All sales of goods by Nelsen Corporation ("Nelsen") to any party purchasing goods (“Buyer”) shall be upon the following terms and conditions:
  1. ORDERS -  If Buyer orders any goods from Nelsen, Buyer shall use Nelsen’s part number, size and other definitive information necessary to correctly complete the order.  All orders by Buyer are subject to acceptance by Nelsen and Nelsen reserves the right to correct any errors or omissions in any orders, quotations, invoices or other documents associated with the sale of goods. Nelsen shall not be bound by any typographical or other errors in its quotations or other communications with Buyer.   
  2. QUOTES -   Any firm quote for the sale of goods provided by Nelsen to Buyer in writing shall be valid for the shorter of: (a) the period of time set forth in such quote; or (b) 30 days thereafter.   
  3. BINDING AGREEMENt -  Buyer's acceptance of goods purchased from Nelsen constitutes Buyer's agreement to all Sale Terms and Conditions contained herein. Any inconsistent or additional terms contained in Buyer's purchase order or other communication are hereby rejected unless expressly accepted in writing by Nelsen within ten (10) days after its receipt of such purchase order or other communication. These Sale Terms and Conditions shall not be modified other than in writing signed by Nelsen and Buyer.
  4. ACCEPTANCE -  Buyer shall inspect the goods upon delivery and shall notify Nelsen immediately in writing of all defects in the goods, including, but not limited to, defective materials or workmanship.  If there is any shipping damage to the goods, Buyer shall immediately file a claim with the carrier.  Buyer's failure to notify Nelsen or file a claim with the carrier shall be conclusive evidence that no defects or damages existed upon delivery.  In particular, any claim by Buyer of shortages or errors in the delivered goods must be made by Buyer upon receipt of the goods on the delivery receipt or such claim will be considered waived.   The goods sold hereunder do not include installation or any installation hangers, supports, tie downs, interconnecting piping or bypass piping, unless agreed in writing by Nelsen. 
  5. TITLE; RISK OF LOSS -  Unless otherwise agreed in writing by Nelsen and Buyer, title in and risk of loss for all goods sold by Nelsen shall pass to Buyer upon delivery to carrier at F.O.B. Nelsen’s or its agent’s facility.  Nelsen bears no responsibility for the shipment of the goods and any claims for lost or damaged goods in transit shall be brought by Buyer solely against the carrier.  If arranged by Nelsen, the goods will be delivered via United Parcel Service, Federal Express, US Postal Service or other carrier selected by Nelsen; provided Buyer may select the carrier by providing Nelsen written notice thereof prior to shipment and making all arrangements associated with such shipment.  Unless otherwise agreed in writing by Nelsen, all costs of shipment shall be borne solely by Buyer and Buyer acknowledges that any shipping weights, dimensions or ship dates provided by Nelsen are approximated and subject to change.  If shipping is arranged by Nelsen, Nelsen will assign its rights against the carrier to Buyer for any lost, damaged or delayed goods, to the extent permitted.
  6. PRICES AND TAXES -  Unless otherwise agreed in writing by Nelsen and Buyer, all prices shall be at Nelsen’s price as of the date of shipment.  Prices do not include installation, training or other services provided by Nelsen or its agents, unless otherwise specified in writing by Nelsen.  A special handling fee determined by Nelsen may be added to any prices where goods or parts must be special ordered by Nelsen or if the goods require dismantling to satisfy Buyer’s requirements.  A minimum billing of $25 applies to all purchases from Nelsen.  Prices are F.O.B. Nelsen’s or its agent’s facility.  Any local, state or federal taxes levied on the purchased goods shall be the responsibility of Buyer.
  7. PAYMENT TERMS -  Unless otherwise agreed in writing by Nelsen and Buyer, all prices for purchased goods shall be due upon shipment of the goods at Nelsen’s or its agent’s facility by cash, certified check or money order, credit card or other immediately available funds. Nelsen reserves the right to determine the credit cards which it accepts and the right to charge an additional administration fee for any payments by credit card.
  8. CHECK PAYMENT PROGRAM -  Nelsen may permit Buyer to pay by check upon shipment of the goods at Nelsen’s or its agent’s facility if Buyer qualifies for Nelsen’s check payment program.  To apply for Nelsen’s check payment program, Buyer must provide:  (a) the names of three (3) suppliers who have satisfactorily accepted Buyer’s checks for at least one (1) year and certify that they have experienced no issues with returned or insufficient funds (NSF) checks with Buyer; and (b) the name of Buyer’s bank.  Inclusion in Nelsen’s check payment program is at Nelsen’s discretion.  Any returned or NSF checks from Buyer are charged a $25 fee for each check.  Upon Buyer having three (3) returned or NSF checks with Nelsen in any twelve (12) month period, Nelsen may remove Buyer from its check payment program.
  9. NET 30 DAYS -   Nelsen may permit Buyer to pay by invoice by opening an account with Nelsen if Buyer qualifies for Nelsen’s account program.  To apply for Nelsen’s account program, Buyer must provide:  (a) the names of three (3) suppliers who have satisfactorily been paid by Buyer under invoice terms for at least one (1) year and certify that they have experienced no issues with non-payment or overdue payment with Buyer under the terms of the invoices; and (b) the name of Buyer’s bank.  Nelsen may also require, in its discretion, financial statements of Buyer for periods designated by Nelsen.  Inclusion in Nelsen’s account program is at Nelsen’s discretion.  All Nelsen invoices shall be due and payable within 30 days after the date of shipment.
  10. INTEREST; ENFORCEMENT COSTS -  Any portion of the purchase price which is not paid in accordance with the terms of payment herein shall bear interest from the due date at the rate of 1.5% per month until paid.  In the event Nelsen is required to commence collection proceedings against Buyer, Buyer shall be liable for all costs and expenses of Nelsen associated with the collection of its past due amounts, including attorney fees and court costs, which shall be due and payable by Buyer to Nelsen upon demand.
  11. DELAY IN PERFORMANCE -  Nelsen shall not be responsible or liable for any delays or failures in manufacture, assembly or delivery due to any cause or condition beyond the control of Nelsen, including, without limitation, any delays in the manufacture or delivery of the goods from Nelsen’s third party vendors, delays or problems with shipment, strikes or labor difficulties, fire, floods, acts of the elements, shortage of materials or equipment, war, riots or civil commotions or other acts of God.  In the event of any shortage of Nelsen’s goods, for any reason, Nelsen may pro-rate the supply of its goods among its customers in any manner determined by Nelsen.
  12. DELIVERY -  Any dates or schedules which may be specified for the delivery of the purchased goods have been stated only approximately and are estimates.  Nelsen shall not incur any liability, either direct or indirect, nor shall any order be canceled, as a result of any delays in meeting such dates or schedules.  In the event Buyer requests a delay in shipping of the goods, Nelsen may charge a storage fee, determined in Nelsen’s discretion, after the initial shipping date, which fee shall be due and payable by Buyer upon Nelsen’s demand.  
  13. LIMITED WARRANTY -   Any goods manufactured by a third party are subject to the manufacturer’s warranty only and Nelsen’s sole responsibility for such third party goods shall be to pass such manufacturer warranty, if any, to Buyer.  Any goods manufactured by Nelsen may have a limited warranty separately provided by Nelsen in writing apart from these Sale Terms and Conditions.  Buyer should carefully review any separate limited warranty.  No warranty provided by Nelsen shall apply unless the goods are installed, operated and maintained in strict accordance with Nelsen’s or the manufacturer’s guidelines and other legal requirements.  All goods are sold with the understanding that Buyer has independently determined the suitability and compatibility of such goods for its purposes.  Any statements, technical information or recommendations concerning goods by Nelsen are based upon data provided to Nelsen by its suppliers and believed to be accurate, but do not constitute a guarantee or warranty.  Nelsen’s warranty shall not cover and shall be null and void if, in Nelsen’s discretion, the goods are: (a) modified after sale, (b) improperly installed, stored, used or handled, (c) abused or misused or otherwise damaged due to fire, lightning, power surges or other acts of God or exposure to freezing or hot water or the effects of normal wear and tear.

    EXCEPT AS PROVIDED ABOVE AND TO THE EXTENT PERMITTED BY LAW, THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE GOODS, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, OR ARISING UNDER CUSTOM OF TRADE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO REPRSENTATIONS OR WARRANTIES AT ANY TIME MADE BY ANY EMPLOYEE, AGENT OR REPRESENTATIVE OF NELSEN SHALL BE EFFECTIVE TO VARY OR EXPAND ANY WRITTEN WARRANTY OR THE TERMS HEREOF.  TO THE EXTENT A WAIVER OF IMPLIED WARRANTIES IS PROHIBITED BY LAW, ANY IMPLIED WARRANTIES ON PURCHASED GOODS SHALL BE LIMITED TO THE DURATION OF ANY WRITTEN WARRANTY PROVIDED BY NELSEN.

    Unless otherwise in a written warranty provided by Nelsen, any warranty provided by Nelsen shall apply solely to authorized dealers of Nelsen’s products who purchased the goods directly from Nelsen and shall not apply, directly or indirectly, to any consumer of the goods.  Buyer acknowledges that Nelsen is not extending any warranty of its goods to “consumers”, as that term is defined in the Magnuson-Moss Warranty Act and the regulations promulgated thereunder.  Any approvals required for the goods, including any engineering approvals, shall be Buyer’s sole responsibility.

    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.  

    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 non-warranted goods.
  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 manufacturer.
  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 and payable.
  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 contract.
  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.