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Construction
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OMNI RSFs
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System Components
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Terms & Conditions
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TERMS AND CONDITIONS
1. DEFINITIONS OMNI Environmental Systems, Inc. will be referred to as “Seller” and the person or company purchasing as indicated on the “Contract for Professional Services” will be referred to as “Buyer”
2. ACCEPTANCE Unless other wise stated on the proposal, it is subject to acceptance within thirty (30) days of the date on the proposal. Acceptance of the “Buyer’s” purchase order is expressly made conditional on the “Buyer’s” assent to the terms and conditions in the proposal and the attachments hereto which shall constitute the complete agreement between the parties.
3. PRICES Prices are F.O.B. Seller’s distribution facility and are exclusive of any sales, use, gross income, occupational or similar taxes unless so stated specifically. Such taxes will be added to invoice prices in those instances in which the seller is required to collect them from the Buyer, provided however, that if the Seller does not collect any such taxes and is later asked by and/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.
4. TITLE Buyer shall take title to the equipment only upon Seller’s receipt of all payments due for said equipment, including payments for all options Regardless of F.O.B. point, designated delivery shall occur, and risk of loss shall pass to Buyer upon delivery of the equipment to the carrier at the point of shipment from the Seller’s distribution facilities. In the event of damage or loss, Seller will cooperate with Buyer in presenting any reasonable claim against the carrier involved.
5. WARRANTY If expressly stated elsewhere in the proposal, the Seller warrants its products will perform the process function for which they were recommended by the Seller, provided pertinent and accurate items of data were submitted buy the Buyer to the Seller and further provided that the products are used under normal and proper use in accordance with instructions of the Seller, if this warranty is breached, the products may be returned, freight collect, to our plant for full refund or at the option of the Seller a product that will perform the process function will be provided at no additional charge F.O.B. our plant. This process warranty as set forth above in this Section 5 applies only when expressly stated elsewhere in Sellers Proposal.
The Seller also warrants its products to be free from defects in material or workmanship under normal and proper use in accordance with instructions of the Seller. Any defective part shall be repaired or replaced as elected by the Seller, at no charge, F.O.B. our plant. The foregoing warranties are valid for a period of one year from the date of invoice by Seller, except as expressly stated above, Seller makes no warranty of merchantability and no warranty of fitness for any particular purpose nor does it make any warranty express or implied, of any nature whatsoever with respect to its products or services or the use thereof. The foregoing is the full extent of the responsibility of the Seller, and, by the way of illustration and not limitation in no event shall the Seller be liable for delay caused by defects in products or services for any special, indirect, incidental, or for consequential damages, or for any charges or expenses of any nature incurred without its written consent even though Seller has been negligent. In no event shall Sellers liability under any claim by Buyer exceed the purchase price of the products in respect of which damages are claimed. The benefits of these warranties shall not apply to any products which have been repaired or altered outside of the Seller’s plant in any respect which, in the judgment of the Seller, affects their condition or operation.
This warranty is invalid if the Buyer fails to meet its obligations under the terms of this Agreement.
6. PATENTS AND TRADEMARKS Buyer agrees to determine whether any words, designs or devices which Buyer instructs the Seller to incorporate or place on the products sold hereunder infringe any trademark, copyright or patent notwithstanding the fact that the Seller may have performed such special services on the product. The Buyer will indemnify and hold Seller harmless from and against any claim of trademark, copyright or patent infringement arising out of compliance with modification specifications furnished by the Buyer.
Should Seller’s equipment, trademarks or manuals become, or in Seller’s opinion are likely to become, the subject of claim or infringement of a United States trademark, copyright or patent, Seller will be entitled at its sole option to remedy the infringement by modifications which become non-infringing, by securing rights to unrestricted use of the trademark, copyright or patent, or by granting the Buyer a credit on the infringing product as depreciated and accepting its return.
7. DRAWINGS Any specifications, drawings, notes, instructions, engineering notices or technical data of Seller coming into the hands or control of the Buyer shall be deemed to be incorporated therein by reference the same as if fully set forth. The Seller shall at times retain title to all such documents and Buyer shall not disclose to any party other than Seller or a party duly authorized by Seller. Upon Seller’s request Buyer shall promptly return all such documents to Seller.
8. TECHNICAL ADVICE AND ASSISTANCE Seller’s warranty shall not be enlarged, and no obligation or liability shall arise, as a result of Seller’s rendering of technical advice, facilitates or services in connections with Buyer’s order for the equipment furnished. Although any technical advice furnished, or recommendation made, by Seller or any representative of Seller concerning any use of application of any product furnished under this contract is believed to be reliable, Seller makes no warranty, expressed or implied, of results to be obtained. Buyer assumes all responsibility for loss, damage, and/or personal injury resulting from the handling or use of any such product.
9. DELIVERY The time for shipment is approximate and is estimated from the date of receipt of order with complete manufacturing information and approval of drawings as may be necessary. The obligation of Seller to sell and deliver or perform services and the obligation of Buyer to furnish specifications for purchase and take the products or services stated on the front hereof shall be suspended by fire, floods, accidents, act of God, war or acts of war, strikes, lock-outs, slow-downs, picketing or other labor controversies, sabotage, riots, civil commotions, default or failure of carriers, shortage of labor, inability to obtain materials from regular sources, whether or not a kind hereinbefore specified, to the extent that such happening or contingency limits or prevents the manufacture, sale or delivery of any products or the performance of any services by the Seller or the purchase or taking thereof by the Buyer, except, however, that not withstanding the foregoing, the Buyer shall not be excused from accepting and paying for products which are completed or in the process of manufacture at the time. Upon the elimination of cessation of any such happening or contingency the obligation of Seller to sell and deliver or perform services and the obligation of Buyer to purchase and take the products or services shall be reinstated.
If by request of the Buyer with acquiescence by the Seller, shipment is delayed beyond the original delivery date for a reason other than as set forth above in this Section 9, the Buyer will pay a reasonable charge for storage and other expenses caused by the delay, and after the delay is ended, the agreement will be completed at the prices and on the terms and conditions agreed to in this document. The products contracted for under this Agreement cannot be canceled except with the written consent of the Seller and then only with reimbursement for loss to the Seller as agreed upon by the Seller. Seller shall have the right without notice to Buyer to alter or modify the Seller’s design and construction of the products ordered under this Agreement and substitute other material where the Seller deems it to be appropriate.
10. CREDIT If the Seller shall at any time doubt the Buyer’s financial responsibility, Seller may decline to make shipments hereunder except upon receipt of cash payment in advance or security, satisfactory to Seller in advance. If Buyer fails in any way to fulfill the terms and conditions on the “Contract for Professional Services” Seller may defer further shipments until such default is corrected and may at the option of the Seller treat such default as refusal by Buyer to accept further shipments hereunder. A finance charge of 1 ½% (18% per annum) will be charged on all past due invoices.
11. EXPORT If the products are to be exported, this order is subject to Seller’s ability to obtain export licenses and other necessary papers within a reasonable period. Buyer will, when required, furnish all Consular and Custom declarations and will accept all responsibility for penalties resulting from errors or omissions thereon.
12. ASSIGNMENT The Buyer may not assign any of the Buyer’s rights hereunder without the prior written consent of the Seller which consent shall not be unreasonably withheld.
13. DISPUTES The parties’ agreement in respect of the equipment shall be deemed to be entered into in Massachusetts and to be a Massachusetts contract and shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts. Seller and Buyer specifically agree that any legal action brought relating to equipment purchased or relating to this contract will be commenced in Massachusetts within one (1) year after the relevant claim arises, failing which such claim shall be barred notwithstanding any longer statutory period of limitations. All objections to venue are hereby waived by both parties, and Buyer consents to service of process by certified mail addressed to the same address at that address designated for delivery of the equipment purchased hereunder. In the event of any such litigation under or arising out of the agreement, the prevailing party shall be entitled to its costs, including reasonable attorney’s fees.
14. SEVERABILITY In the event that any work, phrase, clause sentence, or other provision hereof shall violate any applicable statue, 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. ENTIRE AGREEMENT This document contains the entire agreement between Seller an Buyer and constitutes the final, complete and exclusive expression of the terms of the 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 acceptance by Seller of any such additional or contrary printed terms or conditions by a written instrument signed by one of Seller’s office.
16. GOVERNING LAW This document and the sale of any products hereunder shall be governed by and construed in accordance with the laws of the Sate of Massachusetts. Whenever there is a conflict of laws, the laws of the State of Massachusetts shall prevail.
17. QUOTATIONS Quotations furnished by Seller are not intended as and shall not be construed as constituting an offer to Buyer. Any quotation of Seller is subject to, and shall not become binding upon Seller until receipt by Seller of Buyer’s written order based on all the terms and conditions stated herein, without qualification within thirty (30) days after the date hereof, and the Seller’s written acceptance of such order at the office indicated on the front hereof.
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