As used in this Order, the terms (a) "Seller" shall mean Sullair and (b) "Buyer" shall mean the party executing this Order to purchase the products or services specified on the reverse side hereof and/or the party accepting delivery of Seller's products or services hereunder and (c) "product" consists of the equipment and consumable products provided by Seller under this agreement.
- Acceptance, Merger and Integration.
Seller will be deemed to have accepted this Order when Seller returns an acknowledgement copy of this Order, or, at Seller's option, when Seller begins substantial performance under this Order. Buyer accepts this Order by acknowledging a copy of this Order, by confirming this Order by its purchase order or confirmation, or by acceptance of delivery of the products or services hereunder. Notwithstanding the manner in which Buyer accepts, Buyer's acceptance is limited exclusively to the acceptance of Seller's terms and conditions set forth in this Order only. Seller objects to and rejects any proposal by Buyer for additional or different terms in connection with the products or services provided. Buyer may acknowledge this Order by purchase order, but any and all terms, conditions and provisions contained in said purchase order, acknowledgement form or other communications with respect to the transaction contemplated by this Order, or subsequent to the date hereof, are agreed to be superfluous and without any force and effect. This Order, which includes all of the terms and all riders or limited warranties attached hereto or issued by Seller, is intended to be the exclusive and final statement of the terms and understandings relative to the subject matter hereof, merging herein and superseding all negotiations and prior written or oral agreements between the parties as to the subject matter of the purchase of the products or services hereunder. There are no promises, representations or understandings made in connection with this Order or contemporaneous with the execution hereof, except as set forth in this Order.
- Prices and Taxes.
The price of the products or services specified on the face hereof or in connection with this Order does not include federal taxes, state or local sales taxes, use taxes or occupational taxes. Unless prohibited by law, Buyer is responsible for and shall pay all applicable sales, use, occupational, excise, value added or other similar taxes applicable to the manufacture, sale, price, delivery or use of the products or services provided by Seller, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to and considered valid by the applicable taxing authorities.
- Standard Payment.
Except as otherwise agreed in writing, terms of payment are thirty (30) days from the invoice date with approved credit, if applicable. Seller reserves the right to determine at its sole discretion the parties and extent of any such credit approval. Failure to make prompt and full payment hereunder constitutes a material breach of this Order.
All sales are FOB/FCA Seller's warehouse. Seller will prepay all freight and invoice the Buyer for the amount of freight paid.
- Delivery Delays.
Seller shall use reasonable efforts to make prompt deliveries in a commercially reasonable manner. Delivery dates and estimates are, however, not guaranteed. Seller disclaims any liability or responsibility for the late or non-delivery of products hereunder. Seller shall additionally not be liable for failure to deliver or delays in delivery of the products or services covered by this Order if such failure or delay is due, in whole or part, to any cause or conduct beyond the reasonable control of Seller.
- Risk of Loss
Risk of loss, destruction of or damage to the products shall be Seller's until delivery of the products to a carrier at the Seller's warehouse. Thereafter, Buyer shall be fully responsible for and assume all risk of loss, destruction of or damage to the products. Loss or damage to the products after risk of loss has passed to Buyer will not release or excuse Buyer from its obligations under this Order to Seller, including the obligation to make full payment.
- Short Shipments/Damage Claims
Seller will endeavor to ship all orders complete or as complete as reasonably possible. Seller will, however, ship incomplete orders upon written authorization by Buyer. In that event, Seller shall have no liability for such short or incomplete Order. To preserve any claims against carriers for damages or short shipments, Buyer must report its claim in writing directly to carrier, with a copy of the claim to Seller, as soon as possible after receipt of the merchandise but in no case should exceed seven (7) days for air shipments and fourteen (14) days for all other shipments.
- Rejection and Revocation of Acceptance.
Any rejection or revocation of acceptance by Buyer must be made within thirty (30) days of delivery and any attempted rejection or revocation of acceptance made thereafter shall be null and void.
Buyer shall have no right to cancel any or all portions of an acknowledged Order, or an Order that Sullair has begun to fulfill unless Sullair, at its sole discretion, agrees in writing that the specific Order or portion thereof may be cancelled. Any Sullair approved cancellation initiated by Buyer, will be contingent upon the Buyer paying cancellation charges in accordance with the Sullair Cancellation Charge Policy. Cancellation Charge Policy charges include, but are not limited to, costs and expenses incurred by Sullair resulting from the cancellation, based upon: the timing of cancellation, the type of equipment, special options specified, and the phase of production. The total amount of cancellation fees shall not exceed the Product’s purchase price.
Sullair may cancel any pending Order even after it has been acknowledged by Sullair, with no liability to Sullair.
- Designs and Specifications
The design and specifications of Seller's products are subject to change without notice. Seller reserves the right to ship the latest type and design of products at current prices and shall have no liability or obligation for changes in design or specifications. If designs or specifications are changed, Buyer may, within fourteen (14) days of receiving notice of any changes in design or specifications, cancel this Order without liability, but only if the changes in design or specifications would have a negative material impact upon the business or operations of Buyer or otherwise render this Order or the delivery or use of the products commercially impracticable.
- Governing Law.
This agreement and all claims or disputes among the parties shall be governed by and subject to the internal laws (exclusive of the conflicts of law provisions) and decisions of the courts of the State of Indiana. The UN Convention on the International Sale of Goods shall not apply.
The rights and obligations of the parties under this agreement shall not be assignable unless consent to the assignment is in writing and signed by the parties.
This Order shall not be modified, altered or amended in any respect except by a writing signed by the parties. Any variation, modification, or addition to the terms set forth in this Order shall be considered a material modification and shall not be considered part of this agreement.
Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the product in combination with other equipment or in the operation of any process.
- Standard Limited Warranty and Limitation of Remedy and Damages
What Is Covered By This Warranty – Standard Limited Warranty.
Seller warrants that its products and services are free from material defects in materials and workmanship. The duration of this warranty for each category of Seller products is as follows:
- Air-Ends (except shaft seals which are 1 year): 2 years
- Stationary Compressors: 1 year
- Vacuum Systems: 1 year
- Dryers and Filters: 3 years
- Replacement (Spare) Parts: 90 days
The duration of this warranty is from the date of first start-up or six (6) months after Seller’s shipment date, whichever occurs first.
DIAMOND AND 24KT LUBRICATED COMPRESSOR EXTENDED WARRANTIES
In addition to the Standard Limited Warranty, you may qualify for an Extended Warranty.
What is covered by the Extended Warranty
- Five (5) year warranty (parts, freight, labor, travel time and mileage) on the factory primary motor, air fluid receiver, oil cooler, after cooler and variable speed drive when supplied.
- Ten (10) year warranty (air end, freight, labor, travel time and mileage) on the compressor air-end (except shaft seals).
(Compressors with working pressures above 150 psi and vacuum systems do not qualify for these extended warranties.)
The duration of the Diamond and 24KT warranty is from the date of first start-up which must occur within the first six (6) months of Seller’s shipment date as recorded on the completed Registration and Start-up Checklist. Failure to submit a completed Registration and Start-up Checklist within thirty (30) days of start-up voids participation in the Diamond and 24KT Programs and the applicable extended warranties revert to the standard limited warranties offered by Seller. If Buyer notifies Seller that the products will be stored for longer than six (6) months after the shipment date and follows Seller’s long-term storage guidelines, then the duration of the warranty shall be from the date of start-up but in no event longer than two years from the date of shipment.
What You Must Do to Qualify for the Extended Warranties: The Diamond and 24KT Warranty programs require use of genuine Seller replacement parts and fluids. Maintenance must be performed in accordance with Seller’s written guidelines, and fluid samples must be submitted in accordance with the program details. (Program details are available from Sullair authorized Stationary Distributors). Failure to comply with these requirements voids participation in the Diamond and 24KT Programs and the applicable extended warranties revert to the standard limited warranties offered by Seller and its vendors.
Making a Warranty Claim – If within the applicable warranty period, Buyer discovers any material defects in the products, Buyer must promptly notify Seller and ship the product, freight prepaid, to the Seller service center designated by Seller. Buyer's exclusive remedies for any breach of this warranty are (i) the repair of the product, F.O.B./FCA Seller’s service center, (ii) the replacement of the product, F.O.B. Seller’s service center, (iii) the re-performance of the services; or (iv) the refund of the purchase price paid by Purchaser for the non-conforming product or services. Seller shall choose the applicable remedy at its sole option.
What Is Not Covered By The Limited or Extended Warranties. All warranties are strictly conditioned on the use of genuine Seller replacement parts (such as filters and separators) and the recommended Seller lubricant. Use of replacement parts or lubricants not supplied or recommended by Seller may void all coverage hereunder, as will any disassembly of the products by anyone other than an authorized Seller repair person. This warranty does not cover (i) defects caused by Purchaser’s failure to provide a suitable installation environment; (ii) defects caused by abuse or use of products for purposes other than those for which designed; (iii) defects caused by unauthorized attachments or modifications; or (iv) damage that occurred during shipping; or (iv) Buyer’s fault, negligence or failure to follow appropriate maintenance or use guidelines.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES, IF ANY, SET FORTH ABOVE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES IN THIS ORDER OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER DISCLAIMS ALL WARRANTIES, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. SELLER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY TO BUYER FOR ANY CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF USE, LOSS OF PROFITS, INCOME, OR REVENUE, LOSS OF TIME OR INCONVENIENCE, LOSS OR DAMAGE TO ASSOCIATED EQUIPMENT, COST OF SUBSTITUTED OR REPLACEMENT EQUIPMENT, LOSS TO FACILITIES, LOSS OF CAPITAL, LOSS OF SERVICES OR COST OF REPLACEMENT AIR, POWER OR UTILITIES, THIRD-PARTY CLAIMS OR LOSSES BY BUYER’S CUSTOMERS, OR ANY OTHER INCIDENTAL CONSEQUENTIAL OR SPECIAL DAMAGE ARISING OUT OF THIS ORDER OR THE OPERATION, FUNCTION OR CHARACTERISTICS OF THE PRODUCTS OR SERVICES PURCHASED HEREUNDER OR OTHERWISE PROVIDED BY SELLER.
IT IS EXPRESSLY UNDERSTOOD THAT THESE LIMITED WARRANTIES, IF ANY, ARE THE SOLE AND EXCLUSIVE REMEDY OF BUYER. IF A PRODUCT DOES NOT CONFORM TO THE WARRANTIES, IF ANY PROVIDED BY SELLER, OR IF BUYER MAKES ANY CLAIMS OR CAUSES OF ACTION AGAINST SELLER, BUYER’S EXCLUSIVE AND SOLE REMEDY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE PRODUCTS AT SELLER’S DISCRETION. IF REPAIR OR REPLACEMENT IS NOT FEASIBLE AS DETERMINED BY SELLER, SELLER MAY AT ITS SOLE OPTION REFUND THE PURCHASE PRICE FOR THE PRODUCTS.
- Time of Actions
Any claim or cause of action against Seller by Buyer alleging breach of contract, breach of warranty or in connection with this Order shall be commenced by Buyer within one year after the claim or cause of action accrual, and no claim or cause of action may be maintained which is not commenced within this one-year period.
- Limitation of Liability.
To the fullest extent permitted by law, the parties waive and relinquish any claims, demands, causes of action or recoveries for punitive damages, exemplary damages, or statutory damages. Seller shall not be liable for indirect, special, incidental or consequential damages arising under this agreement or otherwise with respect to the sale of the goods, including any lost revenues or profits, consequential and/or incidental damages, business interruption or damage to business reputation, regardless of the theory upon which any claim may be based. Notwithstanding the terms of any limited warranty, in no event will Seller's entire liability to Buyer exceed the purchase price actually paid by Buyer for the products hereunder, or any defective portion thereof, whichever is the lesser amount.
- Force Majeure.
Seller shall have no liability or obligation to Buyer of any kind, including but not limited to any obligation to deliver products or provide maintenance or services, arising from any delay or failure to perform all or any part of this Order as a result of causes, conduct or occurrences beyond Seller's reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, civil disorder or disobedience, terrorism, act of public enemies, problems associated with transportation, (including car or truck shortages), acts or failure to act of any state, federal or foreign government or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to Seller.
The failure of Buyer to perform any obligations hereunder, including without limitation, the payment of the purchase price for products or services and all other amounts due hereunder, the failure to materially perform other agreements between Buyer and Seller, or Buyer's bankruptcy or insolvency, shall constitute a default under this agreement and shall, in addition to any other remedies, afford Seller all of the remedies of a secured party under the Uniform Commercial Code of the State of Indiana. Buyer consents to the filing by Seller of all liens to protect Seller as a secured creditor to the fullest extent permitted by law. In the event of default, Seller may, in addition to pursuing any of the remedies provided by law, equity or as set forth in this agreement, refuse to provide warranty, repair and/or maintenance service and/or deliver equipment under this or any service or maintenance agreement relating to the goods, and may also cancel this order and any pending orders without liability to Buyer.
- Attorneys' Fees.
If it becomes necessary for Seller to enforce the terms and conditions of this Order by litigation or otherwise, or to defend itself in any Controversy (as defined herein), litigation, claim, demand or cause of action arising out of or as a result of this Order or the products or services provided hereunder, and if Seller is the substantially prevailing party in said Controversy, litigation, claim, demand or cause of action, then Seller shall be entitled to recover, in addition to any other relief granted or damages assessed, its reasonable attorneys' fees, expert witness fees, cost, and all expenses of litigation.
No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
If any term, covenant, warranty or condition of this Order, or the application thereof to any person or circumstance shall, to any extent, be held or deemed invalid or unenforceable, the remainder of this Order or the application of such term, covenant or provision, to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each remaining term, covenant or provision of this Order shall be deemed valid and enforced to the fullest extent permitted by law.
To the fullest extent permitted by law, Buyer shall defend, indemnify and hold Seller harmless from any and all claims, demands, subrogation claims by Buyer's insurers, causes of action, liabilities, fines, regulatory actions, seizures of product, losses, costs, expenses (including, but not limited to attorneys' fees, expert witness expenses and litigation expenses) (hereinafter "Claim"), arising from or in connection with any Claim asserted against Seller for damage, injury, death, loss, property damage, delay or failure in delivery of Seller's products, or any other Claim, whether in tort, contract, or otherwise, relating to this Order, the business relationship between the parties or the goods or services provided hereunder, or the negligence or fault of Buyer or its agents. Notwithstanding the foregoing, Buyer has no indemnity obligation to Seller with respect to any Claims that result solely from the negligence of Seller and this indemnity provision does not purport to indemnify Seller solely for its own negligence, but rather for the negligence or conduct, whether sole or concurrent, of Buyer. Buyer, for itself and its insurers, expressly waives any and all limitations or liability caps, if any, on Buyer's contribution liability to Seller, and any and all statutory or common law lien rights or Claims against Seller arising from any applicable workers compensation or disability acts, which Buyer might or could assert against Seller or Seller's insurers in the event of the personal injury or death of Buyer's employees, representatives or servants. Without limiting the foregoing, Buyer, for itself and its insurers, also waives any liens, claims or other rights it may have as a result of being subrogated to any rights of its employees, representatives, or servants.
- Forum Selection.
The parties consent to the exclusive jurisdiction and venue of the federal court in South Bend, Indiana or the state court located in LaPorte County, Indiana with respect to all litigation, claims, causes of action, demands, Controversies (as defined herein) or disputes among the parties. The only exception to this forum selection provision is a claim by Seller seeking the replevin of the products if the courts specified in this provision will not or cannot assert jurisdiction. All counterclaims, if any, in connection with the replevin claim, shall be subject to this forum selection provision.
Web Revision: 01 – 11/05/2018