TERMS AND CONDITIONS OF SALE
1. TERMS OF PAYMENT. Net cash in 30 days, unless otherwise specified.
2. TITLE AND RISK OF LOSS. Title to all goods sold hereunder and risk of loss with respect thereto shall pass to Buyer upon Seller’s delivery to carrier at shipping point. Seller only delivers goods “ex works”, according to the INCOTERMS definition, which means that Seller fulfills its obligations to deliver when it has made the goods available to Buyer at Seller’s warehouse. Buyer is responsible for all costs and risks involved in taking the goods from Seller’s premises to the desired destination. Seller may, at Buyer’s request, risk, and expense, assist in arranging for carriage.
3. BUYER’S WARRANTIES REGARDING SAFETY, HEALTH, UNLOADING, USE, HANDLING, STORAGE, DISPOSAL, AND TRANSPORTATION OF THE GOODS. Buyer has received a Safety Data Sheet (SDS) which sets forth information concerning goods hereunder and describes certain precautions to be taken in the unloading, use, handling, storage, disposal, and transportation of the same. Buyer warrants that it has familiarized itself with the SDS information, adopted the safety, health and environmental practices and requirements, and has instructed its employees, independent contractors, agents, and customers of the precautions and safe use practices required. Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of goods and that it possesses skill and expertise in the unloading, use, handling, storage, disposal, and transportation of the goods.
4. DELAYS. Seller shall not be liable for inability to deliver or for any delay in the performance of orders or contracts, or in the delivery of shipment of goods, or for any damages suffered by Buyer by reason of such delay, when such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war or other consequence of war, governmental influence or embargoes, shortage of any raw materials, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, or any other cause or causes beyond its control. All orders or contracts, as well as shipments applicable thereto, are accepted with the understanding that they are subject to Seller’s ability to obtain the necessary raw materials, Seller’s current production schedules, and government regulations, orders, directives, and restrictions that may be in effect from time to time.
5. GENERAL. Buyer recognizes that particular manufacturing processes may alter the condition of goods supplied. Seller makes no warranty that goods are suitable for any particular process or purpose. Use of the goods for other than resale in the condition delivered is at the sole risk of the Buyer. Notice of defective goods must be made within ten days of delivery to Buyer at the shipping address shown on the face thereof. Failure to make such written notice shall constitute a waiver by Buyer of any and all claims for defective goods and any other matter. No claim shall be made nor will any claim be accepted after Buyer has processed more of the goods than the quantity necessary to determine the existence of a defective condition. Defective goods may not be returned until inspected by Seller and upon specific instructions by Seller. Goods so returned in the same state as shipped by Seller, will be replaced or credited to the extent of the purchase price of that part of the goods which is defective at the option of the Seller, but Seller shall not be liable for loss, direct or consequential damage, or expense directly or indirectly arising from the handling or use of the goods delivered by Seller or credit in the amount paid by Buyer. Any description of the goods contained herein is for the sole purpose of identifying them and is not part of the basis of the bargain, and does not constitute a warranty that the goods shall conform to that description. If any model or sample were shown to Buyer, such model or sample was used merely to illustrate the general type and quality of the goods and not to represent that the goods would necessarily be of that type or nature. No affirmation of fact or promise made by the Seller or any of its agents, shall constitute a warranty that the goods will conform to such affirmation or promise except insofar as specific warranties shall be set forth on the face hereof.
LIMITATION OF SELLER’S LIABILITY – IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, SPECULATIVE, OR CONSEQUENTIAL DAMAGES. Because the goods sold hereunder are, or may be, hazardous, Seller shall not be held liable for, and Buyer assumes full responsibility for all personal injury and property damage resulting from exposure to or the unloading, use, handling, storage, disposal, transportation, or resale of the goods by the Buyer, Buyer’s vendees, subsequent purchasers or users of the goods, or any other person or property, whether the goods are used alone or in combination with any other substances. Buyer’s exclusive remedy hereunder shall be reimbursement of the purchase price of goods with respect to which any claim is made whether such claim is with respect to goods delivered or non-delivery, and whether or not based on negligence, breach of warranty, or strict liability in tort.
THE SELLER GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO DESCRIPTION, QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, PRODUCTIVENESS, OR ANY OTHER MATTER, OF ANY GOODS WHICH THE SELLER SHALL SUPPLY HEREUNDER except insofar as such matters shall have been specifically set forth in the Buyer’s written purchase order and specifically agreed to in Buyer’s written purchase order and specifically agreed to in the Seller’s acknowledgement of order, but in such case, the damages and remedies for breach of such warranty or guarantee shall be limited as above provided. If any action or proceeding be commenced by the Seller to collect any monies due from the Buyer to the Seller under the terms and provisions of this Contract, the Buyer agrees to pay the Seller (in addition to all other sums required to be paid by the Buyer), as reasonable attorney’s fees in connection with such action or proceeding, a sum which is equal to fifteen percent (15%) of the unpaid balance of the amount due from the Buyer to the Seller (less the allowances, if any, which the Seller shall be awarded under the provisions of the law), together with the expenses of collection which sum and expenses are to be added and collected in such action or proceeding.
INDEMNIFICATION – An employer has a duty to provide a safe workplace for its employees, including but not limited to providing: proper safety equipment, adequate training, and product information for the safe unloading, use, handling, storage, disposal, and transportation of hazardous materials. A purchaser of hazardous materials has a duty to provide subsequent purchasers with Safety Data Sheets and adequate warning labels. Buyer acknowledges, accepts, and assumes the duties and obligations of an employer and/or intermediate purchaser. Buyer assumes all risks and liability for the unloading, use, handling, storage, disposal, and transportation of the goods and agrees to indemnify and hold Seller harmless from all liability, including liability for Seller’s own negligence and, including claims by Buyer and any third parties (including without limitation, Buyer’s employees, agents, vendees, and subsequent purchasers or other users of the goods) arising out of or related to, directly or indirectly, the unloading, use, handling, storage, disposal, transportation, or resale of the goods, including claims related to environmental contamination or violation of any environmental law or regulation, and regardless of whether the goods are used in combination with other articles or substances or in any manufacturing process.
TECHNICAL ADVICE – It is expressly understood that any technical, environmental, or safety advice furnished by Seller, with references to the use of the goods, is supplied without consideration and Seller assumes no obligation or liability for accuracy or sufficiency of advice given or results obtained, all such advice being given and accepted at Buyer’s risk.
SPILLS – The party having title to the goods shall, in the event of a spill, undertake all measures, reasonably necessary, to prevent or mitigate pollution damage and shall immediately report such spill to the appropriate Federal and State agencies. In the event the responsible party is not present or fails to take appropriate action, the other party shall have the right to undertake such measures as are reasonably necessary at the expense of the responsible party, and the defense of ‘volunteer’ shall not be raised to claim for reimbursement of such expenses.
BUYER INSOLVENCY – Buyer represents to Seller that it is not insolvent as that term is defined in the Texas Business & Commerce Code 1-201. In the event Buyer fails to fulfill the terms of payment or in the case that the Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security. Seller reserves the right among other remedies, to suspend further deliveries upon failure of Buyer to make any payment as herein provided. TAXES – Any tax, excise, or other similar governmental charge or fee (except taxes on or measured by net income) imposed upon the production, sale, importation, exportation, or transportation of any goods sold hereunder which Seller may be required to pay, shall be paid by the Buyer to Seller in addition to the purchase price, except as otherwise provided by law.
INTELLECTUAL PROPERTY INFRINGEMENT – Seller does not warrant against intellectual property infringement. Buyer assumes all risks of potential infringement by reason of any use Buyer makes of the goods in combination with other materials or in operation of any process.
APPLICABLE LAW – This Contract shall be governed by and construed in accordance with the Laws of Texas and any dispute arising from this transaction will be resolved in the State Courts of Montgomery County, Texas.
SEVERABILITY – If any provision of this Contract shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provisions hereof.
MODIFICATION – All sales of goods are limited to and made expressly conditional on Buyer’s acceptance of the foregoing terms and conditions, and Seller expressly objects to and rejects any terms and conditions that may be proposed by Buyer, which are in addition to or differ from the foregoing terms and conditions. The terms and conditions of this Contract may not be modified except by written instrument executed by all parties hereto and take precedence over any inconsistent terms and conditions contained in any purchase order, confirmation, acknowledgement, or other writing, now or hereafter existing, which may relate to the sale of goods between Buyer and Seller