Terms and Conditions of Sale
TERMS AND CONDITIONS: All descriptions, quotations, proposals, offers, acknowledgments, acceptances, and sales of products by Seller are subject to and shall be governed exclusively by the terms and conditions stated herein. Seller’s acceptance of any offer to purchase by Customer is expressly conditioned upon Customer’s assent to all the terms and conditions stated herein. Any conduct by Customer that recognizes the existence of a contract pertaining to the products which are the subject of the Invoice (including, without limitation, acceptance of the products or payment for them) shall constitute acceptance by Customer of this Agreement and all its terms and conditions. All orders received from Customer are subject to acceptance by Seller. In no event shall Seller be bound by any terms or conditions proposed by Customer that are in addition to, or inconsistent with, those stated herein. No such additional, different, or inconsistent terms or conditions shall become part of this Agreement unless expressly accepted in writing by Seller.
PAYMENT TERMS: For all sales completed through the Website, payment shall be due upon placement of the Customer’s order. For all other sales, unless otherwise agreed in writing by Seller, payment of all invoiced amounts is due upon delivery of the products and shall be payable at Seller’s principal office in Houston, Texas. If Seller agrees in writing to sell products on credit, then all amounts invoiced will be due and payable net 30 days. Any invoiced amounts not paid within 30 days of the Invoice date will be delinquent (a “Delinquency”). In the case of sales completed through the Website, any amounts due that are not paid to Seller (for whatever reason) shall be a Delinquency from and after the date the Customer’s order was placed. Interest shall accrue on the amount of any Delinquency at the lesser of 1.5% per month (18% annually) or the maximum rate allowed by state law. Waiver of any existing interest charges shall not be deemed a waiver of future charges. All payments received may be applied against open charges in the sole discretion of Seller. Seller shall have a right of setoff, in the amount of all Delinquencies, against any amounts that Seller may owe Customer. Customer shall be responsible for all internal and external collection costs and attorney’s fees, relating to any Delinquency placed for collection by Seller. Seller shall have a purchase money security interest in all products to the extent of any portion of any Invoice or other amount due and owing, and shall retain its security interest until Customer has paid the full Invoice amount and all other amounts due.
TAXES: Unless otherwise indicated on the face of the Invoice, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes. If any such taxes must be paid by Seller or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. Customer agrees to pay all such taxes or to reimburse Seller therefore upon receipt of its invoice. If Customer claims exemption from any sales, use or other tax, Customer shall indemnify and hold harmless Seller from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable.
TRANSPORTATION CHARGES; TITLE; RISK OF LOSS: Unless otherwise specifically accepted by Seller in writing: (a) all transportation charges shall be paid by Customer; (b) custom duties, consular fees, insurance charges and other applicable charges shall be borne by Customer; (c) title shall pass upon receipt of payment in full by Seller; and (d) risk of loss shall pass to Customer upon delivery to a carrier at the shipping point. Seller does not ordinarily, but may, if requested in writing by Customer and at Customer’s sole expense, (i) place insurance on a shipment as nearly as possible in accordance with Customer’s written instructions and (ii) make arrangements for consular documents and declarations, but in each such case Seller acts only as agent for Customer, and Seller assumes no liability whatsoever as a result of making such arrangements.
MANUFACTURING: At Seller’s sole discretion, products sold or supplied by Seller may be manufactured in whole or in part by Seller or by third parties sub-contracted by Seller, or may be purchased from third party suppliers.
WARRANTY; EXCLUSION OF OTHER WARRANTIES; AND LIMITATION OF SELLER LIABILITY: Seller warrants that any new products manufactured by it or its subcontractor, when shipped, shall be free from defects in material and workmanship under normal use and conditions for the purpose for which it was manufactured for a period of twelve (12) months from the date of shipment (“Warranty Period”); provided, however, that Seller does not in any manner warrant any product sold by Seller that was manufactured by a third party from whom separate warranties are available. All tolerances are to be in accordance with Seller’s standards, which will be provided upon request. Any failure caused by user shall not be covered by this warranty. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT, AND IS LIMITED TO THE REPAIR OR REPLACEMENT BY SELLER AT ITS FACTORY IN HOUSTON, TEXAS, AT SELLER’S OPTION, OF ANY PART OR COMPONENT WHICH BECOMES DEFECTIVE WITHIN THE WARRANTY PERIOD. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE COST OF THE PRODUCT. THE FOREGOING RIGHTS AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER RIGHTS OR REMEDIES OF CUSTOMER, WHETHER BASED ON A STATUTE, CONTRACT, TORT OR OTHERWISE, AND IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
RIGHT OF INSPECTION AND CLAIMS: Customer shall promptly inspect the items referenced in the Invoice upon delivery. All claims arising in connection with said inspection for any alleged shortage, damage or defect, or for alleged failure of the items in the Invoice to meet any specification or terms hereof, must be received by Seller in writing, particularizing the claim, within ten (10) days of delivery of such items. Upon notification of any such claim, Seller shall have the right, but not the obligation, to refund the amount of the Invoice associated with the Claim, and such refund shall be Customer’s sole remedy in connection with the Claim.
CUSTOMER’S PROPERTY: Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Customer or any other items which become Customer’s property, may be considered obsolete and may be destroyed by Seller after two (2) consecutive years have elapsed without Customer placing an order for the items which are manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller’s possession or control, even if the loss or damage is caused by Seller’s own negligence.
RETURNS: No products will be accepted for return without prior approval and are subject to a restocking charge. Seller reserves the right, at its sole discretion, to refuse the return of any item for credit. Custom orders and items not in the current catalog may not be returned for credit. If approval is granted, Customer agrees to pay a twenty-five percent (25%) restocking charge on standard items of current design, within warranty period; provided such returned items are in the original package or crate when received. Authorized returns must be shipped prepaid to Seller’s address provided upon receipt of authorization, and must be insured at the expense of Customer. Seller disclaims all responsibility for products damaged or lost in-transit during the course of any return.
RISK OF OPERATION: The products supplied hereunder are furnished and operated at Customer’s risk, and Customer’s remedies and damages are limited as per this Agreement.
INDEMNITY: CUSTOMER HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, FINES, PENALTIES, EXPENSES, CONSEQUENTIAL DAMAGES AND LOSSES ON ACCOUNT OF PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE WHETHER BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION OF WARRANTY ARISING OUT OF, INCIDENT TO, IN CONNECTION WITH, OR DIRECTLY OR INDIRECTLY RESULTING FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, REPAIR, OR USE OF THE PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH INJURIES, DEATH, OR PROPERTY DAMAGE IS CAUSED BY SELLER’S SOLE OR CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE, FAULT, OR OTHER BASIS OF LIABILITY.
SALES LITERATURE, ILLUSTRATIONS AND DESCRIPTIONS: Seller has made a diligent effort to accurately illustrate and describe the products on the Website and in its catalogs and other sales materials. However, the illustrations and descriptions are for the sole purpose of identification and do not express or imply any additional warranty or that the products will conform to the exact illustrations or descriptions represented. Seller shall not be responsible for the content of sales brochures and other literature of other manufacturers.
INTELLECTUAL PROPERTY: Customer agrees not to use the trademarks, trade names, designs or other patented or registered intellectual property of Seller without the written consent of Seller. Seller shall have no liability for claims of infringement based on information provided by Customer, or directed to items delivered hereunder for which the designs are specified in whole or part by Customer, or infringements resulting from the modification, combination or use in a system of any item sold hereunder. If a claim is based on information provided by Customer or if the design for an item delivered hereunder is specified in whole or in part by Customer, Customer shall defend, indemnify and hold harmless Seller from and against all costs, expenses and judgments resulting from any claim that such item infringes any patent, trademark, copyright, trade dress, trade secrets or any similar right.
JURISDICTION, CHOICE OF LAW AND WAIVER OF JURY TRIAL: All terms and conditions hereof shall be construed and enforced in accordance with the laws of the State of Texas. The exclusive venue and jurisdiction for any dispute arising between Seller and Customer shall be in Harris County, Texas. Customer irrevocably consents to the jurisdiction of the courts of the State of Texas for any dispute that may arise between the parties. CUSTOMER HEREBY KNOWINGLY AND INTENTIONALLY WAIVES THE RIGHT TO A JURY TRAIL ON ANY ISSUE OR DISPUTE THAT MAY ARISE BETWEEN THE PARTIES. No actions arising out of the sale of the items sold hereunder or this Agreement may be brought by either party more than two (2) years after the cause of action accrues.
NONWAIVER BY SELLER: Neither the failure of Seller to exercise any power given to it hereunder nor to insist upon strict compliance by Customer with its obligations hereunder, nor any custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of Seller’s right to demand exact compliance by Customer with the terms hereof.