3725 Interpark Drive
Colorado Springs, CO 80907
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Terms and Conditions of Sale
 

1. PURCHASE AND SALE. The goods shall be sold in accordance with the terms and conditions on the Quotation and the following terms and conditions.

2. ACCEPTANCE. This quotation is an offer to sell, subject to final approval by Optimum Filter, Inc. (“Seller”). The offer may be withdrawn at any time prior to receiving Purchaser’s acceptance, and the offer shall expire automatically if not accepted within thirty (30) days from the date of this Quotation. This Quotation is conditioned upon Purchaser’s acceptance of the terms and conditions herein contained. Seller hereby expressly rejects any and all terms in any purchase order or other document of Purchaser which are in addition to, different from, or inconsistent with the terms and conditions in this Quotation.

3. CREDIT APPROVAL. If Purchaser is permitted by the terms of this Quotation to pay all or part of the purchase price following the date of shipment or completion, the obligations of Seller under this Quotation shall be subject to the condition precedent that Seller’s credit department, in its sole discretion, but based on reasonably relevant criteria, shall approve the creditworthiness of Purchaser. Seller shall accept or reject Purchaser’s order within thirty (30) days after receipt thereof.

4. SPECIFICATIONS. If Seller submits any drawings or other specifications to Purchaser for approval, and Purchaser does not approve or disapprove of them within the time specified by Seller, Seller shall have the right to ship the goods at a later date and charge a higher purchase price, as reasonably necessitated by Purchaser’s delay.

5. SHIPMENT. Seller shall ship the goods upon their completion, except that, subject to paragraph 9 hereof, Seller shall delay shipment as requested by Purchaser in writing. Since the goods are to be manufactured to special order, the shipment date designated on the face hereof is estimated and not guaranteed; Seller may ship the goods within a reasonable period either before or after the designated shipment date. Unless otherwise provided on the face hereof, Seller may ship the goods by any mode, and in full or partial shipments. Seller shall not be liable for any failure or delay to manufacture or ship the goods due to causes beyond its control, including without limitation, acts of God, wars, sabotage, casualties, accidents, labor disputes or shortages, governmental laws, ordinances, rules or regulations (such as priorities, requisitions, allocations and price adjustment restrictions), or an inability to obtain material, equipment or transportation.

6. TITLE, RISK OF LOSS. Unless otherwise provided on the face hereof, the goods shall be shipped f.o.b. Seller’s plant to be determined, and title to the goods and all risks of loss with respect to the goods shall transfer to the Purchaser after they have been placed in the possession of a carrier. If Seller agrees to ship the goods f.o.b. destination, Purchaser shall bear all risks of loss with respect to the goods upon their tender to Purchaser at the point of destination.

7. INSPECTION. Before accepting the goods, Purchaser shall have the right to inspect them at the time and place of delivery. After Purchaser inspects and accepts the goods, Purchaser shall, except as provided in paragraph 10 hereof, be deemed to have acknowledged that the goods comply with all specifications, representations and warranties of Seller, and to have waived any claim or cause of action against Seller with respect to the goods. Purchaser is encouraged to visit Seller’s plant prior to shipment to inspect and, when possible, witness testing of the goods. If return of the goods is impractical, Purchaser may be required to inspect the goods at Seller’s plant prior to shipment which shall be deemed to be Purchaser’s acceptance of the goods.

8. TAXES AND DUTIES. In addition to the purchase price, Purchaser shall pay all sales, use and excise taxes, tariffs, duties and other charges imposed by any country, state, locality or other political subdivision in connection with the sale of the goods. For tax purposes, title to the goods shall pass from Seller to Purchaser upon being loaded for shipment, whether by common carrier, by Seller’s or Purchaser’s own trucks, or otherwise.

9. PAYMENT. Unless otherwise provided on the face hereof, Purchaser shall, within thirty (30) days after Seller ships the goods, pay the full purchase price for the goods shipped (or the final installment of the purchase price if Purchaser has made progress payments prior to the shipment date); except that if Seller delays shipment as requested by Purchaser under paragraph 5 hereof, Purchaser shall pay the full purchase price (or the final installment) within thirty (30) days after the goods have been completed, and, in addition, shall pay a reasonable storage charge as determined by the Seller. Any balance not paid when due shall draw interest at the rate of 1.5% per month (18% A.P.R.) on the average daily balance until paid. Purchaser shall pay all attorney’s fees and court costs incurred by Seller in collecting any unpaid balance. All payments shall be made in currency of the United States.

10. WARRANTIES. Seller warrants to Purchaser that the goods are free of defects in material and workmanship. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED, EXCEPT THE WARRANTY OF TITLE AND AGAINST PATENT INFRINGEMENT. If the goods do not conform to this warranty within one year from the date of original shipment (or from the earlier date of completion if Seller delays shipment as requested by Purchaser under paragraph 5 hereof), Seller, at its own expense shall repair or replace the goods, but only after receiving written notification of any defects, and substantiation that the goods have been stored, installed, maintained and operated in accordance with Seller’s recommendations and standard industry practice.

Purchaser shall not return goods claimed to be defective except at the direction of the Seller. If, upon examining returned goods, Seller finds them to be defective, Seller shall repair or replace them. All charges for transporting such goods to Seller shall be prepaid by Purchaser, and Seller shall return such goods to Purchaser freight collect.

If seller determines that it is impractical to have the goods returned, Seller may elect either (i) to repair the goods at Purchaser’s facility, using independent contractors or Seller’s own personnel, or (ii) to pay Purchaser a reasonable allowance for repairs, but not exceeding the amount which Seller would have paid for its own employees. During the course of repairs, Purchaser, without charge, shall fully cooperate with, and make the goods and its facilities available to, Seller and Seller’s agents and employees.

THIS WARRANTY IS EXCLUSIVE. THE SOLE AND EXCLUSIVE OBLIGATION OF SELLER SHALL BE TO REPAIR OR REPLACE DEFECTIVE GOODS IN THE MANNER AND FOR THE PERIOD PROVIDED ABOVE. SELLER SHALL NOT HAVE ANY OTHER OBLIGATION WITH RESPECT TO THE GOODS, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHERWISE. THIS WARRANTY DOES NOT EXTEND TO PRODUCTS NOT OF SELLER’S MANUFACTURE; AS TO SUCH PRODUCTS, SELLER CONVEYS TO PURCHASER THE WARRANTY, IF ANY, OF SELLER’S SUPPLIER.

Seller shall not under any circumstances be liable for special or consequential damages, such as, but not limited to, damage or loss of other property or equipment, loss of profits or revenue, costs of capital, or claims by Purchaser’s customers. The remedies of the Purchaser set forth herein are exclusive, and the liability of the Seller with respect to the goods, or anything done in connection therewith, or from the manufacture, sale, delivery, resale, installation or use of any of the goods sold under this Quotation, whether arising out of contract, negligence, strict liability, tort, or under any warranty, or otherwise, shall not, except as expressly provided herein, exceed the price of the goods upon which such liability is based.

ORAL STATEMENTS BY SELLER’S EMPLOYEES OR REPRESENTATIVES DO NOT CONSTITUTE WARRANTIES, shall not be relied upon by Purchaser, and are not part of the contract for sale. NO OTHER WARRANTIES are given beyond those set forth in this document.

SELLER SHALL NOT BE LIABLE FOR CORROSION OR SUITABILITY OF USE OF ANY MATERIAL IN ANY PARTICULAR APPLICATION. CORROSION RESISTANCE AND SUITABILITY FOR USE OF ANY MATERIAL IS DEPENDANT UPON OPERATING ENVIRONMENT AND CONDITIONS, CLEANING AGENTS AND PRACTICES, AND MANY OTHER FACTORS BEYOND THE CONTROL OF SELLER. PURCHASER BEARS ALL RESPONSIBILITY AND RISK FOR CORROSION OR SUITABILITY FOR USE OF ALL MATERIALS IN THEIR PARTICULAR APPLICATION.

11. CANCELLATION. Purchaser shall not have any right to cancel this agreement without Seller’s prior written consent, and without paying Seller a cancellation charge equal to total selling price less the estimated direct labor and materials not expended less the salvage value of materials already purchased.

12. REMEDIES. If Purchaser fails to make required payments, or breaches any of the other terms or conditions of this Quotation, Seller shall have the right to terminate this agreement and withhold further shipments on this or any other order. The remedies provided in the Quotation shall be cumulative and in addition to any other remedies allowed by law or in equity. The failure of Seller to exercise any remedy shall not constitute a waiver of the right to exercise that, or any other remedy; and no waiver of any breach of any provision in this Quotation shall operate as a waiver of any other breach of the same or any other provision.

13. APPLICABLE LAW. This Quotation shall be governed by the Colorado Uniform Commercial Code, as adopted and in effect on the date of final approval by Seller and shall constitute a contract to be performed in Colorado.

14. DISPUTE RESOLUTION. Any dispute, controversy or claim arising out of or relating to this Agreement or any purchase order issued by Purchaser and accepted by Seller hereunder (including, but not limited to, any dispute relating to the existence, interpretation, breach or termination hereof or thereof) that cannot be resolved by the parties involved, within ninety (90) days of notification by either party of the dispute, shall be finally resolved by arbitration in accordance with the Arbitration Rules of the American Arbitration Association.

15. MISCELLANEOUS. This Quotation is intended by the parties as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used herein, and no modification shall be binding on Seller unless made in writing signed by Seller. No claim or right arising out of a breach of this Quotation can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by separate consideration and is in writing signed by Seller.