Quotes and Prices

Prior to Buyer’s acceptance, Weir Slurry Group, Inc. (“WEIR”) may change an outstanding quotation without notice. Prices are subject to change without notice unless otherwise designated in the order.  Buyer agrees to pay the established prices in effect on the date of shipment, or if the shipment is made from a business other than WEIR, the established prices on the date of delivery.  Prices are EXW, Incoterms 2010, shipping point unless otherwise agreed. 

Taxes

The Buyer agrees to pay sales, use, personal property, or similar tax, and any import-export or similar charges imposed by any government authority in connection with the order in addition to the contract price.

Payment Terms

All invoices are due and payable in U.S. dollars thirty (30) days after the date of the invoice.  All past due amounts will bear interest at one percent (1%) per month on any balance not paid within such thirty (30) day period, or the highest rate allowed by law, whichever is less.  If default is made in the payment of any sums due to WEIR, the Buyer agrees to pay all necessary and reasonable attorneys’ fees, court costs, and other expenses incurred by WEIR for collection.

Orders exceeding One Hundred Thousand Dollars ($100,000.00) shall provide for the following progress payments to be made by Buyer (all net 30 days from date of invoice): 

1. Ten percent (10%) of the total contract price shall be invoiced within two (2) weeks after award;
2. Twenty-five percent (25%) of the contract price shall be invoiced upon initial submittal of product general arrangement drawing(s);
3. Twenty-five percent (25%) of the contract price shall be invoiced four (4) weeks after buyer’s release to manufacture;
4. Twenty percent (20%) of the contract price shall be invoiced six weeks prior to the ship date;
5. Twenty percent (20%) of the contract price shall be paid within thirty (30) days upon notice of readiness to ship.

If Buyer fails to make any payment when due WEIR may declare all amounts for work completed immediately due and payable and stop all further work and shipments until payment is made. If requested Buyer shall provide a payment bond or irrevocable letter of credit in a form acceptable to WEIR to assure payment.

Credit

All sales, unless for cash in advance or C.O.D. are subject to approval by WEIR's credit department.  If in WEIR’s opinion the credit of the Buyer becomes unsatisfactory prior to delivery, WEIR may defer delivery until Buyer’s credit improves, or, cancel the contract with no liability.  In the event the Buyer’s business is incorporated after the date of its credit application, the proprietor, or all partners of the business, agree(s) that he/they will remain personally liable for the payment of the account unless a new credit application is submitted for the corporation and the new credit application is approved by WEIR.  When Buyer does not pay in full upon delivery it is buying the goods on credit and is a debtor of WEIR.  In such cases Buyer authorizes WEIR to prepare and/or file and/or add additional information as it becomes available (which WEIR in its sole discretion may deem necessary to create and perfect a security interest) including but not limited to a security agreement, initial financing statement, initial financing statement in lieu of a continuation statement, amendments, and continuation statements, by any means authorized by law, whether such law is currently in effect or becomes effective after the execution of this agreement, including electronic filing.  Buyer understands and agrees that by signing, it has authenticated this agreement as a record and authorizes WEIR to (1) prepare and file such record(s) without the signature of Buyer, (2) file such writing bearing any general, generic or super-generic description of the collateral authorized by the applicable code and (3) file any future records, which shall be deemed authenticated (as defined in the applicable commercial code) by Buyer.

Production

Production of all items will be at times and in lots and quantities most convenient to the manufacturing process, with shipments to be as noted on the purchase order.

Changes

WEIR shall not implement any changes in the scope of work unless Buyer and Seller first agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change hereunder shall entitle Seller to an equitable adjustment in the prices and any time of performance.

Cancellation

Buyer's cancellation, in whole or in part, shall be subject to a cancellation charge in the amount of ten percent (10%) of the total contract price, plus an amount equal to the direct expenses and indirect damages incurred by WEIR as a result of the cancellation. Buyer shall pay the cancellation charge within thirty (30) days of notice of cancellation.

Force Majeure

WEIR shall not be responsible for any delay or failure to make delivery which is occasioned by causes beyond its control, including but not limited to fires, floods, strikes, labor disputes, accident, embargoes, sanctions, delays or interruptions of transportation, material or labor shortages, failure to obtain delivery from manufacturers or subcontractors, or by any ruling, action, regulation, or law of any governmental bureau or agency.  Delays shall not release the Buyer from its obligation to accept and pay for goods. 

Delivery, Title, and Risk of Loss

Delivery shall be at WEIR’s shipping point.  Title to goods shall remain vested in WEIR and shall not pass to Buyer until the purchase price for the goods has been paid in full and received by WEIR.  Risk of loss, however, shall pass to Buyer upon delivery.  Buyer shall pay for all storage and insurance costs if delivery is deferred at its request. Buyer shall be responsible for insurance on all shipments of Products and WEIR shall not insure beyond delivery unless specifically agreed to in writing and shall be subject to a pre-paid change order. Buyer shall make all claims relating to the transport of WEIR Products against the freight carrier. The time of shipment is subject to prior orders and is contingent upon prompt receipt of information and required approvals from Buyer so as to permit WEIR to undertake final design, engineering, and production of the Products.  WEIR reserves the right to make delivery of and invoice any orders either as a whole or progressively and to affect delivery at its convenience at any time within the period scheduled by WEIR for the delivery of the order.

Limited Warranty

(a) Warranty: Subject to these limitations Seller warrants to Buyer that Goods manufactured by Seller shall be free from defects in material and workmanship, and that Seller will perform its services in a competent and diligent manner in accordance with any agreed specifications.

(b) Warranty Period: WEIR warrants that new goods manufactured by WEIR shall be free of defects in material and workmanship for a period of one (1) year from the date of shipment; and goods repaired or refurbished for something other than ordinary wear and tear shall be free of defects in material and workmanship for a period of three (3) months from their date of shipment of the repaired item to the Buyer.  Products or subassemblies of products Buyer hired WEIR to refurbish due to ordinary wear and tear shall be free of defects in material and workmanship for a period of one (1) year from the date of shipment of refurbished products or subassemblies back to Buyer. (the “Warranty Period”).  Continued use or possession of a good after the end of the Warranty Period, or no warranty claim made on a service, shall be conclusive evidence that the Limited Warranty has been fulfilled to the full satisfaction of Buyer, unless Buyer has previously provided WEIR with notice of a warranty claim.  The warranty for services shall be for three (3) months from the time of service (“Warranty Period”);

(c) Repair: For goods, WEIR shall repair or replace, at its option, any good found to be defective during the warranty period, EXW Madison, Wisconsin, or a repair facility designated by WEIR.  WEIR’s sole obligation, and Buyer’s sole remedy, shall be this repair or replacement. Buyer must return defective goods or parts freight prepaid for inspection to an authorized service center designated by WEIR.  Buyer shall provide access to the items to be repaired or replaced and remove any materials or structures necessary to provide free and clear access, as well as supply any necessary equipment, and bear the costs of access (including removal and replacement of systems, structures or other parts of Buyer’s facility), de-installation, decontamination, re-installation, and transportation of Goods to WEIR and back to Buyer.  WEIR will deliver replacements for defective goods to Buyer prepaid to the delivery destination provided by the original order. Repaired or replaced parts or goods and re-performed services shall remain under warranty for the unexpired portion of the original Warranty Period as warranty work shall not extend the Warranty Period. In order to prevent re-use of a defective part as a spare, all parts replaced (or an entire good if replaced in its entirety) under this limited warranty may, at WEIR’s option, become the property of WEIR in exchange for the replacement part or good.  If WEIR determines that any warranty claim is not, in fact, covered by this limited warranty, Buyer shall pay WEIR its then customary charges for its labor, repair, or replacement efforts.  For services, WEIR will re-perform the services to the extent necessary to correct the warranty problem. No payment or allowance will be made to Buyer for warranty work to a good by anyone other than WEIR without WEIR's prior written approval.

(d) Conditions: These warranties and remedies are conditioned upon (a) Buyer promptly providing written notice of such defect to WEIR, (b) the good having been operated in accordance with WEIR’s instructions, (c) the Buyer having made no unauthorized modifications to the good, (d) the good being decontaminated to WEIR's satisfaction before warranty work begins, (e) the proper storage, installation, operation, and maintenance of the goods, (f) the keeping of proper operation and maintenance records during the Warranty Period and providing WEIR access to those records, and (g) Buyer not being in default of any payment obligation to WEIR. Any modification or repair (other than routine maintenance repairs) of any of the Goods not authorized by WEIR shall void the warranty.

(e) Exclusions: WEIR does not warrant components not manufactured by WEIR. Non-warranted items include, but are not limited to, electric motors, gear reducers, "V" belt drives, other drives, couplings, mechanical seals, valve actuators, solenoid valves, limit switches, and proximity switches, etc. Any warranty provided by the manufacturer or supplier of such components shall be and hereby is assigned by WEIR to Buyer without recourse against WEIR. The following are specifically not covered under warranty: The foregoing warranty does not apply to a defect caused or contributed to by: (a) abrasive materials, corrosion, lightning, improper voltage supply, mishandling or misapplication, normal wear and tear due to operation or environment, or accident; (b) parts which are normally consumed in operation, or have a normal life  shorter than the Warranty Period; (c) alterations or repairs (other than normal and ordinary repairs) carried out without prior written approval of  WEIR; (d) storage, installation, use or maintenance, which is not in accordance with WEIR’s instructions or is otherwise improper; use of equipment or parts for a purpose other than that for which they are intended; (e) installation by someone other than, or authorized by, WEIR; (f) use of  goods after Buyer was aware or should have become aware of a defect; (g) information, drawings, chart interpretations, technical specifications, or instructions provided by Buyer to WEIR; (h) preventative maintenance items such as specified adjustments, loose fittings, and lubrication; seals, plungers, valving or packing materials in equipment exposed to corrosive fluids or unusual temperatures and/or pressures; (i) damage from abuse, accident, neglect, or failure to follow the specified preventative maintenance program or operating instructions; (j) any work performed on the good during the warranty period without WEIR's approval; (k) normal wear and tear; and (l) shipping damage (claims must be made with freight carrier; Buyer has a duty to inspect all equipment at the point of delivery to the freight carrier).

(f) THIS ARTICLE PROVIDES THE EXCLUSIVE REMEDIES FOR ALL CLAIMS BASED ON FAILURE OF OR DEFECT IN A GOOD OR SERVICE, WHETHER THE FAILURE OR DEFECT ARISES BEFORE, DURING, OR AFTER THE APPLICABLE WARRANTY PERIOD AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND IS SUBJECT TO ALL LIMITATIONS OF LIABILITY FOUND IN THESE TERMS AND CONDITIONS.

(g) OTHER THAN THIS LIMITED WARRANTY, WEIR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE.

Indemnity for Unsafe Application of Products and Import/Export Violations 

The Buyer is responsible for the safe use of WEIR’s products.  The Buyer agrees to instruct and inform all persons installing, operating, or servicing WEIR’s products concerning the safe use of the WEIR’s products, and to maintain all safety warning plates or labels on WEIR’s products in good condition to safeguard against injuries to persons or property.  The Buyer agrees to indemnify, defend, and hold harmless WEIR for any claims, losses, or expenses, including reasonable attorney’s fees, arising out of any injury to any person or damage to any property caused by a) the Buyer’s breach of the agreements contained in this paragraph, and b) arising out of any misrepresentation by or on behalf of Buyer or any violation by Buyer (including any subsequent purchasers or transferees and/or any of their agents, brokers, forwarders or representatives) of any applicable import or export laws or regulations, including without limitation those of the US, Canada, UK, and EU. 

General Indemnity

WEIR shall indemnify, defend and hold Buyer harmless from any claim, cause of action or liability incurred by Buyer as a result of third party claims for personal injury, death, or damage to tangible property, to the extent caused by WEIR's negligence.  WEIR shall have the sole authority to direct the defense of and settle any indemnified claim. 
WEIR’s indemnification is conditioned on Buyer (a) promptly, within the Warranty Period, notifying WEIR of any claim, and (b) providing reasonable cooperation in the defense of any claim. 

Auxiliary Equipment of Buyer

If Buyer provides auxiliary equipment and/or other goods in connection with manufacturing, assembling, refurbishing, or repairing goods, Buyer shall indemnify WEIR for any loss to them.

Nature of Drawings and Descriptive Materials 

All weights, measurements, process capacities and other particulars of WEIR Products are approximate only and minor deviations shall not be the basis of any claim. A maximum of six (6) prints will be furnished at no charge. Special drawing sizes, additional copies, and/or specifications are subject to quotation at time of request. WEIR reserves the right to change or modify the design and construction of any equipment in order to incorporate improvements or to substitute material equal or superior to that originally specified.

Confidentiality 

All of WEIR's drawings, specifications and written information included in WEIR's quotation and contract, and all information otherwise supplied by WEIR to Buyer relating to the capabilities, operation, and maintenance of WEIR Products are the confidential property and information of WEIR. Buyer covenants and agrees to not disclose such to others or allow others to use such without WEIR's prior written consent, except as may reasonably be required for Buyer to obtain service for the goods.

Applicable Law

All orders shall be governed by and construed in accordance with the laws of the State of Wisconsin without regard to its conflicts of laws principals.  Venue shall be in Dane County, Wisconsin. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.  The parties agree to mediate any dispute before resorting to the courts.  The mediation will be conducted in accordance with the state’s alternative dispute resolution statute with each party bearing its own costs and sharing the cost of the mediator equally.

Waiver

Forbearance or failure of WEIR to enforce any of these conditions or to exercise any right will not affect or impair its rights, nor shall such forbearance be deemed a waiver of it rights in the event of a future default by Buyer.

Electronic Commerce 

The parties agree to conduct business electronically.