THE ENGINEER COMPANY - GENERAL CONDITIONS OF SALE FOR PARTS AND BURNERS
The Company refers to Faber Burner Company. The Purchaser refers to the corporation or agency that purchases products supplied by the Company
2. PURCHASE PRICE AND PAYMENT
Unless otherwise specified in this Proposal, the Prices stated in this Proposal shall remain firm for a period of 60 days from the date of the Proposal. Payment of the purchase price shall be as specified in this Proposal. Amounts past due are subject to a late charge of 1 1/2% per month or portion thereof. If any action or proceeding is brought by Company to enforce its rights to payment of the purchase price or other sums specified herein, Company shall be entitled to recover and Purchaser shall be obligated to pay Company's costs incurred with respect to such action or proceeding, including Company's attorney's fees and costs of suit.
Acceptance of Company's Proposal is strictly limited to these General Conditions and, when accepted, these General Conditions shall become the entire contract between Company and Purchaser. A purchase order or other form issued by Purchaser shall operate as an acceptance of these General Conditions for record keeping and billing purposes only. Additional or different terms and conditions, whether or not they materially alter these General Conditions, shall in no circumstances be binding upon Company, except to the extent Company specifically accepts such terms and conditions in writing.
In the event of cancellation by the Purchaser, the Purchaser shall pay to the Company reasonable and proper cancellation costs plus a share of profit prorate with the stage of completion of the work at the time of such cancellation.
The Company may cancel the Contract at any time upon written notice thereof to the Purchaser if a petition is filed by or against the Purchaser under the bankruptcy laws of the United States or if the Purchaser makes a general assignment for the benefit of his creditors or if a receiver is appointed for any property of the Purchaser. Such cancellation shall not prejudice the rights of the Company to any amounts due under the Contract.
5. PROPRIETARY INFORMATION
Information contained in the Proposal and the Contract includes proprietary information furnished to the Purchaser and its architect/engineer, consultant or agent for evaluation of the Company's Proposal and its performance under the Contract. Neither the Proposal, the Contract nor any information contained therein nor any proprietary information furnished pursuant thereto, shall be disclosed to others or used for any other purpose without the prior written approval of the Company, which approval shall not be unreasonably withheld.
Any changes requested by Purchaser shall be subject to the prior written approval of Company. Any agreement on any change requested by Purchaser shall include agreement on changes in the price, shipment, and any other terms that may be affected by such change and shall be in writing. If Company incurs any additional expenses because of changes in drawings or specifications previously approved by Purchaser or if Company is required to modify any equipment, perform any work or supply any equipment or material in addition to the items specified herein, the additional expenses shall be added to the purchase price and be payable in accordance with the terms of this Proposal. Company may change specifications if Company reasonably determines that the changes will not impair the operation of the equipment.
7. TITLE AND RISK OF LOSS OR DAMAGE
Title and risk of loss or damage to the equipment or materials shall pass to Purchaser F.O.B. place of manufacture unless shipped directly by the Company's suppliers, in which event, title and risk of loss shall pass to Purchaser F.O.B. supplier's plant. From the date that risk of loss or damage passes to Purchaser, Purchaser shall assume the complete risk of loss or damage no matter how caused and shall hold Company harmless from any such liability.
Delivery schedules identified in this Proposal are preliminary estimates only. The final schedule will depend on the actual date of purchase. If Purchaser delays delivery of any equipment or performance of any work, Company may invoice Purchaser for said items as of the date such items were to be delivered or performed, and any such equipment will be held at Purchaser's risk and expense, pending instructions from Purchaser.
9. DELAY IN PERFORMANCE (FORCE MAJEURE)
The Company shall not be in breach of the Contract as a result of any delay in performing its obligations if such delay is due to strikes or other labor troubles or any other cause which is beyond the reasonable control of the Company, whether of a similar or dissimilar nature, and whether or not existing or foreseeable on the date of the Contract or on the scheduled date of commencement of the work. Should any such delay occur, the time for the performance of the Company's obligations shall be extended by a period of time equal to the length of the delay plus such additional time as is reasonably necessary to enable the Company to resume performance of its obligations.
Within a reasonable time after the Company becomes aware of a cause entitling it to an extension of time in accordance with the foregoing paragraph, the Company shall give notice thereof to the Purchaser. The Company shall use reasonable efforts to minimize the delay but shall not be required to subcontract work or to work additional hours for which premium time is payable or to schedule additional work shifts if such subcontracting, additional hours or shifts would not have been required to meet the schedule except for such delay, unless the Purchaser directs that it be done and agrees to pay all additional charges with respect thereto and provided that the work directed to be performed is not prohibited by any applicable labor contract or law.
The Company warrants to Purchaser, but only to Purchaser, that the equipment manufactured by Company and work supplied hereunder will be free from defects in workmanship and materials for a period of twelve (12) months from the date of initial operation (first firing) or eighteen (18) months from the date of shipment of equipment or performance of work, whichever first occurs, provided that Purchaser immediately notifies Company in writing upon discovery specifying the particular defect(s) and furnishes Company with such information relating to such defect(s) as Company may request. Any defect or breach of warranty not set forth in said writing shall be deemed to have been waived by Purchaser. Subject to the exclusion set forth below, Company will, and Purchaser's exclusive remedy shall be at Company's option, replace F.O.B. place of manufacture or repair any equipment or work proven to be defective. The Company shall not be liable for any costs associated with the removal or installation of equipment or parts of equipment, nor shall Company supply any labor for removal or installation. Company shall have the right to inspect equipment and work prior to any repair or replacement. Under no circumstances shall Company be liable for any costs incurred by Purchaser for any repairs or replacements made without Company's express written authorization.
This warranty does not apply to the effects of normal wear, tear, deterioration or abuse of equipment; any equipment which has been altered or modified; the effects of abrasion, erosion, or corrosion; the effects of improper storage or erection (if not within Company's scope of work hereunder); the effects of operation or maintenance not in accordance with generally accepted industry practice. The Company makes no warranty as to equipment supplied by others and shall have no responsibility therefore. The Company makes no warranty for equipment and material supplied, but not of its manufacture, beyond the responsibility of the manufacturer thereof to the Seller.
This warranty is expressly in lieu of all other warranties, liabilities, or obligations Company may have. COMPANY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT OR SERVICES PROVIDED HEREUNDER, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER. THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. No person or agent is authorized to make any other representations or warranties for Company.
11. CONSEQUENTIAL DAMAGES DISCLAIMER
IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS SUPPLIERS BE LIABLE, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LAW, FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
12. LIMITATION OF LIABILITY
The liability of the Company, its agents, employees, subcontractors and suppliers with respect to any and all claims arising out of the performance or non-performance of obligations in connection with the Services or the rendition of other services in connection therewith, whether based on contract, warranty, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the Contract price and shall in no event include damages for loss of profits or revenue or the loss of use of either; loss by reason of plant shutdown or inability to operate at rated capacity; increased expense of operation of plant or equipment; increased costs of replacement power or capital; claims of Purchaser's customers; inventory or use charges; or incidental or consequential damages of any nature.
No such claim shall be asserted against the Company, it's agents, employees, subcontractors or suppliers, unless the injury, loss, or damage giving rise to the claim is sustained prior to the expiration of the period of warranty specified in the Contract and no suit or action thereof shall be instituted or maintained unless it is filed in a court of competent jurisdiction within one year after the date the cause of action accrues.
The LIMITATION OF LIABILITY Article shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising the Contract, except to the extent such conflicting or inconsistent provisions further restrict the Company's liability.
13. RESPONSIBILITY FOR OPERATION OF PURCHASER'S EQUIPMENT
The operation of the Purchaser's equipment at the plant site is within the exclusive control of the Purchaser, and the Purchaser shall indemnify and save harmless the Company from loss, expense or liability (including reasonable attorney's fees) incurred by or imposed upon the Company based upon injury to persons (including death) or damage to any property resulting from the operation of such equipment.
Purchaser may not assign this contract or any of the Purchaser's rights or obligations hereunder without Company's prior written consent. Any unauthorized assignment by Purchaser is void.
Except as expressly set forth in this Proposal, the purchase price is exclusive of all taxes. Any and all present or future federal, state, municipal or other sales or use taxes, excise taxes upon or measured by the gross receipts from this transaction, shall be paid by Purchaser in addition to the purchase price. If Company is required by any applicable law or regulation to pay or collect any such tax, fee or charge, the amount thereof shall be paid by Purchaser in addition to the purchase price.
No act or omission by Company shall waive any of its rights or remedies hereunder unless such waiver is in writing and signed by Company and then only to the extent specifically set forth in such writing. A waiver of one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to any subsequent event.
17. GOVERNING LAW
This contract shall be deemed to have been made in Lock Haven Pennsylvania and shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. Any action arising out of or resulting from this contract may be brought in, and only in, the Court of Common Pleas of Clinton County, Pennsylvania or the United States District Court for the Middle District of Pennsylvania.
18. EEO COMPLIANCE
The Company will comply with the requirements of Executive Order 11246 at all times.
19. DURATION OF PROPOSAL
Unless otherwise stated, the Proposal shall remain in effect for a period of sixty days unless sooner withdrawn by the Company. Any order based on the Proposal, which is received by the Company within said period, is subject to approval in writing by an officer of the Company.
20. ENTIRE AGREEMENT
There are no understandings between the parties hereto as to the subject of the Proposal other than as herein set forth. All previous communications between the parties hereto, either verbal or written, are hereby abrogated and withdrawn, and the acceptance and approval of the Proposal with the specifications and drawings, if any, referred to herein constitutes the whole agreement between the parties hereto. The Contract cannot be assigned nor may any conditions be modified, except by a duly approved supplementary agreement signed by both parties. If the Proposal or this document is incorporated by reference in a purchase order or other document, any commercial terms and conditions printed on the purchase order or other document shall be null and void. Faber Burner Company Field Service Engineers have no authority to sign documents that in any way alter the terms and conditions as set forth herein.