1. GOVERNING TERMS: These “Sales Terms and Conditions” as defined herein and those stated in SELLER's proposal, quotation or P.O. acknowledgement (hereinafter, “Terms") shall exclusively govern the transaction(s) of sale of goods or services between BUYER and SELLER. Notice of objection to any different or additional terms sent or proposed by BUYER is hereby given and BUYER’s acceptance of SELLER's offer or counteroffer is expressly limited to these Terms only, which may not be modified except in writing, executed by a Company Officer of SELLER. Commencement of performance by either party shall not waive SELLER's objections and all sales shall be deemed to be under these Terms and conditions.
2. PRICES, PERMITS AND TAXES: Prices in SELLER's proposal or quotation are valid for thirty (30) days, subject to correction of clerical errors and change for any order for repair or refurbishment based on initial or detailed inspection of BUYER's returned equipment. Prices in SELLER's acknowledgement are firm through the projected shipping date. Price lists of SELLER and its suppliers are subject to change without notice and SELLER reserves the right to apply current prices in effect at time of order placement. All prices are exclusive of any and all taxes, duties, shipping or government fees unless so stated in writing. BUYER shall obtain and be responsible for any work permits required for site work and shall pay for all expenses related to site work unless specifically stated otherwise in the purchase contract. If exemption from any tax, duty, fee or permit is claimed by BUYER, BUYER shall promptly furnish SELLER with proof of exemption satisfactory to SELLER and the governing authority and shall indemnify SELLER against any cost or expense, including but not limited to attorneys' fees, incurred as a result thereof.
3. SHIPMENT: All product Shipments are Ex Works Factory unless quoted otherwise. BUYER assumes all risk of loss or damage from point of transfer to a common carrier or forwarder for all goods in transit. BUYER's exclusive remedy for shortages, loss or damage in transit shall be a claim against the carrier. In the absence of specific BUYER instructions and SELLER’s written agreement, SELLER reserves the right to ship all goods by the common or contract carrier of its choice. SELLER shall not be responsible for the accuracy of estimated shipping sizes and weights which may be later adjusted by the carrier after receipt of goods or after boxing or crating. Buyer is free to arrange an alternative shipping method with a carrier of their choice at their expense with reasonable notice to SELLER at time or order of their intent to handle shipping arrangements and costs associated thereto.
4. SCHEDULE, TIME FOR DELIVERY: All shipping and delivery dates or schedules stated by SELLER are approximate projections. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF ANY DELAY IN DELIVERY OF GOODS OR SERVICES. The cost of acceleration to meet any BUYER imposed delivery date(s) shall be borne by BUYER.
5. SELLER INSPECTION AND TESTS: SELLER's standard inspection and test procedures of its products shall be performed before shipment at SELLER’s discretion and may be adjusted or eliminated as its discretion. BUYER shall pay SELLER for any additional inspections or tests which BUYER requires SELLER or others to perform including any test or inspection required to be performed in the presence of a third party of representative of BUYER. In the event of absence or delay on BUYER's part to attend any test or inspection, such inspection shall proceed in BUYER's absence and is deemed to have been performed in BUYER's presence. Under no circumstances shall SELLER be liable for payment of BUYER's representative charges due to any delay, repetition or cancellation of testing or inspection regardless of cause.
6. BUYER INSPECTION AND ACCEPTANCE: All goods shall be deemed acceptable when they meet the criteria stated within the written offer. No other printed or electronic media or information shall be used as a criteria for BUYER"S acceptance. Within three (3) days after tender of delivery or receipt to BUYER or to BUYER’s AGENT of any shipment, BUYER shall inform SELLER in writing if the products are non-conforming, defective or shortages in any respect. Failure to inform SELLER or any use or installation of the products by BUYER shall constitute a conclusive waiver of their right of rejection or claim on any basis. Upon BUYER’s acceptance of such item, or its failure to provide notice of its rejection within the time period allowed, such item shall be deemed acceptable. Upon rejection of any item delivered hereunder, BUYER shall provide to the SELLER a detailed explanation of the reasons for such rejection, sighting the specific work product acceptance criteria that is unsatisfactory. Unless otherwise agreed by the parties, SELLER shall have a minimum of thirty (30) business days to change the item, modify, or correct the deficiency, providing the deficiency is inconsistent with the acceptance criteria defined herein. SELLER reserves the right of re-inspection at delivery point or to require return shipment of goods freight pre-paid by BUYER pending investigation of any claim. Non-conformities or defects including but not limited to cosmetic which do not impair satisfactory operation of the goods shall not be cause for rejection. NO PRODUCTS, PARTS, OR COMPONENTS MAY BE RETURNED WITHOUT PRIOR WRITTEN AUTHORIZATION FROM SELLER.
7. DEPOSIT, PAYMENT TERMS: In all cases, payment is due in full prior to shipment. A 50% Deposit is required on every order over $500.00. Progress Payments are required on any order exceeding $5,000.00. Payment shall be due at upon receipt of invoice or, if shipment is deferred, date of completion of Manufacture, whichever is first. Overdue payments shall bear compound interest at the greater of 1.5% per month or the maximum permitted by law. BUYER WAIVES ANY RIGHT OF SET-OFF AND SHALL MAKE NO DEDUCTIONS FROM PAYMENTS DUE TO SELLER OR FOR ANY DAMAGE CLAIMED BY BUYER AGAINST SELLER. Retainage must be secured by BUYER's provision of an irrevocable standby Letter of Credit for 100% of the retainage. Extension of credit will be determined by SELLER in its sole discretion. If, in SELLER's judgment, BUYER's financial responsibility is or becomes impaired or unsatisfactory or if BUYER has failed or fails to perform under any contract, SELLER shall have the right to stop work and demand all payments then due in advance of restating work and BUYER shall provide advance cash payment or security satisfactory to SELLER and SELLER may withhold shipment until receipt thereof.
8. CHANGES: SELLER reserves the right to make any change in material or design which does not materially affect the general performance of the goods, but bears no obligation to do so. Any design, specification, or other change requested by BUYER shall be quoted as a CHANGE ORDER in advance of change and only made binding when agreed in writing by SELLER and SELLER'S receipt of BUYER’s cleared payment for the CHANGE ORDER. All CHANGE ORDERS shall be made in writing and signed by both parties. CHANGE ORDERS shall be paid in full in advance of the change. Additional cost (plus overhead and profit) arising from any BUYER requested change not accepted in writing by SELLER may be claimed against BUYER, with payment due upon change, shipment or presentation. Acceptance of payment of the original quoted price shall not waive any such claim.
9. BUYER-FURNISHED PROPERTY: Prices and deliveries of products for which the BUYER furnishes components, assemblies, bulk or discrete product, hoses, other materials or tools are based on timely receipt of BUYER-furnished property free from defects, suitable for purpose and within agreed or industry specifications; including sufficient quantity, good condition, suitable metallurgical alloy, hardness, machinability and dimensionality. If defects are found in BUYER-furnished property, SELLER is relieved of any obligation to meet any obligations under the order including but not limited to; delivery time frames, fitness for purpose or merchantability. All SELLER expenses incurred as a result of any BUYER created defect in order or material shall be borne by BUYER. SELLER reserves the right to impose additional charges for repair of BUYER created minor defects. SELLER's responsibility for BUYER-furnished property is limited solely to material loss or damage caused by SELLER's active negligence and whereas BUYER assumes all other risks of loss and shall indemnify SELLER for same. BUYER’s exclusive remedy and SELLER's liability shall be limited to and at the sole option of SELLER the replacement or repair of BUYER-furnished property or receipt of a SELLER’s credit for BUYER’s actual out-of-pocket costs thereof.
10. PRODUCT STANDARDS: Unused Products of SELLER's design and original manufacture will, standing alone, comply with applicable federal government occupational safety and health standards. BUYER is solely responsible for use, operation and compliance of SELLER’s products to applicable state or local laws, codes, rules or regulations and shall take all necessary precautions and protections to insure the safety of persons, property and the environment when SELLER's products are transferred, used, stored, or disposed of. SELLER assumes no liability for any actions on the part of BUYER or BUYER’s agent or assigns.
11. LIMITED WARRANTY: SELLER warrants under the following limitations that original products, parts and components of its manufacture or design shall be of merchantable quality at the time of shipment and free from Material defects in material, workmanship and fabrication for a period of twelve (12) months from the date of shipment. With respect to equipment furnished by BUYER for repair or refurbishment, this warranty extends solely to labor and new parts or components manufactured by SELLER or to its specification. This limited warranty applies only if the following conditions are met: (a), the product is protected by BUYER from the elements and b), used in accordance with SELLER’s written intent and c), due care and consideration for all environmental conditions, and (d), the product is properly installed, operated, maintained, inspected and lubricated in strict accordance with good trade practice or SELLER's manuals or instructions and (e), the components are operated within safe operational pressure limits and f), the system of connected, surrounding or interactive components are functionally, materially and galvanic compatible, free from resonant speed, torsional, rotational or other types of vibration or stresses, no matter how induced, and g), is operated within SELLER’s specified ranges and field operating conditions as specified in writing or as good and safe field practice and h), are operated within the capacity limits for which the product was sold or specified. BUYER bears exclusive responsibility meeting all the foregoing conditions and for system analysis, performance and operational compatibility with SELLER's products. REMEDY: BUYER's exclusive remedy and SELLER's obligations under this limited warranty are limited to repair or replacement by SELLER of the product, components or parts proving defective or damaged, or receipt of a SELLER’s credit issued in lieu of repair or replacement at SELLER's sole option. SELLER shall not be responsible for the cost of removal or re-installation of products for inspection, replacement or repair. SELLER's liability under this warranty shall under no circumstances exceed the purchase price of the product or that portion of the price allocable to defective or damaged parts or components. Failure of BUYER to submit any warranty claim within twelve (12) months after shipment shall constitute an acceptance that the products sold are in every respect to be satisfactory and compliant as warranted. OTHER LIMITATIONS: Materials exposed to physical, chemical, or reactive environments or processes are not warranted against corrosion or deterioration. SELLER assumes no responsibility for the suitability, accuracy or reliability of materials, components, design conditions, specification, data or other items supplied, selected or furnished by BUYER. This warranty shall not apply to products of SELLER which have been: repaired or altered by other than authorized representatives of SELLER, subject to misuse, negligence or accident; or exposed to non-authorized chemicals, acids, electrical potentials, vibration, resonant speeds or misalignment as installed by BUYER or others. New parts or components made by others when supplied by SELLER are warranted only to the extent of the warranty given to SELLER by the manufacturer or supplier, resale by SELLER assigns such warranty to BUYER and SELLER reserves the right to refer BUYER to the manufacturer or supplier as the exclusive remedy if such parts or components prove defective. Re-used or re-tooled parts or components are not warranted. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS AND IMPLIED UNDER ANY THEORY OF LAW WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
12. FIELD SERVICE: Unless otherwise agreed in writing, SELLER shall provide technical advice and assistance only conditioned that SELLER is ultimately responsible for final decisions and actions on such advice. BUYER shall furnish all supervision, labor, materials, tools or utilities required for work on the equipment and SELLER shall have no responsibility for the adequacy or performance of the work. Persons not directly employed by SELLER shall not be deemed its employees or agents for any purpose. BUYER shall not direct SELLER’s employees to provide work or advice. Should BUYER use or request an employee of SELLER to act as lead man, foreman or supervisor, they shall become BUYER's employee for the time thereof and for whom BUYER shall be fully liable and BUYER shall indemnify and hold SELLER harmless from any claims arising out of such activities. Work by SELLER on used equipment will be performed in a good and proper workmanlike manner to the extent reasonably possible, considering its condition, age, design, exposure to wear, and damage. SELLER assumes no liability for the fitness, suitability or performance of such equipment or of any equipment if any work thereon is or was performed solely under the direction of BUYER or others. SELLER may provide to BUYER a report concerning the work performed, condition of the equipment or any related matter, which is provided solely to assist BUYER and neither means or implies that SELLER has examined all or approves of any aspects, details or conditions of the job site, equipment, installation or other item. SELLER shall have no liability resulting from any such reports or BUYER’s use or interpretation thereof.
13. REPAIR AND REFURBISHMENT ORDERS: Repair or refurbishment by SELLER shall not imply that BUYER equipment, parts or components conform to as-new assembly or performance conditions or tolerances or meet any requirement that the equipment was not originally designed and manufactured to meet. On repair orders, SELLER shall have no obligations, responsibility or liability for inspection or performance of any work, replacement or repair beyond that which is specifically confirmed by SELLER in writing prior to work commencement. On refurbishment orders, SELLER shall not be responsible for latent or other defects or deficiencies in BUYER's equipment not discoverable through a casual visual observation or examination. The scope of work, pricing and recommendations of SELLER in any proposal or quotation are subject to change upon inspection or disassembly of BUYER's equipment. Failure of BUYER to follow the recommendations or
instructions of SELLER for repair or refurbishment voids any warranty whatsoever.
14. SCHEDULE, DELAY AND DISRUPTION, DEFERRED DELIVERY: SELLER expects minor deviations from the planned schedule, plus or minus ten percent (+/- 10%). SELLER reserves the right to file a claim for “delay” and/or “disruption” should obligations of BUYER, or others not under SELLER control, impact the planned or scheduled work. A material “delay” event has occurred whenever a SELLER’s work prerequisite imposed on BUYER is delayed greater than 10% of the base time allocated for that work phase event. “Disruption” shall, for this purpose, mean the sum of all losses incurred by SELLER as a result of BUYER action or inaction, including but not limited to; costs associated with re-planning the work, work delay or stoppage, cash flow interruptions, contract or sub-contract acceleration or deceleration, lack of information, unplanned changes in personnel, and logistic changes. SELLER reserves the right to file claims with BUYER independently as impact occurs. Upon notification to BUYER of a delay or disruption claim event, SELLER is hereby relieved of any responsibility to perform under the sale until such time in SELLER’s sole opinion that the conditions sited in the subject claim are remedied. SELLER assumes no responsibility for schedule impacts caused by or contributed out of the work of the BUYER or third parties, not under SELLER’s direct control. BUYER may not defer delivery beyond the projected shipment date without the written consent of SELLER. BUYER requests to defer delivery of products completed or in process are subject to payment of the total value of work performed and any additional work required, storage charges and any taxes levied on SELLER due to such deferment. BUYER requests to defer delivery of products not yet in process are further subject to price increases for market conditions, labor, material, component parts and overhead.
15. PROPRIETARY RIGHTS: All designs, configurations, drawings, specifications, means and methods of manufacture or fabrication, technical data or engineering information supplied to BUYER by SELLER shall be and remain the sole and exclusive property of SELLER, notwithstanding any engineering charges to BUYER, are subject to return at SELLER's request, and shall not be disclosed without the written consent of SELLER to others or used by BUYER for purposes other the sale of goods to an end product user, or to a Seller authorized reseller who will sell to the final end product user. SELLER reserves all proprietary and intellectual property rights in any changes, modifications or improvements to products of BUYER's design or specification. Any transfer of intellectual property or proprietary rights of SELLER must be made in writing, executed by the Chief Officer of SELLER.
16. CANCELLATION: Due to the specialty and/or uniqueness of the goods or services, orders may not be cancelled or terminated by BUYER without the express written consent of SELLER and are subject to payment or reimbursement of SELLER's costs, expense or loss, including overhead and anticipated profit. The minimum cancelation fee is twenty-five percent (25%) of the value of the order.
17. FORCE MAJUERE: SELLER shall not be liable for any loss, damage, expense, cost, product failure, cover non-performance, delay or breach caused or occasioned by acts of God or any governmental authority, labor disputes (including lockouts), unusual weather conditions, fire, flood, accident, unavailability of materials or components or late delivery thereof, boycott, embargo, insurrection, riot, civil disturbance, war, exposure to conditions or processes not specified by SELLER, or any other cause which is unavoidable or beyond SELLER's reasonable control.
18. WAIVER: No waiver by SELLER of any breach of these Terms shall constitute a waiver of any other breach or of such provision. SELLER's failure to object to provisions contained in any communication from BUYER shall not be deemed an acceptance of such provisions or a waiver of these Terms.
19. LIMITATION OF LIABILITY: SELLER's liability to BUYER on any claim or cause of action of any kind in contract, tort or otherwise, for any losses, costs, damages, expense, statutory violation, fine or penalty, loss of use, nonperformance, exercise of cover or any breach or fault by SELLER whatsoever, shall be limited to the purchase price paid by BUYER for the products or services, or the portion thereof allocable to the part, component or work out of which the claim arose whichever is less. Under no circumstances shall SELLER be liable for any special, incidental or consequential damages, including without limitation, the cost of removal or reinstallation of SELLER's products or the loss of profit or revenue by BUYER.
20. DISPUTES: At the sole and exclusive election and condition of SELLER, any claim or controversy arising out of or relating to the transaction(s) between SELLER and BUYER shall be settled by arbitration administered by the American Arbitration Association ("AAA") or, on international orders, by the International Chamber of Commerce Court of Arbitration, and judgment on the award rendered by the arbitrators may be entered by any court of competent jurisdiction. Lacking any prior written agreement to the contrary, charges of the arbitrators and the AAA shall be awarded to the prevailing party. Exclusive venue for all claims, causes and cause of actions shall be Houston, Texas for any domestic arbitration and Harris County, Florida for any court proceedings. BUYER waives any defenses or objections to venue and jurisdiction as defined below as Governing Law.
21. GOVERNING LAW: These Terms and the transaction between BUYER and SELLER shall be governed, interpreted and enforced in accordance with the laws of the State of Texas, without regard to any other jurisdictional claim or conflict of laws rules.
22. LIMITATION PERIOD: No claim for breach of contract or warranty or in tort shall be asserted in any court or arbitration proceeding after one (1) year from the date sale, except for claims by SELLER to recover all or part of the amounts due from BUYER including but not limited to; the purchase price or additional charges defined herein or available at law or equity.
23. ATTORNEYS' FEES: SELLER shall be entitled to recover from BUYER its reasonable attorneys' fees incurred in connection with this transaction including all or a portion of the purchase price and/or other additional charges defined herein or at law or equity.
24. NO OTHER REPRESENTATIONS: There are no understandings, agreements, representations or warranties, either written or oral, relative to the goods that are not fully expressed in these Terms, which supersede and cancel any previous understanding or agreement between the parties with respect to the subject matter of the order. Any subsequent representation made by any person, including distributors, dealers, employees and representatives of SELLER, which is inconsistent with or adds to these Terms shall not be binding on SELLER unless approved in writing by an Officer of SELLER.
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