Terms & Conditions
Effective Date: September 04, 2015
WEST COAST INSULATION
TERMS AND CONDITIONS OF SALE
1. GENERAL. These Terms and Conditions of Sale and the non-conflicting provisions in West Coast Insulation’s quotation, if any, and acknowledgment or invoice from West Coast Insulation (collectively, the “Agreement”) govern in all respects all sales of any product (“Product”) and services (“Services”) from West Coast Insulation, Inc. (“West Coast Insulation”) to the purchaser (“Buyer”), including without limitation future replacement Product purchased by Buyer. No terms stated by Buyer in any purchase order, acceptance or acknowledgement will become part of the Agreement unless expressly agreed to and accepted by West Coast Insulation in writing and West Coast Insulation hereby rejects any additional or different terms. The Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral, written, or electronic and all other communications between the parties relating to the subject matter of the Agreement. West Coast Insulation’s quotations are offers that may only be accepted in full. All typographical or clerical errors made by West Coast Insulation in any quotation, acknowledgment or publication are subject to correction.
2. FEES AND PAYMENT. Fees for Product and Services will be specified on West Coast Insulation’s invoice. All prices are valid for 30 days from quotation, unless otherwise specified. Fees are exclusive of all shipping and handling charges, duties, tariffs, value added taxes, sales taxes, use taxes, or assessments levied by any federal, state, municipal or other government authority that may be owed by Buyer as a result of the purchase of the Product and Services, or other charges which may be imposed upon the sale or use of the Product so that West Coast Insulation receives the full amount of fees payable without reduction for any such taxes or other fees or charges. Such charges paid by West Coast Insulation will be for Buyer’s account. Any claim for exemption from such charges must be plainly designated on the face of the order and accompanied by all required exemption certificates. Unless specifically stipulated on an invoice or otherwise agreed to in writing by the parties, fees are in U.S. Dollars and are due upon Buyer’s receipt of the invoice, without right to deductions or set-off. West Coast Insulation may require payment to be made C.O.D. or via irrevocable letter of credit in favor of, and acceptable to, West Coast Insulation, established at Buyer’s expense, or require Buyer to provide further assurance of payment satisfactory to West Coast Insulation. If payment is not made when due, West Coast Insulation may suspend all future delivery or other performance with respect to Buyer without liability or penalty and, in addition to all other sums payable under the Agreement, Buyer shall pay to West Coast Insulation (a) the reasonable costs and expenses incurred by West Coast Insulation in connection with all actions taken to enforce collection or to preserve and protect West Coast Insulation’s rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys’ fees, court costs and other expenses, and (b) interest on all amounts unpaid after 30 days charged at the lesser of (i) the rate of 1.5% per month (18% annum) or (ii) the highest rate permitted by law.
3. SHIPMENT; DELIVERY; FORCE MAJEURE. Unless otherwise agreed to in writing by the parties, shipment and delivery of the Product are EXW West Coast Insulation’s place of manufacture (Incoterms® 2010). Risk of loss and title are transferred to Buyer at West Coast Insulation’s place of manufacture. All shipment, insurance or similar charges for delivery of Product shall be borne by Buyer and must be prepaid prior to shipment unless otherwise agreed in writing by West Coast Insulation. All claims for loss or damage in transit or for non-delivery shall be made by Buyer against the carrier. At West Coast Insulation’s option, Product may be shipped in advance of the requested shipment date or in installments. Any claims against West Coast Insulation for shortages by it in making shipments must be made in writing to West Coast Insulation within five days after receipt of shipment and any claims for shortages occurring thereafter must be made by Buyer to the carrier. All delivery information (including time for shipment) is approximate. West Coast Insulation’s sole responsibility is to use reasonable commercial efforts to meet specified shipment dates. Buyer expressly absolves West Coast Insulation from any liability for any loss or damage resulting from a failure to deliver or delays in delivery caused by any conditions related to, or caused by, labor dispute, fire, flood, governmental act or regulation, riot, inability to obtain supplies or shipping space, plant breakdown, power failure, delay or interruption of carriers, accidents, acts of God, acts or omissions of Buyer, or other causes beyond West Coast Insulation’s reasonable control.
4. CANCELLATION; FAILURE TO TAKE DELIVERY. The Agreement, in whole or in part, cannot be canceled or postponed by Buyer except with West Coast Insulation’s prior written consent and upon terms that will indemnify West Coast Insulation against loss. In the event of approval of a return request, (a) any applicable packing, shipping, and delivery costs will be at Buyer’s expense and (b) all returns must be shipped freight prepaid at Buyer’s expense. If Buyer delays, fails, or refuses to take delivery of Product or indicates its intention to do so, then the Product will be deemed to have been delivered when West Coast Insulation was willing and able to so deliver. If shipment of Product is postponed or delayed by Buyer, Buyer shall reimburse West Coast Insulation for any and all reasonable additional expenses, including but not limited to storage and transportation, resulting therefrom. If West Coast Insulation’s scope of supply includes installation services, Buyer must notify West Coast Insulation at least two weeks prior to the date Seller’s personnel will be required on site to perform such services. If the completion of such services is delayed by Buyer for any reason not the fault of West Coast Insulation following West Coast Insulation’s arrival on site, Buyer shall pay for any additional costs resulting from the delay.
5. LIMITED WARRANTY; REMEDY; WARRANTY DISCLAIMERS.
5.1 Limited Product Warranty. West Coast Insulation Inc., warrants to Buyer that all Product will be free from defects in material and workmanship, and will conform to West Coast Insulation specifications (or to Buyer’s specifications if agreed to by both parties in writing) for a period of one year from date of shipment (or date of installation if installed by West Coast Insulation), provided that:
West Coast Insulation is promptly notified (within the warranty period) of any warranty claim;
Defective or non-conforming Product is returned to West Coast Insulation, freight prepaid, after Buyer has provided acceptable documentation, such as vessel name, installation date and PO number, and received a return merchandise authorization number from West Coast Insulation; and
- West Coast Insulation’s examination of the items discloses to its reasonable satisfaction that the claimed Product defect or nonconformity was not caused by abuse, improper handling, installation, unauthorized repair, alteration or accident. Modification of Product by anyone other than West Coast Insulation will invalidate the warranty.
5.2 Warranty Exclusions. West Coast Insulation’s Product warranty does not apply to Product, including without limitation components, parts, and materials, that (a) are not manufactured by West Coast Insulation; (b) are expendable or consumable parts; (c) have been subjected to: (i) prolonged exposure to above average heat, (ii) exposure to excessive vibrations, (iii) accident or disaster, including without limitation, fire, flood, water, wind, and lightning, (iv) abuse or misuse, (v) failure of Buyer to follow West Coast Insulation’s most recent published operating instructions and Product documentation, (vi) modification or repair by persons other than West Coast Insulation, or (vii) use for purposes other than as specified in the Product documentation or most recent published operating instructions; or (d) are not properly stored, installed, maintained, or operated under normal conditions and in accordance with West Coast Insulation’s recommendations. West Coast Insulation's warranty is void and of no effect if the defect has arisen from damages occurring to the Product subsequent to delivery (or installation if installed by West Coast Insulation) or is related to the use of unauthorized hardware or other equipment. Unless otherwise specified by West Coast Insulation in writing, West Coast Insulation has no duty to install, inspect, observe, advise or warn as to Product, or as to any other products or conditions located on Buyer’s vessel, at the time of sale, delivery or otherwise. To the extent that Buyer or any of its agents has supplied specifications, information, representation of operating conditions or other data to West Coast Insulation that are used in the selection or design of Product and the preparation of West Coast Insulation’s quotation, and actual operating conditions or other conditions differ from those represented by Buyer, any warranties or other provisions contained in this warranty that are affected by such conditions are null and void. West Coast Insulation’s warranty does not include: routine maintenance; performing services connected with relocation of the Product or adding or removing accessories, attachments or other devices; repair of damage due to other than normal wear; any maintenance of accessories, attachments, or other devices not furnished by West Coast Insulation; and any issues resulting from an unsupported service.
5.3 Remedy. All warranty claims must be brought within the warranty period. Buyer’s sole and exclusive remedy, and West Coast Insulation’s only obligation for breach of this Product warranty, shall be, at West Coast Insulation’s option in its sole discretion, to either (a) repair or replace the defective Product at West Coast Insulation’s expense using new or refurbished parts, or (b) return such defective or nonconforming Product to West Coast Insulation and issue a credit to Buyer in the amount of the unit cost of the defective Product. This remedy is conditioned upon notification and substantiation as may be required by West Coast Insulation that such Product has been stored, installed, maintained, and operated in accordance with West Coast Insulation's recommendations. If onsite repair or installation by West Coast Insulation or its designee is required, as solely determined by West Coast Insulation, then warranty-related services are provided at no additional charge to Buyer, unless travel outside of West Coast Insulation’s service zone is required. All warranty claims for Product against West Coast Insulation must be brought within the applicable warranty period. Items repaired or replaced under warranty are warranted only for the remainder of the original warranty period.
5.4 Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF, AND WEST COAST INSULATION AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO PRODUCT OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WEST COAST INSULATION HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, WEST COAST INSULATION AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN BUYER WITH RESPECT TO THE PRODUCT OR ANY PART THEREOF.
Except for West Coast Insulation’s express warranties under this Section 5, Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use or installation of Products, either alone or in combination with other products or components, and shall indemnify, defend, and hold West Coast Insulation harmless for any such loss, damage or injury.
6. PRODUCT SUITABILITY. West Coast Insulation’s products are designed to meet stated U.S. general marine insulation safety standards and regulations. If Buyer requires Product to meet a certain certification or specification, Buyer must submit an insulation plan with desired classification certification. West Coast Insulation does not certify material or material usage, but is able to provide manufactures certifications as agreed upon. Because local safety standards and regulations vary significantly, West Coast Insulation cannot guarantee that Product meets all applicable requirements in each jurisdiction. Buyer assumes responsibility for compliance with the safety standards and regulations in the localities in which Product will be shipped, sold and used.
7. EXPORT COMPLIANCE. Customer shall strictly comply with and refrain from exporting or re-exporting the Products in violation of United States’ laws regarding trade restrictions and embargoes, as such laws may be amended from time to time.
8. LIMITATION OF LIABILITY; TIME FOR CLAIMS; INDEMNIFICATION. West Coast Insulation is not liable for incidental, special, indirect, consequential or other similar damages, including but not limited to loss of profit or revenues, damage for loss of use of the Product, damage to property, or claims of third parties, including personal injury or death on account of use of the Product or failure of West Coast Insulation to adequately warn against, or instruct on, the dangers of the Product or the safe and proper use of the Product, whether or not West Coast Insulation has been advised of the potential for such damages. West Coast Insulation’s total liability under the Agreement from any cause (except liability from personal injury caused by West Coast Insulation’s gross negligence), whether arising under contract, warranty, tort (including negligence), strict liability, product liability or any other theory of liability, is limited to the lesser of Buyer’s actual damages or the price paid to West Coast Insulation for the specific Product that is the subject of Buyer’s claim. All claims against West Coast Insulation must be brought within one year after the cause of action arises, and Buyer expressly waives any longer statute of limitations. Buyer shall defend, indemnify, and hold West Coast Insulation and its officers, directors, agents, representatives, employees, suppliers, and affiliates harmless from any and all sums, claims, costs, duties, suits, actions, losses, damages, legal fees, obligations, liabilities, and liens arising out of (a) Buyer’s purchase, use, possession, ownership, operation, condition, transfer, export, transportation or disposal of the Product, (b) Buyer’s violation or alleged violation of any foreign, federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety and labor practices, and (c) Buyer’s breach of the Agreement.
9. INTELLECTUAL PROPERTY. All equipment, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by West Coast Insulation in connection with the Product sold under the Agreement remain West Coast Insulation’s exclusive property. Buyer shall not disclose any such material to third parties without West Coast Insulation’s prior written consent.
10. MISCELLANEOUS. The Agreement will be governed by and construed in accordance with the laws of the State of Washington, U.S.A., without regard to its conflicts of law doctrines. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The exclusive jurisdiction and venue for all actions arising out of the Agreement, including any amendments or changes thereto, is exclusively in the federal or state courts having jurisdiction in King County, Washington, U.S.A. and Buyer agrees to submit to such jurisdiction and venue. West Coast Insulation’s rights and remedies under the Agreement are cumulative and in addition to any other rights or remedies provided by law or equity. The Agreement is binding upon and inures to the benefit of the parties to the Agreement and their respective successors, permitted assigns and transferees. Nothing in the Agreement confers upon any person other than West Coast Insulation and Buyer any right or remedy under or by reason of the Agreement. West Coast Insulation's failure to insist on strict performance of the Agreement or to enforce a default upon the occurrence of any single, repeated, or continuing violation of any particular term or condition of the Agreement, shall not be considered a waiver of West Coast Insulation's right to insist on strict performance of the Agreement or to enforce a default with respect to the violation of any other term or condition or, at any later time or upon any subsequent occurrence, with respect to that particular term or condition. If any of the provisions of the Agreement are held to be invalid, illegal, or unenforceable, then that provision will be ineffective only to the extent of its invalidity and the unaffected provisions of the Agreement will be unimpaired, and remain in full force and effect. Each party’s obligations that by their nature are intended to survive beyond the termination, cancellation or expiration of the Agreement will survive.