TORUS PRESSURE CONTROL TERMS & CONDITIONS
All Torus Pressure Control (hereafter referred to as “Torus”) products and services are sold, leased or otherwise furnished in accordance with these General Terms and Conditions. These Terms and Conditions supersede all prior terms and conditions and shall be the sole terms and conditions which apply to any sale, lease or other furnishing of products or services. Acceptance by Buyer, lessee or user (hereinafter collectively referred to as “Buyer”) of the products and/or services provided by Torus pursuant to any order or request from Buyer shall be deemed a full acceptance by Buyer of all of the Terms and Conditions set forth herein. Different or additional terms proposed by Buyer are deemed material alterations and are objected to and rejected unless agreed to by Torus in writing.
1. (a) Subject to the limitations hereafter set forth, Torus warrants the products and services sold by it to be free from defects in workmanship or material for one year from (I) shipment from Torus’s facility in the case of products or (II) the completion of performance of services in the case of services. Torus’s obligation under this warranty for any products or services found by Torus to be defective in workmanship or material is limited to, at Torus’s option, repairing or replacing such products, or re-performing such services, or refunding the amount which Torus received from Buyer for such products or services. NOTE: In no event shall Torus be liable for special, indirect, incidental or consequential damages including environmental damage or remediation claims, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OR FAULT OF TORUS. It is expressly agreed that THIS WARRANTY SHALL BE IN LIEU OF ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WHICH IS HEREBY EXPRESSLY DISCLAIMED. To the full extent allowed by law, Torus disclaims any warranty to any persons other than Buyer.
(b) In addition, this warranty shall not apply if the product or service has been subject to misuse, negligence or accident, modification, heating, machining, bending, welding, or alteration of any kind, or has not been operated or installed in accordance with Torus’s instructions or has been operated under conditions more severe than, or otherwise exceeding, those set forth in the specifications for the product or service. This warranty does not extend to Torus products used with components which are not manufactured by Torus or approved by Torus in writing.
(c) Torus does not warrant that its products or services meet the requirements of any safety code of any state, municipality or other jurisdiction or that they will perform as anticipated or desired by Buyer and Buyer assumes all risk and liability whatsoever resulting from the use thereof, whether used singly or in combination with other machines, apparatus, or equipment.
(d) Products furnished by Torus but not manufactured by Torus will carry only the warranty of the manufacturer of such products, if any. Torus does not warrant any products not manufactured by Torus.
(e) Products and services shall be subject to Torus’s stated manufacture variations. All tables published by Torus are based upon information believed reliable; however, Torus does not guarantee accuracy of same. All measurements and weights set forth in such tables are subject to reasonable tolerance variations.
(f) Any claim on account of defective materials or services, shall conclusively be deemed waived by Buyer, lessee or user unless (I) Torus is promptly given notice in writing of any such defect during the warranty period set forth in (a) above; (II) Buyer has kept such products or results of services in condition so that Torus can examine same.
(g) The liability of Torus for any loss or damage in any way resulting to Buyer or any other person from any failure of a product or service to conform to order or specification, or on account of breach of warranty, or NEGLIGENCE or failure to conform to any standard of care in anything done or omitted by Torus or any employee or agent, or on account of patent infringement, shall not in any event exceed the amount which Torus received from Buyer for the product or service found to be defective. Where other manufacturers’ or suppliers’ products used in Torus products prove defective, Torus’s liability shall exist only to the extent that Torus is able to recover from such manufacturers or suppliers for said defects. The foregoing applies whether or not such damage was caused by the negligence or fault of Torus.
(h) Torus’s liability for damage to or loss of property of Buyer or others during performance of work thereon by Torus or while in Torus’s possession shall not exceed the price received by Torus for Its work on the article lost or damaged whether or not such damage was caused by the negligence or fault of Torus.
2. Torus retains the right to make substitutions and modifications to its product or services, provided that said changes do not affect the performance of those items.
3. Torus retains for itself all proprietary rights in and to all designs, engineering details and data concerning the services or products sold by it.
4. Any taxes or charges which Torus may be required to pay or collect under any existing or future law upon or applicable to the sale, purchase, lease, furnishing, manufacture, processing, transportation, delivery, storage, use or consumption of the product or services shall be for the account of Buyer.
5. Failure of Torus to enforce any of these conditions or to exercise any right arising from the default of Buyer shall not affect or impair Torus’s rights in case such default continues or in the event of any subsequent fault of Buyer nor shall failure constitute a waiver of any of these conditions.
6. (a) Torus shall make delivery of all products EX WORKS at Torus’s designated facility. Torus will use its best efforts in good faith to deliver the goods on or before the agreed delivery date, as adjusted in accordance with the terms hereof. Products stored at the request of the Buyer shall be so stored at the risk of Buyer. Buyer shall pay Torus reasonable storage charges, and shall reimburse Torus for any additional sales and/or use tax liability caused by such storage.
(b) Torus is not liable for delays in delivery or failure to make delivery caused by the elements, acts of God, lack of or inability to obtain materials, fuel or supplies, acts of Buyer, acts of civil or military authorities, breakdown of equipment, differences with workmen, fire, flood, or other casualty, labor shortages, governmental regulations or requirements, orders bearing priority rating established pursuant to law, shortages or failure of raw materials, supplies, fuel, power or transportation, or other causes beyond the reasonable control of Torus, whether similar or dissimilar to those enumerated, and whether or not foreseeable, and any delivery date will be extended accordingly.
7. No statement or recommendation made or assistance given by Torus or its representatives to Buyer or its representatives shall constitute a warranty by Torus or a waiver or modification of any of the provisions hereof or create any liability for Torus. There are no understandings or agreements between Buyer and Torus relative hereto which are not fully expressed herein. These General Terms and Conditions contain the entire agreement of the parties regarding the subject matter hereof.
8. Unless otherwise agreed, Torus’s payment terms are net thirty (30) days from invoice date.
9. Buyer agrees to transmit a copy of the Terms and Conditions set forth herein to any and all persons to whom Buyer sells, leases or otherwise furnishes the products and/or services provided Buyer by Torus and to obtain such person’s agreement thereto, and Buyer agrees to defend and indemnify Torus for any liability, loss, costs and attorneys’ fees which Torus may incur by reason, in whole or part, of failure by Buyer to transmit the Terms and Conditions as provided herein, whether or not such damage was caused in whole or in part by the negligence or fault of Torus.
10. These General Terms and Conditions and any Special Conditions which may apply shall be construed under and governed by the laws of the State of Oklahoma, U.S.A. To the extent the laws of any other jurisdiction are held to apply, Buyer hereby waives to the full extent permitted under such laws all rights given Buyer under such laws which are not also afforded by the laws of the State of Oklahoma.
11. Each party shall defend and indemnify the other from claims relating to personal injury including death of their employees or contractors and/or to damage to their property.
12. Buyer acknowledges that these General Terms and Conditions include provisions for the indemnification and/or exoneration of Torus against the consequences of its own negligence or fault, and agrees that these General Terms and Conditions comply with the express negligence rule, are conspicuous and afford fair notice.
Note: Our packers are not covered by warranty if left closed overnight or if damaged by stripping operations.