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
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.
- 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
- 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.
- 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.
- Shipping dates are approximate and are based on prompt receipt from Buyer
of all necessary information, Seller reserves the right to make partial
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.
- 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.
- 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.