Terms of Sale
HYDRA-POWER SYSTEMS, INC.
Standard Terms and Conditions of Sale
These Standard Terms and Conditions of Sale (the “Terms”) govern the sale of all goods and services by Hydra-Power Systems, Inc. (“HPS,” “Seller”) to the purchaser (“Buyer”) identified on the applicable quotation, order acknowledgment, or invoice.
1. ACCEPTANCE; GOVERNING TERMS; SUPERSESSION. These Terms constitute the complete and exclusive statement of the agreement between HPS and Buyer with respect to the goods and services sold by HPS. HPS’s acceptance of any order from Buyer is expressly conditioned upon Buyer’s assent to these Terms, and any acceptance by HPS is expressly limited to these Terms. These Terms supersede and take precedence over any and all conflicting, additional, or different terms and conditions contained in any purchase order, acknowledgment, invoice, or other document issued by Buyer, including without limitation any pre-printed terms on Buyer’s purchase order form, any Buyer supplier or vendor terms of purchase, and any terms referenced by URL or hyperlink in Buyer’s documentation, whether or not stated to be conditions of Buyer’s order. HPS hereby objects to and rejects any such conflicting, additional, or different terms. No modification, amendment, waiver, or supplement to these Terms shall be binding on HPS unless expressly agreed to in a writing signed by an authorized officer of HPS that specifically references these Terms and states an intent to modify them.
2. QUOTATIONS AND ORDERS. Written quotations issued by HPS are valid for thirty (30) days from the date of the quotation unless otherwise stated on the face of the quotation. Verbal quotations are not binding. All orders are subject to acceptance by HPS at its Portland, Oregon or Birmingham, Alabama office, and no order shall be binding on HPS until acknowledged in writing (including by electronic order acknowledgment or sales confirmation). Clerical, typographical, or similar errors in quotations, acknowledgments, or invoices are subject to correction.
3. PRICES. Prices are those stated on the face of HPS’s quotation, order acknowledgment, or sales confirmation, and are exclusive of all taxes, duties, freight, insurance, and other charges unless expressly stated otherwise. HPS reserves the right to adjust prices for orders not yet shipped in the event of material increases in the cost of raw materials, components, tariffs, duties, freight, or labor between the date of quotation and the date of shipment, upon written notice to Buyer. If Buyer does not accept the adjusted price, Buyer’s sole remedy is to cancel the affected portion of the order in writing within ten (10) days of such notice, provided that such cancellation shall not apply to goods that are non-cancelable or non-returnable, custom, or already in production.
4. TAXES, DUTIES, AND OTHER CHARGES. Prices do not include any sales, use, excise, value-added, gross-receipts, or similar tax, tariff, duty, or governmental charge now or hereafter imposed on or measured by the sale, delivery, or use of the goods or services, all of which shall be paid by Buyer or reimbursed to HPS upon invoice. If Buyer claims exemption from any such tax, Buyer shall furnish HPS with a valid exemption certificate acceptable to the applicable taxing authority prior to shipment.
5. PAYMENT TERMS. Payment terms are as stated on the face of HPS’s quotation, order acknowledgment, or invoice, in United States dollars, without set-off, counterclaim, or deduction. HPS reserves the right to suspend shipments or performance if Buyer becomes delinquent on any invoice. Buyer shall reimburse HPS for all costs of collection, including reasonable attorneys’ fees. Any credit extended to Buyer may be reduced or withdrawn by HPS at any time in its sole discretion.
6. DELIVERY; TITLE; RISK OF LOSS. Unless otherwise agreed in writing, all shipments are made FCA (Incoterms 2020) HPS’s facility (FOB Origin). Title to the goods and all risk of loss or damage shall pass to Buyer upon delivery of the goods by HPS to the carrier at HPS’s facility. Buyer is responsible for all freight, insurance, handling, and other transportation charges from HPS’s facility. HPS may select the carrier and routing in the absence of specific written instructions from Buyer. Any claims for shortage, damage in transit, or non-conforming carrier handling must be made by Buyer directly against the carrier.
7. SHIPMENT DATES; DELAYS. Shipment and delivery dates are estimates only and not guaranteed. HPS shall use commercially reasonable efforts to meet estimated shipment dates but shall not be liable for any delay. HPS may make partial shipments, each invoiced separately.
8. INSPECTION AND ACCEPTANCE. Buyer shall inspect all goods promptly upon receipt and shall be deemed to have accepted the goods and waived any claim for shortage, mis-shipment, visible defect, or non-conformity unless Buyer provides HPS with written notice of rejection specifying the nature of the claim within seven (7) days after delivery. No goods may be returned without HPS’s prior written authorization and a Return Material Authorization (RMA) number. Latent defects, if any, must be reported in writing within the warranty period set forth in Section 10.
9. RETURNS. Returns are permitted only with HPS’s prior written authorization and an RMA number. Goods must be returned in their original packaging, in new and unused condition, freight prepaid by Buyer. Custom, modified, non-stock, obsolete, and specially manufactured or procured items are non-returnable and non-cancelable. Authorized returns of standard, stock items are subject to a restocking charge of twenty percent (20%) of the original invoice price, or such other amount as HPS may specify. HPS reserves the right to reject any return that does not comply with this Section.
10. LIMITED WARRANTY. (a) HPS-Manufactured Goods and Services. HPS warrants to Buyer that goods manufactured by HPS will be free from defects in material and workmanship, and will conform in all material respects to HPS’s published specifications or the specifications set forth on the face of the applicable order acknowledgment, for a period of twelve (12) months from the date of shipment (the “Warranty Period”). Any services performed by HPS shall be performed in a workmanlike manner and are warranted for the same Warranty Period from the date of performance. Buyer’s sole and exclusive remedy, and HPS’s sole and exclusive obligation, for breach of this warranty shall be, at HPS’s option, to (i) repair the non-conforming goods, (ii) replace the non-conforming goods, or (iii) refund the purchase price paid for the non-conforming goods. Any claim under this warranty must be made in writing during the Warranty Period and the goods must be returned to HPS in accordance with Section 9. This warranty does not apply to goods that have been (1) subjected to misuse, neglect, accident, abnormal operating conditions, or improper installation, storage, application, or maintenance; (2) modified, altered, repaired, or disassembled by any party other than HPS or its authorized representative; (3) used in an application for which the goods were not designed or specified; (4) damaged by contamination of the fluid medium or by operating conditions exceeding the ratings of the goods; or (5) subjected to normal wear and tear.
(b) Third-Party Goods. Goods manufactured by third parties and sold by HPS or included with or incorporated into packages, assemblies, manifolds, or systems sold by HPS are subject solely to the warranty, if any, of the original manufacturer, which HPS will pass through to Buyer to the extent permitted. Buyer shall submit all warranty claims for third-party goods through HPS, which will coordinate the claim with the original manufacturer in accordance with the manufacturer’s warranty procedures. Return of third-party goods may be directed by HPS to HPS’s facility or to the original manufacturer.
11. DISCLAIMER OF OTHER WARRANTIES. THE WARRANTY SET FORTH IN SECTION 10 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTY AGAINST INFRINGEMENT. NO REPRESENTATION OR STATEMENT NOT CONTAINED IN THESE TERMS SHALL BE BINDING ON HPS AS A WARRANTY OR OTHERWISE.
12. APPLICATION AND PRODUCT SELECTION; BUYER RESPONSIBILITY. Fluid power components, systems, and related products can fail in various modes, and the selection, application, and use of such products is a complex process involving many factors specific to the end-use application. Buyer, through its own analysis and testing, is solely responsible for (a) the selection of the appropriate goods for Buyer’s application; (b) determining the suitability of the goods for the intended use, including compatibility with the fluid medium, operating pressures, temperatures, environment, and duty cycle; (c) ensuring that all applicable performance, safety, code, regulatory, and other requirements are met; (d) providing appropriate safeguards, warnings, and instructions to end users; and (e) proper installation, operation, maintenance, and, where applicable, disposal of the goods. Any technical advice or recommendations provided by HPS are given as an accommodation, and Buyer remains solely responsible for verifying suitability.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL HPS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OF DATA, PRODUCTION DOWNTIME, COST OF SUBSTITUTE GOODS OR SERVICES, DAMAGE TO OTHER PROPERTY, OR CLAIMS OF THIRD PARTIES, ARISING OUT OF OR RELATING TO THESE TERMS, THE GOODS, OR THE SERVICES, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF HPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HPS’S TOTAL CUMULATIVE LIABILITY TO BUYER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE GOODS, OR THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE PAID BY BUYER TO HPS FOR THE SPECIFIC GOODS OR SERVICES GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY OF ITS ESSENTIAL PURPOSE.
14. INDEMNIFICATION BY BUYER. Buyer shall defend, indemnify, and hold harmless HPS and its officers, directors, employees, affiliates, and agents from and against any and all third-party claims, demands, actions, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) Buyer’s selection, application, installation, use, resale, or disposal of the goods; (b) Buyer’s modification of the goods; (c) Buyer’s breach of these Terms; (d) Buyer’s negligence or willful misconduct; or (e) Buyer’s failure to comply with applicable laws, codes, or regulations.
15. FORCE MAJEURE. HPS shall not be liable for any delay in performance or failure to perform any obligation under these Terms (other than the obligation to make payments) due to any cause beyond HPS’s reasonable control, including without limitation acts of God; acts or omissions of civil or military authority; war, terrorism, riot, or civil disturbance; fire, flood, earthquake, or severe weather; epidemic or pandemic; strikes, lockouts, or other labor disputes; shortage of or inability to obtain materials, components, energy, transportation, or labor; delays or failures of suppliers or subcontractors; embargo, tariff, sanction, or other governmental action; or cyberattack or communications failure.
16. EXPORT CONTROL. Buyer acknowledges that the goods, related technology, and documentation may be subject to the export control laws and regulations of the United States, including the Export Administration Regulations (EAR) and, where applicable, the International Traffic in Arms Regulations (ITAR), as well as the economic sanctions programs administered by the U.S. Office of Foreign Assets Control (OFAC). Buyer shall not, directly or indirectly, export, re-export, transfer, or divert any goods, technology, or documentation received from HPS to any country, entity, or person prohibited by such laws and regulations without first obtaining any required governmental authorizations. Buyer shall defend, indemnify, and hold HPS harmless from any breach of this Section.
17. CANCELLATION AND CHANGES BY BUYER. Orders accepted by HPS may not be canceled, rescheduled, or modified by Buyer without HPS’s prior written consent. If HPS consents to a cancellation, rescheduling, or modification, Buyer shall pay HPS (a) the full purchase price for all goods completed prior to the effective date of the change; (b) HPS’s costs incurred for work in process, raw materials, components, and non-cancelable supplier commitments; and (c) a reasonable profit and cancellation charge. Custom, modified, non-stock, obsolete, and specially manufactured or procured items are non-cancelable.
18. GOVERNING LAW; VENUE; DISPUTE RESOLUTION. These Terms and all matters arising out of or relating to these Terms or the goods or services sold hereunder shall be governed by the laws of the State of Oregon, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any action or proceeding arising out of these Terms shall be brought exclusively in the state or federal courts located in Multnomah County, Oregon, and each party consents to personal jurisdiction and venue in such courts and waives any right to a trial by jury.
19. ASSIGNMENT. Buyer may not assign or transfer these Terms, any order, or any of its rights or obligations hereunder, whether by operation of law, merger, sale of assets, change of control, or otherwise, without the prior written consent of HPS, and any purported assignment or transfer without such consent shall be void. HPS may assign these Terms and any order, in whole or in part, without Buyer’s consent.
20. MISCELLANEOUS. These Terms constitute the entire agreement between HPS and Buyer with respect to the goods and services sold hereunder and supersede all prior or contemporaneous agreements, negotiations, representations, and understandings, whether written or oral, relating to the subject matter hereof. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid, illegal, or unenforceable provision shall be reformed to the minimum extent necessary to make it valid, legal, and enforceable while preserving the parties’ intent. No waiver of any provision of these Terms shall be effective unless in writing signed by the waiving party, and no waiver of any breach shall constitute a waiver of any other or subsequent breach. Sections 10 through 18 and any other provision that by its nature is intended to survive termination or expiration shall so survive. HPS may amend these Terms from time to time by posting the amended Terms at the URL referenced on HPS’s quotations and sales confirmations, and such amended Terms shall apply to all orders accepted by HPS on or after the effective date of the amendment.
Effective Date: [___________]