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Sales Terms & Conditions of Sale

1) Acceptance:

The following terms and conditions of sale are applicable to all quotations and purchase orders and are the only terms and conditions applying to the sale of Plant Tough, LLC’s (hereinafter “Seller”) products or services except those which relate to prices, quantities, delivery schedules, and the description and specifications of the products. Seller hereby objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to a purchase order. Buyer’s acceptance of products or services called for in said purchase order shall constitute its acceptance of the following terms and conditions.

2) Billing and Payment:

  1. Payment shall be due upon the later of receipt of invoice or delivery of the goods ordered. Seller reserves the right to assess service charges of one and one-half percent (1-1/2%) per month on overdue accounts. However, if in Seller’s opinion, Buyer’s financial condition reasonably appears to call for such action, Seller may require payment in advance, without further notice.
  2. Prices quoted are exclusive of, and Buyer agrees to pay, any federal, state or local excise, sales, use, personal property or any other tax, excepting only taxes based on Seller’s income.

3) Place of Delivery and Method of Tender:

  1. All prices are F.O.B. Seller’s plant. Seller shall arrange for transportation of the goods ordered by an appropriate means of transportation. Buyer agrees to pay all transportation charges incurred after the goods are delivered to the carrier.
  2. Where Buyer furnishes special transportation instructions, any special expense incurred to carry out said instructions, is to be borne by Buyer, including special handling, packaging and additional freight charges.
  3. When “export packing” is required, any extra charges for such, such as export duties, licenses, fees and the like, shall be borne by Buyer.
  4. Risk of loss of or damage to the goods or any part of the goods shall pass to Buyer, upon delivery to carrier by Seller at the point of shipment, and Buyer shall have the responsibility of filing any damage claims with the carrier.

4) Installation:

Unless otherwise specified in writing on a quotation provided by any authorized representative of Seller, Buyer assumes responsibility for installation. Seller agrees to make installation and on-site technical support services available to Buyer at Seller’s then-prevailing rates.

5) Maintenance:

Buyer assumes responsibility for maintenance on any goods sold to Buyer. Seller agrees, however, to make maintenance services available to Buyer at Seller’s then-prevailing rates.

6) Warranties:

Seller warrants its equipment, parts and supplies in accordance with its standard warranty policies. A written copy of these policies accompanies these terms and conditions or is available upon request. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO EMPLOYEE OR AGENT OF SELLER, OTHER THAN AN OFFICER OF SELLER, IS AUTHORIZED TO MAKE ANY WARRANTY IN ADDITION TO THE FOREGOING.

7) Limitation of Remedies:

IN NO CASE SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY. IN ANY EVENT, SELLER’S MAXIMUM LIABILITY HEREUNDER, REGARDLESS OF THE LEGAL THEORY, SHALL NOT EXCEED THE CONTRACT PRICE OF THE GOODS FURNISHED BY SELLER.

8) Remedies:

Without waiving any other rights or remedies available to it under applicable law or otherwise, Seller may, at its option, defer shipment or deliveries hereunder, or pursuant to any other contract with Buyer, until all accounts, past due or otherwise, of Buyer to Seller have been satisfied in full. If Buyer fails to make payment when due and Seller determines its obligations hereunder to be insecure, Buyer shall promptly return to Seller, on demand, all Products furnished to Buyer hereunder for which payment in full has not been made, and if Buyer fails to return such Products in the same condition as the product(s) were recieved, Seller may, to the extent permitted by law, with or without notice and with or without legal process, enter upon any premises where such Products may be located and take possession of same. Seller may then sell such Products, with or without notice, at private or public sale at which Seller may purchase, and the proceeds of such sale, less expenses of retaking, repairing, holding and reselling, will be applied to the unpaid purchase price without release of any deficiency, which deficiency (if any) shall be promptly paid by Buyer to Seller. Any surplus above the unpaid balance and expenses as set forth herein shall however be remitted by Seller to Buyer.

9) Proprietary Rights:

Seller shall retain all rights to technical data and information, technical processes and business methods, whether patentable or not, arising out of or evolving as a result of Seller rendering engineering services to and designing systems and goods for Buyer’s use. Buyer agrees not to enforce against Seller or customers of Seller any patent rights, the scope of which includes all systems, processes, or business methods utilizing goods or engineering services delivered hereunder by Seller, and which relate to an invention, system, process or business method created by, or for, Buyer on a date subsequent to the date of this agreement.

10) Hazardous Materials:

Buyer acknowledges that certain supplies covered by this Agreement may be, or become, considered hazardous material under various laws and regulations. Buyer agrees to familiarize itself (without reliance on Seller except as to the accuracy of special safety information actually furnished by Seller), with any possible hazard of such materials and their applications and the containers in which such materials are shipped. Buyer agrees to inform and train its employees and its customers as to such hazards. Buyer agrees to hold Seller harmless against any claims by Buyer, its employees or customers based on allegations relating to any such hazard except where such claims are based on failure to meet written specifications by seller or the inaccuracy of specific safety information actually furnished by Seller.

11) Delay:

  1. Seller is not liable for loss, damage, detention or delay due to causes beyond its reasonable control, such as acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes.
  2. In the event of a delay in delivery in excess of ninety (90) consecutive days from the contracted delivery date, Buyer has the right to terminate its order as to the undelivered portion thereof without penalty.

12) Cancellation:

Unless otherwise agreed in a writing signed by authorized representatives of Buyer and Seller, all canceled orders will be subject to a minimum Ten Percent (10%) cancellation fee. Buyer may not cancel orders for non-standard or custom goods nor for orders for goods which have left Seller’s dock.

13) Governing Law:

This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without regard to the conflicts of laws provisions and expressly excludes the application of the United Nations Convention on the International Sale of Goods.

14) Entire Agreement:

The above Terms and Conditions constitute the entire agreement between the parties, there being no other promises, terms, conditions, or obligations, referring to the subject matter not contained herein. Any modifications hereto shall be in writing and signed by both parties.