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TERMS AND CONDITIONS
The terms and conditions set forth below and on the face side hereof
constitute a complete and exclusive statement of the agreement between
buyer and seller. All representations, promises, warranties, or
statements by an agent or employee of seller that differ in any way from
the terms and conditions hereof shall be given no force or effect, no
modifications or additions there to shall be binding upon seller unless
expressly consented to in writing. Any conflicting warranty terms and
conditions in the purchase order or any other buyers document are
specifically rejected by the seller. No course of prior dealing or usage
of trade shall supplement or explain any term used in this agreement.
PRICE
Prices quoted are valid for 30 days from the quoted date. For production
orders that are accepted within the quoted 30 days the pricing for the
active production order will be valid for 12 months.
(1) Pricing adjustments will be looked at the end of 15 months or
(2) if a production order is completed and the buyer wants to issue a
new order or
(3) if material costs rise 20% or higher the seller and buyer will
negotiate a new price or
(4) if buyer requests design or material modifications the seller and
buyer will negotiate a new price.
30 DAY GUARANTEE
If Buyer is not satisfied with the performance of the Goods within 30
days from the day the Goods were shipped from the Seller, Buyer may
return the Goods (in the original carton) that Seller has determined are
in sellable condition for a full refund less Restocking Fee (30%), Shipping,
Handling, Damages and Freight Charges.
WARRANTY
Seller warrants Goods manufactured by it will be free of material
defects and will conform and function consistent with the appropriate
Seller specifications for a period of 1 year from the shipping date.
If any of the Goods are found by Seller to be defective, such Goods
will, at Sellers option, be replaced or repaired at Sellers cost. No
defective goods are to be returned without written authorization of
seller. The sole purpose of the stipulated exclusive remedy shall be to
provide the Buyer with free repair and replacement of defective Goods in
the manner provided herein. This exclusive remedy shall not be deemed to
have failed of its essential purpose so long as the Seller is willing
and able to repair or replace defective Goods in the prescribed manner.
The foregoing warranty is in lieu of all other warranties, express or
implied, including those of merchantability or fitness for any purpose
not expressly set forth herein. No affirmation of Seller, by words or
action, other than as set forth in this Section shall constitute a
warranty. Sellers warranty does not apply to any Goods which have been
subjected to misuse, mishandling, misapplication, neglect (including but
not limited to improper maintenance), accident, improper installation,
modification (including by not limited to use of unauthorized parts or
attachments), or adjustment or repair performed by anyone other than
Seller or one of Sellers authorized agents. When returning products to
Seller packaging must be adequate or all warranty is null and void.
Buyer will pay for the cost of shipping to and from the Seller for all
warranty repairs. In the event travel is necessary for warranty repairs,
Buyer will pay for the cost of all travel expenses to and from the
Sellers location.
Any claim by Buyer with reference to the Goods sold hereunder shall be
deemed waived by the Buyer unless submitted in writing to seller within
the earlier of (I) thirty (30) days following the date Buyer discovered
or by reasonable inspection should have discovered, any claimed breach
of foregoing warranty, or (ii) 12 months following the date of shipment.
Any cause of action for breach of the foregoing warranty shall be
brought within one year from the date the alleged breach was discovered
or should have been discovered, whichever occurs first.
LIMITATION OF LIABILITY
Sellers liability (whether under the theories of breach of contract or
warranty, negligence, or strict liability) for its Goods shall be
limited to repairing or replacing Goods found by Seller to be defective,
or at Sellers option, to refunding the purchase price of such Goods or
parts thereof.
DISCLAIMER OF CONSEQUENTIAL DAMAGES
In no event shall seller be liable for consequential damages arising out
of or in connection with this agreement, including without limitation,
breach of any obligation imposed on seller hereunder. Consequential
damages shall include without limitation, loss of use, income or profit,
or loss sustained as the result of injury (including death) to any
person, or loss of or damage to property (including without limitation
property handled or processed by the use of the goods). Buyer shall
indemnify seller against all liability, cost or expense which may be
sustained by seller on account of any such loss, damage, or injury.
ACCEPTANCE AND TRANSPORTATION
Upon buyers receipt of shipment, Buyer shall immediately inspect the
Goods. Unless Buyer provides Seller with written notice of any claim for
shortage, overcharge, or damage of Goods within ten (10) days from
invoice date, such Goods shall be deemed finally inspected, checked and
accepted by Buyer and no allowances shall be made thereafter. In absence
of shipping and packaging instructions, Seller shall use its own
discretion in the choice of carrier and method of packing. Seller shall
not be responsible for insuring shipments unless specifically requested
by Buyer and any insurance or special packaging so requested shall be at
Buyers expense and valuation.
TITLE AND RISK OF LOSS
Title to any Goods sold and risk of loss of such Goods passes to Buyer
upon delivery by Seller to carrier and any claims for losses or damages
shall be made by Buyer directly with carrier.
DELAYS
9. Unless expressly specified to the contrary, Goods in stock will be
shipped within 48 hours, and Goods not in stock will be shipped
according to Sellers production schedule. However, all shipping dates
are approximate, and are based upon current availability of materials,
present production schedules, and prompt receipt of all necessary
information. Seller will not be liable for any damage, loss, fault, or
expense arising out of delays in shipment or other nonperformance of
this Agreement caused by or imposed by:
(1) strikes, fires, disasters, wars, riots, acts of god;
(2) acts of Buyer;
(3) shortages of fuel, labor, power, materials, supplies,
transportation, or manufacturing facilities;
(4) governmental action;
(5) sub-contractor delay; or
(6) any other cause or condition beyond Sellers reasonable control. In
the event of any such delay or nonperformance, Seller may, at its
option, and without liability, cancel all or any portion of this
Agreement and/or extend any date upon which any performance hereunder is
due.
TERMINATION AND CANCELLATION
Orders cannot be terminated, or modified, or shipment deferred after
acceptance of Buyers order by Seller, except with Sellers written
consent. In the event of cancellation or termination by Buyer of this
order before completion thereof, other than breach thereof by Seller,
Buyer shall pay to Seller promptly upon receipt of invoice from Seller:
(a) Contract price for all products which shall have been completed
prior to notice of termination
(b) All actual costs made or incurred by Seller in connection with the
uncompleted portion of the order. Such costs shall include labor,
overhead and costs of materials in process or purchased for processing
the order, and which materials shall belong to the Buyer.
(c) Cancellation charges that the seller occurs from vendors and
commitments made under the order.
(d) In the event a tooling charge is prorated over the cost of the
order, balance of tooling charge not so prorated on previous shipments
shall be billed as a cancellation charge.
ORDER CHANGES
Orders will be subject to a price increase or holding charge unless
different terms are agreed in writing by the seller if:
(a) 15% of any new purchase order is not scheduled within the first 150
day period or 15% of the order is not scheduled quarterly thereafter
(b) An active order is placed on hold and not rescheduled within 60 days
GENERAL CONDITIONS
A. In addition to the rights and remedies conferred upon Seller by law,
Seller shall not be required to proceed with the performance of any
order or contract if the Buyer is in default in the performance of any
order or contract with Seller, and in case of doubt as to Buyers
financial responsibility, shipments under this order may be suspended or
sent sight draft with bill of lading attached by Seller.
B. No delay or omission by Seller in exercising any right or remedy
provided for herein shall constitute a waiver of such right or remedy
and shall not be constituted as a bar to or a waiver of any such right
or remedy on any future occasion.
C. The sale of Goods pursuant to this order shall be governed by the
laws of the State of Texas. Seller agrees to comply with all applicable
laws of the United States.
SEVERABILITY
The invalidity or unenforceability of any one or more phrases,
sentences, or sections shall not affect the validity or enforceability
of the remaining portions of this Agreement
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