|
1. GENERAL
- The terms and conditions of sale contained herein apply to all quotations
made and all purchase orders entered into by Seller, and acceptance by Seller
of any order by confirmation or commencement of performance shall be on the
basis of these terms and conditions of sale, even though no reference is made
thereto at the time of acceptance. Seller's failure to object to provisions
contained in any communication from Buyer shall not be deemed a waiver of
these terms and conditions of sale. Buyer's assent to these terms and
conditions of sale shall be deemed to be given by implication unless Buyer
gives written notice of objection to Seller. Any changes in the terms and
conditions of sale contained herein must specifically be agreed to in writing
by an Officer of Seller before becoming binding on Seller.
2. ACCEPTANCE OF ORDERS - All orders from Buyer are subject
to acceptance by Seller, and Seller reserves the right to accept or reject
any orders in whole or in part.
3. PRICES - Prices quoted or acknowledged by Seller are firm
for the quantities and the shipping schedules set forth in the quotation or
order acknowledgement, but are subject to revision if quantities and/or
shipping schedules are changed by buyer.
4. TAXES - Unless otherwise specifically provided for in
quotation or order acknowledgement, the amount of any present or future
sales, revenue, excise or other tax applicable to the products covered by
this quotation or order or the manufacture or sale thereof, shall be added to
the purchase price and shall be paid by Buyer, or in lieu thereof Buyer shall
provide Seller with a tax exemption certificate acceptable to the taxing
authorities.
5. TRANSPORTATION - All sales are made F.O.B. shipping
point. Seller's title and risk of loss passes to Buyer upon making delivery
of material purchased hereunder to carrier at shipping point in good
condition. All claims for loss or damage must be filed by Buyer with the
carrier. Unless specific instructions are given by Buyer, Seller reserves the
right to select carrier and routing.
6. DELIVERY - Shipping dates are approximate and are based
on prompt receipt from Buyer of all necessary information, Seller reserves
the right to make partial shipments.
7. PAYMENT AND TERMS - All invoices on credit terms are due
and payable 30 days from the date of invoice. No discounts are allowed.
Invoices remaining unpaid after their due date will be subject to interest
charge of 1.5% per month (or the maximum rate allowed in Buyer's State, if
lower) from their due date until paid. Buyer will pay all costs and expenses
of collection of overdue accounts, including reasonable attorney's fees.
Each shipment shall be considered a separate and independent transaction, and
payment therefore shall be made accordingly. If shipment is delayed by Buyer,
Seller has the right to issue invoice on the date he is prepared to make
shipment. If the work covered by the purchase order is delayed by Buyer, the
invoiced amount shall be based on the purchase price and the percentage of
completion. Products held for Buyer shall be at the risk and expense of
Buyer. Seller reserves the right to ship to its order and make collection by
sight draft with bill of lading attached.
If, in the judgement of Seller, the financial condition of Buyer at any time
does not justify continuation of production of shipment on the terms of
payment originally specified, seller may require full or partial payment in
advance. In the event of bankruptcy or insolvency by Buyer or in the event
any proceeding is brought by or against Buyer under the bankruptcy or
insolvency laws, Seller shall be entitled to cancel any order then
outstanding and shall receive reimbursement for its cancellation charges.
8. LIMITED WARRANTY - Seller warrants merchandise sold by it
to be free from defects in materials and workmanship to equal or exceed the
applicable published ratings and specifications at the time of shipment for a
period of twelve (12) months from the date of the original shipment. Buyer's
approval of prototype shall be proof that the design meets the agreed
specification.
Seller's entire liability and obligation to Buyer under this warranty shall
be expressly limited to the repair, replacement or crediting, as Seller may
determine at its sole discretion, of any defective or nonconforming
merchandise for which Buyer has first given written notice to Seller of such
defect or nonconformity in the manner as provided below. No claim under
this warranty shall be valid unless within thirty (30) days of its receipt of
any merchandise hereunder, Buyer shall furnish Seller in writing notice of
any defect in materials and/or workmanship or any nonconformity with any
applicable specifications, specifying in detail any such defect or non-
conformity. Absent such timely notice, Buyer shall be deemed to have waived
any such defect or nonconformity which could be determined based upon a
reasonable inspection of such goods. With respect to orders contemplating
a series of shipments of merchandise by Seller or Buyer, unless Buyer
notifies Seller in writing within thirty (30) days of the initial shipment of
any nonconformity with any applicable specifications, then Buyer shall be
deemed to have waived such nonconformity with respect to subsequent shipments
involving the same specifications. Other than with respect to the repair,
replacement, or crediting of defective merchandise by Seller under the
limited warranty as provided above, Seller shall have no obligation to Buyer
with respect to any monetary damages by reason of such nonconformity or
defect, and in no event shall Seller be liable to Buyer for any lost profits
or consequential damages.
Seller shall have the option, exercisable in its sole discretion, of
requiring the return to it or an authorized representative of the defective
merchandise, transportation prepaid, for inspection. No warranty claim will
be allowed which, in the opinion of Seller, resulted from merchandise being
altered or repaired by other than Seller or an authorized representative or
resulted from misuse, negligence or accident. In the event that some, but not
all items of merchandise are defective within the terms of the limited
warranty set forth above, the repair, replacement or crediting of defective
merchandise at Seller's option shall apply only to such defective items
falling within the terms of such limited warranty and Buyer shall have no
right to return or seek credit for any items not so defective.
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE, AND SELLER SHALL HAVE NO
FURTHER OR ADDITIONAL OBLIGATION WITH RESPECT TO ANY MERCHANDISE SOLD TO
BUYER. ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR
PURPOSE, ARE DISCLAIMED.
9. LIMITATION OF LIABILITY - Seller's sole liability and
Buyer's exclusive remedy for damages from any cause whatsoever (and
regardless of the form of action) shall be limited to the repair, replacement
or crediting, at seller's sole option pursuant to the limited warranty set
forth above, of the specific merchandise that cause the damages or are the
subject matter of, or directly related to the cause of action. In no event
shall Seller be liable for damages caused by Buyer's negligence of for any
lost profits, or other incidental or consequential damages, including loss to
other machinery or equipment of which a product of Seller is a part, even if
Seller has been advised of the possibility of such damages. The Buyer shall
indemnify and hold Seller harmless from any claims of third parties,
including employees of Buyer.
10. FORCE MAJEURE - Seller shall not be liable for any
failure or delay in manufacture or delivery resulting from any cause beyond
the reasonable control of Seller, including by way of illustration and not by
way of limitation, compliance by Seller with any Government or military
regulation, or from acts of God, fires, or other casualty or accident,
strikes, lockouts, factory shutdowns, or alterations, embargoes, riots or
other disorders, acts of war and terrorism, delays or shortages in
transportation, or inability to obtain sufficient quantity of fuel, power,
labor, manufacturing facilities of materials or other supplies from the usual
sources of Seller. Neither shall the Seller be held to the price of the
product in his quotation and/or order acknowledgement, in the event cost of
materials needed for the Seller's manufacturing process of the product, as
the result of events listed in this paragraph, and being beyond the
reasonable control of the Seller, would increase beyond what can normally be
expected during the life of the purchase order. Should such cost increases
occur, the Seller and the Buyer agree to re-negotiate the price for the
product based on the actual cost increases to the Seller for the Buyer's
product as a result of said price increases of materials used in the manufacturing
of the product in question.
11. CANCELLATION - Cancellation of orders will be subject to
a Cancellation Charge equal to 15% of the Order Value, or the value of
material and work performed on the cancelled Product at the time of
cancellation, whichever is greater. Cancellation charge will be invoiced and
payment due within thirty (30) days.
12. RETURN POLICY - Buyer must obtain a Return Material
Authorization (RMA) Number from Seller prior to shipping any Product back to
Seller. All Returns to be sent prepaid by Buyer. At the discretion of the
Seller, unused and undamaged Products may, under certain circumstances, be
accepted back for credit or exchange. A restocking charge may apply. Please
consult the factory.
13. DISPUTES - This Agreement shall in all respects be
governed by the laws of the State of Texas. Disputes between the parties
shall be settled by arbitration according to the Rules of the American
Arbitration Association with three arbitrators. Arbitration to be held in
Houston, Texas.
|