HEARTLAND ENGINEERED PRODUCTS (HEP)
TERMS AND CONDITIONS
- OFFER AND CONDITIONS
All terms and conditions in effect at time of quotation / order are specific to that order. Purchaser is obligated to notify HEP immediately if these terms and conditions are unacceptable. Without such notification, Buyer shall be deemed to have accepted all terms and conditions. Upon acceptance by Buyer, HEP Quotation shall be the final written expression of agreement between HEP and Buyer, constituting the entire contract between them and superseding all previous communications, either verbal or written. Any resulting contract may be modified only in writing, signed by an authorized representative of HEP. Reference to any order or other communication from Buyer is only for the purpose of identifying the product or service ordered. ANY QUOTATION/OFFER TO SELL AND ANY RESULTING CONTRACT ARE EXPRESSLY CONDITIONED ON THE SUBSEQUENT APPROVAL OF THE HEP CREDIT DEPARTMENT.
All excise, privilege, occupation, sales, personal property and other taxes (whether federal, state or local) applicable to the sale, purchase, storage, erection, use or ownership of HEP products or work and for the payment or collection of which HEP shall be liable, shall be added to the selling price of said products or work and shall be paid by the Buyer, although not specifically set out as an item in the price herein.
- TERMS OF PAYMENT
Pricing for products and services shown on the proposal line items (below) are subject to customer credit approval, which includes the current credit-limit, customer payment history, and total sale amount. All invoices are due net 30-days. All downpayments (if required) are due at time of purchase order receipt.
- Orders less than $1,000.00 NET, VISA & MasterCard are accepted at time of order!
- Orders up to $99,999, invoiced at shipment, due Net 30-days
- Orders $100,000 - $249,999, 25% paid at time of Purchase Order, 75% invoiced at time of shipment, due Net 30- days
- Orders $250,000 +, contact your HEP Sales Manager for payment terms and conditions
Note: Storage or handling fees incurred due to above terms not being met are the sole responsibility of the Buyer.
- WARRANTY AND EXCLUSIVE REMEDY
- Material or Mechanical Parts Manufactured by HEP: HEP warrants that for one (1) year from the date of delivery or installation, no failure of material or mechanical parts manufactured by HEP will result from a defect in that material or those mechanical parts that existed on the date of delivery or installation. Buyer's sole and exclusive remedy for breach of this warranty is that HEP will, at its sole option, repair or replace any material or mechanical parts that do not conform to this warranty. HEP MAKES NO WARRANTY WHATSOEVER ON MATERIAL OR MECHANICAL PARTS MANUFACTURED BY ANYONE OTHER THAN HEP.
- Erection or Installation: If HEP is required by the resulting contract to erect or install material or mechanical parts, HEP warrants that for one (1) year from the date of erection or installation there will be no failure of material or mechanical parts resulting from any failure by HEP to perform its erection or installation work in a good and workmanlike manner. Buyer's sole and exclusive remedy for breach of this warranty is that HEP will, at its sole option, repair or rectify any erection or installation work that does not conform to this warranty.
- IN NO CASE WILL HEP BE LIABLE FOR ANY CLAIM RESULTING FROM THE USE BY BUYER OF IMPROPER MATERIAL OR MECHANICAL PARTS OR FROM THE USE OF BUYER OF MATERIAL OR MECHANICAL PARTS HAVING APPARENT DEFECTS OR DAMAGES WHEN INSTALLED BY THE BUYER. FAILURE TO INSTALL PRODUCT ACCORDING TO HEP SPECIFICATIONS VOIDS ALL CONTRACTS, WARRANTIES AND LIABILITIES. BACKCHARGES WILL NOT BE ACCEPTED WITHOUT PRIOR WRITTEN AUTHORIZATION FROM HEP.
- BUYER AGREES TO INSPECT THE MATERIAL UPON DELIVERY, AND NO CLAIMS FOR SHORTAGES OR DELIVERY OF DAMAGED MATERIAL WILL BE ACCEPTED BY HEP UNLESS WRITTEN NOTICE IS SENT TO HEP AT ITS OFFICE AT THE ADDRESS DESIGNATED ON THE FACE OF THIS QUOTATION/OFFER TO SELL WITHIN THREE (3) DAYS FROM DATE OF DELIVERY.
- DISCLAIMER OF OTHER WARRANTIES
HEP disclaims all express warranties except those that appear in paragraph 4. The use of any sample or model during the negotiations leading to this contract serves merely to indicate the type of goods that will be tendered to the buyer. Such samples or models create no warranty that the goods shall conform to the samples or models.
- DISCLAIMER OF IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ABOVE. HEP DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OF THE GOODS OR OF THE FITNESS OF THE GOODS FOR ANY PURPOSE, AND BUYER AGREES THAT THE GOODS ARE SOLD "AS IS."
- EXCLUSIVE REMEDY, EXCLUSION OF CONSEQUENTIAL DAMAGES
Buyer expressly agrees that his sole and exclusive remedy for breach of the warranties set forth in paragraph 4, above, or for any other cause of action, shall be the remedies set forth in paragraph 4. BUYER FURTHER SPECIFICALLY UNDERSTANDS AND AGREES THAT, EXCEPT AS PROVIDED IN PARAGRAPH 4, NO REMEDY SHALL BE AVAILABLE TO BUYER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, FOR ANY CAUSE WHATSOEVER, OR INJURY TO PERSONS OR PROPERTY OR ANY OTHER CONSEQUENTIAL, ECONOMIC OR INCIDENTAL LOSS. UNDER NO CIRCUMSTANCES WILL HEP BE LIABLE FOR LOSS OF ANTICIPATED PROFITS OR ANY OTHER LOSS CAUSED BY REASON OF THE NON-OPERATION OF, OR THE INCREASED EXPENSE OF OPERATION CAUSED BY HEP PRODUCTS OR WORK. THIS EXCLUSION SHALL APPLY TO ALL CLAIMS, WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE, AND SHALL APPLY TO ALL DAMAGES.
- PRODUCT SPECIFICATIONS
HEP products are manufactured according to HEP current product specifications. The specifications embodied in a quotation and/or sales order hereby acknowledged have been provided to HEP Industries by the customer and have been exclusively relied upon by HEP. The dealer or sales representative representing the transaction to Buyer is an independent contractor who is solely responsible for the accuracy of any measurements or other specifications which may have been provided to the customer. HEP Industries expressly disclaims any knowledge concerning the accuracy or propriety of such measurements or other specifications. The Buyer bears responsibility for determining if such products meet the requirements of plans, specifications, or other contract documents for a particular project. HEP DISCLAIMS RESPONSIBILITY FOR COMPLIANCE WITH CONTRACT DOCUMENTS.
- SHIPMENT, FORCE MAJEURE
HEP shall not be liable for any delay or failure to deliver, erect or install caused by "force majeure", which term is hereby declared to include all circumstances and actions whatsoever beyond the direct and immediate control of HEP, among which, but not exclusive of others, are the following acts of God; acts of the Buyer; war, riot, or insurrection; preparation for war; intervention of civil, naval or military authorities or other agencies of government, including agencies concerned with the preservation of the environment; rules and restraints of rulers and people; blockades; embargoes; vandalism sabotage; epidemics; quarantines; strikes; walkouts or other labor or industrial disturbances; fires; earthquakes landslides; accidents; floods; hurricanes and cyclonic storms; parts; compliance with priority orders or preference ratings issued by the government or other governmental priorities; inclement weather; delays of carriers or other transportation; delays in delivery of materials or component parts by HEP suppliers, or inability to obtain necessary labor, materials or manufacturing facilities due to such causes, in the event of any delay occasioned by force majeure, the date of delivery, erection or installation shall be extended for a length of time equal to the period of the delay. The resulting contract shall in no event be subject to cancellation by the Buyer due to delay in delivery, erection or installation nor shall the HEP be liable under any circumstances for damages on account of delay, including without limitation, special or consequential damages.
When the material price is quoted "FOB shipping point, the freight charges will be for the account of the Buyer. When the material price is quoted "FOB destination" or "FOB shipping point, freight allowed to destination,," the freight charges will be paid by the HEP. All freight charges are based on current applicable common carrier rates unless otherwise specifically provided herein. When the material prices is "FOB destination" or "FOB shipping point, freight allowed to destination," these terms mean "free on board" cars at the rail station or on trailers (whichever mode is applicable) to the point designated as the destination. Should the freight rates be increased such increases will be in addition to the prices quoted. Quantities involving one or more carloads or truckloads of material are to be shipped at the carload or truckload rate (whichever is applicable) and the minimum rate, or actual weight, whichever is higher and any additional expense incurred by the HEP in making less than minimum carload or truckload shipments in order to meet the Buyer's demands, will be assumed by the Buyer.
- CLAIMS FOR LOSS OR DAMAGE IN TRANSIT
When material is sold "FOB shipping point" or "FOB shipping point, freight allowed to destination" the responsibility for filing claims for loss or damage in transit is the Buyer's. When material is sold "FOB destination" the Buyer will check all material received against the packing list and delivery receipt, and if any shortage or damage is found, he must have a report of exceptions made by the carrier. The Buyer will furnish the HEP with his detailed report of all conditions found as well as the carrier's report to enable HEP to promptly file claim for loss or damage in transit in accordance with standard claim procedures.
- CLAIMS FOR SHORTAGES, DELIVERY OF IMPROPER MATERIAL OR DELIVERY OF DEFECTIVE MATERIAL
Buyer agrees to inspect the products upon delivery, and no claims for shortages or damaged products will be accepted by HEP unless written notice is sent to HEP at its office at the address designated on the face of this form within three (3) days from date of delivery and prior to commencement of erection. Further, any products for which claim is made must be held by Buyer for a reasonable period and made available to HEP for inspection.
- DELIVERY CONDITIONS
Shipments will not be delivered to a location where it is impractical or illegal to operate a commercial motor vehicle.
- NON-STANDARD BOXING CHARGES
Unless stated otherwise, the prices quoted herein assume compliance with HEP standard boxing practices. Boxing requirements that do not comply with HEP standard practices are subject to a non-standard boxing charge. Standard boxing guidelines and non-standard boxing charge rates will be furnished upon Buyer's request.
- LIEN RIGHTS
Buyer specifically understands that HEP has the right to file a materialman's or mechanic's lien in connection with all or any part of the material to be furnished or the work to be performed at HEP discretion.
Buyer may cancel its order, reduce quantities, revise specifications or extend schedules only by mutual agreement as to reasonable and proper cancellation charges or pricing adjustments. These charges will take into account expenses already incurred and commitments made by HEP. The minimum cancellation charge for any order cancelled after drawings have begun shall be $400.00 as in the following schedule:
- ORDER ENTERED, DRAWINGS STARTED - $400.00
- ORDER ENTERED, DRAWINGS COMPLETE, MATERIAL IN PROCESS - 65% OF PROJECT COST
- ORDER COMPLETE, READY TO SHIP - 100% OF PROJECT COST
- GOVERNING LAW
The parties acknowledge that the transaction that is the subject matter of this contract bears a reasonable relation to the State of Ohio and agree that the law of the State of Ohio will govern their rights and duties. The parties specifically intend that the provisions of Chapter 1302 of the Ohio Uniform Commercial Code will control as to all aspects of this contract and its interpretation, and that all the definitions contained therein will be applicable to this contract except where this contract may expressly provide otherwise. Any action relating to any aspect of this transaction shall be filed in the Courts of Hamilton County, Ohio.
- HEP material prices are firm for shipment before 30 days, after which time Buyer is subject to escalation charges. The selling price of all material shipped after the above date is to be increased by the same percentage as the percentage increase of the index of the applicable product code in the Producer Prices and Price Indexes as published by the U.S. Department of Bureau of Labor Statistics. The percentage increase is determined by dividing the index in effect at the time of shipment by the index in effect on the above date.
- The price of field labor to erect HEP material is firm 30 days after which time Buyer will pay escalation charges. The selling price for any labor that is performed after the above date must be increased by the same percentage as the percentage increase in labor wage and fringe benefits payable to the HEP field labor for the same period.
- Liability for liquidated damages is not acceptable to HEP unless and until a mutually agreeable schedule for performance is developed and an express written provision to that effect is executed by a duly authorized officer of HEP.
- Unless otherwise indicated herein, a price quoted does not include an allowance for performance or payment bonds.
- Due to changing work loads in engineering, manufacturing, erection, and procurement of basic materials, any schedule commitments herein are valid for only 30 days.
- Notwithstanding the price escalation clauses of paragraphs above and Special Conditions 1 and 2; all prices under this agreement shall remain as specified in Buyer's Purchase Order.
- The terms of this contract are intended by the parties as a final expression of their agreement with respect to such terms and also as a complete and inclusive statement of such terms and are incorporated into all quotations or purchase documents.