governing Law and Jurisdiction. All matters arising out of or relating to Buyer’s purchase and Seller’s sale of Products shall be governed by and construed in accordance with the laws of Pennsylvania, without giving effect to any choice or conflict of law provision or rule of any other jurisdiction, and ll suits, claims and other proceedings arising herefrom shall be instituted and maintained in the Court of Common Pleas of Montgomery County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts, 

13.    Entire Agreement.  These Terms, along with the terms set forth in Seller’s quotation or confirmation, constitute the entire and final agreement between Buyer and Seller respecting the subject of this purchase and sale of Products, and supersede all prior and contemporaneous promises, representations or agreements with respect thereto.  These Terms may not be modified or supplemented except by way of a writing signed by an authorized representative of Seller.