Terms and Conditions
1. Acceptance. If this invoice constitutes an offer, it shall be accepted in the expressly limited manner specified on the face hereof. If this invoice constitutes an acceptance of an offer, the sale of goods hereunder is expressly conditioned upon buyer’s assent to and acceptance of the terms and conditions contained or referred to herein. Authorization by buyer to furnish goods or acceptance of any part of goods hereunder constitutes buyer’s acceptance of and assent to these terms and conditions.
2. No Modification; Entire Agreement. No terms or conditions which alter or modify in any way any provision hereof shall be binding unless expressly agreed to in a written instrument which specifically states that it amends these terms and conditions that is signed by seller’s authorized representative. Seller objects to any different or additional terms and hereby rejects any and all such terms whether contained in previous or subsequent proposals or communications from buyer. This invoice and the terms and conditions contained or referred to herein constitute the entire agreement between buyer and seller with respect to the subject matter of this invoice and supersede all prior proposals, communications, negotiations, representations, understandings and agreements (whether oral or written) which are made prior to the date of this invoice. These terms and conditions prevail over any of buyer’s general terms and conditions of purchase regardless of whether or when buyer has submitted its purchase order or such terms. Fulfillment of buyer’s order does not constitute acceptance of any of buyer’s terms and conditions and does not serve to modify or amend these terms and conditions.
3. Orders. Orders by telephone are accepted at the risk of buyer, and shipments made before seller’s receipt of written confirmation from buyer are for the convenience of buyer. To avoid the possibility of duplication, buyer’s confirming orders must be clearly marked “confirmation.” Confirmation orders not so marked may be treated as original open orders at seller’s election. Orders cannot be canceled or modified without seller’s prior written consent.
4. Payment. Buyer shall pay all invoiced amounts due to seller on the terms set forth on this invoice. If buyer fails to comply with any provision of this invoice or fails to make payments in accordance with the terms of this invoice seller may, at its option, defer further shipments or, without waiving any other rights it may have, terminate this invoice. All orders shall be subject to the approval of seller’s credit department. Seller reserves the right, before making any delivery, to require payment in cash or security for payment; and if buyer fails to comply with such requirement, seller may terminate this invoice. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with seller, whether relating to seller’s breach, bankruptcy or otherwise. As collateral security for the payment of the purchase price of the goods, buyer hereby grants to seller a lien on and security interest in and to all of the right, title and interest of buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Uniform Commercial Code.
5. Delivery and Risk of Loss. All goods shall be shipped and packed in accordance with the terms and conditions contained within this invoice and in accordance with accepted industrial packing standards and all applicable law. Unless otherwise expressly stated, seller shall have the right to make delivery in installments. All installments shall be separately invoiced and paid as billed without regard to subsequent deliveries. Buyer acknowledges that delivery schedules are subject to change depending on the available capacity of seller and its suppliers. Seller shall not be liable for failure to deliver or delays in delivery occasioned by causes beyond seller’s control, including without limitation strikes, lockouts, fires, embargoes, war or other outbreak of hostilities, acts of god, inability in obtain shipping space, machinery breakdowns, delays of carriers or suppliers, and governmental acts and regulations, and seller shall be given additional time for performance as may be reasonably necessary in the circumstances. Seller shall not be liable for consequential or incidental damages resulting from any delay in delivery. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the goods at the delivery point. Acceptance of buyer shall constitute waiver of buyer of any claim of damages on account of any delay in delivery of such goods. Title and risk of loss passes to buyer upon delivery of the goods to the delivery point set forth in this invoice. Buyer will be deemed to have accepted the goods unless it has notified seller in writing of the defect or nonconformity of any materials within ten (10) days after the delivery of the materials. Acceptance of part of the goods shall bind buyer to the remainder. Except as otherwise provided herein, seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage, or similar charges.
6. Claims Against Seller. If goods purchased hereunder are defective or are not in substantial conformity with the specifications, and if buyer intends to assert any claim against seller on this account, seller will replace such materials with conforming materials at the point of initial delivery or will, at seller’s election, allow buyer a credit or refund for the purchase price, provided that (1) buyer has notified seller in writing of the defect or nonconformity within ten (10) days after the delivery of the material, (2) the material has been properly worked or used by buyer and (3) seller has been given a reasonable opportunity to inspect the material. Buyer has neither the right to return material nor the right to receive a credit or refund without seller’s written consent. After inspection by seller, seller will arrange for the disposition of defective or nonconforming materials. Buyer acknowledges and agrees that the remedies set forth in this paragraph 6 are buyer’s exclusive remedies for the delivery of defective or nonconforming materials.
7. WARRANTY DISCLAIMER; NO CONSEQUENTIAL OR INCIDENTAL DAMAGES; LIMITATION OF LIABILITY. THE EXPRESS LIMITED WARRANTY SET FORTH IN PARAGRAPH 6 ABOVE IS THE SOLE WARRANTY OF SELLER AND IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON SELLER’S PART. SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE FOR A PARTICULAR PURPOSE. SELLER IS NOT LIABLE FOR LOSS OF TIME, USE, REVENUE OR PROFIT, COST OF LABOR EXPENDED, OR FOR ANY SEPARATE, SPECIAL, EXEMPLARY, PUNITIVE DIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES RESULTING FROM REJECTION OF FINISHED PARTS BY BUYER’S CUSTOMERS, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE REMEDIES SET FORTH IN PARAGRAPH 6 ABOVE SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 6 ABOVE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS INVOICE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
8. Claims Against Common Carriers. Delivery of goods to a carrier for shipment shall constitute delivery thereof to buyer and risk of loss and title to goods shall pass to buyer at that time. If buyer discovers a shortage in goods delivered or if goods have been damaged in transit, buyer must make a note to that effect upon the receipt buyer gives the carrier or his agent. Also, buyer must request that a similar notation be made on the freight bill. Damaged material must not be unloaded until it has been inspected and the damage noted in writing. If there is justification for a claim for damage to or loss of such goods, buyer will file promptly with the carrier.
9. Taxes and Other Charges. In addition to the price quoted for goods sold, buyer shall pay any tax imposed by any present or future federal, state or local law on the sale of goods covered by this invoice. If taxes are required to be paid by seller, the amount thereof shall be added to and become part of the price payable by buyer and buyer agrees to reimburse seller for any such payments made by seller.
10. Financial Responsibility. Reasonable doubt on the part of seller concerning the financial responsibility of buyer shall entitle seller to stop or decline shipment, or stop any material in transit without liability, until the materials which are currently on order have been paid for or until seller is furnished reasonably satisfactory proof of buyer’s financial responsibility.
11. Interest; Collection and Attorneys’ Fees. Seller reserves the right to charge interest on all balances which remain unpaid after the due date at the lesser of 1.5% per month (18% per annum) or the maximum allowed by law. If any default is made in payment of amounts due for the sale of goods hereunder, and the account is placed in the hands of any attorney for collection, buyer agrees to pay seller’s reasonable cost of collection, including reasonable attorneys’ fees, not to exceed the amount allowed by any applicable statute.
12. Waiver. No waiver by Seller of any of the provisions of this invoice is effective unless explicitly set forth in writing and signed by seller. Neither seller’s failure or any delay to insist upon strict performance of this invoice, to exercise any rights or remedies under this invoice or by law, to properly notify buyer of breach; nor seller’s acceptance of payment for any goods hereunder; shall release buyer from any obligations hereof, nor shall any of the above operate as a waiver of any of seller’s rights or remedies hereunder.
13. Severability. If any provision of this invoice is held to be unenforceable, this invoice shall be considered divisible and such provision shall be deemed inoperative to the extent it is deemed unenforceable, and in all other respects, this invoice shall remain in full force and effect; provided, however, that if any provision may be made enforceable by limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by law.
14. Governing Law. All matters arising out of or relating to this invoice is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
15. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Houston and County of Harris, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
16. Errors. Seller reserves the right to correct any stenographic or clerical errors contained on the face hereof.