Terms and Conditions of Sale

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 Seller for goods ordered in accordance with prices quoted to customer or in accordance with prices in effect at time the goods are furnished, whichever is greater; all prices shown on the face hereof are subject to verification by Seller’s Houston office; 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 Seller 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.

TERMS OF PAYMENT

Unless otherwise stated on the face of this invoice, terms of payment are net thirty (30) days following invoice date. 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 Seller 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 Seller is entitled to recover all of its costs and expenses related thereto, including its reasonable attorney’s fees.

DELIVERY, STORAGE, SHIPMENT, INSURANCE AND FREIGHT

elivery dates are estimated and are not guaranteed. If Customer is not able to accept the goods on the scheduled delivery date, Seller reserves the right to either cancel the order in full or store the goods at Customer’s expense. Method and route of shipment are at Seller’s discretion, unless Customer supplies explicit written instructions. Customer shall pay all costs for insurance and freight. Seller 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.

TITLE AND RISK OF LOSS

Risk of loss for damage to the goods shall pass to Customer F.O.B. original point of shipment, regardless of who pays shipping costs, or upon storage of the goods for the benefit of Customer; however, title to the goods shall remain with Seller until Customer has fully paid for the goods.

LIMITED WARRANTY

ANY WORK PERFORMED BY SELLER IS WARRANTED ONLY TO CUSTOMER FOR NINETY (90) DAYS FROM DATE OF COMPLETION OF SUCH WORK, AND APPLIES ONLY TO SUCH WORK; IF WITHIN SAID NINETY (90) DAYS SELLER RECEIVES NOTICE FROM CUSTOMER OF ANY ALLEGED DEFECT IN OR NONCONFORMANCE OF SUCH WORK, AND IF IN SELLER’S SOLE JUDGMENT THE WORK IS FOUND TO BE DEFECTIVE OR NONCONFORMING, SELLER, AT ITS OPTION AND EXPENSE, SHALL EITHER (1) REPEAT THE WORK OR (2) REFUND TO CUSTOMER THE FULL PRICE PAID BY CUSTOMER WITHOUT INTEREST OR ANY ADDITIONAL AMOUNTS WHATSOEVER, AND CUSTOMER SHALL HAVE NO OTHER REMEDIES WHATSOEVER IN CONNECTION WITH SAID WORK. AS TO ALL GOODS SOLD HEREUNDER, SELLER FOR ITS PART EXTENDS NO WARRANTIES WHATSOEVER, BUT ONLY ASSIGNS TO CUSTOMER ALL TRANSFERABLE WARRANTIES (AND REMEDIES EXTENDED THEREUNDER) EXTENDED BY THE MANUFACTURERS OF SUCH GOODS TO WHICH SELLER IS ENTITLED, AND CUSTOMER AGREES TO LOOK SOLEY TO SUCH MANUFACTURERS WITH REGARD TO CLAIMS AND REMEDIES RELATING TO SUCH GOODS. CONSISTENT HEREWITH, WHERE CUSTOMER IS PURCHASING GOODS THAT (1) HAVE BEEN MODIFIED OR ASSEMBLED PURSUANT TO CUSTOMER’S REQUIREMENTS, (2) ARE REMANUFACTURED, AND/OR (3) ARE USED AND/OR SO-CALLED “SURPLUS” GOODS, CUSTOMER ACCEPTS SUCH GOODS WITHOUT ANY WARRANTIES WHATSOEVER FROM SELLER, AND, EXCEPT FOR ANY WARRANTIES EXTENDED BY PARTIES OTHER THAN SELLER THAT MAY REMAIN IN EFFECT, CUSTOMER ACCEPTS SUCH GOODS ON AN AS-IS AND WHERE-IS BASIS, AND ALL WARRANTY DISCLAIMERS STATED BY SELLER HEREIN ARE HEREBY RATIFIED FOR ALL PURPOSES. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND SUBJECT TO THE FOREGOING, SELLER HAS NOT MADE, DOES NOT MAKE, NOR EXTENDS, AND HEREBY DISCLAIMS FOR ALL PURPOSES, ANY AND ALL OTHER REMEDIES, REPRESENTATIONS, WARRANTIES, OR COVENANTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICLUAR PURPOSES, PERFORMANCE, CONDITION, DESIGN, APPLICATION, USE AND/OR DURABILITY, AND SELLER SHALL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE NOR LIABLE FOR ANY PUNITIVE NOR SO-CALLED SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH THE POSSESSION, USE, APPLICATION AND/OR LOSS OF ANY GOODS AND/OR WORK PROVIDED BY SELLER. FURTHER, SELLER SHALL HAVE NO LIABILITY FOR ANY CLAIMS FOR DAMAGES OR EXPENSES OF ANY KIND WHATSOEVER FOUNDED UPON NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY IN TORT. NO AFFIRMATION WHETHER BY WORDS OR ACTIONS BY SELLER, ITS AGENTS, EMPLOYEES OR REPRESENTATIVES SHALL CONSTITUTE A WARRANTY.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING HEREIN OR OTHERWISE TO THE CONTRARY, EXPRESS OR IMPLIED, SELLER’S LIABLITY FOR ANY CLAIM OR ACTION OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, USE OR REPAIR OF GOODS OR WORK FURNISHED BY SELLER SHALL NOT EXCEED SELLER’S PRICE FOR THE GOOD, COMPONENT PART THEREOF OR WORK WHICH GIVES RISE TO SUCH CLAIM OR ACTION; AND, SELLER SHALL IN NO EVENT BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR CONTINGENT LIABILITIES ARISING OUT OF ANY ORDER COVERED HEREBY OR THE FAILURE OF ANY GOODS TO OPERATE PROPERLY, INCLUDING ANY DAMAGES OCCA-SIONED BY DELAY, LOST BUSINESS OPPORTUNITY OR LOST PROFITS OR OTHERWISE. CUSTOMER ASSUMES ALL LIABLITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE POSSESSION, USE OR APPLICATION OF SUCH GOODS, EITHER ALONE OR IN COMBINATION WITH OTHER GOODS.

INDEMNIFICATION

(a) CUSTOMER AGREES TO PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER FROM AND AGAINST ANY CLAIMS, DEMANDS, LIENS, DAMAGES, CAUSES OF ACTION, JUDGMENTS, LOSSES AND LIABILITIES OF ANY NATURE WHATSOEVER ARISING IN ANY MANNER, DIRECTLY OR INDIRECTLY, OUT OF OR IN CONNECTION WITH OR IN THE COURSE OF OR INCIDENTAL TO (i) CUSTOMER’S USE OR APPLICATION OF OR OPERATIONS WITH THE GOODS, REGARDLESS OF CAUSE OR OF THE SOLE, CONCURRENT OR CONTRIBUTING FAULT OR NEGLIGENCE OF SELLER OR ITS EMPLOYEES OR AGENTS; AND/OR (ii) ANY BREACH OF OR FAILURE TO COMPLY BY SELLER WITH ANY OF THESE CONDITIONS.
(b) CUSTOMER AGREES TO PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, LOSSES, DAMAGES AND LIABILITIES FOR INJURY TO OR DEATH OF CUSTOMER, CUSTOMER’S AGENTS OR EMPLOYEES OR ANY EMPLOYEE OR AGENT OF ANY CO-VENTURER, CONTRACTOR, SUBCONTRACTOR OR SUPPLIER OR PERSON AT CUSTOMER’S WORK LOCATION ARISING IN ANY MANNER, DIRECTLY OR INDIRECTLY, OUT OF OR IN CONNECTION WITH OR IN THE COURSE OF OR INCIDENTAL TO ANY OF CUSTOMER’S USE OR APPLICATION OF OR OPERATONS WITH THE GOODS, REGARDLESS OF CAUSE OR OF ANY FAULT OR NEGLIGENCE OF SELLER OR ITS EMPLOYEES OR AGENTS, WHICH INDEMNITY OBLIGATION RESPECTING CUSTOMER’S EMPLOYEES OR AGENTS OR ITS SUBCONTRACTOR’S EMPLOYEES OR AGENTS SHALL BE SUPPORTED BY $500,000 OF LIABILITY INSURANCE TO BE FURNISHED BY CUSTOMER.

PATENT INDEMNIFICATION

Seller agrees to indemnify Customer against costs and liabilities arising from claims by third parties that the goods provided hereunder infringe any valid United States Patent, subject to and provided that: Customer immediately notifies Seller in writing of any such claim; Seller shall have exclusive control of litigating or settling the claim; and Customer shall assist Seller in the defense of the claim as Seller may reasonably request. In the event that Customer’s use of the goods is enjoined, Seller, 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. This indemnification shall not apply to consequential or indirect combination of the goods with other goods not supplied by Seller, or to goods supplied to meet Customer’s special specifications. AS TO GOODS OR WORK FURNISHED, IN WHOLE OR IN PART, TO CUSTOMER’S DESIGN AND/OR SPECIFICATIONS, CUSTOMER AGREES TO DEFEND, HOLD HARMLESS AND INDEMNIFY SELLER WITH REGARD TO ANY DEMAND, CLAIM, CAUSE OF ACTION, LAWSUIT OR OTHER PROCEEDING (INCLUDING ATTORNEY’S FEES AND RELATED COSTS) BROUGHT AGAINST SELLER, ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND REPRESENTATIVES, ON ACCOUNT OF INFRINGEMENT OF ANY PATENT, DESIGN, COPYRIGHT, TRADEMARK, TRADE NAME OR OTHER INTELLECTURAL 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 OR THROUGH SELLER.

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 Seller. In the event that Seller should so approve a return of goods, Seller may apply up to a twenty percent (20%) restocking charge or such higher amounts as charged by applicable third-party vendors, whichever is higher, plus all freight, fees and other costs relating to such return. Orders for goods or parts of special design, size or materials are not subject to cancellation or return. Goods that are carried in Seller’s normal inventory which have been delivered as ordered, if approved for return, may be returned for credit only, and if in Seller’s sole judgment, they are unused and in resaleable condition and if returned within thirty (30) days from date of delivery. Claims for shortages or damage, or deductions for erroneous charges, must have Seller’s prior written approval and must be presented within thirty (30) days of receipt of goods by customer or its representatives.

ENFORCEMENT

Any legal action pertaining to these conditions and/or goods or work furnished by Seller must be brought in the courts of the State of Texas, and Customer further consents to the jurisdiction of the courts of the State of Texas relating to any such action. These conditions shall be governed by and construed in accordance with the laws of the State of Texas. Should any provision hereof be held invalid or illegal, such holding shall not affect the validity of the remaining provisions, failure to enforce any or all of these provisions in a particular instance shall not act as a waiver of same. 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 Customer’s order form or in any other of Customer’s forms or elsewhere, shall be binding on Seller unless agreed to in writing and executed by an officer of Seller. No agent, employee, or representative of Seller is authorized to alter any of these conditions nor to agree to any conditions or other provisions whatsoever outside those stated herein.

MISCELLANEOUS

Seller and Customer further expressly agree as follows. Seller is not responsible for ascertaining the particular use, suitability, application, intended use, or the like, regarding goods or work furnished by Seller to Customer NOR SHALL SELLER 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 SELLER’S SOLE OBLIGATION TO FURNISH THE SAME IN ACCORDANCE WITH CUSTOMER’S WRITTEN SPECIFICATIONS. Customer shall provide Seller with accurate, complete and written specifications for all goods and work ordered. Where Customer’s specifications permit a variety of choices, Customer shall accept goods and work meeting so called “broad specifications.” Time is of the essence as to all time periods stated herein. 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, Seller may employ a representative or attorney to remedy such breach or default, and Customer shall pay to Seller all costs, expenses and fees, including reasonable attorneys’ fees, incurred by Seller in the enforcement hereof and the obtaining of such remedy. By placing the order for goods or work covered hereby, Customer represents and warrants to Seller 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. 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.