The purchase and sale agreement consummated by the issuance of the invoice contained on the reverse side hereof is specifically subject to the terms and conditions herein contained. Buyer’s failure to notify Seller in writing of any objection to these terms within five (5) days following receipt of this invoice, or Buyer’s acceptance of or payment for any shipment pursuant to this invoice or any contract established between Buyer and Seller shall constitute Buyer’s unqualified assent and acceptance of these terms. No modification or addition to these terms shall be binding upon or effective against Seller unless specifically accepted in writing by Seller in accordance with the terms hereof.
Prices are for immediate shipment only, are subject to change without notice, and will be invoiced and charged at Seller’s prices established as of the date of shipment. Price quotations may be withdrawn without notice, at Seller’s discretion, at any time absent acceptance in writing, prior to withdrawal and within the time allowed therefore if any, in Seller’s quotation.
All sales taxes, manufacturer’s taxes, use taxes, personal property taxes or other excise taxes of any sort, type or kind, assessed with respect to the sale, purchase, delivery, transportation, storage, processing, use of consumption of any of the products or services covered hereby, including taxes upon receipts of gross sales, or otherwise measured thereby, shall be for the account of Buyer who shall promptly pay the same upon receipt of Seller’s invoice.
Delivery to Buyer shall be made F.O.B. point of shipment, and all risk of loss shall immediately pass to Buyer upon delivery to and acceptance by carrier. Insurance on shipment, if desired, shall be the sole responsibility of Buyer. Unless otherwise specifically set out on this invoice or otherwise confirmed by Seller in writing, Seller shall retain the right to select the method and agency of shipment and may ship freight collect. All shipping dates are approximate, and Seller shall have no liability for delays resulting from carrier’s delayed delivery or Buyer’s failure to arrange satisfactory payment terms or provide requisite shipping, credit or other requisite information. Shipper is an independent contractor over whom Seller has no control and BUYER RELEASES AND HOLDS SELLER HARMLESS FROM ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SHIPMENT OF SELLER’S PRODUCTS.
Any transaction arising hereunder shall be governed in accordance with the Texas Uniform Commercial Code and the ordinary rules of law, interpretation and construction applicable to transactions between merchants. All orders are subject to acceptance in writing by Seller, and no purchase order, whether or not repealed and whether or not performed in whole or in part by either party, shall constitute an acceptance thereof by Seller or otherwise infringe upon Seller’s right to reject such order in whole or in part.
Seller shall not be responsible or otherwise held liable for any delay, default or actual incidental or consequential damage occasioned by causes or circumstances beyond Seller’s reasonable control, including, without limitation embargoes, strikes, fires, floods, explosions, lockouts or other labor difficulties, governmental actions, orders, rules or regulations, shortages of material, utility, facility or labor, delay in transportation, breakdown, or accident, or any other cause, whether similar or dissimilar, beyond Seller’s control and ordinarily considered a matter of force majeure.
No cancellations of orders placed with and accepted by Seller, nor return of any product or shipment received by Buyer, may be made without the advance written consent of Seller. Upon request to cancel or modify, Seller will advise amount of cancellation or modification charges, if any, in addition to charges for dies, work in progress, products produced (including machine work or special processing), and raw materials specially ordered or otherwise dedicated to Buyer’s order. Buyer shall further be liable for any changes or modification order necessitating a change in material specification.
Any claim for shortages, damages, or non-conformance of products with the order must be made in writing within ten (10) days of receipt of shipment, or any such objection is hereby waived by Buyer. In the event such claim is filed, Seller shall have a reasonable time to investigate the circumstances of such loss and repair or replace any such products as found to be short, damaged or non-conforming. Damages in shipment shall remain the responsibility of Buyer, unless otherwise provided in writing by Seller. Buyer has no rights to inspect, test or sample material or goods in Seller’s possession or prior to shipment. In the event such inspections are allowed, however, they shall be performed at Buyer’s sole cost and expense, regardless of result.
It is understood that all tools, dies, designs, patterns or other specialty items required to produce an ordered item shall become and remain the exclusive property of Seller. Preparation charges or charges for dies, tools, designs, patterns, or other specialty items represent a portion of the cost of any order and are included in the price quoted by Seller. Payment of such costs by Buyer, in total or pursuant to separate invoice, conveys no right, title or interest in such dies, tools, or other products of preparation, all of which shall remain the exclusive property of Seller. If no orders requiring the use of specific dies or patterns are received within two (2) years, Seller, at Seller’s sole discretion, may destroy the dies and patterns.
Ordinary payment terms of Seller are net cash in thirty (30) days from date of invoice. All accounts are payable in United States funds, free of exchange, collection, sales or other charges. Buyer, in placing its order, represents that it is solvent and can and will pay for products delivered to it in accordance with the terms hereof. If Buyer fails to fulfill any of the terms hereof, or, if in the sole and absolute discretion of Seller, the financial responsibility of Buyer should appear questionable, Seller may suspend production, delivery or shipment except upon receipt of full or partial payment (at the discretion of Seller) in advance, or receipt of other security for payment satisfactory to Seller.
Materials or products advertised as presently in stock are normally available for immediate shipment from existing inventory, but all such items are subject to availability at time of order and prior sale. Catalog product presentations, including catalog dimensions, designs and specifications, as well as other descriptive language, are representative of product availability at time of publication only. All products are subject to design and manufacturing changes without notice. PRODUCT DESCRIPTIONS ARE BASED UPON TERMS COMMONLY USED IN THE INDUSTRY, AND MAY OR MAY NOT ACCURATELY REFLECT ACTUAL PRODUCT COMPOSITION, SPECIFICATIONS, OR INTENDED USAGE.LIMITATION of DAMAGES and LIABILITIES and DISCLAIMER of WARRANTIES
In the event Buyer believes any item provided by Seller has been inaccurately described, does not conform or is defective, Buyer must comply with the terms of paragraph 8 as a condition precedent to making any claim against Seller. BUYER’S SOLE AND EXCLUSIVE REMEMDY SHALL BE EITHER (1) THE REPAIR OR REPLACEMENT OF THE DEFECTIVE PRODUCT AT NO CHARGE OR (2) REFUND OF THE PRUCHASE PRICE, AT SELLER’S SOLE OPTION. ANY CLAIM BY BUYER MUST BE MADE WITHIN TWELVE (12) MONTHS FROM THE DATE OF SHIPMENT TO BUYER AND ANY CLAIM IS CONDITIONED UPON PROOF SATISFACTORY TO SELLER THAT THE PRODUCT WAS DEFECTIVE AT THE TIME OF SHIPMENT AND THAT NO UNAUTHORIZED REPAIRS, ALTERATIONS OR MODIFICATIONS HAVE BEEN MADE TO THE PRODUCT AND THAT THE PRODUCT WAS INSTALLED AND OPERATED INACCORDANCE WITH GENERALLY APPROVED STANDARDS IN THE INDUSTRY AND IN ACCORDANCE WITH SELLER’S OR MANUFACTURERE’S INSTRUCTIONS. BUYER WAIVES ALL CLAIMS AGAINST SELLER EXCEPT CLAIMS DETERMINED TO HAVE BEEN SOLELY CAUSED BY SELLER’S GROSS NEGLIGENCE.UNDER NO CIRCUMSTANCES SHALL SELLER EVER BE LIABLE FOR ANY CONSTRUCTIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT OR THE UTILIZATION OF THE PRODUCT. BUYER AGREES THAT THE MAXIMUM AMOUNT OF DAMAGES OF ANY KIND RECOVERABLE BY BUYER FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT OR THE UTILIZATION OF THE PRODUCT SHALL BE LIMITED TO A MAXIMUM AMOUNT OF THE PURCHASE PRICE OF THE PRODUCT.THE PRODUCT IS SOLD AS IS WHERE AS. SELLER DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING THE WARRANTY OF MERCHANTABILITY, SUITABILITY AND FITNESS FOR PURPOSE.
Buyer agrees to pay 18% per annum interest or the maximum rate permitted by law, whichever is lesser, on all amounts due and owing by Buyer to Seller. If Buyer believes that Seller has violated any usury laws, Buyer agrees that as a condition precedent to suit, Buyer must give Seller notice of such claim and allow Seller at least thirty days from the date of receipt of such notice to cure any such violation.
These terms and conditions shall control in any contract resulting from or arising out of Seller’s manufacture, design, quotation, price sheet, acknowledgment, invoice or shipment of product, regardless of printed terms, conditions, or provisions, or other written modifications contained in any responses hereto or documents exchanged as a result hereof, ALL OF SUCH CONFLICTING TERMS BEING DEEMED WAIVED BY BUYER INSOFAR AS THE SAME DIFFER FROM THESE TERMS AND CONDITIONS, unless such differing terms and conditions shall be separately reduced to writing and executed by Seller. This paragraph is an express condition and is an essential term of any contract formed between Buyer and Seller hereunder.VENUE/JURISDICTION
This agreement or any subsequent contract formed between us has been or will be, at least in part, negotiated and performable in Jersey Village, Harris County, Texas, which location shall be deemed to exercise exclusive venue over any disputes arising hereunder or requiring the interpretation hereof. Laws of the State of Texas shall be used to construe this agreement.
The above and foregoing terms and conditions are the final expression of the terms and conditions of the contract, which may be or is formed between Buyer and Seller and they are intended also as a completed and exhaustive statement of the terms and conditions of this purchase and sale. All prior verbal representations and/or agreements have been merged into and are incorporated in this written agreement.
To the fullest extent permitted by law Buyer waives any rights, remedies and Benefits under the Texas deceptive Trade Practices Act (V.T.C.A. Bus. & C. �17.41 et seq.) a law that gives consumers special rights and Protections, together with any other similar statutes, whether federal, state or municipal. After consultation with an attorney of Buyers own selection, Buyer’s voluntarily consents to this Waiver. To the extent this waiver is not permitted by law, the waiver shall be automatically canceled.RELEASE AND INDEMNIFICATION
Buyer releases, indemnifies and holds Seller and all of Seller’s agents, representatives, employees, stockholders, directors, officers, successors and assigns harmless from all claims, all suits, judgments or liability resulting directly or indirectly from the manufacture, design, sale, shipment or utilization of the products provided by Seller to Buyer except those occurring as a result of acts or omissions of Seller which have been found by a Court of competent jurisdiction to have been “grossly negligent”.Buyer acknowledges that the product is sold to Buyer for Buyer’s exclusive use. Buyer’s release and indemnity includes a release and indemnity for any claims made by third persons arising out of the third person’s ownership or utilization of the product provided by Seller to Buyer.Buyer acknowledges that Seller may provide technical information, recommendation and advice with respect to the product and the use of the product and that such information, recommendation and advice is advisory in nature only. Buyer agrees that Buyer will conduct its own independent investigation regarding the product and its utilization and shall not rely, in any manner, upon the advice of Seller. Buyer releases Seller from any liabilities arising out of or in connection with, directly or indirectly, such technical information, recommendations or advice, if any, provided by Seller.