Terms & Conditions
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Bowles Fluidics Corporation
6625 Dobbin Rd
Columbia, MD 21045
STANDARD TERMS & CONDITIONS
1. AGREEMENT OF SALE – Acceptance of this quotation by Buyer is limited to the terms and conditions herein. These terms and conditions set forth below compromise the sole terms and conditions for the sale of goods and services by Seller, unless otherwise specifically provided for, and shall apply to the exclusion of any inconsistent or additional terms and conditions contained in Buyer’s order or acknowledgement. Any contract made for the sale of goods or services by Seller is expressly conditional on Buyer’s assent to the terms and conditions stated herein. Buyer’s acceptance of these terms and conditions shall be conclusively presumed by Buyer’s submission of a purchase order. This quotation may be withdrawn by the Seller at any time prior to acceptance by Buyer. This quotation will expire automatically upon ninety (90) days from the date hereof unless accepted by Buyer.
2. PRICES – Prices are subject to change prior to acceptance of Buyer’s order by Seller. The quotation price does not include applicable taxes such as city, state and federal, sales, use, excise taxes, shipping charges, or any other services of work not specifically described in this quotation. All such taxes and charges shall be Buyer’s responsibility and may be added to the invoice as a separate and additional charge to Buyer unless an appropriate exemption certificate is presented which is acceptable to Seller. Seller also shall have the right at any time to separately bill Buyer for any such taxes and charges that the Seller may be called upon to pay, and Buyer shall be obligated to reimburse Seller for all such amounts.
3. PRICE ADJUSTMENT – The initial price for each good is listed in this quotation. The prices listed in this quotation shall be firm for all goods delivered by Seller during the first year of the agreement. Seller may increase the prices for the goods no more than once in any calendar year, usually on the first day of January, by giving notice to Buyer at least 60 days prior to the effective date of such change. Notwithstanding the foregoing and in addition to the right to increase the prices for goods no more than once in a calendar year, upon 30 days written notice to the Buyer, Seller may increase the purchase price for any good to account for (a) a significant increase in the cost of any raw material for the good; (b) any other significant increase in the cost to manufacture or supply the goods under this agreement; or (c) for a measurable decline in volume of goods purchased by Buyer in any year of the agreement. If the parties do not agree to the requested adjustments before the earlier of (a) thirty (30) days after the requested adjustment, or (b) the rejection of the requested adjustment, Seller may terminate this agreement by giving thirty (30) days written notice to the Buyer.
4. PAYMENT TERMS – Invoices will be as stated in the body of the proposal with terms of net thirty (30) days from date of invoice, unless stated differently. Interest may be charged at the rate of 1½% per month beginning the first of the month following the due date. Seller reserves the right to modify these terms for export business and/or special projects. Payments on all invoices shall be in U.S. funds. Payment terms shall be net five (5) days from the date of invoice in the event Seller notifies Buyer in writing that Seller is insolvent whether based on the reasonable belief by Seller that Buyer’s liabilities exceed its assets; the existence of a bankruptcy, assignment for the benefit of creditors or other similar proceeding involving Buyer; a liquidation of a significant portion of the assets of Buyer; or otherwise. Payments received from Buyer under this agreement shall be applied to the debts of Buyer in a manner determined solely by Seller.
5. DELIVERY DATE – The delivery date shown in this quotation is approximate and dependent upon prior sales and circumstances beyond Seller’s control. Shipping date will be computed from the date of receipt of all data required to enable complete engineering of Buyer’s order. Any changes in Buyer’s requirements will require confirmation or revision of estimated delivery date.
6. DELIVERY – All shipments are F.O.B. shipping point. When requested by Buyer, shipment will be held for maximum weight and will be routed as specified. When shipping instructions do not appear on order, shipment will be made according to Seller’s discretion. Insuring of parcel post shipments may be done at Buyer’s request and expense. Parcel post shipments without insurance will be at Buyer’s risk. Deliveries by messenger service may be made on request but at Buyer’s expense. Whether or not credit terms are specified elsewhere, Seller may, at its option, condition shipments under any order accepted by Seller upon receipt of satisfactory security or of cash before shipment. If, at Buyer’s request, shipment of products on an order accepted by Seller is delayed more than thirty (30) days after an agreed shipment date, or the date products are ready for shipment, whichever is later, Seller may require immediate payment in full and/or assess additional charges for storage and other expenses incident to such delay.
7. WARRANTY – Seller warrants to the Buyer that goods manufactured by Seller shall be free under normal use from defects in material or workmanship. Seller’s obligation as to its warranty is limited to, in Seller’s sole discretion, either the repair of the good by Seller or the replacement cost of the good exclusive of any labor charges associated with replacement, of those goods sold by Seller to Buyer, which have become defective as a result of ordinary and normal use in accordance with the designed purpose and intended application of the goods. The determination of whether a defect exists shall be made solely by Seller. Buyer shall not return any goods to Seller until Seller has been provided a reasonable opportunity to inspect and sample the goods at the Buyer’s premises to determine whether a defect exists, and whether the goods should be repaired or replaced. Buyer shall also provide Seller with an opportunity to participate in any root cause analysis performed by Buyer.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALSO DISCLAIMS AND EXCLUDES ALL LIABILITY FOR INCIDENTAL AND CONSEQUENTIAL DAMAGES FOR BREACH OF WARRANTY OR OF CONTRACT OR OTHERWISE. THE WARRANTY PROVIDED IN THIS PARAGRAPH IS THE SOLE AND EXCLUSIVE REMEDY OF BUYER AGAINST SELLER. Any claim for breach of Seller’s warranty must be made in writing to the Seller setting forth in sufficient detail to permit identification of the defect. Any claim for breach of warranty must be made within twelve (12) months after shipment. If not made within the twelve (12) month period it shall be conclusively deemed to have been waived.
8. LIMITATION OF LIABILITY – EXCEPT AS OTHERWISE EXPRESSLY AUTHORIZED IN THE AGREEMENT, ALL INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR MARKET SHARE OR DAMAGE TO BRAND VALUE), INCIDENTAL, PUNITIVE, AND EXEMPLARY DAMAGES, WHETHER OR NOT FORESEEABLE, ARE EXCLUDED UNDER THESE TERMS AND CONDITIONS TO THE EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION – Buyer agrees to indemnify and hold Seller, its agents and employees, harmless from and against any and all claims or causes of action brought against Seller and from any and all damages, losses, expenses, attorney’s fees, costs and liabilities sustained by Seller arising out of any claimed defect in the goods and services supplied by Seller and any claimed improper manufacture, design, design drawings, specifications, materials or repairs provided by Seller. Buyer’s obligation under this paragraph shall include the obligation to indemnify and hold Seller harmless for Seller’s negligence, whether active, passive or concurrent, in the performance of its duties and obligations.
10. DELAY AND FAILURE TO DELIVER – Seller shall not be liable in any respect for failure to ship or for delay in shipment where such failure or delay shall have been due in whole or in part to shortage or curtailment of material, labor, transportation or utility services, or to any labor or production difficulty in Seller’s plant or those of its suppliers, or to any cause beyond Seller’s control including, but not limited, to acts of God, fires, explosions, natural disasters, embargoes, or wars.
11. LIMITATION OF ACTIONS – Any action for breach of Seller’s warranty must be commenced within twelve (12) months from the time the cause of action occurs unless the period for action shall be extended by Seller in writing. In the interpretation of this limitation on action for breach of Seller’s warranty it is expressly agreed that there are no warranties of future performance of the equipment that would extend the period of limitations herein contained for bringing an action.
12. TERMINATION FOR DEFAULT – In the event Buyer breaches any material term of this agreement, the Seller may terminate this agreement upon thirty (30) days prior written notice to the other party; provided, however, that during any such notice period, the party in default may cure its default and thereby abate the termination. Notwithstanding the foregoing, Seller may terminate this Agreement effective immediately upon written notice to Buyer in the event (a) Buyer fails to pay any Seller invoice within the time provided in this agreement, (b) Buyer generally fails to pay its debts as they become due, (c) Seller reasonably believes Buyer is insolvent (whether based on the reasonable belief by Seller that Buyer’s liabilities exceed its assets; the existence of a bankruptcy, assignment for the benefit of creditors or other similar proceeding involving Buyer; a liquidation of a significant portion of the assets of Buyer; or otherwise), (d) of a sale of a majority of the assets, or a change of control of ownership of Buyer, or (e) Buyer fails to provide adequate assurance of performance under the agreement within three (3) business days after written demand by Seller. If Buyer is in default hereunder, including by failure to pay invoices, Seller may suspend shipments of goods until all invoices are current and Seller receives adequate assurance of future performance. In the event that Seller is required to commence legal proceedings for collection of sums owing on account or any other cause of action, Seller shall be entitled to reimbursement for all costs, including actual attorneys fees.
13. PROPERTY AND PATENT RIGHTS – Seller retains for itself any and all property rights in and to all designs, engineering details and other data pertaining to any good designed in connection herewith and to all rights of discovery, invention, copyrights or patent rights arising out of the work done in connection herewith. This agreement shall not be construed to transfer any property rights to any pre-existing discovery, invention, copyright or patent right arising out of any other work performed by Seller not done in connection with this agreement. Except for the right of Buyer to use the good purchased from Seller, Seller transfers no license to Buyer to use any technical information, know how, copyright or patent rights owned or controlled by Seller to make, have made, use or sell any good provided by Seller under this agreement. Buyer shall indemnify and hold Seller, its agents and employees, harmless from any claim of infringement of a patent, copyright, trademark, trade name, or other proprietary right, or claim of unfair trade or of unfair competition, arising out of the manufacture, sale or use of the goods sold pursuant to this quotation.
14. CONFIDENTIAL INFORMATION – Trade secrets, specifications, drawings, notes, instructions, engineering data and analysis, financial data, and other technical and business data (collectively “Confidential Information”) which are supplied or disclosed by Seller in connection with the agreement will be deemed confidential and proprietary and remain the sole property of Seller. The Buyer may not disclose this Confidential Information or use it for any purpose other than is contemplated under the agreement without written consent from the Seller. Upon request by Seller, the Buyer will promptly return or destroy the original and all copies of the Confidential Information received.
15. CANCELLATION – In the event Buyer requests Seller to stop work or cancel the order or any part thereof, cancellation charges will be paid to Sellers as follows:
a. Any and all work that is complete or scheduled for completion within thirty (30) days of the date of notification in
writing to stop work or to cancel, shall be invoiced and paid in full.
b. Work on the balance of the order will be stopped as promptly as reasonable. For work in process, other than covered by item (a), and any materials and supplies procured, or for which definite commitments have been made by Seller in connection with Buyer’s order, the Buyer will pay the actual costs and overhead expenses determined in accordance with good accounting practices, plus 20%.
c. A minimum cancellation charge of 20% will be due and payable on all cancellations received by Seller.
16. SETOFF – Buyer may not setoff or deduct from sums owed to Seller those sums owed or allegedly owed by Seller to Buyer unless Seller consents in writing. Buyer may not setoff or deduct amounts owed or allegedly owed to Buyer by Seller’s affiliates or others who are not parties to the agreement unless Seller consents in writing.
17. ASSIGNMENT – Buyer shall not assign or delegate any of its duties or obligations under this agreement without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion. Any sale or other transfer of stock or other securities of Buyer that would result in a change in control of Buyer shall be deemed an assignment under this agreement. Any assignment under this agreement shall not prohibit Seller from enforcing its rights against Buyer or the assignee, including, without limitation, Seller’s rights to setoff and recoupment, all of which rights of Seller against Buyer or assignee are senior to any rights of such assignee. Seller may freely assign to any third party its rights and obligations under this agreement without the consent of Buyer.
18. WAIVER – The failure of Seller to enforce any right or remedy provided in the agreement or by law on a particular occasion will not be deemed to be a waiver of the right or remedy on a subsequent occasion or a waiver of any other right or remedy.
19. SEVERABILITY – A finding that any provision of this agreement is invalid or unenforceable will not affect the validity or enforceability of any other provision of the agreement.
20. NOTICES – Any notice or other communication required or permitted in the agreement or by law must be in writing and will become effective on the date of actual receipt if the date of actual receipt is a business day or on the next business day if the actual receipt is not a business day. Notice must be communicated via (a) registered mail, return receipt requested; (b) facsimile, with retention of facsimile confirmation page; or (c) electronic mail. Notice must be sent to:
Robert E. Bower, Marketing Director
Bowles Fluidics Corporation
6625 Dobbin Road
Columbia, MD 21045
E-mail address: firstname.lastname@example.org
Facsimile No.: (410) 290-7634
21. GOVERNING LAW; JURISDICTION; VENUE – Each quotation shall be governed by the internal laws of the State of Maryland without regard to any applicable conflict of laws provisions. The United Nations Convention on the International Sale of Goods is expressly excluded. Buyer consents to the exclusive jurisdiction of the federal court in the U.S. District Court for Maryland, Northern Division or of the appropriate state court in Howard County, Maryland, for any legal or equitable action or proceeding arising out of, or in connection with, this agreement. Buyer specifically waives any and all objections to venue in such courts.
22. COMPLETE AGREEMENT – The terms and conditions contained in this quotation will constitute the entire agreement between the Buyer and Seller. This quotation supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this quotation. No alteration or addition to this quotation will bind the Seller unless an authorized individual for the Seller expressly assents in writing to such alteration or addition.