Prices on Seller website, catalogs or in Seller quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within ten (10) calendar days from the date of issue, unless otherwise noted by Seller in writing. Price extensions if made are for Buyer’s convenience only, and they, as well as any mathematical, stenographic or clerical errors, are not binding on Seller. Prices shown do not include any use, sales, excise, goods and services, or other governmental tax or charge payable by Seller to federal, state or local authority. Any taxes now or hereafter imposed upon sales or shipments will be added to the purchase price, and Buyer shall reimburse Seller for any such tax or provide Seller with an acceptable tax exemption certificate. All prices, items, and other information provided to the Buyer shall be kept confidential except to the extent a Party is required by law to disclose the same.
Seller shall not be liable for delay or default in delivery resulting from any cause beyond Seller’s reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, disputes, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers’ shortages, availability or timeliness of transportation, materials, fuels, or supplies and acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for Seller’s performance shall be extended reasonably and the Parties shall adjust all affected dates; accordingly, (b) the purchase price shall be adjusted for any increased costs to Seller resulting from such Force Majeure Event; and (c) Buyer shall not entitled to any other remedy.
Reseller Warranty. Where Seller is a reseller of goods only, Seller does not provide any warranty for the goods it supplies hereunder (“Resold Goods”). Notwithstanding this as-is limitation, Seller shall pass through to Buyer any transferable manufacturer’s standard warranties with respect to goods purchased hereunder.
Assembly/Installation Warranty. Where Seller provides modification, assembly and/or installation services for Resold Goods, Seller shall warrant the services Seller provides shall comply with the specifications agreed to or provided by Seller for a period of twelve (12) months from installation or eighteen (18) months from delivery of the Resold Goods to Buyer, whichever is earlier.
Services Warranty. Where Seller provides services other than assembly and/or installation services, such services shall comply with the specifications agreed to or provided by Seller for a period of twelve (12) months from the date of Seller’s completion of such services.
As the sole and exclusive remedy for a breach of the warranties set forth in Paragraphs 6 and 7 herein within the applicable warranty period, Seller shall provide a one-time reperformance of the services provided up to the value of the amounts paid by Buyer for such services.
THE BUYER’S SOLE AND EXCLUSIVE WARRANTIES FOR GOODS OR SERVICES PROVIDED HEREUNDER ARE AS SET FORTH IN PARAGRAPHS 5-7 HEREIN. FOR RESOLD GOODS: BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF BUYER AND PERSONS CLAIMING THROUGH BUYER FOR DEFECTIVE GOODS, OR FAILURES WITH THE GOODS WHETHER THE CLAIM OF BUYER OR THE PERSON CLAIMING THROUGH BUYER SHALL SOUND IN CONTRACT, TORT, EQUITY, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS. SELLER EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER ASSUMES NO RESPONSIBILITY WHATSOEVER FOR SELLER’S INTERPRETATION OF PLANS OR SPECIFICATIONS PROVIDED BY BUYER, AND BUYER’S ACCEPTANCE AND USE OF GOODS SUPPLIED HEREUNDER SHALL BE PREMISED ON FINAL APPROVAL BY BUYER OR BY BUYER’S RELIANCE ON ARCHITECTS, ENGINEERS, OR OTHER THIRD PARTIES RATHER THAN ON SELLER’S INTERPRETATION. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO CIRCUMSTANCESE, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM AN ACTUAL OR ALLEGED BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL SELLER BE LIABLE FOR (A) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEY’S FEES OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY SELLER’S BREACH OF THIS AGREEMENT, (B) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER, OR (C) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO SELLER FOR GOODS FURNISHED TO BUYER WHICH ARE THE SUBJECT OF SUCH CLAIM(S). ALL CLAIMS MUST BE BROUGHT BY BUYER WITHIN ONE YEAYEAR OF THE DATE THE GOODS WERE DELIVERED TO BUYER AND SELLER SHALL HAVE NO LIABILITY HEREUNDER UNLESS WRITTEN NOTICE OF SUCH CLAIM IS RECEIVED BY SELLER WITHIN SUCH TIME PERIOD.
Buyer shall fully indemnify, defend, and hold harmless Seller and their affiliates, and respective officers, directors, employees, agents , successors and assigns from and against, any and all losses, lawsuits, judgements liabilities, damages, injuries, fines, costs or expenses (including reasonable attorney’s and accountant’s fees and expenses), (collectively, “Losses”), including but not limited to, Losses incurred in connection with, arising from, or otherwise relating to any actual or alleged claim, demand, proceeding, action, causes of action or suit by any third party (including Buyer’s employees) claim, arising from or related to Buyer’s use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any breach by Buyer of these Terms.
The goods shall be delivered to Buyer at the FCA shipping point specified in the purchase order. All responsibility and costs of shipping and delivery beyond the FCA point shall be borne by Buyer. Title and risk of loss shall pass to Buyer at the applicable FCA shipping point specified in the purchase order. All claims for shortage of or damage to goods as to which Seller has the risk of loss shall be waived unless Buyer, within three (3) calendar days after receipt of the short or damaged shipment, gives Seller written notice fully describing the alleged shortage or damage. Partial shipments are permitted at Seller’s discretion.
Any change in product specifications, quantities, destinations, shipping schedules, or any other aspect of the scope of goods must be agreed to in writing by Seller and may result in a price and delivery adjustment by Seller. No credit for goods returned by Buyer shall be given without Seller’s written authorization. All returns are subject to a restocking charge.
Unless otherwise agreed in writing, payment terms are NET 30 (days) from the date of shipment, payable in United States of America dollars (USD). Notwithstanding the foregoing, all orders are subject to Seller’s continuing approval of Buyer’s credit. If Buyer’s credit is not approved or becomes unsatisfactory to Seller, then Seller, in its sole discretion, may suspend or cancel performance, or require different payment terms, including but not limited to cash on delivery or in advance of shipment. In addition, Seller may in its discretion require an advance deposit of up to 100% of Seller’s selling price for any specially manufactured goods ordered by Buyer hereunder. Payments due hereunder shall be made in the form of cash, check, or money order, or other tender approved in writing by Seller. Seller may, in its sole discretion, apply Buyer’s payment against any open charges. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, continuing after Seller obtains judgment against Buyer. Seller may exercise setoff or recoupment to apply to or satisfy Buyer’s outstanding debt. Buyer shall have no right of setoff hereunder, the same being expressly waived hereby.
Buyer shall notify the Seller of the intended use of the product such as for domestic sale or foreign distribution at the time of the sale. Buyer shall not export or re-export, directly or indirectly, all or any part of the goods or related technology obtained from Seller under these Terms except in accordance with applicable export laws and regulations of the
U.S. Further, a Buyer that is a non-U.S. company or citizen shall similarly limit any export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen. Buyer represents and warrants that it will comply with the United States Foreign Corrupt Practices Act (“FCPA”) and has not, and will not in the future, do any of the following: (a) offer, promise, or give financial aid or any other advantage, directly or indirectly, to any party directly or indirectly interested in this transaction, intending to improperly obtain or retain a business advantage; or (b) request, agree to receive, or accept financial or other advantage, directly or indirectly, in return for acting or failing to act in an honest, proper and transparent manner or as a reward for improper act or omission. The Buyer agrees to provide evidence of any export including documentary Electronic Export Information filings as the Automated Export System declaration as the Seller requires to meet standards as the United States Principal Party of Interest.
All prices are for materials only and exclude any taxes, duties, tariffs, or other charges assessed on the importation of raw materials to construct goods, or the goods for sale to Buyer, or arising out of Buyer’s purchase of the materials (collectively herein, “Additional Costs”). Buyer is responsible for payment of all Additional Costs imposed on Seller at any time by any federal, state, municipal, or other government authorities, or hereafter becoming imposed upon the sale of materials to Buyer. Seller will include all Additional Costs in invoices. Upon request from Buyer, Seller shall provide reasonable documentation supporting Additional Costs. Amounts provided reflect current charges only and are subject to change. This provision applies to the fullest extent permitted by law.
Seller adheres to fair labor practices and upholds human rights standards in our operations and supply chain. Buyer agrees that it will uphold similar standards and take responsibility for the well-being of their employees. Further, as Seller prioritizes environmentally responsible practices and encourages the use of sustainable materials and methods throughout our supply chain, Buyer shall comply with all applicable laws, relevant environmental regulations and industry standards for safety, quality and environmental impact.
Buyer shall pay Seller all costs and expenses of collection, suit, or other legal action brought as a result of the commercial relationship between them, including, but not limited to, all actual attorney’s and paralegal’s fees, and collection costs, incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings. Any cause of action that Seller has against Buyer may be assigned without Buyer’s consent to FloWorks International, LLC or to any affiliate, parent or subsidiary of FloWorks International, LLC.
This Agreement, Buyer’s account, and the business relationship between Buyer and Seller shall be governed by and construed in accordance with the laws of Texas without regard to conflicts of laws, rules, and specifically excluding the UN Convention on Contracts for the International Sale of Goods (“CISG”). CISG shall not govern or apply to these Terms and the Parties hereby exclude the application of CISG. The Parties agree that any legal action arising under or related to this Agreement shall be brought in Harris County, Texas, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived.
In addition to any remedies that may be provided under these Terms, or under applicable law, Seller may terminate or restrict any order immediately upon notice to Buyer, if Buyer fails to comply with any of these Terms. Buyer certifies that it is solvent and that it will advise Seller immediately if it becomes insolvent. Buyer agrees to send Seller written notice of any changes in the form of ownership of Buyer’s business within five (5) days of such changes. Buyer and Seller are the only intended beneficiaries of this document, and there are no third-party beneficiaries.
The invalidity or unenforceability of all or any portion Terms will not affect the validity or enforceability of the other terms. The Parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable.
The following provisions shall survive termination, cancellation and completed performance of this Agreement as long as necessary to allow the aggrieved party to fully enforce such clauses: 5, 6, 7, 8, 9, 10, 11, 12 and 13.