VALTIR RENTALS, LLC TERMS AND CONDITIONS OF SALE
(Rev. July 2022)
The following terms and conditions (“Terms”) shall be the exclusive terms incorporated into all quotations, purchase orders, sales contracts and purchase order acknowledgments (collectively, an “Order”) for the sale of Seller’s Goods. No contract shall be formed except upon these Terms. No terms or conditions embodied in any other document that pertains to an Order shall be applicable to the Seller and are hereby rejected unless expressly agreed to in writing by Seller.
- CHANGES AND INSPECTION: Any changes in specifications or delivery by the Customer subsequent to Seller’s Order shall be binding on Seller only when set forth in a written agreement signed by both parties specifying the changes and the price and delivery adjustments therefor. Customer may inspect the Goods at Seller’s plant upon Customer’s prior notice to Seller and Seller’s approval. If requested by Seller, Customer shall execute a Certificate of Inspection and Acceptance covering all Goods found to be in accordance with the specifications and Customer shall deliver the executed Certificates to Seller. Each inspection Certificate, when signed by the Customer and with respect to Goods covered thereby, shall be final and conclusive confirmation that such Goods conform in all respects, to the requirements and provisions of the Order.
- DRAWINGS AND SPECIFICATIONS: No drawings, specifications, or other data submitted to Seller with Customer’s bid forms shall be made a part of Seller’s Order unless specifically referred to in the Order and then subject to, and only to the extent of, any restrictions, limitations or other provisions set forth in the Order. Seller has no responsibility for reviewing any drawings, plans, designs, specifications or other data provided by Customer for any purpose other than at Customer’s request, to determine the quantity of Goods that could be required for Customer’s planned use or construction utilizing the Goods.
- DELIVERY AND DEPLOYMENT: If a time for delivery of the Goods is set forth in the Order, it is an estimate only and is subject to and conditioned upon the date of Customer’s acceptance without exception of the Order, timely receipt by Seller of Customer’s deliverables and delays due to strikes, shortages in skilled labor, fires, accidents or any other causes or contingencies beyond Seller’s control, whether foreseeable or unforeseeable, (“Delay Event”). Delay in delivery of all or any portion of the Goods that is not due to Seller’s willful act shall not constitute a default under the Order. Seller shall not be under any obligation to arrange for shipment and acceptance of any Goods in advance of Seller’s actual needs as determined in Seller’s sole discretion. Unless otherwise agreed by the parties, the Goods are sold F.O.B. Seller’s facility even though transportation costs may be included in the price stipulated. Title and risk of loss of the Goods shall pass to the Customer upon delivery. Neither the Customer nor the consignee of the Goods shall have the right, without Seller’s prior written agreement, to divert or re-consign any shipment to any destination other than as specified by the Seller in the bill of lading covering the Goods. Should delivery be to Customer’s site, it is agreed that Seller is not responsible for the placement of the Goods in accordance with any of Customer’s plans, drawings or specifications. It is agreed that any placement of the Goods by Seller at delivery shall not be considered Seller’s confirmation or approval of Customer’s use, deployment, arrangement, design, or configuration of the Goods. The use, deployment, arrangement, design or configuration of the Goods, including but not limited to, adding water or any other material, apparatus or components to the Goods and the source of such water, material, apparatus or components are the sole responsibility of Customer.
- QUANTITY: The quantity of Goods set forth in the Order will not be exceeded without authority being first obtained from Customer or Customer’s authorized agent. Customer reserves the right to return over-shipments.
- ACCEPTANCE AND TERMS OF PAYMENT: Unless otherwise agreed in writing, Customer agrees to accept delivery of all or any portion of the Goods as they are delivered to Customer. Customer shall pay the full amount of the purchase price upon delivery of the Goods, or a portion of the total thereof to the carrier at Seller’s facility, and upon presentation by Seller of an invoice for the Goods delivered and covered by the Order and a bill of lading showing shipment of the Goods. To secure Customer’s fulfillment of its obligations to Seller under the Order Customer hereby grants to Seller a security interest in the Goods delivered and the products, proceeds and accessions of and to any of the Goods, together with all right, title and interest of Customer therein and all rights and remedies which Customer might exercise with respect thereto but for the security interest granted. Customer acknowledges that the Order, including these terms and conditions shall constitute a security agreement between the parties.
- TAXES: The quoted purchase price for the Goods does not include any international, federal, state or local sales, use or related taxes, however designated or imposed, and any such sales, use or similar tax arising out of this transaction shall be for Customer’s account.
- CANCELLATION: Customer may not cancel the Order except with Seller’s consent and subject to conditions at such time agreed upon which shall include protection of the Seller against any loss, credit or expense incurred or expected to be incurred.
- NON DISCLOSURE: Customer agrees not to disclose to any third party (other than Customer’s legal counsel, financing entity or Prime Contractor) any of the terms or prices set forth in the Order including these terms and conditions, or the information received from Seller in either negotiating for a sale of the Goods or in the performance of the Order. This obligation shall survive delivery of the Goods. The obligations set forth in this provision shall not apply to any information, data, or designs which Customer can show it possessed prior to its disclosure by Seller, were or have become available to the public domain, or are subsequently provided to it by another party having the right to possess and disclose the information, data or designs.
- PATENTS: With respect to Goods which are unmodified in any way by Customer, Seller shall defend at its own expense any suit or proceeding brought against Customer based on a claim that the Goods constitute an infringement of any apparatus claim of any patent of the U. S. issued prior to the effective date of the Order, if Seller is notified promptly in writing and is given authority, information and assistance by Customer for the defense of same. Seller shall pay all damages and costs awarded therein against Customer. In the event the Goods are held in such suit to constitute infringement and their use enjoined, Seller shall at its own expense and at its option, either: (i) procure for Customer the right to continue using the Goods, (ii) replace the Goods with non-infringing Goods, (iii) modify the Goods so as to become non-infringing or (iv) refund the purchase price of the Goods found to be infringing. The foregoing sets forth the entire liability of Seller by way of infringement with respect to the Goods. Seller shall have no liability for infringement with respect to the Goods, or any part or portion thereof, which are manufactured, supplied or obtained according to Customer’s design or specification. To the extent of Goods which are manufactured, supplied or obtained according to Customer’s design, specification, or specification modifications, Customer agrees to hold harmless, defend, and indemnify Seller against any claims by way of infringement or of infringement that arise out of compliance with the specifications.
- WARRANTY: Seller’s obligation hereunder shall not cover or apply to any part of or attachment to the Goods not manufactured by Seller. To the extent available, and in accordance with the terms thereof, Seller will make available to Customer, upon Customer’s written request, any warranty from the manufacturer of any such part or attachment not manufactured by Seller that is a part of the Goods. Seller’s sole obligation under this warranty with respect to Goods shall be limited to repairing or replacing, at a shop selected by Seller, any of the Goods, which shall within one year after delivery, be returned to Seller by Customer with transportation charges prepaid and which Seller’s examination shall disclose to have been defective. SELLER MAKES NO REPRESENTATION, AFFIRMATION OF FACT OR PROMISE RELATED TO CUSTOMER’S ARRANGEMENT, USE OR DEPLOYMENT OF THE GOODS. NO SAMPLE OR MODEL HAS BEEN MADE PART OF THE BASIS OF THE ORDER OR HAS BEEN CREATED AS AN EXPRESS WARRANTY THAT ALL OF THE GOODS CONFORM TO ANY SAMPLE OR MODEL. THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED. SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
- INDEMNITY: CUSTOMER AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND EMPLOYEES (COLLECTIVELY “INDEMNITEES”), FROM AND AGAINST ANY AND ALL CAUSES OF ACTION, SUITS, DEBTS, CLAIMS, LIABILITIES, LOSSES, DAMAGES, COSTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES, COURT COSTS AND EXPENSES OF WHATEVER NATURE OR KIND, (COLLECTIVELY “LOSSES”), INCLUDING BUT NOT LIMITED TO ANY LOSSES RELATING TO BODILY OR PERSONAL INJURY, DEATH, DESTRUCTION OF OR DAMAGE TO PROPERTY, OR DAMAGE TO THE ENVIRONMENT, ARISING OUT OF, RESULTING FROM OR RELATED TO 1) CUSTOMER’S PURCHASE AND/OR USE OF THE SELLER’S GOODS AND/OR 2) ANY ACT, ERROR OR OMISSION OF CUSTOMER, CUSTOMER’S EMPLOYEES, AGENTS OR SUBCONTRACTORS, OR ANY RESPECTIVE EMPLOYEE OF ANY SUCH AGENT OR SUBCONTRACTOR.
- NO INSTALLATION: Upon request by Customer, Seller may provide consultation regarding assembly of the Goods during pre-construction activities, or may respond to questions during the Customer’s actual installation of the Goods. However, it is understood and agreed that no installation is provided by Seller or otherwise included within the obligations included herein. Customer acknowledges that it is aware that further information regarding the Goods, their specifications, technical information, and assembly is located at www.valtir.com.
- CONSEQUENTIAL DAMAGES: In no event shall Seller or its officers, directors, employees or agents be liable to Customer or any other person for any indirect, special, cover, consequential or punitive damages such as, but not limited to, delay damages, lost profits or revenue, or lost opportunity damages, resulting from or in connection with any claim or cause of action, whether brought in contract or in tort, even if Seller knew or should have known of the possibility of such damages.
- APPLICABLE LAW: The Order, including these terms and conditions, shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive jurisdiction and venue for any claim, matter or controversy arising from the Order shall be Dallas County, Texas.
- MISCELLANEOUS: The Order, including these terms and conditions, shall not be modified unless such modification is written and signed by both parties. Neither party’s failure to require performance of any term, condition or instruction, or to exercise any right or privilege set forth in the Order including these terms and conditions, shall be nor act as a waiver of any term, condition, instruction, and/or any right or privilege under t, impair or waive any rights in case a default by the other party continues, or in case any subsequent default by such party occurs. Neither party shall assign any right, obligation or interest in the Goods or an Order without the express written consent of the other party.
- ENTIRE AGREEMENT: The Quotation, including these terms and conditions, contains the entire agreement of the parties. The parties shall not be bound by or be liable for any statement, presentation, promise, inducement or understanding of any kind of nature not set forth herein. Any reference to Customer’s purchase order or other order does not imply acceptance of any term, condition or instruction contained in such purchase order or order.
VALTIR RENTALS, LLC TERMS AND CONDITIONS OF RENTAL
(Rev. July 2022)
Valtir Rentals, LLC (“The Company”) shall be bound exclusively and solely to the terms and conditions set forth in The Company’s Quotation and Rental Contract (collectively with these terms referred to herein as the “RENTAL CONTRACT”). This transaction is expressly limited to the Customer’s (as identified in the Quotation and Contract) acceptance of the terms, conditions or instructions stated on the quotation and at the company’s website, and any additional or differing terms, conditions, acknowledgments or instructions proposed by Customer are rejected. No terms or conditions embodied in any prime or other third party contract that pertains to the Product shall be applicable to The Company and these terms and conditions take precedence over any differing or contrary terms.
1. Rental Term. The Company rents to Customer and Customer hereby rents from The Company the product described in the Quotation (the “Product”) for the term described in the Quotation.
2. Delivery. If a date, period, or time for delivery of the Product is set forth in the Quotation, it is an estimate only and is subject to and conditional upon the date of Customer’s acceptance without exception of the Quotation, timely receipt by The Company of Customer’s deliverables (including, without limitation, survey data, dimensions, engineering data and other engineering, shop or detail drawings specifications, and materials), and delays due to strikes, shortages in skilled labor, fires, accidents or any other causes or contingencies beyond The Company’s control (“Delay Event”). Unless otherwise provided, the Product shall be delivered F.O.B. Destination.
3. Rent. The rent for the Product shall be for the term as accepted in the Quotation and shall be paid monthly in arrears beginning on the delivery date of the Product and on the same day of each succeeding month throughout the term hereof, at 15601 Dallas Parkway, Suite 525, Addison, TX 75001, or at such other place as The Company may designate from time to time. Rent for any partial month shall be prorated. To secure Customer’s fulfillment of its obligations to The Company hereunder, Customer hereby grants to The Company a security interest in the Product delivered and all rights and remedies which Customer might exercise with respect thereto but for the security interest granted. Customer acknowledges that the Quotation, including these terms and conditions shall constitute a security agreement between the parties.
4. Use. Customer has and hereby assumes sole responsibility for the installation and use of the Product. Customer shall install and use the Product in compliance with all governmental regulations and all national, state, local and other laws, ordinances and regulations.
5. Maintenance. During the term of this RENTAL CONTRACT, Customer, at its own cost and expense, shall keep the Product in good condition and repair.
6. Loss and Damage. Customer assumes the entire risk of loss and damage to the Product from any and every cause whatsoever. No loss or damage to the Product shall impair any obligation of Customer under this RENTAL CONTRACT. In the event of loss or damage to the Product, Customer shall: (a) place the same in good condition and repair to the satisfaction of The Company or (b) pay to The Company the replacement cost of the Product.
7. Surrender. Upon the expiration or earlier termination of this RENTAL CONTRACT, Customer shall return the Product to The Company (a) in good repair and condition, ordinary wear and tear resulting from proper use thereof excepted, and (b) to such location as The Company shall specify.
8. Insurance. Customer shall procure and maintain insurance as follows: (a) Commercial general liability coverage on an occurrence form for bodily injury and property damage with no less than a $2 million each occurrence limit; (b) Workers’ compensation insurance in compliance with the statutory requirements of the state in which the Product is to be used by Customer. All policies shall contain a waiver of subrogation in favor of The Company, Valtir, LLC and their respective affiliated legal entities. The Company, Valtir, LLC and their respective affiliated legal entities shall be named as additional insured on all general liability policies required herein and such policies shall be issued on a primary and non-contributory basis.
9. Taxes. Customer will pay all use and other taxes and fees and charges levied on the Product during the term of this RENTAL CONTRACT.
10. The Company’s Payment. In case of failure of Customer to procure or maintain said insurance or to pay fees, assessments, charges and taxes, all as specified in this RENTAL CONTRACT, The Company shall have the right, but shall not be obligated, to acquire such insurance or pay said fees, assignments, charges and taxes. In that event, the cost thereof shall be repayable to The Company upon demand, and failure to repay the same shall carry with it the same consequences, including interest at twelve percent (12%) per annum, as failure to pay any installment of rent.
11. Indemnity. Customer shall indemnify, defend and hold The Company, Valtir, LLC and their respective affiliated legal entities, harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorney’s fees and costs, arising out of, connected with any installation or use of the Product and/or any breach of the RENTAL CONTRACT. This indemnity shall survive termination or breach of this RENTAL CONTRACT.
12. Default. If Customer (i) fails to pay any rent or other amount herein provided within ten (10) days after the same is due and payable, or (ii) fails to observe, keep or perform any other provision of this RENTAL CONTRACT required to be observed, kept or performed by Customer, or, (iii) is the subject of any bankruptcy proceedings, or (iv) relocates the Product from their original use or installation location without consent of The Company, then The Company shall have the right to exercise any legal remedy, including but not limited to terminating this RENTAL CONTRACT and taking possession of the Product, without demand or notice, wherever same may be located, without any court order or other process of law. Customer hereby waives any and all damages occasioned by such taking of possession. Notwithstanding any repossession or any other action which The Company may take, Customer shall be and remain liable for the full performance of all obligations on the part of the Customer to be performed under this RENTAL CONTRACT. All of The Company’s remedies are cumulative, and may be exercised concurrently or separately.
13. Confidentiality. Customer agrees not to disclose to any third party (other than Customer’s legal counsel, financing entity or Prime Contractor) any of the terms or prices set forth in the Quotation, including these terms and conditions or the information received from The Company in either negotiating for rental of the Product or in the performance of the Quotation. This obligation shall survive delivery of the Product. The obligations set forth in this provision shall not apply to any information, data, or designs which Customer can show it possessed prior to its disclosure by The Company, was or has become available to the public domain, or is subsequently provided to it by another party having the right to possess and disclose the information, data or designs.
14. Ownership. The Product is, and shall at all times be and remain, the sole and exclusive property of The Company; and the Customer shall have no right, title or interest therein or thereto except as expressly set forth in this RENTAL CONTRACT. Customer shall, at all times, protect, defend at its own cost and expense, the ownership of The Company against any claims, liens or legal processes of creditors of Customer and others and keep the Product free and clear of all claims, liens and processes.
15. Warranty. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR ANY OTHER MATTER CONCERNING THE PRODUCT. THE COMPANY SHALL NOT HAVE ANY RESPONSIBILITY TO CUSTOMER FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING BUT NOT LIMITED TO INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATED PROFITS. During the period of this RENTAL CONTRACT which Customer renders faithful performance of its obligations, The Company hereby assigns to Customer any warranty, whether express or implied, The Company may have against the manufacturer in connection with defects in the Product covered by this RENTAL CONTRACT.
16. Additional Documents. If The Company shall so request, Customer shall execute and deliver to The Company such documents as The Company shall deem necessary or desirable for purposes of recording or filing to protect the interest of The Company in the Product including, but not limited to a UCC financing statement.
17. Entire Agreement. This instrument constitutes the entire agreement between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the parties hereto.
18. Notices. Service of all notices under this Agreement shall be sufficient if given personally or delivered via recognized overnight courier at the address for each party as set forth in the Quotation, or to such address as such party may provide in writing from time to time.
19. Assignment. Customer shall not assign, transfer, pledge or otherwise dispose of this RENTAL CONTRACT or any interest therein or sublease or re-rent or loan the Product or permit it to be used by anyone other than Customer, without the prior written consent of The Company.
20. Governing Law; Venue. This RENTAL CONTRACT shall be construed and enforced according to laws of the State of Texas. Exclusive jurisdiction and venue for any claim, matter or controversy arising from this RENTAL CONTRACT shall be Dallas County, Texas.
21. NO INSTALLATION: UPON REQUEST, THE COMPANY MAY PROVIDE CONSULTATION REGARDING PRODUCT ASSEMBLY DURING PRE-CONSTRUCTION ACTIVITIES, OR MAY RESPOND TO QUESTIONS DURING ACTUAL PRODUCT INSTALLATION. HOWEVER, NO INSTALLATION LABOR IS PROVIDED BY THE COMPANY, OR OTHERWISE INCLUDED HEREIN. CUSTOMER HEREIN ACKNOWLEDGES UPON RECEIPT OF GOODS THAT IT HAS RECEIVED A MANUAL / BROCHURE / SET OF SPECIFICATIONS (MATERIALS) COVERING ASSEMBLY OF THE PRODUCT(S) AND IS AWARE THAT FURTHER INFORMATION REGARDING THE PRODUCT(S), ITS SPECIFICATIONS, TECHNICAL INFORMATION, AND PRODUCT ASSEMBLY IS LOCATED AT www.valtir.com.
22. SET UP AND RECOVERY SERVICE: IF A SET UP SERVICE IS SPECIFICALLY INCLUDED IN WRITING THE COMPANY MAY PROVIDE SET UP AND RECOVERY SERVICES FOR THE PRODUCT(S). SAID SERVICES ARE IN CONJUNCTION WITH THE ABOVE NO INSTALLATION CLAUSE NO. 21 AND ARE NOT TO BE ASSUMED TO BE INSTALLATION. FINAL PLACEMENT, ADDING WATER AND WATER SOURCE ARE THE RESPONSIBILITY OF THE CUSTOMER.
