(1) subject to change without prior notice until such time as Gasbarre Products, Inc. or the applicable affiliate submitting this Proposal (referred to herein as “GASBARRE”) to the customer noted on this Proposal (referred to herein as “customer”) provides written notice that it has accepted customer’s order placed as a result of this Proposal;
(2) subject to change if customer requirements are changed from those serving as the basis of this Proposal;
(3) net Ex-works designated GASBARRE plant or as specified on the accepted Order.
Unless specifically set forth in a writing signed by GASBARRE, the price does not include applicable taxes; customer is responsible for payment of all taxes and duties of any nature whatsoever, including any local, state and federal taxes, except for any taxes based on GASBARRE’S income. Customer agrees to indemnify and hold GASBARRE harmless from any and all costs and expenses associated with any levy or attempted levy of any such taxes on GASBARRE.
Delivery will be arranged at the time an Order is accepted by GASBARRE; however, the scheduled shipping date reflected in an Order is approximate, and is based upon prompt receipt of all necessary information. Delivery dates given are subject to the effect of priorities or other regulations, which are or may be issued by the U. S. Government or any authorized agency thereof. GASBARRE reserves the right to render an invoice for work completed or in process in the event of work stoppage or schedule delays extending beyond thirty days.
Any purchase order submitted by a customer based on this Proposal (referred to herein as an “Order”) is subject to acceptance by GASBARRE only. GASBARRE accepts an Order by written notice to the customer or by providing products or services hereunder; provided, that the terms applicable to such Order shall solely consist of the terms contained in this Proposal, and no additional or inconsistent terms contained in any Order or other document issued by the customer shall be applicable to the provision of such products or services by GASBARRE.
5. TRANSPORTATION CHARGES
The customer is to assume all charges and risks of transportation, including insurance, packing, rigging and draying. In the absence of specific instructions, GASBARRE reserves the right to use its reasonable judgment in routing shipments and insuring shipments.
GASBARRE warrants to the customer specified in the applicable Order that the products and services delivered by GASBARRE will be of the kind and quality described in the Proposal and will be free from defects in workmanship or material. Should any failure to conform to this warranty occur within twelve (12) months after delivery to the customer specified in the applicable Order, and customer notifies GASBARRE of such failure in reasonable detail within twelve (12) months after delivery to the customer specified in the applicable Order, GASBARRE shall correct such nonconformity, including nonconformance with specifications, at its option, by repairing any defective part or parts or by making available net Ex-works GASBARRE’s designated facility, a repaired or replacement part or parts. This warranty does not apply to or include parts which must be normally replaced or reworked due to normal wear and tear caused by use of the products. This warranty further excludes product damage or defects caused by improper or abnormal operating conditions. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, GASBARRE MAKES NO WARRANTY WHATSOEVER, AND DISCLAIMS ALL OTHER WARRANTIES, WITH RESPECT TO, THE PRODUCTS OR SERVICES DESCRIBED IN THE PROPOSAL OR ANY ORDER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Product“) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the products delivered by GASBARRE, and any warranties provided with respect to a Third Party Product shall be the responsibility of the manufacturer of such Third Party Product; GASBARRE shall have no obligations with respect thereto. GASBARRE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE REMEDIES SET FORTH IN THIS SECTION 7 SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND GASBARRE’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN. Without limiting the generality of the foregoing, correction of nonconformities in the manner and for the period of time provided above shall constitute fulfillment of all liabilities of GASBARRE to customer, whether based on contract, negligence, or otherwise with respect to or arising out of such products or services performed.
7. LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL GASBARRE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GASBARRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL GASBARRE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO GASBARRE FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM.
(c) In no event will GASBARRE be liable for damages due to or arising from late delivery, non-delivery or general handling or use of the products as supplied or sold to the customer.
The customer assumes the responsibility and liability for installation, all necessary adjustments and repairs to the products. GASBARRE’s personnel may be available to customer to assist customer with emergency services, adjustments or repairs, and customer shall pay GASBARRE for such services at rates in accordance with GASBARRE’s pricing schedule in effect at the time of customer’s request for such services.
9. PROPRIETARY RIGHTS
GASBARRE retains for itself any and all rights in and to all designs, engineering details and other data pertaining to any products designed in connection herewith and to all rights of discovery, invention or patent rights arising out of the work done in connection herewith or with any and all of the products developed as a result thereof, including the sole right to manufacture and produce any and all of the products designed as a result hereof.
10. PATENT AND TRADEMARK GUARANTY
Subject to paragraph 7 above, GASBARRE at its own expense, will defend any suit against the customer for the infringement of United States patents and trademarks by products purchased by customer from GASBARRE when used by customer for the purpose for which such products are licensed, and in any such suit will satisfy any final award for such infringement, but GASBARRE assumes no liability, consequential or otherwise, for claims of infringement relating to Third-Party Products or any other products, or any completed equipment, or any assembly article, circuit, combination method or process, in which or in the manufacture of testing of which, any such products may be used (notwithstanding that such products may have been designated only for use in, or may only be useful in, such other patented product or such patented equipment, assembly, or article, circuit, combination, method or process, or in the manufacture or testing thereof, and that such products may have been purchased and sold for such use), or for any trademark infringement involving any marking or branding not applied to GASBARRE, or involving any marking or branding applied at the request of the customer. The guaranty is upon the condition that the customer gives GASBARRE prompt notice in writing of any such suit for infringement and full opportunity to conduct the defense thereof. No cost or expense shall be incurred by customer to the account of GASBARRE without its written consent. All special parts made to customer’s specifications included in any Order will be accepted with the understanding that customer will defend at its own expense every suit which shall be brought against GASBARRE by reason of the manufacture and sale of such parts.
Title will pass to the customer at Ex-works GASBARRE’s designated plant specified in the accepted Order unless otherwise specified.
12. CANCELLATION OR DELAYS
Upon receipt of a written or telegraphic instruction to stop work, GASBARRE will use its commercially reasonable efforts to stop, as soon as possible, all work in its own plant as well as in those of its suppliers. In the event the request is to stop work or cancel an Order or any part of an Order, it is understood that cancellation charges will be paid on the following basis:
(1) Completed items will be paid for at the price specified in such Order.
(2) Any work in process and any raw material or supplies on hand, or for which commitments have been made in connection with such Order, will be paid for on the basis of GASBARRE total cost, plus 25%.
(3) Disposition of all terminated inventory will be made by customer within sixty (60) days after submission of termination claim.
(4) GASBARRE reserves the right to submit new quotations covering the completion of any items that are the subject of an Order which are delayed, suspended or otherwise held up for a period in excess of ninety (90) days.
(5) Any delays caused by the customer will not affect timing of payments and will be subject to late payment fees and storage charges.
13. FORCE MAJEURE
GASBARRE shall not be liable for any delay in or failure of performance to the extent due to causes which are beyond its reasonable control and not reasonably foreseeable and avoidable, including, but not limited to, an act of governmental or military authorities, government suggested or required shutdowns, stay at home orders or similar restrictions, nationally or locally declared states of emergency, disease, epidemic, pandemic, war, riot, strike, lockout or other labor dispute, inability to obtain raw materials on reasonable terms, supplies, fuel or power, catastrophic “acts of God,” including, without limitation, fire, earthquake, flood, disaster and accident, embargo, import quotas or other import restrictions. When GASBARRE claims an excuse for non-performance under this paragraph, it shall give prompt notice in writing to the customer. If and to the extent of any delay which is excused pursuant to this paragraph, the relevant delivery dates for the products or services and other excused performance dates will be deemed extended for a period of time equal to the period of such excused delay and the parties may mutually agree on new delivery or performance dates to apply at the conclusion of such extension period.
14. TERMS OF PAYMENT
Terms of payment are net – 30 days, unless otherwise quoted. If payment is not made when due, in addition to any other remedies available at law, GASBARRE may suspend all future delivery or other performance with respect to all Orders of such customer without liability or penalty and, in addition to all other sums payable hereunder, customer shall pay to GASBARRE (i) the reasonable costs and expenses incurred by GASBARRE in connection with all actions taken to enforce collection or to preserve and protect GASBARRE’s rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys’ fees, court costs and other expenses and (ii) interest on all amounts unpaid after 30 days charged at the monthly rate of 1 1/2 percent or the highest rate permitted by law, whichever is lower. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with GASBARRE.
15. ENTIRE AGREEMENT
It is understood that there are no conditions or agreements outside of this written proposal and that all prior conversations, agreements, or representations with reference to its subject matter are hereby superseded. This written proposal and any written quotation, confirmation of sale, or invoice issued by GASBARRE (collectively, this “Proposal”) comprise the entire agreement between GASBARRE and the customer to whom this Proposal has been provided, and supersede all prior or contemporaneous communications, understandings, agreements, negotiations, representations and warranties. These Terms prevail over any of customer’s general terms and conditions of purchase regardless of whether or when customer has submitted an Order or such terms.
16. FOREIGN SALES
All sales for delivery outside the United States are specifically made subject to the availability and issuance of Export Licenses as required by the Government of the United States or any of its agencies.
17. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. GOVERNING LAW
Any action arising out of or related to these Terms shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflict of laws provisions wherever contained. GASBARRE and the customer agree that any litigation shall be conducted exclusively in the state or federal courts located in Pittsburgh, Pennsylvania, and GASBARRE and the customer hereby consent to such jurisdiction and waive any personal jurisdiction or venue objections (including forum non conveniens) to such forum.
Should any part of these Terms be deemed unlawful, the remainder of these Terms shall remain in effect and be fully binding on the parties.
In addition to any other remedies available to GASBARRE, GASBARRE may suspend or terminate any Order with immediate effect upon written notice to customer, if customer: (i) fails to pay any amount when due for products or services (or any other agreement customer has with GASBARRE); (ii) has not otherwise performed or complied with any of these Terms (or complied with the terms of any other agreement customer has with GASBARRE); (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or (iv) exhibits other adverse credit conditions that are unsatisfactory to GASBARRE, as determined by GASBARRE in its sole discretion.