IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ALL SALES SHALL BE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS AND THOSE CONTAINED ON THE FACE THEREOF:
1. PAYMENT TERMS
A. Net amount of invoice is payable in full within the period of time specified in Term of Payment on the face of the Customer Sales Agreement. If, in the Seller’s opinion, the financial condition of Buyer at the time does not justify shipment upon the terms of payment specified, seller may require full or partial payment in advance or may shorten the time period for payment. Seller may charge a late fee of 1.5% per month on all overdue invoices.
B. Prices quoted are based upon the quantity reflected on Customer Sales Agreement. Any deviation in quantity accepted by Buyer with Seller’s consent will require a bill-back charge by Seller based upon the actual quantity accepted by buyer. This charge will be the greater of the book price at date of quotation or date Seller allows the deviation in quantity.
2. TAXES: The amount of the present or future sales, revenue, excise or other taxes applicable to the products listed herein shall be added to the purchase price and shall be paid by the Buyer or in lieu thereof. Buyer shall provide Seller with a tax exemption certificate acceptable to the taxing authorities should Buyer identify itself to the Seller as a non-taxable entity.
3. PRICES: All of the prices are based upon the official rate exchange effective as of this date. In the event of change in said rate prior to and delivery, the quoted prices with respect to all future deliveries will be increased or decreased to reflect such changes. Duties are paid by Seller as deposits only and are subject to final liquidation by U.S. Customs. Any increase in duties will be billed to Buyer and reductions will be reimbursed.
4. LIMITATION OF LIABILITY: EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR USE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, REGARDLESS OF THE FORESEEABILITY THEREOF, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
5. WARRANTIES AND LIABILITIES OF SELLER
A. Seller hereby warrants that the product delivered hereunder will have been manufactured in accordance with and will meet or exceed the manufacturer’s usual standards for said product. The foregoing warranty shall be exclusive to Buyer in lieu of any and all other warranties, express or implied.
B. Seller hereby warrants that the product delivered hereunder will be free of defects in materials or workmanship for a period of one year from the date product was installed. In addition, any labor performed will be warranted by Seller for 90 days (ninety days) commencing the date the labor was performed.
C. Within ten (10) days with regard to non-conforming product and within thirty (30) days with regard to defective product from the date of delivery to Buyer and product which does not meet or exceed the manufacturer’s usual standards as set forth in the above warranty shall be at Seller’s option, either repaired or exchanged by Seller so that the same will then meet or exceed the manufacture’s usual standards. Seller’s obligation with respect to said product shall be limited to repair or exchange, F.O.B. it’s warehouse, of product which upon inspection by the Seller shall be found not to meet or exceed the manufacturer’s usual standards.
D. EXCEPT AS HEREIN SET FORTH SELLER MAKES NO WARRANTIES OR REPRESENTATIONS EXPRESSED OR IMPLIED WITH RESPECT TO THE PRODUCT AND BUYER HEREBY EXPRESSLY WAIVES ALL SUCH WARRANTIES, GUARANTEES AND REPRESENTATIONS INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
E. SELLER SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES SUSTAINED BY BUYER ARISING OUT OF THIS TRANSACTION.
F. Buyer shall give Seller written notice within the time periods above stated from the date Buyer’s receipt of the product of any claim which Buyer believes it has against Seller based on breach of warranty or shortages or other non-conformity, and Buyer’s failure to do so shall constitute a waiver of Buyer of all claims in respect of such product as to which a claim might otherwise have been made. No charge, expenses, replacements or repairing incident to any claim will be allowed. No product shall be returned to Seller without its prior written authorization. If unauthorized shipments are made to Seller, Seller reserves the right to refuse the shipment or to accept it, and in the latter case the shipment will be held as Buyer’s property and without responsibility whatsoever by Seller.
G. Seller assumes no risk and shall be subject to no liability for any damages or loss resulting from the use or application made of the product delivered hereunder other than for its intended use.
H. Nothing herein shall be deemed to have any effect or relation to any warranty given or to be given by Seller to the ultimate consumer of any item hereby sold.
6. CANCELLATION: An order, once placed and accepted by seller, can be cancelled only with the seller’s consent and upon terms that will indemnify Seller against loss. Except as otherwise provided herein, the within order shall be non-cancelable unless pursuant to a written agreement duly executed by authorized officers of both Buyer and Seller with Buyer to reimburse Seller for all expenditures actually incurred (including indirect expenses) with respect of that portion of this order sought to be cancelled.
7. RETURNED GOODS: In no case are goods to be returned without first obtaining Sellers written permission. Only unused goods in original factory sealed cartons as currently manufactured cartons which have been invoiced to customer within ninety (90) days will be considered for return. Returned goods accepted for credit are subject to a restocking charge of up to 25% plus all transportation charges. Special or manufactured to order goods are not subject to return for credit under any circumstances.
8. INDEMNIFICATION: Each Party (each, an “Indemnifying Party”) hereby agrees to indemnify, defend and hold harmless the other Party and their affiliates and their respective directors, officers, and employees (each an “Indemnified Party”) from and against any and all claims, demands, suits, actions, proceedings, investigations, losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees and other expenses of litigation), suffered, incurred, or asserted by or against any Indemnified Party resulting from or arising out of any: (a) breach or alleged breach by the Indemnifying Party of any representation, warranty, covenant or agreement contained in this Agreement; (b) damages to the Property or any personal property or personal injury caused by the Indemnifying Party; (c) the failure of the Indemnifying Party to comply with, or any violation of, any applicable law, statute, ordinance, governmental administrative order, rule or regulation related to the performance of its obligations hereunder; or (d) gross negligence or willful misconduct of the Indemnifying Party.
9. NOTICES: All notices and other communications from either Party to the other hereunder shall be in writing and shall be deemed received: (a) upon actual receipt when personally delivered; (b) 3 business days after deposit in the U.S. Mail, postage prepaid, registered or certified mail, return receipt requested; (c) 1 business day after delivery to any nationally-recognized overnight delivery service on a business day for prepaid delivery on the next business day; or (d) on the business day sent, if sent by facsimile prior to 5:00 p.m. in the Time Zone in which the receiving Party is located, and such sending generates a written confirmation of sending, addressed to the other Party as set forth on the signature page hereto. The Parties hereto may change their addresses by giving written notice thereof to the other Party.
10. NONASSIGNMENT: Buyer may not assign its rights to receive goods from Seller without Seller’s prior written consent. Such consent, if given, will not relieve buyer of its primary obligation of payment.
11. NAMING CONVENTIONS: The parties hereto are referred to as Seller and Buyer throughout this document and are the parties described as such on the face of the invoice.
12. ACCEPTANCE OF BUYERS ORDER: THIS ACCEPTANCE OF THE BUYERS ORDER DOES NOT CONSTITUTE ACCEPTANCE OF THE BUYERS TERMS AND CONDITIONS OF THE SALE QUOTED THEREIN, unless said terms are (i) manually typed not printed on Buyers order, and (ii) are specifically authorized by written consent of the Seller. In the event of the lack of enforcement of the Seller’s terms and conditions of sale by the Seller or by the agent of the Seller, neither waiver of the Seller’s terms and conditions of sale, nor the Seller’s acceptance of the Buyer’s conditions of purchase are to be deemed or implied. If the Buyer fails to specifically accept to any terns of Seller’s quotation on the face of Buyer’s order or an attachment thereto in typewritten form the Buyer shall be deemed to have accepted all of the terms of the quotation or order acknowledgment. Upon acceptance, the contract cannot be cancelled, revoked, or modified in any particular (including changes in design, specifications, or production) without the specific written consent of the Seller, after appropriate provision for payment by the Buyer’s for additional costs and expenses caused by such changes.
13. APPLICABLE LAW; ENTIRE AGREEMENT; MODIFICATION: The validity, interpretation and legal effect of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. This Agreement, including all Schedules attached hereto, constitutes the entire agreement, whether written or oral, between the Parties, and supersedes all previous agreements, understandings, commitments or representations concerning the subject matter. This Agreement may not be amended or modified in any way, and none of its provisions may be waived, except by a writing signed by the Party against whom the amendment, modification or waiver is sought to be enforced.
14. SEVERABILITY: Nothing contained in this Agreement shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision of this Agreement and any law, such law shall prevail; provided, however, that in the event of any such conflict, the provisions of this Agreement so affected shall be curtailed and limited only to the extent necessary to permit compliance with the minimum legal requirement, and no other provisions of this Agreement shall be affected thereby and all such other provisions shall continue in full force and effect.
15. ATTORNEY’S FEES: Subject to Section 7.7, in any action brought by either Party to enforce a term or condition of this Agreement against the other Party, the prevailing Party shall be entitled to recover from the other Party its costs and reasonable attorneys’ fees.
16. FORCE MAJEUR: Neither Party shall be liable to the other Party or others for any failure to perform its obligations under this Agreement where such failure was caused by an act of God, accident, fire, lockout, strike or other labor dispute, riot or civil commotion, act of government or other cause of similar or different nature beyond the affected Party’s reasonable control, including, but not limited to, any problem associated with the construction, use and/or operation of Products and installed by Seller.
ENTIRE AGREEMENT: This instrument contains all the terms and conditions with respect to the sale and purchase of the materials or product described on the face hereof, and supersedes any and all other instruments or agreements, and no change or modification of these terms and conditions shall be of any force unless such change or modification shall be executed by an authorized officer of the Seller. The terms and conditions as set forth in this instant instrument shall supersede any provision, terms and conditions on any purchase order, confirmation order or other writing. Buyer may give or have received, and the rights of the parties shall be governed exclusively by the provisions, terms and conditions hereof. Seller makes no representations or warranties concerning this confirmation except such as are expressly contained herein and this confirmation may not be changed or modified orally.