Standard Terms and Conditions
1. Definitions. Calder Testers, Inc. is referred to herein as “Seller” and the person or company purchasing products from Seller is referred to herein as “Buyer.” Products sold by Seller hereunder are referred to herein as “Products.”
2. Price Adjustments. The prices stated herein do not include any sales, use, or other taxes unless so stated specifically. Such taxes will be added to invoice prices in those instances in which Seller is required to collect them from Buyer; provided, however, that if Seller does not collect any such taxes and is later asked by or required to pay such to any taxing authority, Buyer will make such payment to Seller or, if requested by Seller, directly to such taxing authority. At Seller’s option, prices may be adjusted to reflect any increase in the costs of Seller resulting from state, federal or local legislation.
3. Payment; Title and Risk; Shipment. Unless otherwise specified by Seller, all prices and delivery are ex works Houston Texas U.S.A., Title to any material described on Seller’s formal Quotation ordered by Buyer and risk of loss or damage thereto shall pass to Buyer upon tender to Buyer or a common carrier at delivery. No deferment of delivery at Buyer’s request will be made except on terms that will indemnify Seller against any loss and additional expense, including, but not limited to demurrage, handling, storage and insurance charges.
4. Product Warranty. Seller warrants products manufactured by it against defects in materials and workmanship for a period of one year from the date of shipment.
This warranty is expressly limited to Buyers who purchase Seller’s Products for use in the ordinary course of the Buyer’s business and to the conditions of limited warranty. If Buyer is an agent or distributor purchasing on behalf of or for resale to another entity, if that entity is the final user of the Product, the limited warranty will extend to that entity.
5. Conditions of Limited Warranty. The Conditions of Limited Warranty are as follows:
a.) Claims with respect to defects must be made within the warranty period.
b.) Products must be returned to Seller at the cost of Buyer if requested by Seller. Repair or replacement will be at the Buyer’s facility, if Seller determines it is practical to do so.
c.) Seller’s sole and exclusive duty, and Buyer’s sole and exclusive remedy, under this warranty are the repair and replacement, at Seller’s option, of any part found to be defective.
d.) Designated catalog items such as motors, gears, actuators, hydraulic pumps or rams, valves, fittings etc., or any other items purchased from a third party as a finished product, will bear that vendor’s warranty agreements only. Seller will not be responsible, implied or otherwise, for the functional characteristics, discontinuities of design, manufacturing, or failure of these parts to perform for what they were designed.
e.) This warranty does not cover any part that has been abused, worn out, heated, ground, or otherwise altered, or used in a manner inconsistent with any instructions regarding its use. Seller shall have no liability to repair or replace damage caused by misuse.
f.) If Seller’s Product is altered in anyway, either by Buyer or his agents, employees or representatives without written consent of the Seller, then Buyer assumes all responsibility and liability.
g.) No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representations, or warranty concerning Seller’s Products, except as herein stated.
h.) Seller will repair the returned Products for pick-up by Buyer or delivery as provided in Section 3 hereof. Seller shall have no obligation to provide other Products for use during such repair process.
Any lawsuit or other action based upon breach of contract or upon any other claim arising out of any sale pursuant to Seller’s quotation (other than an action by Seller for the purchase price) must be commenced within one year from the date of the tender of delivery by Seller, or, in the case of a cause of action based upon alleged breach of warranty provided by the manufacturer, within one year from the date within the warranty period on which the defect is or should have been discovered by Buyer.
6. Product Disclaimer. Products are equipped with filters and lubricators, where applicable, to try to remove contaminants from the test medium. Contamination from the source as well as backwash from the parts being tested will affect the functioning characteristics of the control system. Care must be taken by the user to ensure that source water and the items being tested do not have contamination that will get into the control system and cause premature failure.
The Product is a mechanical device designed completely with mechanical, pneumatic or electrical parts that will wear with time and use. Preventative maintenance programs should be set up at the user’s site to change out parts that become worn or damaged due to use so that the system will function properly.
7. EXCEPT FOR SELLER’S LIMITED WARRANTY DESCRIBED IN PARAGRAPH 4, 5, AND 6, SELLER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, WHETHER OF WORKMANSHIP, PERFORMANCE, QUALITY, DURABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR OTHERWISE WITH RESPECT TO PRODUCTS, OR WITH RESPECT TO ANY PARTS OR LABOR FURNISHED. THE ONLY WARRANTIES APPLYING TO PRODUCTS NOT MANUFACTURED BY THE SELLER WILL BE PROVIDED BY THE ORIGINAL EQUIPMENT MANUFACTURER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF USE OF PRODUCTS OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT, EVEN THOUGH SELLER HAS BEEN NEGLIGENT. THE OBLIGATIONS OF SELLER ARE LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PARTS OR WORKMANSHIP IF THE CONDITIONS OF LIMITED WARRANTY HEREINAFTER STATED IS COMPLIED WITH.
8. Contingencies. Seller shall not be liable for any default or delay in performance if caused, directly or indirectly, by acts of God; war; force of arms; fire; the elements; riot; labor disputes; picketing or other labor controversies; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage or breakdown of or inability to obtain or non-arrival of any labor, material or equipment used in the manufacture or fabrication of the material covered hereby; failure of any party to perform any contract with Seller relative to the production of the material covered hereby; or from any cause whatsoever beyond Seller’s control, whether or not such cause be similar or dissimilar to those enumerated. Seller shall promptly notify Buyer of the happening of any such contingency and of the contemplated effect thereof on the manufacture or fabrication and delivery of the Product. Upon elimination or cessation of any such happening or contingency, the obligation of Seller to sell and deliver shall be reinstated.
9. Buyer’s Obligation; Rights of Seller. If Seller shall at any time doubt Buyer’s financial responsibility, Seller may decline to make shipments hereunder except upon receipt of cash payment in advance or security or other proof of responsibility satisfactory to Seller. If Buyer fails in any way to fulfill these terms and conditions. Seller may defer further shipments until such default is corrected. Remedies provided herein shall be in addition to, and not in lieu of, other remedies.
10. Cancellations. After acceptance by Buyer, orders shall not be subject to cancellation except with Seller’s consent and upon terms that will indemnify Seller against all direct, incidental and consequential loss or damage. The following cancellation charges will be required for orders placed with Seller that are terminated prior to shipment. If the order is cancelled within 60 days after receipt of Buyer’s order the cancellation charge will be 1/3 of the total order value. If payments have been made prior to cancellation they will apply as payment if the order is cancelled within the 60 day period after receipt of Buyer’s order. If the order is cancelled after 60 days, the cancellation charge will be an additional 1/3 of the total order value. If the Product has been made ready for shipment and the order is cancelled, the cancellation charge will be ninety percent of the total order value less any payments previously made as stated herein.
11. Export. If the Products are to be exported, Seller’s obligations are subject to Seller’s ability to obtain export licenses and other necessary papers within a reasonable period. Buyer will furnish all Consular and Custom declarations and will accept and bear all responsibility for penalties resulting from errors or omissions thereon. Buyer shall provide an irrevocable confirmed Letter of Credit in Seller’s favor made payable at a National or State Bank with banking offices in Houston, Texas USA.
12. Change Orders. The Seller will allow the Buyer the right to make changes in quantity, drawings and specifications, methods of shipment and packaging, schedules and the place of shipment as to any Products or work covered in Buyer’s order. In such event, an equitable adjustment in price and time of performance will be mutually agreed between Seller and Buyer. Seller will not suspend performance of the Buyers order while Seller and Buyer are in the process of making such changes provided the changes do not affect the Product in such a way that additional labor and material expended to continue will not be used in the final Product purchased by the Buyer. Seller will comply with the changes after additional compensation has been agreed and the Buyer in writing has confirmed all changes and compensation to the Seller.
13. Entire Agreement. This document contains the entire agreement between Seller and Buyer and constitutes the final, complete and exclusive expression of the terms of such agreement, all prior or contemporaneous written or oral agreements or negotiations with respect to such terms as are included herein or are the subject matter hereof being merged herein. By way of illustration and not limitation, Buyer’s order shall be deemed to incorporate, without exception, all the terms and conditions hereof notwithstanding any order form of Buyer containing additional or contrary terms or conditions, unless Buyer shall have expressly advised seller to the contrary in a writing apart from the printed provisions of such order form, and no acknowledgment by Seller of, or reference by Seller to, or performance by Seller under an order of Buyer shall be deemed to be an acceptance by Seller of any such additional or contrary printed terms or conditions. In the event of a written request by Buyer for additional or contrary terms or conditions, then such modifications may only be made in these terms and conditions by a written instrument signed by one of Sellers’ executive officers.
14. Severability. In the event that any word, phrase, clause, sentence or other provision hereof shall violate any applicable statute, ordinance, or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
15. Governing Law. This document and the sale of any products hereunder shall be governed by and construed in accordance with the laws of the State of Texas.
16. Jurisdiction. Any lawsuit or other action based upon breach of contract or upon any other claim arising out of any sale pursuant to Seller’s Quotation shall be subject to the exclusive jurisdiction of State and Federal courts located in Harris County, Texas, and Buyer and Seller submit to the exclusive jurisdiction of such courts and wave any objections to jurisdiction or venue.
17. Quotations; Seller’s Acceptance of Orders; Indemnity. Any quotation furnished by Seller is subject to, and shall not become binding upon Seller until, actual receipt by Seller of Buyer’s written order based on all the terms and conditions stated in the quotation, without qualification. Seller may, at its sole option, accept a verbal order from Buyer, whether or not Seller has furnished a quotation. If Seller has furnished a quotation and Buyer places a verbal order, Seller may rely on such quotation with respect to all terms of the order. On all verbal orders, acceptance of delivery of a Product by Buyer or its agent shall be conclusive evidence against Buyer that such Product conforms to the order. Modifications in Buyer’s written confirmation of a verbal order shall not be binding on Seller unless actually received by Seller prior to the time Seller performs manufacturing services or purchased finished products or materials with respect to the order. Buyer agrees to indemnify and hold Seller harmless from any and all cost and expense (including without limitation any restocking changes) incurred by Seller as a result of any misunderstandings or errors arising out of a verbal order by Buyer.
