|ACCEPTANCE AND COMPLETE AGREEMENT - Buyer’s order
is binding only when accepted in writing at the principal office of Seller. The
terms and conditions of sale are only those stated below, which shall
constitute the complete agreement between the parties and may not be altered or
modified except in writing duly executed by each party. The parties agree there
are no agreements between the parties, oral or written, with respect to the
products sold hereunder (including any made or implied from past dealings)
except as expressed herein. No terms and conditions stated in or attached to
Buyer’s communications to Seller, including but not limited to Buyer’s purchase
orders the terms of which are hereby rejected, are applicable to these terms
and conditions in any way and are not to be considered Buyer’s exceptions to
the provisions of these terms and conditions. Trade custom, trade usage and
past performance are superseded by these terms and conditions and shall not be
used to interpret these terms and conditions.
DELIVERY - Delivery dates are estimates only and are not
guaranteed. Seller will use every effort to make shipments as scheduled and may
make partial shipments. However, the completion of the order is subject to acts
of God or the public enemy, fires, floods, unusually severe weather, delays
caused by governments (including government priorities, preferences or
allocations), delays of suppliers in furnishing materials and services, and any
other causes beyond Seller’s control.
EXPORTATION - If the products ordered are to be exported from
the United States, the quoted shipping dates are subject to receipt of all
export documents and authorizations. Regardless of ultimate destination, the
prices quoted are based on packing for domestic shipment unless otherwise
stated in writing. Buyer agrees to provide Seller in writing with the ultimate
destination and identity of the end-user prior to shipment if the products are
to be exported. These commodities, technology or software shall be exported
from the United States in accordance with the Export Administration
Regulations. Diversion contrary to U.S. law is prohibited.
Domestic Destinations – The Buyer of items shipping to USA destinations is
solely responsible for complying with applicable U.S. export laws.
PRICES - Prices quoted, unless otherwise stated in writing,
are “Ex-Works (EX-W)” Seller’s facility and do not include sales, use, excise
or similar taxes or duties. Buyer shall pay these taxes directly if the law
permits or will reimburse Seller if it is required to pay them. Buyer will
provide tax exemption certificates or evidence of tax payment on request.
PAYMENT - Standard payment terms are net thirty (30) days from
date of invoice. In the event credit has not been established Seller reserves
the right to require payment, or the issuance of an irrevocable letter of
credit, in advance of shipment. Any amounts not paid when due shall bear
interest at the rate of 1 1/2% per month or at the highest rate permitted by
law (whichever is less), from the date of shipment until paid. Seller reserves
a purchase money security interest in each product shipped, which will be
satisfied by payment in full. Seller has the right to file a copy of this
document as a financing statement.
SOLVENCY - Buyer’s order will be deemed a representation that
Buyer is solvent and able to pay for the products ordered. If Buyer fails to
make payments when due or if bankruptcy or insolvency proceedings are
instituted by or against Buyer, or if Buyer makes an assignment for the benefit
of creditors, Buyer will be deemed to be in default and Seller will have the
right to terminate its obligations by written notice to Buyer, but such
termination will not affect Buyer’s obligation to pay for products delivered
and works in progress.
CANCELLATION - No products may be returned without prior
written approval of Seller. Orders placed with and accepted by Seller may not
be canceled except upon Seller’s written consent prior to shipment and Buyer’s
acceptance of Seller’s cancellation charges which shall protect Seller against
all costs and losses. Seller reserves the right to cancel any sale hereunder
without liability to Buyer (except for refund of monies already paid), if the
manufacture or sale of the products is or becomes technically or economically
|MANUFACTURE - Seller reserves the right to
discontinue the manufacture of, or change or modify the design and/or
construction of the products sold pursuant to these terms and conditions,
without incurring any obligation to Buyer.
JURISDICTION AND DISPUTES - These terms and conditions shall
be governed in accordance with the law of the State of Texas. All disputes
under these terms and conditions shall be resolved by the courts of the State
of Texas and the parties all consent to the jurisdiction of such courts, agree
to accept service process by mail, and hereby waive any jurisdiction or venue
defenses otherwise available.
INSPECTION - All products must be inspected within five (5)
calendar days of receipt. If any damage is discovered, a claim must be filed
with the carrier. A full report of the damage must be forwarded to Seller so
that it can arrange for repair or replacement.
TITLE –Unless otherwise provided on the face hereof, all
products furnished hereunder will be shipped “Ex-Works (EX-W),” and title in,
risk of loss, and the right of possession to such goods shall pass to the Buyer
upon the Seller’s delivery to carrier at Seller’s shipping facility, and Seller
is not responsible for damage or loss in transit, regardless of whether or not
Buyer may have the right to reject or revoke acceptance of said products.
Seller can arrange for in-transit insurance at Buyer’s expense, but will not do
so without Buyer’s written instructions. Charges for shipping may not reflect
net transportation cost paid by the Seller.
WARRANTY - All products that Seller manufactures are
warranted, when paid for and properly installed, operated and maintained, to be
free from defects in material and workmanship and to conform to the
specifications, if any, listed on the other side of this form. If no
specifications are listed, the products are warranted to conform to Seller’s
currently published specifications. The warranty period is one year from the
date of installation by the first user of the products, or eighteen (18) months
from the date of shipment to the Buyer, whichever occurs first. No warranty is
given for products or components (such as electric or pneumatic mechanisms)
manufactured by companies not affiliated by ownership with Seller, or for
products which have been subject to misuse, improper installation, corrosion,
or which have been disassembled, modified or repaired by unauthorized persons.
Seller must receive written notice of defect within the warranty period.
Seller’s liability is limited solely to servicing or adjusting any product
returned to the factory for that purpose, including replacing any defective
parts therein or, at Seller’s option, refunding to Buyer the purchase price
allocable to the nonconforming product. Buyer must pay packing, crating and
transportation costs to and from the factory. At Buyer’s request, Seller will
make reasonable efforts to provide warranty service at the Buyer’s premises,
provided the Buyer pays Seller’s then current rates for field service and the
associated travel and living expenses. If a fault has been caused by improper
installation, maintenance or use, or by abnormal conditions of operation,
repairs will be billed at normal rates.
If any fault arises, the following steps must be taken:
A. Notify Seller of the product model number, serial number and details of the
difficulty. On receipt of this information, Buyer will be given service data or
B. On receipt of Seller’s shipping instructions, forward the product prepaid.
If the product or the fault is not covered by warranty, an estimate of charges
will be furnished before work begins.
SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
SUCH AS WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. SELLER ALSO
DISCLAIMS ALL WARRANTIES REGARDING ANY ANCILLARY SERVICES RENDERED.
POLLUTION – Buyer agrees to indemnify, defend, and hold Seller
harmless against any loss, damage, expense, claim and any other cost or
liability (including, but not limited to, fines and penalties to the extent
permitted by law, clean-up or other remedial or containment costs, or legal,
technical or other professional fees) arising as a result of any pollution,
|contamination, or other loss or damage to the environment or
natural resources which arise in connection with any goods or services provided
by Seller under the contract, regardless of cause, including without limitation
Seller’s negligence, strict liability, or other act or omission.
DRAWINGS - Any drawings submitted herewith are only to show
the general style, arrangement, and approximate dimensions of the products
offered. No work is to be based on drawings unless the drawings are certified.
In no event will manufacturing or proprietary drawings be supplied.
CONFIDENTIALITY - Buyer agrees that all drawings, prints and
other technical material which Seller provides to Buyer, whether prepared by
Seller or by third parties under contract to Seller, contain data which embody
trade secrets and confidential know-how of commercial value to Seller or third
parties under contract to Seller. Buyer agrees (a) to keep such information
confidential; (b) that it will not disclose such information to any other
person, corporate division or entity; (c) will not use such information except
in connection with the products supplied hereunder; and (d) will not sell,
lease, loan or permit any other person, corporate division or entity to use
such information for any purpose, without Seller’s prior written consent.
Nothing herein shall restrict the use of information available to the general
PATENT INDEMNITY - If a product furnished to Buyer becomes or,
in Seller’s opinion, may become the subject of any claim, suit or proceeding
for infringement of any United States patent, Seller may at its option and
expense (i) obtain for Buyer the right to use, lease or sell the product, (ii)
replace the product, (iii) modify the product, or (iv) remove the product and
refund the purchase price paid by Buyer less a reasonable amount for use,
damage or obsolescence. Seller will not be liable for any infringement arising
from the combination of products or from the use of a product in practicing a
process. Seller’s total liability to Buyer will not, under any circumstances
exceed the purchase price paid for the allegedly infringing product. Buyer
agrees, at its expense, to protect and defend Seller against any claim of
patent infringement arising from compliance with Buyer’s designs,
specifications or instructions and to hold Seller harmless from damages, costs
and expenses attributable to any such claim.
INDEMNITY & INSURANCE – Buyer agrees to defend, indemnify
and hold the Seller (and its agents, representatives, employees, officers,
related companies, successors and assigns, and customers) harmless from all
claims, demands, actions, damages, and liabilities (including attorney’s fees
and consequential and incidental damages) arising out of any injury (including
death) to any person or damage to any property in any way connected with any
act or omission of Buyer, its agents, employees, or subcontractors. Buyer
agrees to maintain Workmen’s Compensation and Comprehensive General Liability
insurance, including property damage coverage, in an amount and form
satisfactory to Seller. Upon request, Buyer agrees to provide Seller with
certificates evidencing that such insurance is being maintained.
LIMITATION OF DAMAGES - IN NO EVENT SHALL SELLER BE LIABLE, IN
CONTRACT, TORT, STRICT LIABILITY, LAWS RELATING TO THE PROTECTION OF THE
ENVIRONMENT, OR UNDER ANY OTHER LEGAL THEORY, FOR INCIDENTAL, INDIRECT, SPECIAL
OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS INFORMED ABOUT THE
POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL SELLER’S LIABILITY EXCEED AN
AMOUNT EQUAL TO THE SALES PRICE.
WAIVER - No failure to exercise and no delay in exercising on
the part of Seller any right, power or privilege hereunder will operate as a
waiver thereof nor will any single or partial exercise of any right, power or
privilege hereunder preclude further exercise of the same right, power or
VALIDITY OF PROVISIONS - In the event any provision or any
part or portion of any provision of these Terms and Conditions shall be held to
be invalid, void or otherwise unenforceable, such holding shall not affect the
remaining part or portions of that provision, or any other provision hereof.