Sales Order Terms and Conditions

Review Date: 11/13/2024

1. Controlling Terms and Conditions. These terms and conditions of sale (these "Terms") are the only terms that govern the sale of Goods (as defined below) by Sunnen Products Company ("Sunnen") to the buyer named on the Invoice (as defined below) ("Buyer"). Collectively Buyer and Sunnen are referred to as the "Parties" and individually as "Party." The accompanying invoice (the "Invoice") and these Terms (collectively, the "Agreement") shall be the entire Agreement between the Parties with respect to the Goods. Acceptance of the Agreement is expressly limited to the terms and conditions stated herein and any additional or different term or condition on Buyer’s purchase order or acknowledgement form or otherwise communicated or proposed by Buyer is hereby objected to and rejected by Sunnen. Any such term or condition shall be totally inapplicable to the Agreement unless specifically agreed to in writing signed by an authorized representative of Sunnen. Shipment of the Goods covered by the Agreement shall not constitute acceptance by Sunnen of Buyer’s terms and conditions. Any correspondence, proposal, purchase order or other communication from Buyer characterized as an offer is hereby rejected in full, and in such situation the Agreement constitutes Sunnen’s counter-offer.

2. Acceptance. The Agreement is an offer to sell the goods and perform the services as set forth on the face hereof (the “Goods”). Buyer shall immediately and irrevocably accept the Goods when tendered and shall, in the case of nonconforming Goods, follow only the procedures and remedies outlined in the Agreement. If Buyer refuses to accept such Goods, Sunnen shall be entitled to exercise all rights and remedies available to it pursuant to the Uniform Commercial Code and all other applicable laws related to the sale of goods in the jurisdiction where the Goods are sold. Upon acceptance, the Agreement shall constitute the entire agreement between Sunnen and the Buyer with respect to the Goods. Buyer may cancel all or any portion of a purchase order for Goods by delivering not less than 15 days prior written notice to Sunnen (“Cancellation Notice”), provided that if any purchase order is so cancelled by Buyer, Buyer shall pay to Sunnen: (a) the price for all Goods that are produced and finished as of the date of such Cancellation Notice; (b) the direct cost to Sunnen of any work-in-progress in respect of such purchase order as of the date of such Cancellation Notice plus a handling and stocking charge equal to fifteen percent (15%) of such costs; and (c) any third party restocking or cancellation charges incurred by Sunnen due to such order cancellation. If Buyer issues a Blanket Purchase Order (a “BPO”), the parties agree and acknowledge that the quantities set forth in such BPO and/or an order acknowledgement represent the products, and the quantities agreed to be purchased by Buyer, and that Sunnen will plan production for delivery as set forth in the BPO for each shipment of Goods. The agreed upon pricing for the products on the BPO are subject to change quarterly, not to exceed the term of the BPO or a maximum term of 12 months. Any cancellation or modification to the BPO must be sent in writing and mutually agreed upon between Buyer and Sunnen. Any change to quantities during the term of the BPO must be done so in writing, no less than 30 days prior to change. Sunnen will stop production on any new items and Buyer will be required to remit payment within 30 days upon notice of quantity change. 

3. Changes; Taxes. The quantities, prices, terms, conditions or other pertinent specifications of the Agreement shall not be changed except by Sunnen's written authorization. Notwithstanding the foregoing, Buyer and Sunnen acknowledge and agree that all prices for the Goods, whether quoted or set forth in the Invoice shall be adjusted to Sunnen’s prices in effect at the time of shipment of the Goods. If transportation charges are included in the prices quoted or set forth in the Invoice, then any changes in such transportation charges shall be adjusted to the charges in effect at the time of the shipment of the Goods. Sunnen’s prices do not include sales, use, excise, value added, customs duties, or other similar taxes; therefore, the amount of any such present or future taxes applicable to the sale of the Goods, the use of the Goods by Buyer, or applicable to the shipping destination shall be paid by the Buyer.

4. Permissible Variations. Except as otherwise agreed to in writing by Buyer and Sunnen, all Goods shall be produced in accordance with Sunnen’s standard practice. All Goods and materials incorporated into the Goods, including those produced to meet exact specifications, shall be subject to deviations and variations consistent with usages of the trade, manufacturing processes, testing and inspection.

5. Solvency and Credit Approval. Buyer acknowledges and agrees that by placing its order for the Goods Buyer hereby represents and warrants that Buyer is solvent. In the event that Buyer becomes insolvent before accepting the Goods, it will notify Sunnen in writing of such insolvency. Failure to notify Sunnen shall constitute a written reaffirmation of Buyer’s solvency at the time of acceptance. Ordering, shipment and deliveries shall at all times be subject to Sunnen’s approval (in Sunnen’s sole discretion) of Buyer’s creditworthiness. If at any time Sunnen believes that its prospect of receiving payment from Buyer has been impaired, or if Buyer is insolvent or has repudiated its agreement with Sunnen or failed to make payment in full for any prior installment, then Sunnen may at any time, at Sunnen’s sole option do all or any of the following: (i) decline to make any shipment or delivery of Goods except upon receipt of prior payment or security, or upon such other terms and conditions as determined in Sunnen’s sole discretion; (ii) suspend production until any payments are received by Sunnen; or (iii) stop delivery of Goods at any time prior to delivery to Buyer. In addition to the foregoing, Sunnen shall have no obligation to make any further shipments of Goods until all payments for prior shipments have been received by Sunnen.

6. Payment, F.C.A., Title and Risk of Loss. Payment shall be made by Buyer in United States dollars or other medium acceptable to Sunnen. Payment shall be made by Buyer upon Sunnen’s presentation of the Invoice to Buyer, subject to the terms and conditions of payment stated herein. Unless otherwise stated in the quotation, Sunnen’s prices are quoted F.C.A. Sunnen Products Company, St. Louis, Missouri, USA, Incoterms (at the location indicated on the face of the Invoice) unless otherwise stated on the face of the Invoice. The risk of loss or damage to the Goods shall pass to Buyer at the F.C.A. point, Sunnen’s warehouse (at the location indicated on the face of the Invoice). Notwithstanding the foregoing, title to the Goods shall transfer to Buyer on delivery at Buyer’s designated shipping destination.

7. Machine Acceptance Delay. For goods which require acceptance or runoff of the goods at Sunnen Products Company (Sunnen) prior to shipment, if Buyer has been notified Sunnen is prepared for acceptance/runoff at Sunnen, and such acceptance cannot be performed due to Buyer delays, any progress payments which are due prior to shipment will be promptly invoiced after said notification.  Payment is due net 30 days or prior to shipment from Sunnen, whichever occurs first.  If acceptance/runoff is delayed beyond 30 days, due to no fault of Sunnen, the Buyer agrees to pay Sunnen a delayed shipment charge of 0.5% percent of the purchase price for every day the runoff is delayed. This will be invoiced at the time of acceptance, due net 30 days.

8. Shipment Authorization Delay. Upon notification that the goods are ready for shipment from Sunnen Products Company (Sunnen), if the Buyer fails to authorize shipment within 14 days, due to no fault of Sunnen, the Buyer agrees to pay Sunnen a delayed shipment charge of 0.5% percent of the purchase price of those goods for every day the shipment of the goods is delayed.

9. Delivery; Force Majeure. Each delivery of Goods shall stand as a separate sale and is subject to credit arrangements in accordance with Section 5. All delivery dates specified by Sunnen are approximate and are based upon its best estimate and are subject to change due to conditions beyond Sunnen’s control, including, but not limited to: (i) acts of God, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority or quasi-governmental authority, war (declared or undeclared), riot, revolution, priorities, fires, strikes, explosions, floods, quarantine restrictions, sabotage or epidemics, (ii) inability due to causes beyond Sunnen’s control to timely obtain, at normal prevailing market prices, necessary and suitable labor, materials, components, manufacturing facilities, transportation or instructions from Buyer, and (iii) any other cause beyond Sunnen’s reasonable control if by reason of any such circumstances Sunnen is unable to supply the total demand for the Goods to be delivered hereunder. Sunnen may make partial delivery of Buyer’s order shown on the Invoice or may distribute the available supply of Sunnen among any or all purchases on such basis as it may deem appropriate without liability for any failure of performance which may result therefrom. In the event of any such delay or failure, the date of delivery shall be extended for a period of time equal to the time lost by reason thereof.

10. Limited Warranty. For a period of twelve (12) months for consumables and (3) years for machines from the date of delivery of the Goods to the F.C.A. point, Sunnen warrants to the original Buyer of the Goods that: (i) all Goods provided for under the Invoice will conform to the requirements of the Invoice; and (ii) at the time of delivery of the Goods, the Goods will be free of defects in materials and workmanship. Sunnen shall have the right, in its sole discretion, to extend the length of the applicable warranty period by delivering notice in writing to Buyer setting out the length of such extension and any other terms and conditions applicable thereto (including all costs and expenses related thereto). This warranty does not cover any defects or costs caused by: (i) modification, alteration, repair, or service of the Goods by anyone other than Sunnen; (ii) physical abuse to, or misuse of, the Goods or their operation in an incorrect manner; (iii) any use of the Goods other than that for which they were intended; or (iv) damage during any shipment of the Goods. This warranty excludes all costs arising from routine maintenance, including the replacement of any parts required by such maintenance. THE WARRANTY PRINTED ABOVE IS THE ONLY WARRANTY APPLICABLE TO THIS PURCHASE AND THE GOODS; SUNNEN MAKES NO WARRANTIES (EXPRESS OR IMPLIED) OTHER THAN AS SET FORTH IN THIS SECTION 10. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT SUNNEN SHALL NOT BE DEEMED OR HELD TO BE OBLIGATED, LIABLE OR ACCOUNTABLE UPON OR UNDER ANY GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR BY OPERATION OF LAW OR OTHERWISE AND SUNNEN EXCLUDES ALL IMPLIED WARRANTIES (WHETHER IMPLIED IN FACT OR IMPLIED IN LAW OR IMPOSED BY LAW), INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY NOT PROVIDED HEREIN, AND ANY REMEDY THAT, BUT FOR THE WARRANTY CONTAINED HEREIN, MIGHT ARISE BY IMPLICATION OR OPERATION OF LAW, IS HEREBY EXCLUDED AND DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

IT IS UNDERSTOOD AND AGREED THAT SUNNEN’S LIABILITY AND BUYER’S SOLE REMEDY, WHETHER IN CONTRACT, UNDER ANY WARRANTY, IN TORT (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER, AND UNDER NO CIRCUMSTANCES SHALL SUNNEN BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF EQUIPMENT, LOST PROFITS OR REVENUE, COSTS OF RENTING REPLACEMENTS, AND OTHER ADDITIONAL EXPENSES, EVEN IF SUNNEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SUNNEN WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, OR EXPENSES AS A RESULT OF THE BUYER’S NEGLIGENCE, WHETHER DEEMED ACTIVE OR PASSIVE, AND WHETHER OR NOT ANY SUCH NEGLIGENCE IS THE SOLE CAUSE OF ANY SUCH DAMAGE, LOSS OR EXPENSE.

11. Buyer’s Remedies. Buyer’s sole and exclusive remedy for any alleged breach of Sunnen’s warranties set forth in Section 10 or for any delivery of alleged nonconforming Goods shall be as set forth in this Section 11. Within ten (10) days after learning of any alleged defect or failure to fulfill the warranties set forth in Section 10, or in any event not more than twelve (12) months from the date of delivery of the Goods to the F.C.A. point (or such extended warranty period as may be determined by Sunnen as set forth in Section 10), Buyer shall deliver written notice to Sunnen stating with reasonable detail any alleged defect or any failure to fulfill the warranties set forth in Section 10. Upon receipt of such notice, Sunnen shall, at Sunnen’s option, either: (i) issue a credit to Buyer for the Goods provided, however that Buyer shall return, by prepaid shipment at Buyer’s sole cost, all allegedly nonconforming Goods, only after first obtaining and following such instructions as Sunnen may require for authorizing any return by Buyer; or (ii) correct such failure by repairing or replacing such Goods found to be in fact nonconforming. Buyer’s retention of the Goods and failure to notify Sunnen as set forth herein shall constitute a waiver of all claims with respect to the Goods.

Preauthorization is required for all items being sent to Sunnen. Please contact Sunnen Customer Service at 1-800-325-3670 for a Return Merchandise Authorization (RMA) Number.  All items without an RMA Number will be returned to the Buyer.

Buyer acknowledges and agrees with Sunnen that any after-sales service work (including, but not limited to, (i) installation, repair, service or maintenance of the Goods, (ii) enhancements, upgrades or modifications to the Goods, (iii) training in respect of the operation and use of the Goods, or (iv) supervision of any such functions) to be performed on the Goods during the applicable warranty period as set forth in Section 10 requires specialized knowledge and shall be performed exclusively by an employee, contractor, representative or agent of Sunnen who has a very high degree of knowledge in respect of the Goods and already has the requisite skills obtained through extensive training in respect of the installation, repair, service, maintenance, enhancement, upgrade, modification and training of, to or in respect of the operation and use of, the Goods. Buyer may request from Sunnen and Sunnen may provide to Buyer, from time to time, enhancements, upgrades or modifications to the Goods or training in respect of the operation and use of the Goods, and the fees and expenses payable by Buyer related thereto shall be charged at the then-prevailing rates established by Sunnen.

12. Intellectual Property Indemnity. The Buyer agrees to indemnify and hold harmless Sunnen, its successors, assigns, against any loss, damage, liability, costs and expenses which may be incurred as a result of or in defending or settling any suit, claim, judgment or demand involving infringement of any patents, trademarks or copyrights, or for unfair competition, arising from compliance with Buyer’s designs, specifications or instructions. The Buyer agrees that it will, when so requested, assume the defense of Sunnen and/or its successors and assigns against any such suits, claims or demands.

13. Other Indemnifications. Buyer agrees to protect, defend, hold harmless and indemnify Sunnen from and against any and all liability and expense resulting from: (i) Buyer’s failure to comply with the terms and conditions of the Agreement; or (ii) any violation of any law, statute, ordinance, administrative order, rule or regulation connected with the Goods.

14. Assignment. Buyer may not assign, without Sunnen’s prior written consent: (i) the Agreement or any portion hereof; (ii) any duty or right herein; or (iii) any claim arising hereunder. The Agreement may not be assigned by operation of law or a merger or judicial sale or otherwise without the prior written consent of Sunnen. Any unauthorized assignment or attempted assignment by Buyer shall constitute a material breach of the Agreement. The Agreement may be assigned by Sunnen to any of its successors or assigns without the Buyer’s prior written consent. The Agreement shall be binding upon and inure to the benefit of Buyer and Sunnen and their permitted successors and assigns.

15. Machine Resale.  If at any time Buyer elects or intends to sell, lease, or otherwise transfer ownership of any machines purchased from Sunnen by Buyer to a third party (“Third Party Sale”), Buyer shall provide prior written notice of such intention to Sunnen and comply with the terms provided herein.  Sunnen shall have the right, but not the obligation, to repurchase such machines from Buyer at a mutually agreed upon price.  If Buyer receives an offer to purchase, lease, or otherwise transfer ownership of the machines purchased from Sunnen by Buyer (a "Third-Party Offer"), Buyer will notify Sunnen in writing of the material financial and other terms and conditions of such Third-Party Offer and Sunnen may, within fifteen (15) days of receipt of such notice, provide to Buyer written notice of its intent to repurchase the machines from Buyer in accordance with the financial and other terms and conditions of the Third-Party Offer. If, by the expiration of such fifteen (15) day period, Sunnen has not provided such notice, Buyer may consummate the transaction with the applicable third party on material terms that are identical to those contained in the Material Terms. 

16. Occupational Safety & Health Act. All items supplied by Sunnen shall be certified by Sunnen to be in compliance with requirements and standards of the Occupational Safety & Health Act of 1970 and all other applicable laws related to occupational health and safety in the jurisdiction where the Goods are located. In addition, where required, hazardous material data sheets will be supplied on all applicable products. Failure of Buyer to contest a citation resulting from non-compliance of these items will not relieve Sunnen of liability under this warranty.

17. Department of Labor Compliance. In compliance with the Executive Order 13496 and Executive Orders 11246 and 11375, Equal Employment Opportunity and Section 503 of the Rehabilitation Act of 1973 and Section 402 of the Vietnam Veterans Readjustment Assistance Act of 1974, the acknowledgment is a certificate of compliance which includes a certification of nondiscrimination with regard to race, creed, color, national origin, sex or age.

We hereby certify that these goods were produced in compliance with all applicable requirements of sections 6,7 and 12 of the Fair Labor Standards Act, as amended and regulations and order of the United States Department of Labor issued under Section 14 thereof.

18. Chemical Substances. By the Invoice, Sunnen certifies that all Goods supplied to Buyer will comply with provisions of 40 CFR 82.100 and do not contain and were not manufactured using Class l or Class II substances as defined by 40 CFR 82.104.

19. Compliance with Laws. Buyer shall comply with the provisions of all applicable federal, state, provincial and local, regulations, rules and ordinances from which liability may accrue to Sunnen from any violation thereof by Buyer.

20. Proprietary Rights; Confidential Information. Any knowledge or information which Sunnen shall have disclosed or may hereafter disclose to Buyer, or which may hereafter be acquired by Buyer, in connection with the Goods described herein, including manufacturing information, shall be deemed to be Sunnen’s proprietary information and confidential and shall not be disclosed by Buyer.  All non-public, confidential or proprietary information of Sunnen, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Sunnen to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Sunnen in writing. Upon Sunnen’s request, Buyer shall promptly return all documents and other materials received from Sunnen or destroy all such documents and materials and certify such destruction in writing to Sunnen. Sunnen shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.  

21. Special Equipment. In the event that Sunnen manufactures or purchases special tools, dies or other equipment in connection with Buyer’s order of the Goods, such tools, dies and equipment shall remain the sole and exclusive property of Sunnen, notwithstanding that part of the cost thereof is included as part of the price specified herein.

22. Waiver of Terms and Conditions. The failure of Sunnen in any one or more instances to insist upon performance of any terms or conditions contained herein, or to exercise any right or privilege hereunder, or the waiver by Sunnen of any breach by Buyer of these terms and conditions shall not be construed as a waiver of any such term, condition, right or privilege or any subsequent breach thereof, and the same shall continue and remain in full force and effect as if no failure or waiver had occurred.

23. Governing Law. This transaction shall be a contract made in the State of Missouri and governed by the laws thereof.

24. Jurisdiction and Venue. Sunnen and Buyer agree that any dispute arising hereunder shall be subject to the exclusive jurisdiction of the State or Federal Courts in or for St. Louis County, Missouri.

25. Costs. The prevailing party in any litigation brought hereunder shall be entitled to recover its costs and expenses, including reasonable attorney’s fees, incurred in such litigation.

26. Entire Agreement. These terms and conditions, any other special conditions contained in any schedules hereto or any specification or other documents delivered in connection herewith and specifically incorporated herein by reference constitute and represent the complete and entire agreement between Buyer and Sunnen and supersede all previous communications, either written or verbal with respect to the subject matter of the Agreement.

These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.