Terms and Conditions

YDF VALVE INTERNATIONAL, INC (YVI)

YVI’s Terms and Conditions for the Sale of Products and Services

These YDF VALVE INTERNATIONAL, INC. (“YVI”) Terms and Conditions of Sale (“Terms and Conditions”) will govern all sales of YDF/YVI Valve Products and Services, including products, equipment, parts and services (“Products and Services”) manufactured by Jiangsu YDF Co., Ltd. or sold by YVI to Purchaser. Any additional or different terms proposed by the Purchaser in any document are rejected and shall not be binding upon YVI, unless agreed to in writing and signed by authorized representatives of YVI and the Purchaser.

1. Prices: All orders for Products and Services shall be invoiced at the prices agreed as stated in the relevant purchase order between YVI and Purchaser. Purchaser may, with the written agreement of YVI, make changes in the Products or Services (a “Change Order”), which may include adjustments in prices and delivery dates. All prices subject to correction for error.

2. Quotations: Acceptance of quotation is subject to these Terms and Conditions and is expressly limited to 30 days from the date the quotation is issued in writing by YVI to Purchaser, unless otherwise stated in the YVI quotation. YVI reserves the right to withdraw any quotation prior to its acceptance. All purchase orders issued by the Purchaser are subject to approval by YVI.

3. Cancellations: No order accepted by YVI may be cancelled by Purchaser without the prior written consent of YVI, which consent shall be conditional on the Purchaser’s agreement to pay YVI’s cancellation charges. For Product, which in YVI’s sole discretion is readily resalable, the cancellation charge shall be 25% of the invoice price for the Product. For all other cancellations, the charge shall amount to costs and expenses incurred by YVI arising out of or in connection with the Purchaser’s cancellation of the order, net of recoverability, but not more than the invoice price.

4. Taxes, Duties, Customs: Any sales, use or other taxes imposed on the sale of Products and Services are not included in the price and will be paid by or invoiced to the Purchaser, unless otherwise stated in the YVI quotation. YVI will accept a valid exemption certificate from the Purchaser, if applicable. However, Purchaser shall protect, indemnify and hold YVI harmless from and against all liabilities in respect of all taxes.

5. Freight Terms: Products are made available at the factory based on Ex-Works (Incoterms), unless otherwise stated in the quotation. Risk of loss shall pass to the Purchaser upon collection of the Products at the YVI Factory for Ex-Works shipments. For shipments arranged through other INCOTERMS, risk and title will transfer to the Purchaser based on INCOTERMS 2020 responsibilities. When Purchaser arranges the export shipment, Purchaser will provide YVI evidence of exportation acceptable to the relevant tax and custom authorities.

6. Packaging / Storage: Products shall be packaged to ensure safe delivery only, and are not packaged for storage after delivery. If Purchaser requires packaging suitable for storage after delivery, YVI must agree to such modification in writing, and additional charges will apply. If any Products to be delivered under this Contract cannot be shipped to or received by Purchaser when ready due to any cause attributable to Purchaser, YVI may ship the Products to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If YVI places Products into storage, the following apply: (i) title and risk of loss immediately pass to Purchaser, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to YVI upon delivery or shipment shall be due; (iii) a fee of two percent (2%) of the value of the Products will be charged to Purchaser; and (iv) when conditions permit and upon payment of all amounts due, YVI shall make Products available to Purchaser for delivery.

7. Deliveries: YVI shall not be liable for any direct, indirect or consequential damages or loss caused by delay in delivery or failure to deliver, regardless of the cause of the delay or failure and whether it results from Force Majeure or any other cause. Purchaser agrees to look exclusively to Purchaser’s insurance to recover for injuries or damage in the event of any loss or injury and Purchaser releases and waives all right of recovery against YVI arising by way of subrogation. Damages for delay, including liquidated damages clauses in any Purchaser terms and conditions must be limited to no more than ½% of the late items value only per week with a maximum of 5 weeks, not compounded. Any liability of YVI for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

8. Claims for Shortages: The Purchaser shall make all claims for shortages in writing (which includes particulars of the shortage) within 10 business days after receipt of the Products. Claims for shortages must be substantiated to the satisfaction of YVI. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Purchaser.

9. Terms of Payment:
   • The Purchaser shall fully pay the invoice within the agreed upon payment term, as stated in the YVI quotation, from the date of a properly formatted invoice.
   • If the Purchaser fails to fully pay YVI within the time provided, interest shall accrue on the unpaid balance at the rate of 1.5% per month compounded monthly until the invoice and interest is paid in full or the maximum amount allowed by law, if less than 1.5% per month.
   • In addition to interest, Purchaser agrees to pay for all other losses, damages or expenses incurred by YVI as a result of Purchaser’s failure to make timely payment, including, but not limited to, attorneys’ fees and court costs incurred with the collection of payment.
   • It is expressly understood that all claims on the part to the Purchaser shall have no bearing on the obligation of the Purchaser to make timely payments under these Terms and Conditions. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with YVI, whether relating to YVI’s breach, bankruptcy or otherwise.
   • If Purchaser disputes any invoice or portion thereof, it shall notify YVIs in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.

10. Security for Payment: As collateral security for the full payment of the purchase price of the Products, Purchaser hereby grants to YVI a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under (i) if in the United States, the Texas Uniform Commercial Code or (ii) if in Canada, the Personal Property Security Act (Canada). YVI shall have the right to file any and all documents and take any action it deems necessary to fully establish protection of its security interest in the Products; however, the failure of YVI to file any such document shall not in any way act as a waiver of its right to such security interest.

11. Credit Approval: The acceptance of orders is subject to the satisfactory credit approval of the Purchaser at the sole discretion of YVI. YVI may require full or partial payment in advance and it may determine at any time that it will not continue production or shipment on the terms specified.

12. Intellectual Property:
    • Purchaser agrees that it will not disclose or make available to any third party any of YVI’s data, pricing information, technical specifications that are not otherwise generally available or other proprietary information without obtaining prior written consent from a YVI authorized representative.
    • YVI is unable to guarantee that no patent rights, copyrights, trademarks, (user) rights, trade models or any other rights of third-parties are infringed by goods received from suppliers and/or Purchasers via YVI or third-parties via them, including but not limited to goods, models and drawings for the manufacture and/or delivery of certain Products.
    • In the absence of written agreement to the contrary, YVI holds the copyrights and all rights of (industrial) property to the offers it has made and the designs, images, drawings (test) models, software, templates and other goods that it has issued.

13. Returned Goods: The Purchaser shall not have the right to return any Products without the express written consent of YVI. If a return is authorized, all products must be promptly returned and received in the place stipulated by YVI in unused and in good and saleable condition. YVI may, as a condition to agreeing that the Purchaser may return any Products, require the Purchaser to accept a credit which may be applied to subsequent orders. YVI may charge a restocking charge up to 25% of the purchase price and any other related charges including, but not limited to freight and taxes. Despite its prior consent to the return, YVI has the right to either reject the returned Products or to charge fees if, in the opinion of YVI, the Products returned are damaged from any cause whatsoever. Special order items; non-stock or obsolete Products, as determined by YVI, may not be returned. No product outside the warranty period may be returned.

14. Warranty / Disclaimer of Warranty: YVI warrants Products for twelve (18) months from date of sales or six (12) months from the date of installation, whichever comes first, to be free from defects in workmanship and materials, not caused by or resulting from improper usage or application, subject to certain exclusions as defined below and provided all equipment is properly maintained and stored.

(a) Tested, or subjected to, any pressure greater than the stated working pressure.

(b) Repaired, altered, or modified by any contractor, laborer, person or entity that has not been authorized in writing by an authorized representative of YVI.

(c) In YVI’s sole discretion, that has been subject to negligence, accident, improper storage, or improper handling.

(d) Not properly operated or maintained in accordance with normal practices and industry standards and the applicable YVI Installation, Operation and Maintenance Manual.

THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH EXCEED THE FOREGOING WARRANTY.

15. Disclaimer of Warranty:
    • YVI warrants that all products manufactured by it shall, at the time of sale, comply with its applicable specifications. All products not manufactured by YVI are sold only with the warranties provided by the manufacturer of products, if any. YVI MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YVI personnel are not authorized to alter this disclaimer of warranty.
    • All Products are sold for commercial use only and are not intended for use by consumers. Accordingly, YVI disclaims all warranties to consumers, as defined by the Magnuson-Moss Act and/or applicable state law and/or applicable Canadian consumer protection act. Any inspection services provided by YVI at Purchaser’s request shall be provided as a customer service only and shall not be deemed to act as a warranty or approval of Purchaser’s installation, use, or maintenance of the Products, nor shall YVI be liable for failure to detect improper use, installation or maintenance of the Products by Purchaser.

16. Limitation of Liability:
    • IN NO EVENT SHALL YVI BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT YVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL YVI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO YVI FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO YVI FOR SERVICES PERFORMED HEREUNDER.
    • This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between YVI and Purchaser, without which YVI would not have agreed to provide the Products or services at the price charged.

17. Indemnification:

Each of Purchaser and YVI (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Purchaser and YVI, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of YVI’s indemnity obligation, no part of the Products is considered third party property.

18. Compliance with Laws
    • YVI shall take reasonable steps to ensure the Products are in conformity with applicable laws and regulations; however, Purchaser acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that YVI cannot warrant compliance with all applicable laws and regulations. YVI disclaims any representation or warranty that the Products conform to federal, state or local laws, regulations, ordinances, codes or standards, except as expressly set forth by YVI in writing. Purchaser shall comply with all applicable laws, regulations and ordinances. YVI may terminate this Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
    • The products, items, technology or software covered by a quotation/order may be subject to various laws including U.S. and foreign export controls. YVI is committed to complying with all relevant export laws. YVI’s obligations are conditioned upon Purchaser’s compliance with all U.S. and other applicable trade control laws and regulations. Purchaser agrees to indemnify and hold YVI harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations.
    • Purchaser represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Products sold hereunder, and shall provide evidence of compliance with the foregoing as YVI may reasonably request from time to time.
    • Purchaser represents and warrants that it is in compliance and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, British Bribery Act or equivalent legislation in any relevant jurisdiction, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Purchaser is not on, nor is Purchaser associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.

19. Termination: In addition to any remedies that may be provided under these Terms and Conditions, YVI may terminate this Contract with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under this Contract and such failure continues for thirty (30) days after Purchaser’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

20. Force Majeure: Force Majeure shall mean: “an event or circumstance beyond the reasonable control of a party, that materially prevents the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against, but shall not be excused for failure or delay resulting from only general economic conditions or other general market effects.”

In the event that YVI is unable, due to Force Majeure, to observe or perform any of the obligations imposed upon it under these Terms and Conditions, YVI shall be deemed not to be in breach of these Terms and Conditions, and the performance or observance of its obligations will be suspended to the extent to which those obligations are affected by the Force Majeure event. A claim of Force Majeure by YVI shall not suspend or reduce the obligation of the Purchaser to make payment to YVI as and when required for all Products and Services delivered or provided to the Purchaser.

21. Governing Law and Submission to Jurisdiction: These Terms and Conditions shall be governed by, and be construed in accordance with the laws of the State of Texas. Purchaser agrees that the jurisdiction is in any federal or state court in Harris County, Texas. If Purchaser’s pertinent place of business is outside the U.S. and Canada, the dispute shall be submitted to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of arbitrators shall be one, selected in accordance with the ICC rules, unless the amount in dispute exceeds the equivalent of U.S. $5,000,000, in which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third within thirty (30) days, who shall be the Chairman. The seat, or legal place, of arbitration, shall be London, England. The arbitration shall be conducted in English. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the governing law of the Contract. The decision of the arbitrator(s) shall be final and binding upon both parties, and neither party shall seek recourse to a law court or other authority to appeal for revisions of the decision. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding arising out of these terms and conditions. This provision shall not be construed to affect the rights of YVI to enforce a judgment or an award outside of Texas.

22. Waiver: The failure of either YVI or the Purchaser to insist on performance of or failure to exercise any right or the waiver of any breach of any of these Terms and Conditions shall not waive any other terms, conditions, privileges or rights, whether of the same or similar type and will not preclude subsequent enforcement of any of these Terms and Conditions.

23. Effect of Assignment: No assignment by the Purchaser of any of its rights in and to any of the Products and Services shall relieve the Purchaser from its obligations to fully pay for the Products and Services purchased by it in accordance with the terms hereof.

24. Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

25. Notices: All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

26. Severability: If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.

27. Survival: Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions.

28. Entire Agreement: These Terms and Conditions constitute the entire agreement between Purchaser and YVI relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.