All products of Newman Flange & Fitting Company, a Nevada corporation (“NFF”), are sold to its customers (each, a “Buyer”) upon the following terms and conditions (“Terms”).
1. Terms. Once Buyer accepts NFF’s quote and issues a purchase order that is accepted by NFF, these Terms shall constitute the entire agreement and understanding between NFF and Buyer relating to the NFF products and merge all prior discussions, understandings, agreements and documents between them. Any variation to these Terms and any additional or different terms or conditions on any order form or other document submitted by Buyer are expressly rejected unless and until accepted in writing by the NFF Sales Manager.
2. Prices. All orders will be invoiced at NFF’s quoted price as accepted by customer. All sales, use, excise and other applicable taxes shall be charged to Buyer and remitted by Buyer to NFF. All accounts are payable in United States funds, free of exchange, collection, or any other charges.
3. Credit Approval. Purchase orders are subject to NFF’s approval and acceptance, which may require full or partial payment in advance (PIA). Delivery will be withheld and shipment stopped on accepted orders, if preapproved for payment terms, if the available credit information indicates doubt as to the Buyer’s ability to pay in accordance with NFF’s payment terms. If, in the sole discretion of NFF, the financial condition of the Buyer at any time so requires, NFF retains the right to require full or partial payment in advance. NFF also reserves the right to make partial shipments from time to time, and to render invoices therefore.
4. Payment Terms. Orders with 30 day preapproved payment terms are due thirty (30) days from the date of the invoice. Orders with 60 day preapproved payment terms are due sixty (60) days from the date of the invoice. Items are invoiced as shipped and orders may be shipped and invoiced in installments. Orders where customer is responsible for shipping shall be picked up within 2 weeks of notification that order is ready for pickup. A finance charge of 1.5% per month (18% annually) will be added to past due accounts or for any orders not picked up with 2 weeks of notification. If the account is placed for collection, attorney’s fees plus all costs of collection will be assessed to the account. As noted herein, shipments, deliveries and performance of work shall at times be subject to the approval of NFF’s credit department. Failure to receive timely payment of invoices shall be sufficient reason to withhold or delay subsequent shipments of materials or to terminate all orders. If NFF defers any shipment or cancels in whole or in part any order pursuant to this section, Buyer shall be liable for and reimburse NFF for all damage, including any and all direct and consequential damage, incurred by NFF by reason of such deferment or cancellation. Unless otherwise agreed to at time of order, International orders are “Payment in Advance” (PIA). Shipping on international orders requiring PIA is contingent on prior receipt of payment
5. Warranty. All NFF products are warranted to be free from manufacturing defects for a period of one (1) year from date of shipment, and any found to be defective within that period will be replaced without charge, or all payments made by Buyer with respect to such defective products refunded, in the discretion of NFF, provided (1) that the product was used as recommended and in accordance with approved installation and operating practices; (2) that its failure resulted from a manufacturing defect and not from damage due to corrosive, abrasive, or other wear normally to be expected in the services involved; and (3) that written notice of such defect is delivered to NFF during such one (1) year period. No labor costs or other expenses or liability will be assumed. Buyer shall provide NFF a reasonable time to inspect said products and investigate Buyer’s claim. THE FOREGOING SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF THE BUYER AND THE EXCLUSIVE LIABILITY OF NFF. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED. NO WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT SHALL APPLY. No employee, agent or representative of NFF has the authority to make modifications or additions to this warranty in any respect except pursuant to a written agreement signed by a duly authorized officer of NFF.
6. Limitation of Liability. UNDER NO CIRCUMSTANCES, WHETHER ALLEGED AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, WILL NFF BE RESPONSIBLE TO BUYER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF USE OF PROPERTY OR DAMAGES FOR PERSONAL INJURY, AND NO CLAIMS FOR ANY SUCH DAMAGES SHALL BE BROUGHT BY THE BUYER. In no event shall NFF be liable to Buyer for any amount in excess of the purchase price of the product for which a claim is made. Buyer shall not back charge, counterclaim or set-off its claims against payments due on its orders.
7. Shipments. Once delivered to a common carrier, all risks of loss of materials with respect to the NFF products will be assumed by Buyer. The method of shipment and routing will be determined by NFF, absent special agreement between NFF and Buyer. All shipping and delivery dates are approximate, absent a “sure” date agreement between NFF and Buyer. NFF shall not be responsible for switching, spotting, handling, storage, demurrage or any other transportation or accessorial service, nor for any charges incurred therefor. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries. Buyer shall be responsible for filing and pursuing claims with carriers for loss or damage in transit. Railroad and other transportation permits as and when required shall be obtained by Buyer. NFF reserves the right to deliver in more than one lot and to invoice each lot separately.
8. Returned Goods. All NFF products are made to order and not returnable. No product may be returned without NFF’s written consent. Any orders shipped by NFF and refused by Buyer will be handled as a return products shipment. Goods authorized for return must be in the “as received” condition and cannot have been modified in any way. Any fitting or flange once welded to another component and removed is not subject to return.
9. Patent and Other Rights. The sale of the NFF products and the publication of any information or technical data relating thereto does not imply freedom from infringement of patent, copyright, registered design or other industrial property rights in respect of any particular combination or application of the products.
10. Nonwaiver. Any waiver by NFF or any breach of these Terms by NFF shall not be construed as a waiver of any other provision or of any continuing or succeeding breach of such provision.
11. Delays; Force Majeure. NFF shall be not responsible for any action or inaction of any carrier, including delays in delivery, nor, under any circumstances, shall NFF be responsible for any delays in or failure of performance due to occurrences beyond the control of NFF, including, but not limited to: acts of God or the public enemy; expropriation or confiscation of facilities, compliance with any order or request of a governmental authority, acts of war, rebellion or sabotage, or damage resulting therefrom; embargoes or other export restrictions, fires, floods, explosions, accidents, breakdowns, riots or strikes other concerted acts of workmen, whether direct or indirect; or any other causes whether or not of the same class or kind as those specifically above named which are not within the control of NFF and which, by the exercise of reasonable diligence, NFF is unable to prevent or provide against.
12. Termination. If Buyer defaults in payment of any sum due to NFF or commits any breach of any of these Terms or any other contract with NFF or if Buyer’s financial condition becomes unsatisfactory to NFF, then NFF may, without prejudice to any other rights which may have accrued or which may accrue to it, terminate all orders with that Buyer by notice in writing or may defer shipment until the situation is remedied to NFF’s satisfaction.
13. Severability; Survival. Should any provision of these Terms contract be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the remaining provisions shall not be affected. Each of the representations, warranties, covenants and obligations set forth in these Terms shall survive the sale of the products from NFF to Buyer for an indefinite period and each of NFF and Buyer will continue to be bound by these Terms.
14. Governing Law. The contract shall be governed by, construed and enforced in accordance with the laws of the State of California.
15. Assignment. Buyer may not assign any right or duty arising under any order, in whole or in part, without NFF’s prior written consent.
16. Compliance with Law. Buyer agrees that it is solely responsible for compliance with all applicable federal, state and local laws, ordinances, regulations, rules and standards relating to the installation, maintenance and use of the products purchased from NFF.
17. Release and Indemnification. Buyer releases, indemnifies and holds NFF and all of NFF’s agents, representatives, employees, stockholders, directors, officers, successors and assigns harmless from all claims, all suits, judgments or liability resulting directly or indirectly from the manufacture, sale, shipment or utilization of the products provided by NFF to Buyer except those occurring as a result of acts or omissions of NFF which have been found by a Court of competent jurisdiction to have been “grossly negligent”. Buyer acknowledges that the product is sold to Buyer for Buyer’s exclusive use. Buyer’s release and indemnity includes a release and indemnity for any claims made by third persons arising out of the third person’s ownership or utilization of the product provided by NFF to Buyer. Buyer acknowledges that Seller may provide technical information, recommendation and advice with respect to the product and the use of the product and that such information, recommendation and advice is advisory in nature only. Buyer agrees that Buyer will conduct its own independent investigation regarding the product and its utilization and shall not rely, in any manner, upon the advice of NFF. Buyer releases NFF from any liabilities arising out of or in connection with, directly or indirectly, such technical information, recommendations or advice, if any, provided by NFF.
18. Order Cancellations: Once Buyer issues a purchase order that is accepted by NFF, fees are applicable to cancelled orders, with a minimum of 10% and up to 100% of total order value if sawing operations have already been started on steel billet(s).