TERMS & CONDITIONS
TERMS & CONDITIONS OF SALE
Bell Supply Company, LLC
(Applicable to All Bid Forms, Quotations, Sales, Invoices and Delivery Tickets)
THIS AGREEMENT CONTAINS PROVISIONS RELATING TO ALLOCATION OF RISK, INCLUDING BUT NOT LIMITED TO INDEMNITY, RELEASE, LIMITATION OF LIABILITY AND INSURANCE REQUIREMENTS.
PAYMENT: Terms of payment are net thirty (30) days following invoice date, unless otherwise stated on the face of this invoice. Customer agrees that any past due amounts shall bear interest from the date due until paid at the rate equal to the highest lawful rate permitted by the State of Texas or the United States of America, whichever lawfully permits the highest rate, it being understood and agreed by Customer that Vendor may charge and collect the maximum non-usurious rate of interest permitted by applicable laws in effect from time to time. If any proceeding or suit is instituted against Customer to recover any past due amounts, then Vendor is entitled to recover all of its costs and expenses related thereto, including its reasonable attorneys’ fees. In the event of non-payment, Vendor may also file and foreclose any and all applicable liens in an effort to secure payment from Customer.
RETURNS, CANCELLATIONS AND CLAIMS: No goods may be returned, credited or replaced, unless prior to their return, arrangements for such return have been made and approved in writing by Vendor. In the event that Vendor should so approve a return of goods, Vendor may apply up to a twenty percent (20%) restocking charge or such higher amounts as charged by similarly situated third-party vendors, whichever is higher, plus all freight, taxes and other costs relating to such return. Orders for goods or parts of special design, size or materials, including, but not limited to, goods that have been maintained or acquired by Vendor either at the specific request of Customer or for the benefit of Customer, are not subject to cancellation or return. Goods that are carried in Vendor’s normal inventory which have been delivered as ordered, if approved for return, may be returned for credit only, and only if in Vendor’s sole judgment, they are unused and in re-saleable condition and if returned within thirty (30) days from date of delivery. Claims for shortages or damage, or deductions for erroneous charges, must have Vendor’s prior written approval and must be presented within thirty (30) days of receipt of goods by Customer or its representatives.
PRICES: All quotations and sales are F.O.B. point of shipment, unless otherwise expressly stipulated; all quotations and prices therein are subject to change without notice and to availability and, unless otherwise specified, are for immediate acceptance by Customer. Customer agrees to pay Bell Supply Company, LLC (hereinafter referred to as “Vendor”), for any goods or services (sometimes collectively referred to as the “Work”) ordered in accordance with prices quoted to Customer or in accordance with prices in effect at the time the same are furnished, whichever is greater; all prepaid freight, express and drayage charges are Net Cash. Prices are exclusive of all taxes – federal, state or local, unless otherwise noted. Any sales or other tax or duty which Vendor may be required to collect or pay will be added to the price; if such amounts are not included in this invoice, they may be invoiced separately.
SHIPMENT, INSURANCE, AND FREIGHT: Vendor shall use reasonable efforts to have the goods available for shipment by Customer’s preferred date, but cannot guarantee delivery dates. Customer shall pay all costs for insurance and freight. Vendor may fill Customer’s order by separate shipments of various portions of the goods, and such order is severable as to all such shipments. Packing, crating, shipment to packers or to dock side, customs charges and all other costs relating to shipment exportation and importation shall be at Customer’s expense.
DELIVERY, STORAGE, TITLE AND RISK OF LOSS: Delivery, title and risk of loss will pass to Customer upon the date the Vendor notifies Buyer that the goods are ready for delivery to Customer or Customer’s agent or carrier, EX WORKS Point of Shipment. Customer shall be responsible for arranging shipping and for all shipping costs. If Vendor has not received shipping instructions at the time of delivery or if Customer requests that Vendor store the goods until further instruction, Vendor shall act as a bailee of such goods and may charge Customer Vendor’s customary storage rates. During any such bailment, Customer will maintain all-risk property insurance on the goods, at its replacement value, and Vendor will not be liable for deterioration of goods resulting from atmospheric conditions, acts of God, or other events not within Vendor’s reasonable control.
LIMITATION OF LIABILITY: Notwithstanding anything herein or otherwise to the contrary, express or implied, Vendor’s sole liability for any claim or action of any kind arising out of, in connection with or resulting from the manufacture, sale, rental, delivery, resale, use or repair of the Work furnished by Vendor shall not exceed Vendor’s price for the Work which gives rise to such claim or action; and Vendor shall in no event be liable for special, indirect, punitive, incidental, exemplary or consequential damages or contingent liabilities arising out of any order covered hereby or the Work or the failure of any goods to operate properly, including any damages occasioned by delay, downtime, lost business opportunity, lost profits, lost revenues, loss of or damage to the hole, lost hydrocarbons, lost production or reserves, or otherwise. CUSTOMER RELEASES VENDOR AND ASSUMES ALL LIABILITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE POSSESSION, USE OR APPLICATION OF THE WORK, EITHER ALONE OR IN COMBINATION WITH OTHER GOODS, INCLUDING, BUT NOT LIMITED TO, INJURY TO, DESTRUCTION OF, OR LOSS OR IMPAIRMENT OF (I) ANY FORMATION, STRATA, OR RESERVOIR BENEATH THE SURFACE OF THE EARTH, (II) ANY RIGHTS IN OR TO REAL PROPERTY, (III) ANY RIGHT IN OR TO ANY WATER SOURCE OR WATER BODY, OR (IV) ANY PROPERTY RIGHT IN OR TO OIL, GAS, OR OTHER MINERAL SUBSTANCE OR WATER, IF AT THE TIME OF THE ACT OR OMISSION CAUSING SUCH INJURY, DESTRUCTION, LOSS, OR IMPAIRMENT, SAID SUBSTANCE HAD NOT BEEN REDUCED TO PHYSICAL POSSESSION ABOVE THE SURFACE OF THE EARTH.
LIMITED WARRANTY: Provided that Customer subjects the goods only to operating conditions specified by Customer when the order is placed, if any, and operates it in accordance with Vendor’s written operating instructions, if any, Vendor warrants goods sold pursuant hereto to be free of defects in material and workmanship for a period of 1 year after the date the goods are delivered. The above warranty does not apply to: (i) used goods or goods that have been repaired or worked over; (ii) goods that have been modified or subjected to improper handling, storage, installation, operation or maintenance by Customer, including use of unauthorized replacement parts; (iii) parts requiring replacement because of normal wear and tear; (iv) design on those jobs where Vendor prepared drawings, lists or bills of material from designs furnished by others; and (v) models or samples furnished to Customer as illustrations only of general properties of equipment. This warranty will not apply if Customer, on request by Vendor, does not return the defective part to Vendor for inspection, freight prepaid. Vendor’s liability for breach of this warranty is expressly limited to the repair or replacement, at its sole option, of any goods which prove to be defective during the warranty period. All parts repaired or replaced hereunder shall be repaired or replaced F.O.B. location from which goods are shipped. VENDOR’S OBLIGATION TO REPAIR OR REPLACE CONSTITUTES AGREED AND LIQUIDATED DAMAGES FOR ANY BREACH OF VENDOR’S WARRANTY. THIS LIMITED EXPRESS WARRANTY, AND THE STATED REMEDIES FOR BREACH THEREOF, SHALL BE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND IN LIEU OF LIABILITY FOR VENDOR’S NEGLIGENCE OR FAULT. VENDOR WILL NOT BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. Notice of defective products or services must be given in writing to Vendor by the Customer. Customer or user of the products must keep the products in unaltered condition for examination by Vendor representative. All warranty claims must be made within ten (10) days after discovery, or after such claims should have been discovered, or else be barred from any remedy.
INDEMNIFICATION: VENDOR GENERAL INDEMNITY OBLIGATION. TO THE FULLEST EXTENT PERMITTED BY LAW, VENDOR WILL BE RESPONSIBLE FOR AND SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS CUSTOMER FROM AND AGAINST ANY AND ALL CLAIMS, INCLUDING ANY CLAIMS ARISING FROM THE NEGLIGENCE OF CUSTOMER, FOR PERSONAL INJURY, ILLNESS, DEATH, AND/OR PROPERTY DAMAGE OR LOSS BROUGHT BY OR THROUGH ANY MEMBER OF VENDOR, UNLESS SUCH CLAIM AROSE DUE TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF CUSTOMER.
CUSTOMER GENERAL INDEMNITY OBLIGATION. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER WILL BE RESPONSIBLE FOR AND SHALL RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS VENDOR FROM AND AGAINST ANY AND ALL CLAIMS, INCLUDING ANY CLAIMS ARISING FROM THE NEGLIGENCE OF VENDOR, FOR PERSONAL INJURY, ILLNESS, DEATH, AND/OR PROPERTY DAMAGE OR LOSS BROUGHT BY OR THROUGH ANY MEMBER OF CUSTOMER, UNLESS SUCH CLAIM AROSE DUE TO THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF VENDOR. SAID INDEMNITY OBLIGATION SHALL BE SUPPORTED BY SUFFICIENT AMOUNTS OF LIABILITY INSURANCE BUT IN NO EVENT SHALL SUCH AMOUNT BE LESS THAN US $500,000 OF LIABILITY INSURANCE TO BE FURNISHED BY CUSTOMER.
STORED GOODS AND INDEMNITY BY CUSTOMER: In the event that Customer goods are stored at Vendor’s facility for any reason, Customer shall arrange for removal of such goods within sixty (60) days or within some other agreed upon time period (the “Removal Period”) following Vendor’s notice to Customer that such goods are ready for shipment. Unless otherwise agreed in writing by Vendor, after the Removal Period (in addition to all other rights of Vendor), Vendor, at its sole option and at any time, may (i) ship such goods to Customer whether it be at Customer’s expense or not subject to Vendor’s sole discretion; or (ii) deem the goods abandoned and sell such goods and apply the proceeds to Vendor’s expenses associated with such storage and/or sale of goods. CUSTOMER ACKNOWLEDGES THAT STORAGE OF ITS GOODS AT VENDOR’S FACILITY IS AT ITS SOLE RISK AND AGREES THAT IT IS THE SOLE RESPONSIBILITY OF CUSTOMER TO INSURE SUCH GOODS AT ITS OWN EXPENSE WHILE IN STORAGE AT VENDOR’S FACILITY. FURTHER, CUSTOMER RELEASES AND SHALL INDEMNIFY AND HOLD VENDOR GROUP HARMLESS FROM ANY CLAIM, LIABILITY OR OBLIGATION ARISING, DIRECTLY OR INDIRECTLY, FROM THE STORAGE, REMOVAL, RETURN, SALE, TRANSFER OR DISPOSAL OF SUCH GOODS, AND NOTWITHSTANDING THE NEGLIGENCE, FAULT OR STRICT LIABILITY OF VENDOR. SAID INDEMNITY OBLIGATION SHALL BE SUPPORTED BY SUFFICIENT AMOUNT OF LIABILITY INSURANCE BUT IN NO EVENT SHALL SUCH AMOUNT BE LESS THAN U.S. $500,000 OF LIABILITY INSURANCE TO BE FURNISHED BY CUSTOMER.
CONSIGNED GOODS: Notwithstanding anything to the contrary and whenever applicable, in consideration of Vendor’s consigning products either on-site or in a trailer as requested by the Customer, Customer warrants and agrees that at all times while such products and trailer, if applicable, are in the possession or control of Customer, Customer will properly and adequately safeguard products and trailer, if applicable, and HOLD HARMLESS, DEFEND AND INDEMNIFY VENDOR GROUP (THE “INDEMNIFIED PARTIES”), WITH REGARD TO (I) ANY DAMAGE TO, THEFT OR LOSS OF SUCH GOODS AND SUCH TRAILER, IF APPLICABLE, FOR THE FULL REPLACEMENT VALUE THEREOF, AND (II) WITH REGARD TO ANY AND ALL CLAIMS, DEMANDS, SUITS, AND CAUSES OF ACTION FOR PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE THAT MAY BE BROUGHT BY ANY PERSON WHOMSOEVER (WITH EXCEPTION OF ANY INDEMNIFIED PARTIES) AGAINST ANY OR ALL OF THE INDEMNIFIED PARTIES THAT MAY ARISE OUT OF THE USE, POSSESSION OR PRESENCE ON CUSTOMER’S SITE OF SUCH GOODS AND TRAILER, IF APPLICABLE. Further, Vendor reserves the right at any time to further memorialize the terms of consignment by requesting that Customer execute a separate consignment agreement.
ENFORCEMENT: Customer and Vendor agree that the exclusive forum for the adjudication of any controversy or dispute relating to the construction, interpretation of or performance under or any matter relating to these conditions, this agreement, and/or the Work (including any goods) furnished by Vendor shall be the state or federal courts located in Harris County, State of Texas, and both parties hereby consent to the personal jurisdiction of such courts for all such purposes. These terms and conditions constitute the final, complete and exclusive agreement between Vendor and Customer, and the parties’ agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the choice of law rules, statutes, or laws thereof that may require the application of the law of another jurisdiction. Should any provision hereof be held invalid or illegal, such holding shall not affect the validity of the remaining provisions. Vendor’s terms control, and any failure to object to Customer’s contrary provisions contained elsewhere or to enforce any or all of these provisions in a particular instance shall not act as acquiescence to Customer’s terms or a waiver of these terms and conditions. Acceptance of the Work or Vendor’s offer to provide the Work is expressly limited to the terms and conditions contained herein, and any additional or different terms of Customer are hereby rejected. No conditions, other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify or negate these terms and conditions, whether contained in Customer’s order form, offer, or acknowledgment, or in any other of Customer’s forms or elsewhere, shall be binding on Vendor, unless agreed to in writing and executed by an officer of Vendor. No agent, employee, or representative of Vendor is authorized to alter any of these conditions nor to agree to any conditions or other provisions whatsoever outside those stated herein.
PATENT INDEMNIFICATION: Vendor agrees to indemnify Customer against costs and liabilities arising from claims by third parties that the sale or manufacture, but not the use, of goods provided hereunder infringe any valid United States Patent, subject to and provided that Customer immediately notifies Vendor in writing of any such claim; Vendor shall have exclusive control of litigating or settling the claim; and Customer shall assist Vendor in the defense of the claim as Vendor may reasonably request. In the event that Customer’s use of the goods is enjoined, Vendor, in its sole discretion, shall have the option to (i) obtain a license for Customer to use the goods, (ii) modify the goods so as to make them substantially equal but non-infringing, (iii) replace the goods with goods that are substantially equal but non-infringing, or (iv) remove the goods and refund the purchase price already paid to Vendor. This indemnification shall not apply to consequential or indirect combination of the goods with other goods not supplied by Vendor, or to goods supplied to meet Customer’s special specifications. AS TO THE WORK (INCLUDING ANY GOODS) FURNISHED, IN WHOLE OR IN PART, TO CUSTOMER’S DESIGN AND/OR SPECIFICATIONS, CUSTOMER AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY VENDOR WITH REGARD TO ANY DEMAND, CLAIM, CAUSE OF ACTION, LAWSUIT OR OTHER PROCEEDING (INCLUDING ATTORNEYS’ FEES AND RELATED COSTS) BROUGHT AGAINST VENDOR, GROUP ON ACCOUNT OF INFRINGEMENT OF ANY PATENT, DESIGN, COPYRIGHT, TRADEMARK, TRADE NAME OR OTHER INTELLECTUAL PROPERTY RIGHT IN CONNECTION WITH SUCH GOODS OR WORK; THIS PROVISION SHALL ALSO EXTEND IN FAVOR OF ANY APPLICABLE MANUFACTURER, SUPPLIER, AND ANY THIRD-PARTY BENEFICIARY CLAIMING BY, THROUGH, OR UNDER VENDOR.
FORCE MAJEURE: The consequences, direct or indirect, of labor troubles, Acts of God (including hurricanes, tornadoes, earthquakes, tsunamis, landslides, fires, or floods), accidents, hostilities, shortage of transportation, failure or suspension or curtailment of production due to shortage of labor or supply of raw materials, or other economic factors, government acts or requirements and any and all like or different causes beyond the control of the parties hereto shall excuse performance, except payment by either party to the extent by which performance is prevented thereby. Vendor may, during any period of shortage due to any of said causes, prorate its supply of such goods among all its customers in such manner as may be deemed equitable in Vendor’s sole and absolute discretion.
REMEDIES: The rights and remedies reserved to Vendor shall be cumulative and additional to all other remedies provided by law or in equity. Vendor shall be entitled to recover costs and attorneys’ fees in the enforcement or defense of any rights hereunder. Customer expressly agrees that Vendor may, upon prior notice and at its expense, audit the books and records of Customer referring or relating to the Work (including, but not limited to, any documents relating to (i) payment for the Work; (ii) Customer’s current financial condition; and (iii) any disposition or subsequent transfer, by resale or otherwise, of any goods furnished by Vendor).
MISCELLANEOUS: Vendor and Customer further expressly agree as follows. Vendor is not responsible for ascertaining the particular use, suitability, application, intended use, or the like, regarding the Work, including goods, furnished by Vendor to Customer, NOR SHALL VENDOR HAVE ANY LIABILITY WHATSOEVER IN CONNECTION WITH (WITHOUT LIMITATION) THE DESIGN, CONDITION, DURABILITY, PERFORMANCE, APPLICATION, OR ACTUAL OR INTENDED USE OF SUCH GOODS OR WORK, IT BEING VENDOR’S SOLE OBLIGATION TO FURNISH THE SAME IN ACCORDANCE WITH CUSTOMER’S WRITTEN SPECIFICATIONS OR DESCRIPTIONS. Customer shall provide Vendor with accurate, complete and written specifications and/or descriptions for the Work (including goods) ordered. Where Customer’s specifications and/or descriptions permit a variety of choices, Customer shall accept the Work (including goods) meeting so called “broad specifications.” Time is of the essence as to all time periods stated herein, except delivery dates which are estimated. All captions are for convenience only and do not constitute a part of these conditions. In the event of any breach or default of these conditions by Customer, Vendor may employ a representative or attorney to remedy such breach or default, and Customer shall pay to Vendor all costs, expenses and fees, including reasonable attorneys’ fees, incurred by Vendor in the enforcement hereof and the obtaining of such remedy. Customer represents and warrants to Vendor that Customer has not ceased to pay its debts in the ordinary course of business, that it can pay its debts as they become due, and that it is and continues to be solvent within the meaning of the Federal Bankruptcy Act. Vendor and Customer shall perform here under strictly in conformance with and subject to (in their present form or as hereafter amended) all applicable laws and governmental orders, rules and regulations of the United States of America and of any State or municipality thereof, including, but not limited to, all United States export control laws and regulations, and the United States “Foreign Corrupt Practices Act of 1977.” THE “U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS” AND THE “CONSTITUTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS” SHALL NOT GOVERN NOR APPLY TO ANY MATTERS ADDRESSED HEREIN OR RELATED HERETO.
TERMS AND CONDITIONS OF PURCHASE
Bell Supply Company, LLC
THIS AGREEMENT CONTAINS PROVISIONS RELATING TO ALLOCATION OF RISK, INCLUDING BUT NOT LIMITED TO INDEMNITY, RELEASE, LIMITATION OF LIABILITY AND INSURANCE REQUIREMENTS.
QUANTITIES: Quantities specified in the Order may be increased by Seller as necessary to meet its minimum charge requirements, if any. Otherwise, shipments in excess of the quantities specified in this Order, without permission of Buyer, are subject to return for credit at Buyer’s option and at Seller’s expense.
CANCELLATION: Buyer reserves the right to cancel the Order or make changes in quantities, specifications and/or delivery schedules: (i) if material is not shipped as specified; (ii) for failure to comply with or a breach of these Conditions by Seller; (iii) for causes due to fires, strikes, or any causes beyond Buyer’s control; or (iv) if the Goods are not in accordance with the representations, warranties and guarantees as herein required from Seller.
WARRANTY AND REPRESENTATION: Seller represents, warrants and guarantees that all goods delivered hereunder (the “Goods”) (i) conform to the description specified or to any specifications, drawings, designs or technical data previously specified; (ii) shall be free of all defects in material, quality or workmanship; (iii) are merchantable and will pass without objection under industry standards and are suitable for the purposes of which they are normally used; (iv) are of U.S. manufacture (unless otherwise specified); (v) are free of any liens or encumbrances, other adverse claims of ownership and claims of infringement on intellectual property rights; (vi) are in conformity with all applicable state, federal and local laws affecting the sale, purchase, manufacture, processing and delivery of the Goods. If the Goods or any of their contents are subject to laws governing safety or hazardous substances, Seller represents and warrants that it has disclosed such considerations to Bell Supply Company, LLC (hereinafter referred to as “Buyer”). If the Order calls for installation, maintenance or other services, all such services are warranted to be performed in a good and workmanlike manner and in compliance with the highest industry standards and all applicable codes. All warranties extend (for a period of no less than four (4) years from delivery date) and any installation by Seller (or its contractors) shall inure to the benefit of Buyer’s assigns, successors and customers; provided that the warranties concerning liens, encumbrances, ownership and intellectual property rights shall extend for any period of time during which any such rights may be enforced.
INDEMNITY OBLIGATIONS: To the fullest extent permitted by law, Seller hereby agrees to RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER, ITS PARENT, SUBSIDIARIES, AND AFFILIATES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS OF ANY TIER, REPRESENTATIVES, AND CONSULTANTS (“BUYER GROUP”) FROM ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, ATTORNEYS AND EXPERT FEES, PENALTIES, CLAIMS, ACTIONS AND SUITS (INCLUDING LEGAL EXPENSES OF WHATSOEVER KIND AND NATURE) ARISING OUT OF OR RELATED IN ANY WAY TO THE MANUFACTURE, SALE, DELIVERY, USE, RENTAL, OR REPAIR OF GOODS OR PARTS, OR ANY SERVICES PROVIDED BY SELLER TO BUYER GROUP AND REGARDLESS OF THE NATURE OF THE LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, CLAIM, ACTION OR SUIT BEING SOUGHT OR THE IDENTITY OF THE PARTY SEEKING SAME. THIS RIGHT OF INDEMNITY SHALL EXIST IN FAVOR OF BUYER GROUP EVEN IF BUYER GROUP’S NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, INTENTIONAL CONDUCT, AND/OR STATUTORY OR COMMON LAW FAULT CAUSED OR CONTRIBUTED, IN WHOLE OR IN PART, TO THE LIABILITY, OBLIGATION, LOSS, DAMAGE, PENALTY, CLAIM, ACTION, OR SUIT. Buyer and Seller agree that Seller’s indemnity obligations will be supported by liability insurance coverage to be furnished by Seller in an amount no less than US $500,000. This amount of liability insurance is not designed to limit in any manner the extent and amount of Seller’s indemnity obligations. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY OR LOSS OF PROSPECTIVE REVENUE, ARISING OUT OF THIS ORDER OR ANY WORK PERFORMED OR TO BE PERFORMED HEREUNDER.
CONFIDENTIALITY: All drawings, designs, specifications, descriptions, technical data and other information (“Information”) furnished to Seller by Buyer for use with the Order constitute the property and/or trade secrets of Buyer. Seller expressly covenants and agrees that it will treat the Information as strictly confidential and use the Information only to complete the Order and to return the Information upon completion or termination of the Order along with all copies or reproductions thereof. Seller agrees that copies of the Information can be made only with Buyer’s prior written consent.
GENERAL: Any delivery of this Purchase Order (“Order”) hereunder shall constitute an acceptance of the Order pursuant to these terms and conditions (“Conditions”). The Order, together with the terms and conditions contained herein and such other sheets or documents as are expressly made a part hereof, shall, constitute the entire present agreement between the parties. Buyer’s terms and conditions contained herein shall take precedence over any conflicting terms and conditions contained in Seller’s quotation, sales or service order or other documentation or printed form, notwithstanding any language in Seller’s form or agreement to the contrary. If Seller includes or attaches any different and/or additional terms in Seller’s executed acceptance of the Order, Seller expressly agrees that such execution shall constitute an acceptance of these terms and conditions and a binding contract will result solely upon Buyer’s terms and conditions as stated in the Order, which contract will not include Seller’s different and/or additional terms or conditions.
INVOICING: Seller shall submit invoices, in number of copies specified on the face of this Order, on date of shipment for each and every separate shipment. Delays in receiving invoices, errors, or omissions shall be considered just cause for withholding payment without loss of cash or time discount privileges.
PRICE PROTECTION: It is understood and agreed that Seller will not charge, without Buyer’s consent, a higher price for the Goods specified in this Order. If reference to the price is omitted from the Order or any acknowledgment thereto, it is agreed that the items herein ordered shall be priced at that figure which was last quoted by Seller to or paid by Buyer or at the prevailing market price, whichever is lowest.
SHIPMENTS: There shall be no charge for packing or crating, unless noted on the face of the Order. All Goods must be so packed as to secure lowest possible freight rates and must be shipped by the most cost-efficient means possible to ensure timely, safe transportation with no accompanying loss, unless otherwise noted. Buyer shall be notified as soon as possible when shipments will be made and of shipments made (all shipments should also include M.T.R.’s)
INSPECTION: Buyer shall have the right to inspect all Goods ordered in Seller’s possession before shipment and after arrival at any shipping destination. Buyer may reject any and all Goods not conforming to any applicable plan, specification or description. Such rejected Goods held by Buyer or by any affected third party pending Seller’s disposition will be at Seller’s sole risk and expense.
ASSIGNMENTS: Neither the Order nor any interest or rights therein shall be assigned or transferred by Seller without Buyer’s prior written approval. Buyer reserves the right, and it may at any time assign the Order, and any and all rights hereunder.
PRODUCT ALERTS: In order to assure the proper and safe use of Goods, Seller warrants that it shall furnish together with all Goods offered all appropriate so-called “product warnings” adequate to permit such proper and safe use of the Goods (including Material Safety Data Sheets).
PATENT INDEMNIFICATION: SELLER AGREES TO DEFEND, PROTECT AND HOLD HARMLESS THE BUYER GROUP AND ITS CUSTOMERS AGAINST ALL CLAIMS, COSTS (INCLUDING EXPERT AND ATTORNEYS’ FEES), AND LIABILITIES FOR INFRINGEMENT OF ANY UNITED STATES OR FOREIGN PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT WHICH ARISES FROM THE MANUFACTURE, USE OR SALE OF GOODS OR SERVICES FURNISHED HEREUNDER. FURTHER, WHERE BUYER’S USE OR OTHER BENEFIT FROM THE GOODS SHOULD BE ADVERSELY AFFECTED AS A RESULT OF ANY SUCH CLAIMS, SELLER EXPRESSLY AGREES TO REMEDY, UPON WRITTEN DEMAND BY BUYER, THE ADVERSE EFFECTS, INCLUDING ITS FURNISHING EQUIVALENT SUBSTITUTE GOODS OF EQUAL OR BETTER QUALITY AND/OR COMPENSATING BUYER FOR THE DAMAGE INCURRED AS A RESULT OF SUCH EFFECTS.
IMPORT/EXPORT: When the Goods (or part thereof) are subject to export control laws and regulations imposed by a government, Seller shall provide Buyer with applicable Export Commodity Classification Numbers and Harmonized Tariff Schedule Numbers per good including certificates of manufacture in accordance with the origin rules imposed by governmental authorities. If said Goods are eligible for preferential tax or tariff treatment (such as free trade or international agreement), Seller shall provide Buyer with the documentation required to participate in said treatment.
MISCELLANEOUS: A. Seller shall be responsible and liable for any and all payroll taxes and employee benefits due its employees, and shall HOLD HARMLESS AND INDEMNIFY Buyer Group for any such taxes and benefits that it may be required to pay in connection with the Order. The construction, interpretation and performance of the Order, the Goods, the Conditions, and any and all transactions related to the same shall be governed by and construed solely in accordance with the laws of the State of Texas, without reference or regard to its choice of law rules, statutes, or laws which would direct or refer to the laws of another jurisdiction. Time is of the essence in Seller’s performance of the Order and under these Conditions. All headings are for convenience and do not constitute a part of these Conditions. Buyer and Seller expressly agree that the “U.N. Convention on Contracts for the International Sale of Goods” and the “Constitution on the Limitation Period in the International Sale of Goods” do not form a part the Order, nor these Conditions, and the same are hereby expressly renounced for all purposes.
B. Should any provision of this Order or these Conditions, or a portion thereof, be held invalid or illegal, such holding shall not affect the validity of the remaining provisions. Buyer’s terms control, and any failure to object to Seller’s contrary provisions contained elsewhere or to enforce any or all of these provisions in a particular instance shall not act as acquiescence to Seller’s terms or a waiver of these Conditions. Acceptance of the Goods or Seller’s offer to provide the Goods is expressly limited to these Conditions, and any additional or different terms of Seller are hereby rejected. No conditions, other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify or negate these Conditions, whether contained in Seller’s bid documents, order acknowledgement, invoice or in any other of Seller’s forms or elsewhere, shall be binding on Buyer, unless agreed to in writing and executed by an officer of Buyer. No agent, employee, or representative of Buyer is authorized to alter any of these Conditions nor to agree to any conditions or other provisions whatsoever outside those stated herein.
C. Buyer and Seller hereby agree that the exclusive forum for the adjudication of any controversy or dispute relating to the construction, interpretation of or performance under or any matter relating to these conditions, this Order and any transactions related thereto, and/or the Goods under this Order furnished by Seller shall be the state or federal counts located in Harris County, State of Texas, and both parties hereby consent to the personal jurisdiction of such courts for all such purposes. These Conditions constitute the final, complete and exclusive agreement between Seller and Buyer.
D. Should suit be commenced to enforce any of the terms of this Order and these Conditions, the prevailing party shall be entitled to all costs, expenses, and reasonable attorneys’ fees. In addition to any other legal or equitable remedies, Buyer shall have the right to demand adequate assurances respecting Seller’s timely and conforming performance of the Order and these Conditions and inspect Seller’s books and records to ensure compliance therewith. Failure to enforce any or all of this Order and the Conditions in a particular instance shall not act as a waiver or preclude subsequent enforcement.