Terms and Conditions of Sale
TECO-Westinghouse (TECO-Westinghouse) hereby gives notice of its objection to any different or additional terms and conditions. Unless different or additional terms are stated in TECO-Westinghouse’s proposal, in which event: 1) such different or additional terms shall be exclusive as to the subject covered, 2) the terms and conditions stated below apply, and 3) such terms and conditions supersede any prior or contemporaneous agreements or correspondence between the parties. This sale is expressly conditional on purchaser’s assent to the terms and conditions stated below. Purchaser’s direction to proceed with any the engineering, manufacture, or shipment of any product is conclusive as to such assent.
Dispatch of the buyers purchase order will constitute an acceptance of the quotation, and an assent to the terms and conditions stated below, if the purchase order agrees with the quotation in respect to all material terms.
Each quotation is valid for sixty (60) days from the date of the quotation unless otherwise stated in the quotation.
The minimum billing per order shall be $100.00, unless otherwise agreed by TECO-Westinghouse.
With the exception of Harbor Maintenance Tax as stated in the following paragraph, TECO-Westinghouse will assume the payment of all taxes and fees assessed by any taxing authority in the United States with respect to this order. Purchaser will assume the payment of all taxes, duties, fees and other charges assessed by any taxing authority in the Purchaser’s country or country of ultimate destination with respect to this order.
Under FAS lncoterms it is the buyer’s responsibility to clear the goods for export. Accordingly, should the buyer appoint a freight forwarder or agent to effect export on the buyer’s instruction, the buyer’s freight forwarder is responsible for payment of the US Harbor Maintenance Tax on behalf of the buyer.
Terms of Payment
A. Net 30
For contracts with a total price less than $250,000 and with a shipment date less than 12 months from the date of order, an invoice will be issued when each unit is shipped and the standard terms of payment are net within thirty (30) days from the date of invoice.
B. Progress Payments
For contracts with a total price greater than $250,000 and/or with a shipment date greater than 12 months from the date of order, the following payment terms shall apply.
- 10% of the contract price shall be invoiced when drawings for approval are issued by TECO-Westinghouse. If drawings for approval are not specified, an invoice will be mailed when construction drawings are issued, but in no event later than 120 days after the date of order.
- 30% of the price of each unit shall be invoiced seven (7) months prior to the first day of the scheduled shipment month of that unit.
- 30% of the price of each unit shall be invoiced four (4) months prior to the first day of the scheduled shipment month of that unit.
- The final 30% of the price of each unit shall be invoiced upon complete shipment of each unit. In each of the above instances, the terms of payment are net within 30 days from date of invoice.
- A separate invoice will be issued concurrently with sections 1,2,3 and 4 for the escalation on that portion of the contract price. The escalation for the portion of the contract involved under 1, 2, 3 and 4 ceases on the date the invoice is issued.
C. Adequate Assurances of Payment
If, in the judgment of TECO-Westinghouse, the financial condition of the purchaser does not justify the terms of payment specified, TECO-Westinghouse may, at its option, require full or partial payment in advance.
If payments are not made in accordance with these terms, the quoted price shall, without prejudice to the right of TECO-Westinghouse to immediate payment, be increased by an amount equal to the lesser of 1.5 percent per month or fraction thereof or the highest legal rate of interest on the unpaid balance.
Delivery of each item of equipment shall be made FOB Point of Shipment with freight prepaid. Purchaser shall reimburse TECO-Westinghouse for freight charges in an amount equal to the lesser of TECO-Westinghouse’s NEMA Frame Freight Policy in effect at the time of shipment or actual freight charges. Such amounts will be paid by purchaser upon presentation of invoice by TECO-Westinghouse.
TECO-Westinghouse shall not be liable for failure to perform or for delay in performance resulting from any cause beyond TECO-Westinghouse’s reasonable control or due to compliance with any regulations, orders, acts, instructions or priority requests of any federal, state or municipal Government, or any department or agency thereof, civil or military authority, acts of God, acts or omissions of the Purchaser, fires, floods, weather, strikes lockouts, factory shutdowns, faulty castings or forgings, embargoes, wars, hostilities, riots, delays or shortages in transportation or inability to obtain labor, manufacturing facilities or material from TECO-Westinghouse’s usual sources.
In the event of delay in performance due to any such cause, the date of delivery or time for completion shall be extended by a period of time reasonably necessary to overcome the effect of such delay, and TECO-Westinghouse shall be reimbursed for any additional expense(s) resulting from such delay. The Purchaser’s receipt of products shall constitute a waiver of any claims related to the delay.
TECO-Westinghouse warrants that the equipment furnished hereunder will be of the kind and quality described in its proposal or contract and will be free of defects in workmanship and material.
Should any failure to conform to this warranty occur within one year after the date of initial operation, or eighteen months after the date of shipment (with respect to custom motors, the stock motor warranty period shall be thirty-six months from the date of manufacture, regardless of the date the motor is placed in operation), whichever is earlier, TECO-Westinghouse shall correct such nonconformity by repairing or replacing the defective part or parts, FOB factory or its designated repair facility at TECO-Westinghouse’s option.
The buyer shall not be required to deliver a defective part to the seller if:
- The part was destroyed as a result of its defect or of any defect in any part covered in this warranty, and
- The seller is reasonably satisfied that the part was defective at the time of sale. If both these conditions are met the seller shall replace the part in the same manner as if the buyer had delivered it into the seller’s plant.
This warranty is conditioned upon the storage, installation, operation, and maintenance of the equipment in accordance with any TECO-Westinghouse recommendations and standard industry practice.
In no event shall TECO-Westinghouse be responsible for:
- Providing working access to the defect, including the removal disassembly, replacement or reinstallation of any equipment, materials or structures to the extent necessary to permit TECO-Westinghouse to perform its warranty obligations,
- Transportation costs to and from the TECO-Westinghouse factory or designated repair facility,
- The conditions of any test shall be mutually agreed upon, and TECO-Westinghouse shall be notified of, and may be present at all tests that may be made,
- Repairs performed without authorization by TECO-Westinghouse.
Any representation, warranty, course of dealing, or trade usage not contained or referenced herein shall not be binding on TECO-Westinghouse. This writing, along with any additional parol agreements favoring TECO-Westinghouse, constitutes the entire agreement of the parties on the subject matter hereof. No modification, amendment, recision, waiver, or other change shall be binding on TECO-Westinghouse unless expressly assented to in writing by TECO-Westinghouse.
DISCLAIMER OF WARRANTIES: THE WARRANTIES SET FORTH IN THIS PROVISION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT.
The remedies provided above are the Purchaser’s sole remedies for any failure of TECO-Westinghouse to comply with its obligations. Correction of any non-conformity in the manner and for the period of time provided above shall constitute complete fulfillment of all the liabilities of TECO-Westinghouse whether the claims of the Purchaser are based in contract, in tort (including negligence or strict liability otherwise with respect to or arising out of the product furnished hereunder.
Limitation of Liability
TECO-Westinghouse, its subcontractors and suppliers of any tier, shall not be liable in contract, in tort (including negligence or strict liability equipment, loss of profits or otherwise) for damage or loss of other property or revenue, loss of use of equipment or power system, cost of capital, cost of purchased or replacement power or temporary equipment (including additional expenses incurred in using, claims of customers of the existing facilities Purchaser, or for any special, indirect, incidental, or consequential damages whatsoever.
The remedies of the Purchaser set forth herein are exclusive and the total cumulative liability of TECO-Westinghouse with respect to any contract, or any action taken in connection therewith such as the performance or breach thereof, or from the manufacture, sale, delivery, resale, or use of any product covered by or furnished under the order, whether in contract, in tort (including negligence or strict liability or otherwise) shall not exceed the price of the product or part on which such liability is based.
The sole purpose of the exclusive remedy stipulated herein shall be to insure that the product furnished is of the kind and quality described in TECO-Westinghouse’s proposal or contract, and is free of defects in workmanship and material. This exclusive remedy shall not be deemed to have failed of its essential purpose:
- as long as TECO-Westinghouse is willing and able to correct defects in the workmanship and material of the product, or, alternatively,
- if TECO-Westinghouse has expended a combined sum equal to or greater than the purchase price of the product in its attempts to correct defects in the workmanship or material of the product.
Subject to the following provisions, TECO-Westinghouse shall, at its own expense, defend or at its option settle any claim, suit or preceding brought against the Purchaser, and/or its vendees, mediate or immediate, so far as based on an allegation that any goods, material, equipment, device, or article (hereinafter referred to as product) constitutes a direct or contributory infringement of any claim of any patent of the United or any part thereof furnished hereunder States. This obligation shall be effective only if Purchaser shall have made all payments then due hereunder and if TECO-Westinghouse is notified promptly in writing and given authority, information, and assistance for the defense of said claim, suit, or proceeding. TECO-Westinghouse shall pay all damages and costs awarded in such suit or proceeding so defended.
- In case the product or any part thereof furnished hereunder becomes the subject of any claim, suit, or proceeding for the infringement of any United States patent, or if the use or sale of such product or parts is enjoined, TECO-Westinghouse shall, at its option and its own expense either:
- procure for the purchaser the right to continue using said product or part thereof; or
- replace it with a non-infringing product; or
- modify it so it becomes non-infringing, or
- as a last resort remove it and refund the purchase price and the transportation and installation costs thereof.
- The foregoing indemnity does not apply to the following:
- Patented processes performed by the product, or any product produced thereby,
- Products supplied according to a design other than that of TECO-Westinghouse’s and which is required by the Purchaser,
- Combinations of the product with another product not furnished hereunder unless TECO-Westinghouse is a contributory infringer,
- Any settlement of a suit or proceeding made without TECO-Westinghouse’s written consent.
TECO-Westinghouse shall not be obliged to deliver the products until such insurance, indemnities and waivers have been procured and are legally operative in TECO-Westinghouse’s favor, failing which TECO-Westinghouse may rescind the sale without liability. The foregoing states the entire liability of TECO-Westinghouse with respect to patent infringement by said product or any part thereof. If a suit or proceeding is brought against TECO-Westinghouse solely on account of activities enumerated in paragraph 2 a, b, c above, Purchaser agrees to indemnify TECO-Westinghouse in the manner and to the extent TECO-Westinghouse indemnified the Purchaser in the first paragraph of this provision insofar as the terms thereof are appropriate.
Additional Conditions Applicable to Nuclear Applications
- In the event that the Purchaser or third parties use product or any part thereof, in connection with any activity or process involving nuclear fission or fusion or any use or handling of any source, special nuclear or byproduct material as those materials are defined in the US Atomic Energy Act of 1954 as amended, Purchaser, at no expense to TECO-Westinghouse shall provide or arrange for insurance coverage, indemnities, waivers of liability, recourse and subrogation in such amounts and under such terms and conditions as may be acceptable to TECO-Westinghouse, to protect TECO-Westinghouse (and its subsidiaries, subcontractors or suppliers of any tier) against any and all loss, cost, damage or expense and claims and demands therefore, in contract, in tort or otherwise, including the cost of investigating, litigating and/or settling any such claims or demands, on account of bodily injury, sickness, disease or death to any person or the loss of, loss of use of, or damage to property whether located on or off the site of a nuclear installation, arising out of, or resulting from the radioactive, toxic, explosive or other hazardous properties of source, special nuclear or byproduct materials, as those materials are defined in the US Atomic Energy Act of 1954 as amended.
- In the event that the Purchaser resells, distributes or in any way relinquishes control of the product or services to a third party, the Purchaser shall require from such third party
- compliance with all requirements under 1 above and
- assurance that any subsequent Purchaser of the product or services complies with all requirements under 1 above.
All orders shall be interpreted in accordance with the laws of the State of Texas.
TECO-Westinghouse-4500T, Rev. 2, 3/02/17