Terms & Conditions
STANDARD TERMS AND CONDITIONS OF SALE
Unless Seller agrees otherwise in writing, any order submitted by Buyer will only be accepted if it is in writing and with the understanding that Seller’s products are being supplied pursuant to the following terms and conditions and Seller rejects all additional or different terms, however proposed by Buyer.
1. Acceptance of Firm Orders:
a. No order is binding on Seller until it has been accepted and Seller will not accept an order until payment has been received.
b. Should Seller be unable to meet Buyer’s delivery schedule or quantity requirements or otherwise be unable to accept a firm order, Seller will notify the Buyer. Any firm order for products and/or services can only be canceled, terminated or modified by Buyer, with Seller’s written consent and shall be subject to cancellation fee of twenty percent (20%).
2. Prices. Unless otherwise agreed to in writing, prices for products identified under a firm order shall remain effective for the period covered by the firm order. Any different or additional products will be billed at the price prevailing at the time of shipment. If there is any delay in completion or shipment of an order due to any change requested by Buyer or as a result of any delay on Buyer’s part in furnishing information required for completion or shipment of the order, the price for products is subject to change. There will be added to the quoted price any sales or other tax or duty which Seller may be required to collect or pay upon the sale of products.
3. Payment. Payment for product(s) ordered is due prior to shipment, unless other payment terms are agreed in writing. Buyer may make payment by check, money order, credit card, wire transfer, or some other method prearranged with Seller. Payment for a sale based on an approved credit account is due in full within 30 days from the date of the original invoice. Late payments will be subject to late payment penalty of 1.5% of the amount due for each month payment is overdue.
4. Shipment and Packing. All products are sold EXW Seller’s factory (Incoterms 2000) unless otherwise agreed to in writing. Delivery dates indicated on quotations are approximate only. All products are shipped via ground unless otherwise agreed to upon by both parties. Additional expenses for shipping methods other than ground, or for expedited delivery, will be the responsibility of the Buyer. It will be the Buyer’s Freight Forwarder’s responsibility to provide Buyer with all details for shipment of Products.
5. No Returns. Seller does not accept the return of products for refund, credit, exchange, or any other purpose.
6. Warranty. Products sold hereunder are subject to Seller’s Standard Warranty. No other warranties, express or implied, are made with respect to the products including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose.
7. Limitation of Liability. Except as specifically provided in this document or any subsequent modification of this document, the liability of Seller, if any, and Buyer’s sole and exclusive remedy for damages for any claim of any kind whatsoever with respect to this sale, any supplemental sale of products or with respect to any of the goods covered thereby, and regardless of the legal theory or the delivery or non-delivery of products, will not be greater than ten percent of the actual purchase price of the goods with respect to which such claim is made. Under no circumstances will either party be liable to the other for any indirect, special, incidental, or consequential damages (including, but not limited to, costs of removal and reinstallation of items, loss of goodwill, loss of revenues or profits, loss of use, injury to persons or property) arising out of any breach of this agreement whether such damages are labeled in tort, contract, or indemnity, even if seller has been advised of the possibility of such damage.
8. Patents. Seller makes no warranty or representation that any products purchased by Buyer hereunder will be free from infringement of any patent, unless otherwise provided on the face hereof. Seller will not be under any obligation to defend Buyer or anyone claiming under or through Buyer against any claim or suit arising out of Buyer's purchase hereunder, nor shall Seller be liable for any damage assessed as a result of such claim or suit. Seller's monetary liability under these terms for the sale of infringing products is, in any event, specifically limited in accordance with Section 6 above. Buyer warrants that the specifications and designs which it furnished to Seller are free from infringement of any patent, and Buyer will indemnify, defend and hold Seller harmless against any such claim which arises out of Seller's reliance on Buyer's specifications and/or design.
9. Technical Information. Neither Buyer nor Seller will assert any claim against the other with respect to any technical information which has been or may hereafter be disclosed to each other in connection with the sale of product hereunder, except claims for patent infringement or claims under a separate written agreement between the parties.
10. Cancellation of Order. Either party may cancel this order without liability to the other party if the other party, subject to and in accordance with the cancellation provisions contained in Section 1 (supra):
a. Materially breaches this order and does not correct such breach within 30 days after receipt of written notice from the notifying party specifying such breach;
b. Becomes insolvent, or enters or is placed in bankruptcy, receivership, liquidation, transfer of assets for the benefit of creditors, dissolution or similar proceeding, provided such event is not vacated or nullified within 15 days of such event; or
c. A significant portion of the assets of the other party necessary for the conduct of its business becomes subject to attachment, embargo or expropriation.
11. Force Majeure. Any delay or failure of Seller to perform its obligations hereunder will be excused to the extent that it is caused by an event or occurrence beyond its reasonable control such as, by the way of example and not by way of limitation, acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes, and slowdowns) at Seller’s facility, its source plant or suppliers, inability to obtain power, material, labor, equipment, or transportation, or court injunction or order.
12. Government Approvals. Seller and Buyer, respectively, will be responsible for compliance with and for the obtaining of such approvals and/or permits as may be required under national, state, and local laws, ordinances, regulations, and rules as may be applicable to the performance of their respective responsibilities and obligations under these Terms of Sale.
13. Governing Law. Any contract arising hereunder for the sale of products will be deemed to have been entered into in Texas and will be enforced, governed by and construed according to the laws of the State of Texas, specifically excluding its body of law controlling conflicts of law and application of the UN Convention on Contracts for International Sale of Goods. If a dispute arises, the parties will attempt to negotiate in good faith to settle any allegation of breach or question of interpretation relating to these terms. If parties are unable to settle the matter within 15 days after their first discussion, then upon the demand of either party, the matter may be submitted to binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). The arbitration proceeding will take place in Houston, Texas, USA, and will be conducted in the English language. The parties will attempt to agree upon the selection of a single arbitrator. In the event the parties are unable to select a mutually acceptable arbitrator, the arbitrator will be appointed by the AAA. The arbitrator’s costs will be borne equally by the parties and each party will be responsible for its own preparation, discovery, and internal and external costs incurred to prosecute or defend the Arbitration Claim. The arbitration tribunal will resolve the questions submitted, award the relief to which each party may be entitled, and allocate the costs of arbitration. The prevailing party in any arbitration proceeding will be entitled to, in addition to any other relief granted, recover its reasonable costs and attorney’s fees, as determined by the arbitrator. The arbitration award shall be final, binding on the parties, not subject to appeal, and enforceable by any court having jurisdiction over the necessary party or its assets. The arbitrator will not have the authority to award damages for lost profits or consequential damages, or special, punitive, or other exemplary damages of any sort.
14. Amendments. These terms of sale, when accepted, supersede all previous agreements, oral or written, between Buyer and Seller with respect to the subject matter hereof. No amendment or modification to these terms of sale will be binding upon either party unless it is in writing and is signed by both parties.
15. Severability. If any provision of these terms of sale are held to be invalid, illegal, or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, that provision shall be deemed severed to the extent necessary to comply with such statute, regulation, ordinance, order, or rule. The remaining provisions hereof will remain in effect.
16. Assignment. Neither party may assign any of its rights or delegate any of its obligations under these Terms of Sale (other than for the purposes of corporate reconstruction, reorganization, merger or analogous proceeding) without first obtaining the written consent of the other party.
17. Language. These terms of sale are prepared and shall be executed in the English language. Any translation of these terms into another language will be strictly for convenience, and the English language shall govern any question with respect to interpretation.
18. Entire Agreement. This order with these terms of sale, when signed by both parties, constitutes a complete and exclusive final written expression of all the terms of agreement between the parties. It supersedes all understandings and negotiations concerning the matters specified herein. Any representations, promises or warranties made by either party that differ in any way from the terms of this Agreement will be given no force or effect. No addition to or modification of any provision of this Agreement will be binding unless made in writing and signed by both parties.
