The goods (herein referred to as the “Goods”) will be sold by Utex Industries, Inc. (“Seller”) to Buyer based upon the following Terms and Conditions of Sale:
Notwithstanding any prior quotations, correspondence, conversations or purchase orders relative to the Goods, these Terms and Conditions are the only terms and conditions applicable to the Goods. Acceptance of an order by Seller is expressly conditioned upon Buyer’s assent to these Terms and Conditions. Any additional or different terms and conditions set forth in any purchase order, sales order, invoice or similar form or document from Buyer are objected to by Seller and shall not be effective or binding, unless assented to in writing by Seller.
II. Prices and Terms of Payment
Unless otherwise specified on a quotation or invoice from Seller, the prices set forth on any such quotation or invoice issued by Seller are EX Works Seller’s Facility (Incoterms 2010).
All federal, state, municipal, excise, sales, or use taxes now in effect, or hereafter enacted, shall be borne and paid by Buyer, where applicable.
Terms of payment are cash, net 30 days, payable in United States currency.
An export crating charge for wooden crates will apply where applicable. A minimum charge of $50.00 will be applied to all orders shipped outside the United States and its territories to cover preparation of export documents.
No freight allowance will be allowed on shipments picked up at Seller’s Facility.
All shipments will be shipped prepaid and transportation and handling charges will be added to the material invoice. Mode of transportation will be at Seller’s best judgment unless otherwise specified by Buyer.
Every effort will be made to adhere to the delivery date specified by Buyer, but Seller shall not be liable or responsible for delays or failures of shipment caused by Buyer or arising from any cause beyond Seller’s control, including without limitation, labor controversies, embargoes, government regulation, trade restrictions, accidents, states of war, riots, fires, earthquakes, storms, failures of sources of supply, or delay in receiving machinery or materials.
When an order is complete and ready for shipment in accordance with the delivery date shown on the original purchase order and request is made by Buyer to delay or reschedule the shipment to a later date, a charge of 1 1/2% of the invoice price will be assessed per month from the date of such request to the date of such later shipment in order to pay for storage services. When an order is accepted by Seller on a make-up and hold basis, Seller will notify Buyer when the order is complete and ready for shipment. If shipment is not authorized to be made within 15 days of such notification, a charge of 1 1/2% of the invoice price will be assessed per month from the date of notification until the date of shipment, in order to pay for storage services.
Receipt of Goods by Buyer will constitute acceptance of delivery and waiver of all claims for loss or damage due to delay.
Failure on Seller’s part to make any shipment or partial shipment shall not be grounds for cancellation of the order.
If the Goods do not meet the warranty below, Buyer must return the defective Goods to Seller in the original packaging within ninety days of receipt by Buyer. No Goods will be accepted for return unless accompanied by a written Returned Material Authorization (“RMA”) from Seller, subject to a restocking charge.
Unless otherwise agreed in writing, Goods shall be returned to Seller’s Facility, and freight, insurance and handling charges on returned Goods shall be at Buyer’s expense. Any duties applied on returned Goods are to the account of Buyer.
Buyer shall be responsible for any loss or damage to returned Goods transported by Buyer or by any carrier or conveyance arranged by Buyer.
For standard Goods sold hereunder, Seller warrants to Buyer (but not to any subsequent purchasers) that such standard Goods will be free from defects in material or workmanship, as long as the standard Goods are used in accordance with the instructions provided by Seller, are properly stored and installed, and are unmodified. This warranty shall apply only to defects in material or workmanship appearing within ninety days from the date of receipt by Buyer. Seller shall be the sole judge of defects in material or workmanship.
For custom Goods sold hereunder, Seller warrants to Buyer that (i) on the day of delivery to Buyer, such custom Goods will conform to the relevant specifications provided by Buyer to Seller, and (ii) for ninety days from the date of delivery, such custom Goods will be free from defects in material or workmanship. Seller shall be the sole judge of failures to conform to the specifications and defects in material or workmanship.
If upon Seller’s inspection, Seller concludes that the Goods do not meet the applicable above warranty, Seller shall thereupon correct such defects or nonconformance with specifications, as applicable, either (at Seller’s option) by (i) repairing such defective Goods at Seller’s Facility or by making available at Seller’s Facility repaired or replacement goods, or (ii) refunding to Buyer the purchase price of the Goods. If the inspection by Seller does not disclose any defects or nonconformance with specifications, all costs of shipping and inspection shall be at the expense of Buyer.
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED BY SELLER, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. REPAIR OR REPLACEMENT OF GOODS, OR REFUND OF THE PURCHASE PRICE, SHALL CONSTITUTE THE EXCLUSIVE REMEDY OF BUYER AND THE EXCLUSIVE LIABILITY OF SELLER FOR BREACHES OF WARRANTY. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN NO EVENT SHALL SELLER’S LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS OR THE GOODS EXCEED THE AMOUNT PAID BY BUYER FOR THE GOODS GIVING RISE TO THE LIABILITY. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH LIABLITY.
Buyer shall indemnify and hold Seller harmless from and against all claims and causes of action for damages and expenses of every kind and character (including costs of suit and reasonable attorney’s fees) asserted against Seller, its agents, servants, and employees, by any firm, person, corporation, or other legal entity on account of injury to or death of any person or persons whomsoever, or for damage due or destruction of any personal or real property (including subsurface property or property rights), or on account of infringement or alleged infringement of any patents, copyrights, or trademarks arising out of, directly or indirectly, the Goods or use of the Goods.
VIII. Other Terms and Conditions
Seller reserves the right to ship quantity variances of plus or minus 10% on custom Goods. Variances may exceed 10% on standard Goods.
Orders accepted by Seller are not subject to cancellation except with Seller’s written consent. Acceptance of Buyer’s cancellation will be predicated upon Buyer’s payment of a cancellation charge to be determined by Seller.
Manufacturer’s part number, where shown, is used only to identify the position of that part in the equipment. Seller’s materials and designs might be different, but are interchangeable.
Partial tooling charges, including tools, dies, molds, etc., are priced below market value and such charges do not convey ownership or the right of removal from Seller’s Facility, unless specifically arranged in advance in writing.
Seller shall not be liable for claims of shortage or damage to Goods unless written notice of such claims is presented to Seller within 30 days after receipt of shipment.
Any contract arising hereunder shall be construed in accordance with the laws of the State of Texas, and the rights and duties of Buyer and Seller hereunder shall be determined by the laws of the State of Texas in the Courts of Harris County.
Should any clause, sentence, or part of these Terms and Conditions be held invalid, such holding shall in no way affect the validity of the remainder, which shall remain in full effect. Failure to enforce any or all of the Terms and Conditions in a particular instance or instances shall not constitute a waiver or preclude subsequent enforcement thereof.
The parties agree that these Terms and Conditions are intended as the final expression of the agreement between the parties and are a complete and exclusive statement of the terms of that agreement.