2020 Web Catalog - Flipbook - Page 515
Fleck 2510 Automatic Systems 17
All claims for breach of any warranty must be made to Nelsen within the time
period provided in the applicable warranty.
14. LIMITATION OF LIABILITY – In no event shall Nelsen be liable to Buyer or
to any third party for consequential, incidental, special or punitive damages,
or for lost profits or loss of use, resulting from or in any manner related to the
goods, their delivery, non-delivery, use, or inability to use the same, whether
such damages be claimed under contract, tort or any other legal theory.
Buyer agrees that the sole and exclusive remedy of Buyer shall be the repair
or replacement of any defective goods. Any replaced goods, or parts therein,
shall be retained by and become the property of Nelsen. If Nelsen determines
that repair or replacement of defective goods is not commercially practicable,
Nelsen will issue a credit in favor of Buyer in an amount not to exceed the
purchase price of the goods.
ANY AND ALL CLAIMS ASSERTED BY BUYER OR ANY OTHER PERSON
OR ENTITY SHALL BE RAISED IN SUCH PARTY’S INDIVIDUAL CAPACITY
AND MAY NOT BE RAISED AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This limitation of liability shall survive the termination, expiration or
cancellation of this agreement.
15. RETURNED GOODS – The shipment of returned, repaired or replaced
goods to and from a designated Nelsen location shall be at the sole cost, risk
and responsibility of Buyer, unless otherwise agreed in writing by Nelsen. Any
goods returned by Buyer must have a RGA (Returned Goods Authorization)
number prior to shipment to Nelsen, who may refuse acceptance of any
returns without a RGA number clearly visible on the outside of the shipping
package. Nelsen shall not be liable for any costs or expenses associated with
the removal or re-installation of goods or any damage to property or injury to
persons involved in such removal or re-installation of goods. Nothing in these
Sale Terms and Conditions shall require Nelsen to accept the return of any
16. THIRD PARTY VENDORS – Nelsen is not responsible for any delays
caused by third parties used by Nelsen to produce, manufacture, assemble
or ship the goods. It is understood by Buyer that the price for the goods is
based on Nelsen’s cost of goods and services from its third party vendors and
Nelsen shall not be bound by the price of goods hereunder if any third party
fails to provide any materials or services as promised or agreed.
17. CANCELLATION OR CHANGE ORDERS – No orders of cataloged,
stock goods may be withdrawn or canceled by Buyer after the third party
manufacturer has shipped the goods to Nelsen or after Nelsen has begun
the assembly or shipment of the goods, unless Nelsen shall have approved
such cancellation in writing and been paid a cancellation charge determined
by Nelsen. Orders of non-cataloged or special order goods may not be
withdrawn or cancelled by Buyer at any time, unless Nelsen shall have
approved such cancellation in writing and Nelsen shall have been paid a
cancellation charge determined by Nelsen. If Buyer shall request changes in
its order after receipt thereof by Nelsen, it shall be responsible for all charges
reasonably incurred by Nelsen with respect to such changes. All cancelled
orders are subject to a cancellation charge in Nelsen’s discretion.
18. NELSEN CHANGES – Nelsen reserves the right to make changes in the
design or materials used with manufactured goods when deemed necessary
or otherwise, without prior notice to Buyer.
19. CATALOGED ITEMS – Nelsen includes both stock goods and non-stock
goods in its catalog. As not all goods are available from each Nelsen location,
purchases may ship from any Nelsen location. All freight charges are paid
by Buyer, unless agreed in writing by Nelsen or paid by the third party
20. INFRINGEMENT CLAIMS – Nelsen makes no representation or warranty
that the purchased goods shall be free of any claim of infringement of the
intellectual property rights of any third party.
21. REMEDIES UPON DEFAULT – Buyer shall be in default under these Sale
Terms and Conditions upon: (a) the failure of Buyer to perform its obligations
hereunder, including, without limitation, payment in full of the purchase price
for the goods; or (b) the insolvency, filing of any voluntary or involuntary
petition of bankruptcy, assignment for the benefit of creditors or dissolution,
liquidation, or the winding up of the business of Buyer. Upon Buyer’s
default, Nelsen shall have any and all remedies available at law or equity. In
addition to any other remedies, Nelsen may refuse to provide the goods or
any installation, start-up or training services not yet performed. Failure by
Nelsen to exercise any rights under these Sale Terms and Conditions shall
not constitute a waiver of such rights. Default by Buyer shall, at Nelsen's
option, render the total purchase price and all other obligations at once due
22. INDEMNIFICATION – Buyer shall indemnify Nelsen against all claims,
losses, liabilities and expenses (including, but not limited to, attorney fees
and court costs) on account of any damage to property or injury/death of
persons (including Buyer's employees) arising out of Buyer's unloading,
storage, handling, use or disposal of the goods, except for any portion of
damages attributable to Nelsen's gross negligence. This indemnity obligation
of Buyer will survive the expiration, termination or cancellation of this
23. APPLICABLE LAW – These Sale Terms and Conditions shall be construed
in accordance with the laws of the State of Ohio. Further, Nelsen and Buyer
agree to submit to the jurisdiction of the state or federal courts located in
Summit County, Ohio for purposes of resolving any dispute or claim arising in
connection with a transaction.
24. ASSIGNMENT; THIRD PARTY BENEFICIARIES – Buyer shall not assign
these Sale Terms and Conditions without written approval of Nelsen. Any
attempt by Buyer to assign any rights, duties, or obligations under these
Sale Terms and Conditions without such written approval shall be void.
These Sale Terms and Conditions shall inure to the benefit of Nelsen and
its successors and assigns. Nothing in this contract shall be construed as
creating any act or beneficial right in or on behalf of any third party.
25. NON-WAIVER; SEVERABILITY – The failure of Nelsen to insist on or
enforce the strict performance of any term of this agreement, or to exercise
any right hereunder, shall not be construed as a waiver or relinquishment, to
any extent, of its right to assert or rely upon such term or right on any future
occasion. If any provision of these Sale Terms and Conditions shall be held to
be invalid, illegal, or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
26. INTEGRATION – There are no understandings between the parties hereto
as to the subject matter of this contract other than as set forth herein. All
previous communications between the parties concerning the subject matter
of this contract, whether verbal or written, if any, including, but not limited
to, any Buyer's purchase order, are hereby abrogated and withdrawn, and
this contract constitutes the whole of the agreement between the parties.
Any additional terms and conditions of a purchase order or change order
shall not apply hereto unless agreed by the parties in writing. Receipt of the
goods delivered hereunder shall be deemed to be an acceptance by Buyer
of these Sale Terms and Conditions. Any different terms or conditions in
Buyer's purchase order, regardless of whether such terms and conditions
are material or not, shall not be binding unless expressly accepted in writing
by Nelsen and Nelsen specifically objects to the inclusion of any different or
additional terms or conditions by Buyer. If Buyer has included or includes
different or additional terms and conditions in its purchase order, acceptance,
confirmation or other written document, neither the delivery of all or part
of the goods, nor any other action by Nelsen except a written writing of
acceptance from Nelsen, shall constitute acceptance of such additional or
different terms, but instead these Sale Terms and Conditions shall govern.
Call Nelsen Toll-Free — OHIO - 800.362.9686, ARIZONA - 866.445.4299, TEXAS - 855.674.0357 or FLORIDA - 866.712.6796
All prices and products subject to change without notice. ©Nelsen Corporation
Technical & Engineering
Buyer acknowledges that some systems may include interconnecting
piping that may have leaks, even if air or hydraulically tested at the time of
manufacture, due to pipe vibrations and handling. For example, galvanized
pipe threads are diligently assembled with recommended thread sealants but
may have leaks discovered at the time of installation or start up. The installer
of the goods is responsible for checking the system for leaks upon startup and
making any repairs if necessary.