Standard Terms and Conditions

 

STB: 04-03-2018      W.W. PATTERSON COMPANY AND JACK FABRICATION COMPANY

  1. Acceptance of Terms and Conditions:
    Customer and Vendor have mutually negotiated and agreed upon the terms and conditions contained herein which will apply to the provision of services by Vendor to Customer, unless mutually agreed otherwise.  Any terms contained in the accompanying statement of work (“SOW”), to the extent entered into and signed by Vendor and Customer, shall supplement these Standard Terms and Conditions, but shall not constitute an amendment of these Standard Terms and Conditions unless such SOW has been signed by both Vendor and Customer. 
     

  2. Express Warranty:
    Vendor warrants that the services provided hereunder will conform to specifications Customer has provided to Vendor, as set forth in the SOW, and will be free from defects in materials and workmanship when used in accordance with all applicable operating conditions, for a period of one (1) year after delivery (the “Warranty Period”). Such warranty shall not apply to any equipment, whose structural integrity or functionality has been altered or repaired by other than the Vendor’s personnel or by personnel expressly approved by the Vendor.   Vendor shall, during the Warranty Period, repair or replace any serviced products or serviced parts or components of products found to be defective. In the event Vendor cannot repair or replace said serviced products, Vendor shall refund, or credit to Customer, the price of such product.  Customer agrees to provide Vendor prompt written notice of any defect immediately after the defect is discovered.  Vendor makes no warranties covering deterioration or failure due to improper installation or operation.
     

  3. WARRANTY DISCLAIMER:
    THE EXPRESS WARRANTIES SET FORTH IN SECTION 2 ABOVE ARE VENDOR’S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITATION OF ON DAMAGES AND LIABILITY IN SECTIONS 13 AND 18, RESPECTIVELY.  EXCEPT AS SET FORTH IN SECTION 2, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS SOLD HEREUNDER.  VENDOR EXPRESSLY EXCLUDES AND DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES ARE SOUGHT IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
     

  4. Delivery/Transportation:
    Delivery terms shall be set forth in the SOW. Vendor will exercise its reasonable efforts to meet the shipment dates as specified in Vendor’s confirmation.
     

  5. Prices; Payment:
    Pricing for the Services purchased shall be as set forth in the SOW.  No contract shall have been formed between Customer and Vendor until the pricing has been agreed upon by the parties and specified in the SOW signed by both parties. Unless otherwise agreed upon by the parties and stated in the SOW, terms of payment for shipments are net cash within thirty (30) days from the date of invoice. Failure to make timely payment of invoices covering final or partial shipments entitles Vendor at its option to withhold delivery of serviced products without liability.  In addition, if this invoice or any part hereof is not paid when due, Vendor may assess a late payment charge of 1% per month (or such lesser amount as may be the maximum permitted by applicable law) on such past due amount. 
     

  6. Taxes:
    Unless otherwise agreed upon by the parties and stated in the SOW, prices specified in the SOW do not include sales, use, excise or similar taxes.  Customer shall be responsible for payment of the amount of any present or future sales, use, excise or other similar tax applicable to the sale of products hereunder.
     

  7. Cancellation:
    Any cancellation, termination or breach of this contract by the Customer, or any cancellation or termination by Vendor for cause, will require the Customer to pay all cancellation charges. Such charges will include, but are not limited to material already  processed, labor, overhead, administration charges, at least 10% profit on the total cancellation charge and such sales commissions that must be paid by Vendor. The Customer is also responsible for payment for all unprocessed material acquired by Vendor solely for the work required in the SOW.
     

  8. Indemnification:
    A. Intellectual Property. Customer agrees to defend, indemnify and hold Vendor harmless from any and all Losses, which Vendor may suffer or incur arising from compliance with Customer's drawings or specifications, including but not limited to, actual or alleged patent, trademark or copyright infringement. 

    B. Personal Injury and Property Damage. Vendor shall indemnify, defend and hold Customer harmless from any and all Losses incurred by Customer as a result of third party claims for personal injury, death or damage to tangible property, to the extent caused by Vendor's negligence; provided, however, Vendor shall not be deemed to be negligent to the extent Vendor has followed Customer’s specifications in the provision of Services. Vendor shall have the sole authority to direct the defense of and settle any indemnified claim. Vendor’s indemnification is conditioned on Customer (a) promptly, within the Warranty Period, notifying Vendor of any claim, and (b) providing reasonable cooperation in the defense of any claim. Customer shall indemnify, defend and hold Vendor harmless from any and all Losses incurred by Vendor as a result of third party claims for personal injury, death or damage to tangible property, to the extent caused by Customer’s negligence. Customer shall have the sole authority to direct the defense of and settle any indemnified claim. Customer indemnification is conditioned on Vendor (a) promptly, within the Warranty Period, notifying Customer of any claim, and (b) providing reasonable cooperation in the defense of any claim.  For clarity, in the event Losses are caused by the joint or concurrent negligence of Customer and Vendor, the Losses shall be borne by each party in proportion to its degree of negligence.
     

  9. DAMAGES:
    IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
     

  10. LIMITATION OF LIABILITY:
    IN NO EVENT SHALL VENDOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED 20% OF THE TOTAL AMOUNTS PAID TO THE VENDOR FOR THE PRODUCTS SERVICED HEREUNDER PRIOR TO THE DATE OF SUCH CLAIM.
     

  11. Confidentiality:
    Each party agrees to hold in confidence and not disclose to any third party or use for its own benefits, other than as may be approved by the disclosing party, any confidential or proprietary information supplied to it by the other party hereto pursuant to this agreement.  Confidential information shall not include information which (i) is within or becomes part of the public domain, (ii) is disclosed by a third party not under an obligation of confidentiality with respect to such information, (iii) was already within the party’s possession prior to its disclosure by the disclosing party and (iv) is independently developed without use of the disclosing party’s confidential information.
     

  12. Assignment:
    Either party may freely assign this contract (without further obligation for performance on the part of such party) to any successor to all or substantially all of its business, provided all rights and responsibilities are assumed by the assignee. In all other events, neither party may assign this contract or any of its rights or obligations hereunder without the prior written consent of the other party.
     

  13. Force Majeure:
    Neither party shall be liable for its failure to perform its obligations under this agreement when such failure results from any cause beyond such party's reasonable control, including but not limited to fire, flood or other act of God, strike or labor difficulty or disagreement, accidents at Vendor's facilities, acts or requirements of government or civil authority, riot, war, embargo, truck or car shortage or other transportation delay or difficulty.  In the event of such delay, the date of delivery shall be extended for a period equal to the time loss by reason of such delay.   If such force majeure event continues for a period of 60 days, the party not impacted by the force majeure event shall be entitled to terminate this agreement upon notice to the other party.  In the event of termination, Customer shall reimburse Vendor for all reasonable costs incurred to the date of the force majeure event and Customer shall be entitled to take control of the products or any part of the product for which it has compensated Vendor.
     

  14. Effect of Invalidity:
    The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision.
     

  15. Waiver:
    No waiver by either party of the other party’s breach of contract shall be deemed to be a waiver of any other or subsequent breach.  All rights and remedies available to the parties hereunder shall be cumulative and in addition to any other rights and remedies provided herein or by law.
     

  16. Governing Law, Jurisdiction and Venue:
    The contract between the parties hereto shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania and shall be deemed entered into at Vendor's place of business.
     

  17. Product Improvement Liability Disclaimer:
    Vendor reserves the right to make any changes in or improvements on its products without incurring any liability or obligation whatsoever and without being required to make any corresponding changes or improvements in products previously manufactured or sold.
     

  18. Changes/Revisions:
    Customer’s may change the specifications in its order only upon written notice and mutual agreement of the parties to such change. Any additional charges accrued as a result of such change, will be for Customer’s account.
     

  19. Complete Agreement:
    This agreement, along with the terms which are to be specified on the executed SOW, represents the entire agreement of the parties for the sale of the products by Vendor to Customer.
     

  20. Compliance with U.S. Export Controls and Trade Sanctions: 
    Customer agrees to comply with all U.S. export controls and trade sanctions requirements.  Customer will obtain, or cause to be obtained, any authorizations required by the U.S. government for transfer outside of the U.S.  Customer agrees that the serviced products will not be transferred, directly or indirectly, to Cuba, Russia, Iran, Syria, Sudan, to any other country subject to U.S. trade sanctions, nor to any person or entity listed on the U.S. Department of Treasury Office of Foreign Assets Control Specially Designated Nationals List (updated list available at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx).

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