TERMS & CONDITIONS OF SALE

1. ACCEPTANCE/ACKNOWLEDGEMENT: These Terms and Conditions of Sale apply to and form an integral part of all requests for proposal, quotations, purchase orders order confirmations and invoices for any products or services of Precision Valve & Automation (“PVA”).  PVA expressly rejects the applicability of any other general terms and conditions or stipulations of Buyer.  The acceptance of Buyer’s order is expressly made conditional on Buyer’s assent to the terms and conditions set forth herein, and PVA agrees to furnish goods and services only upon these terms and conditions.  Confirmation by PVA of Buyer’s purchase order, commencement of the performance of services and/or delivery of products to Buyer constitute acceptance of all the terms contained herein by both parties.  These terms and conditions also apply to any Invoice issued by PVA to Buyer.  PVA hereby gives notice of its objection to any different or additional terms and conditions.  Unless different or additional terms and conditions are stated or referred to in writing, signed by an authorized representative of PVA, the terms and conditions stated below apply, and such terms and conditions supersede any prior or contemporaneous agreements or correspondence between the parties.

2. AUTHORITY :  Any representative or agent of Buyer signing or otherwise entering into the Buyer’s purchase order hereby represents and warrants that he or she is duly authorized to execute and enter into the purchase order on behalf of Buyer.

3. PAYMENT: Payment is due on the date indicated on PVA’s invoice(s) and commensurate with terms indicated on the offer herein.  If the invoice does not state a payment due date, payment shall be deemed to be due within thirty (30) days after invoicing.  In the event Buyer submits, in writing, a notice of cancellation to any portion of the Buyer’s purchase order, Seller will be entitled to fees matching 25% of the cancelled total (0-30 days from PO date), 35% (31-60 days from PO date), or 70% (>60 days from PO date).  Past due amounts are subject to interest at the rate of 1½% per month (18% APR) (or of less, then the maximum rate permitted by applicable law).  Additionally, Buyer will be liable for reasonable costs, attorney’s fees and other charges incurred by PVA in collecting its charges or fees.  Unless otherwise agreed by PVA in its order confirmation, delivery shall be made FCA (Incoterms 2010) PVA’s facility in Cohoes, New York. All payments shall be made without setoff. 

4. INSPECTION; REJECTION: RETURNS.  Shipping and delivery dates indicated by the parties are estimates only, and PVA shall not be liable for delay.  Buyer shall inspect all products upon delivery and shall give PVA written notice specifying any alleged non-conformance or shortage within five (5) business days following delivery.  Buyer’s failure to provide such notice of non-conformance of a product within such time shall be deemed acceptance of the product as of the date of delivery.  Any resale, commingling, alteration or incorporation of any product by Buyer shall be deemed acceptance of the product as of the date of delivery. 

5. LIMITED PRODUCT WARRANTY:  PVA warrants that products furnished hereunder will conform to their published specifications when used in accordance with their applicable instructions and stored correctly.  The exclusive remedy for any claim arising out of or relating to any products furnished hereunder is the repair or, at PVA’s sole option, the replacement of the specific non-conforming Products.  The exclusive remedy for any claim arising out of or relating to any services furnished hereunder is the re-performance of such services. 

6. DISCLAIMER OF WARRANTIES:     EXCEPT AS EXPRESSLY STATED IN SECTION 5, PVA HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, COMMON LAW, STATUTE, EQUITY, OR OTHERWISE WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS OR WORKMANSHIP.

7. LIMITATION OF LIABILITY: Notwithstanding anything else contained in these terms and conditions, (a) in no event will PVA be liable to Buyer for any consequential, contingent, exemplary, punitive, delay, liquidated, indirect, special or other damages, including without limitation, damages for lost profits, sales or revenues, cost of replacement goods, lost business or business interruption; and (b) in no event will PVA’s total liability related to any products or services provided hereunder exceed the purchase price of such products or services.

8. FORCE MAJEURE:  PVA will not be liable for any delay or failure to perform hereunder due to circumstances beyond its reasonable control, including without limitation, fire, flood, earthquake, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage or suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any government agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy.

9. INDEMNIFICATION: To the fullest extent permitted by applicable law, Buyer will indemnify, defend, and hold harmless PVA, its shareholders, officers, directors, employees, agents and representatives (collectively, the “PVA Indemnitees”) from and against any losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, for any property damage, personal injury, death, environmental contamination, remediation or natural resources damages (collectively, “Claims”) relating to or arising out of (a) any breach by Buyer of the terms and conditions of this Purchase Order; or (b) the negligence or willful misconduct of Buyer or any individual or entity acting by, through or under Buyer (except solely to the extent such Claim is directly and proximately caused by the negligence or willful misconduct of the PVA Indemnitee). 

10. COMPLIANCE WITH LAWS:  Buyer acknowledges that it is responsible for complying with any and all requirements of any Federal, State or local statute, rule, law, or agency relating to the goods or services provided hereunder, including obtaining any and all permits, certificates or approvals for PVA’s work or that of its subcontractors.  Without limiting the foregoing, Buyer must notify any government agencies of any leaking or spilled petroleum or other substances, and Buyer is responsible for obtaining any certificates required for any pump, tank, line or other installation performed by PVA hereunder.

11. GOVERNING LAW: This validity, interpretation, construction and performance of this Purchase Order shall be governed by the laws of the State of New York, without giving effect to its principles of conflicts of laws.  The State and Federal Courts situated in the County of Albany, New York shall have exclusive jurisdiction over any and all disputes arising hereunder, and Buyer hereby consents to jurisdiction of such courts.

12. ENTIRE AGREEMENT:   This Purchase Order and/or Invoice, including these terms and conditions, constitutes the full and entire understanding between and among the parties relating to the subject matter, and supersedes all prior representations, understandings and agreements of the parties, whether oral or written, with respect to its subject matter.  No course of dealing or usage of trade shall be relevant to explain or supplement any term. This agreement may not be modified or amended except by a writing signed by the duly authorized representatives of both parties.  No provision shall be waived except by a writing signed by the party to be charged with such waiver.

13. SEVERABILITY:  In the event that any provision of these terms and conditions becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this agreement shall continue in full force and effect without said provision.

14. ASSIGNMENT: This agreement may not be assigned to any third party without the other party’s prior written consent, except that PVA may assign this agreement to the purchaser of substantially all of its assets or of a controlling share (50% or more) of its equity.  There is no intended third-party beneficiary of this agreement.  Subject to the foregoing, this agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.  

15. HEADINGS:  Headings in this agreement are provided for convenience only, and shall not be relied upon for the interpretation of this agreement. 

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