1. ERRORS: The Company reserves the right to correct errors appearing on the face of this sales acknowledgment or quotation.
2. THE COMPANY CONTRACTOR OR SUBCONTRACTOR: If the Company undertakes to install materials as a contractor or subcontractor, the Company agrees that it will pay for all materials, labor and equipment required to perform such contract work and save Buyer harmless from all claims for unpaid work, labor and/or services performed or materials furnished provided Buyer makes full payment to the Company for all the work, labor, services and materials covered by this document.
3. APPROVAL OF THE COMPANY: It is presumed that buyer has obtained approval from the Architect, Owner, or the other approving authority of the Company as contractor, or subcontract and consequently such contingency in Buyers Order if existing is deemed to have been satisfied.
4. MANUFACTURES REPRESENTATIVES: All purchase order and/or subcontracts are subject to the terms and conditions contained in this quotation. Purchase Orders from Buyer must be issued to the Company. Independent manufacturers’ representatives are not authorized to accept purchase orders on behalf of the Company without prior written consent. Independent manufacturers’ representatives are not authorized to act as agents of the Company or to bind the Company in any manner whatsoever as the sole function of any independent manufacturers representatives is to promote/solicit orders and perform certain post-installation duties, including equipment start-up and in-service training. Any business transacted or orders obtained by independent manufacturers’ representatives are subject to acceptance or rejection by the Company at its sole discretion.
5. MEASUREMENTS: Prices quoted include preparation of drawings for approval as required. Field measurements and verification of dimensions shall be responsibility of Buyer, except when the Company undertakes obligation of installation of materials. When the Company has installation work to perform, its obligations shall be limited to furnish material in accordance with its drawings approved by the Owner, Architect, Contractor, or other approving authority.
6. TAXES: All Federal, State and local taxes are excluded from the purchase price or contract sum set forth on the reverse side and all taxes whatsoever kind or nature shall be paid by the Buyer unless otherwise agreed upon. The Company shall add all required or assessed taxes to the invoice values billed unless Buyer furnishes the Company an appropriate tax exemption certificate.
7. FIELD LABOR: Any provisions in Buyer’s order relating to field labor and the requirements imposed by reason of performing field labor are deemed deleted.
8. DELAYS: The Company shall not be liable for any delay in manufacture, delivery or its performance hereunder due to fires, act of God, strikes, differences with workmen, delays in transportation, accidents at plants, inability to procure supplies, raw materials and transportation facilities, or other contingencies beyond its control.
9. CLAIMS: Claims for errors deficiencies, imperfections, material shortages, or delay covered by Section 8 above will be waived by Buyer unless made in writing with reasonable promptness after receipt of materials, but in no event later than 30 days after arrival of materials at destination. Should Buyer fail to notify the Company within the prescribed time, all replacement materials shall be at the Buyer’s expense. Defective or improper materials will be replaced, or the purchase price refunded upon its return, but the Company shall not be liable for dismantling, installing or reinstalling. Regardless of the nature of this claim, the Company’s liability shall be limited to purchase price of the materials and the company shall not be liable for any claims for consequential damages whether founded in contract or in tort. Risk of loss involving materials sold FOB shipping point, even though transportation costs may be included in price, shall be borne by Buyer, and Buyer shall pursue claims with carrier in the event of loss or damage in transit. Expense in connection with detention of carrier’s equipment at destination shall be for the account of buyer. The remedies to Buyer hereunder are exclusive.
10. CANCELLATION: This order cannot be canceled or modified, or releases hereunder held up by Buyer after order is in process, except with the Company’s consent and subject to conditions then to be agreed upon which shall include protection of the Company against all loss, and in no event shall cancellation charge be less than 15% of price of order. Certain configurations of equipment may, at the sole discretion of Primus, be considered as salable only to the ordering customer. Such orders shall be considered non-cancelable and subject to the payment terms described under the paragraph “Terms of Payment.”
11. SELLER’S OPTIONS: If Buyer fails to make payment on this or any other order in accordance with the Company’s terms or if the Company shall have any doubts as to Buyer’s responsibility, the company may suspend performance hereunder, except upon receipt of security to the Company. Unless provided to the contrary on the face hereof, the Company’s obligation to perform hereunder shall cease at the Company election, if the Company is not permitted to complete performance within 12 months from date hereof. Buyer agrees to pay all collection and interest charges including reasonable attorney’s fees.
12. DESIGN: Materials unless otherwise provided shall be in accordance with the Company’s literature unless modified in the interest of improvement in which event it shall be deemed in accordance with such literature. The Company assumes no responsibility for design prepared by others.
13. TITLES TO MATERIALS: Title to materials shall pass to Buyer when materials are delivered on board common carrier at Omaha, NE or Great Bend, KS, or F.O.B. point or any other specified point of shipment.
14. PATENTS: Buyer agrees to defend and indemnify the Company at its own expense all suits, actions or proceedings in which the company is made a party for actual or alleged infringement of patents which does not involve the Company’s materials per se but results from the Company’s adherence to specifications, drawings, designs or selections submitted to the Company by Buyer directly or indirectly. The Company will indemnify Buyer from any judgment for damages which may be rendered against Buyer in any suit brought against Buyer on account of the infringement by the materials per se exclusively manufactured by the Company hereunder of any US patent provided prompt written notice by given the Company of any such suit and an opportunity be given the company to settle or defend the same as the company may see fit provided further that every reasonable assistance which the Company may require in defending such suit be rendered to the Company by Buyer. The foregoing states the entire liability of the Company to Buyer for patent infringement.
15. WARRANTY: The Company warrants to Buyer that all items on the reverse side hereof manufactured by the company shall be free of defective materials or faulty workmanship for a period of one year from the dates of shipment of said items by the Company. The liability of the Company for any breach of the foregoing warranty of the Company shall not extend to dismantling, installing or reinstalling, but shall be limited to repairing or replacing said items at the Company’s option within a reasonable time after receipt of written notice from Buyer of said items that prove to be defective within the period stipulated herein, provided such notice is given by Buyer to the Company immediately upon the detection of any defects and if the notice is served by Buyer within such period. The Company makes no warranty with respect to items on the reverse side hereof supplied to Buyer by the Company, but manufactured by others, except to the extent of any warranty given to the Company by such others. Buyer further agrees that the Company is not responsible for any other conditions over which the Company has no control. In no case shall the Company be liable for consequential damages arising from breach of any of the foregoing warranties. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY, BEYOND WHAT IS CONTAINED HEREIN.
16. ARBITRATION: Any controversy or claims arising out of or relating to this agreement or the breach thereof shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association at the Omaha, NE office and judgment upon the award rendered by the Arbitrator (s) may be entered in any court having jurisdiction thereof.
17. BUYER’S CONTRARY TERMS: Any of the terms and conditions of the Buyer’s order and/or General Conditions of Contract which are inconsistent with terms and conditions hereof shall be not binding on the Company and shall not be considered applicable to the sale of materials referred to on the reverse side hereof. Unless Buyer shall notify the Company in writing to the contrary as soon as practicable after receipt hereof, acceptance of the terms and conditions set forth hereinabove by the buyer shall be understood and in the absence of such notification, the sale by the Company of the materials covered hereby shall be conclusively deemed to be subject to the terms and conditions hereof. No waiver, alteration, or modification of any of the provisions hereof shall be binding on the company unless made in writing and agreed to in writing by a duly authorized official of the Company.
18. TERMS OF PAYMENT: Standard terms of payment on domestic orders shipped within the Continental United States are net 30 days subject to credit approval. Payment terms on orders for shipment beyond the Continental United States are confirmed irrevocable Letter of Credit drawn on a Untied States bank. Any variation of these terms is subject to approval by Primus on an individual order basis. On orders where, in the sole judgment of Primus, the equipment configuration being ordered is not readily salable to any other customer, the terms of payment shall be 40% with the purchase order, 50% prior to shipment and 10% net 30 days.