1. ENTIRE AGREEMENT. The terms and conditions contained herein supersede all prior purchase orders, agreements, discussions, negotiations, proposals, or communications between the parties and constitute the entire final contract between the parties which may not be varied except by express written
2. CREDIT APPROVAL, INFORMATION AND ACCEPTANCE. All orders are subject to approval of Buyer’s credit and acceptance by Seller. As a condition of sale, Buyer grants Seller the right to investigate Buyer’s credit, to exchange credit information with others and to report to others about Buyer’s account and relationship
3. TERMS OF PAYMENT. All invoices are due upon presentment and shall be paid without deductions or setoff in lawful money of the United States of America. Terms of payment are net payment due in 30 days of date of invoice, unless otherwise agreed on the face of the attached Order Confirmation; however, if Seller, in Seller’s sole judgment, believes Buyer’s credit to be unsatisfactory at any time, Seller may modify the payment terms to Cash on Delivery. Buyer shall not deduct credits without a credit memo first being issued by Seller.
4. TAXES AND ADDITIONAL COSTS. In addition to the purchase price for the equipment and services, Buyer shall be obligated to pay all sales, excise, use, privilege, ad valorem, customs and any other taxes, assessments, tariffs, or similar charges imposed, levied, or increased by authority of any local, county, state, federal, international or any other county’s law, rule, ordinance or regulation concerning the equipment and/or services sold to Buyer. In the event Seller shall be required to pay such taxes, assessments, duties tariffs or similar charges or incurs such additional costs, Buyer upon demand shall immediately reimburse Seller for such amounts. Buyer shall furnish to Seller upon demand any appropriate tax exemption certificates.
5. SERVICE CHARGES, EXPENSES AND FEES OF COLLECTION, LIENS. A service charge of 1½% per month (18% per annum) or the highest percentage allowed by law, whichever is greater, will be charged on all invoices not paid within 30 days of date of invoice. In the event Seller refers Buyer’s account for collection or retains counsel to enforce its rights against Buyer, then whether or not suit is instituted, Buyer agrees to pay to Seller in addition to moneys due on invoices, all service and cancellation charges, and all of Seller’s costs and expenses of collection, including, but not by way of limitation, court costs and attorney’s fees. Further, if Buyer fails to pay any amount when due, Buyer hereby permits Seller to immediately file any and all liens, including UCC, mechanics and materialman liens, oil and gas well liens, or any similar lien to which Seller is entitled.
6. FREIGHT, TITLE, RISK OF LOSS, SECURITY INTEREST. All shipments are F.O.B. Seller’s location in Midland, Texas. Buyer assumes all risk of loss, shortage, delay, or damage in transit once the equipment is delivered to the carrier. Buyer shall be responsible for all freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges and any charges for or increments thereof not set forth in the Quotation, Order Confirmation or initial invoice to Buyer shall be billed by Seller and immediately paid by Buyer. Seller retains title for security purposes only, to all products sold hereunder, until paid for in full in cash and Seller may, at Seller’s option, repossess the same, upon Buyer’s default hereunder, and charge Buyer with any deficiency. Seller shall have the right to register a security interest in the applicable UCC registry to evidence its security interest in any product until paid for in full in cash. Buyer hereby appoints Seller as its attorney to execute all documents and do all things required in order to affect such registration and protect Buyer’s security interest
7. BAILMENT. From time to time, Seller may agree to store on Seller’s premises products purchased by Buyer from Seller (“Bailment Items’). Buyer, at Buyer’s expense, shall remove the Bailment Items from Seller’s premises within twenty-four (24) hours of Seller’s request. All Bailment Items left unclaimed for more than 1 year will become the property of Seller without further notice. Further, Buyer hereby grants to Seller a lien on all Bailment Items, which Buyer may: (a) hold as collateral against any outstanding balance due Seller by Buyer (regardless of whether payable in respect to the bailment or with respect to non-Bailment Items); and (b) sell to satisfy any amount owing to Seller by Buyer which is not paid when due (regardless of whether payable in respect to the bailment or with respect to non-Bailment Items), charging Buyer with any deficiency. Seller shall not be responsible for any loss of or damage to Bailment Items, including loss or damage caused by Seller’s negligence, STRICT LIABILITY OR OTHER LEGAL FAULT OF SELLER OR ANY INDEMNIFIED PERSON. It is Buyer’s responsibility to properly insure the Bailment Items. Buyer will indemnify, defend and hold Seller, its affiliates and their respective officers, directors, shareholders and employees (“Indemnified Persons”) harmless from all liabilities, damages, penalties, claims, actions, suits, costs and expenses of every kind and nature (“Claims”) incurred by or asserted against any Indemnified Person in any way relating to or arising out of the bailment, possession, use, condition, operation, transportation, or return of any BAILMENT ITEM or failure to comply with any applicable law or regulation EVEN THOUGH CAUSED IN WHOLE OR IN PART BY A PRE-EXISTING DEFECT, THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF SELLER OR ANY INDEMNIFIED PERSON.
8. EXPRESS WARRANTY.
8.1 Seller warrants its products as set forth on its website from time to time (www.trcsuckerrods.com), subject to the terms and conditions set forth below (the “Express Warranty”). If any product has a defect in material or workmanship, and if Buyer notifies Seller thereof within the time period set forth in the applicable warranty period, Seller will, at Seller’s election and at Seller’s expense, either repair or correct the defect or replace the product. Seller does not warrant its services against any defect except as set forth above. Seller is not responsible for, and it does not warrant against, any defect or damage caused by transportation, storage, improper installation, maintenance, internal or external hostile environment, misuse, abuse, negligence, accident, modification, tampering, the attachment of any unauthorized accessory, alteration to the goods, or any other conditions whatsoever that do not constitute a defect in material and/or workmanship.
8.2 EXCEPT FOR THE EXPRESS WARRANTY DESCRIBED HEREIN, SELLER SEPCIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE OR ANY OTHER IMPLIED WARRANTIES; AND THE EXPRESS WARRANTY STATED HEREIN IS IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GOODS OR SERVICES PURCHASED BY BUYER.
8.3 NEITHER SELLER NOR ITS AFFILIATED COMPANIES SHALL BE LIABLE TO BUYER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) FOR DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS, REVENUE OR GOOD WILL, LOSS OF USE OF EQUIPMENT, FACILITY OR DATA, EXPENSES INVOLVING COSTS OF CAPITAL, COST OF PURCHASED OR REPLACEMENT POWER OR TEMPORARY EQUIPMENT
(INCLUDING ADDITIONAL EXPENSES INCURRED IN USING EXISTING FACILITIES), CLAIMS OF CUSTOMERS, EMPLOYEES OR ANY OTHER PERSONS AFFILIATED, ASSOCIATED OR IN PRIVITY WITH BUYER, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF BREACH OF THE EXPRESS WARRANTY STATED HEREIN.
8.4 THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE WITH RESPECT TO BREACH OF THE EXPRESS WARRANTY STATED HEREIN, AND THE TOTAL LIABILITY OF SELLER FOR BREACH OF SAID EXPRESS WARRANTY FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION OR TECHNICAL DIRECTION OF INSTALLATION, REPAIR OR USE OF ANY GOODS OR SERVICES FURNISHED TO BUYER, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE ACTUAL AMOUNT OF THE PURCHASE PRICE PAID BY BUYER FOR THE GOODS OR SERVICES DETERMINED BY SELLER TO BE DEFECTIVE IN MATERIAL AND/OR WORKMANSHIP.
8.5 All Express Warranty claims must be made to Seller within one year of delivery; failure to do so shall void the Express Warranty.
9. BUYER’S DEFAULT.
9.1 It shall be an event of default under this agreement, if Buyer: (i) fails to make payment hereunder within thirty (30) days of the date of invoice; or (ii) fails to perform any covenant herein and such failure is not rectified within fifteen (15) days after written notification from Seller.
9.2 Upon the occurrence of an event of default, Seller, at its own election, may (i) terminate this agreement, upon written notice to Buyer; (ii) declare all sums which are then due and unpaid, immediately payable; (iii) demand the return of any equipment; and/or (iv) enter upon Buyer’s ’premises where such equipment is located and take possession and remove such equipment from the premises without liability to Buyer or its agents for such entry. Buyer shall be liable for any and all legal fees, costs and expenses resulting from the foregoing.
10. INDEMNIFICATION. Buyer shall defend, indemnify, and hold the Seller and Indemnified Persons harmless from and against all Claims arising from, connected with, or incidental to the equipment and/or services to be provided pursuant to this agreement, EVEN THOUGH CAUSED IN WHOLE OR IN PART BY A PREEXISTING DEFECT OR THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT) of SELLER OR any indemnified PERSON, except to the extent such claims are caused by the gross negligence or willful misconduct of Seller.
11. INDEPENDENT CONTRACTORS. Each party to this agreement is an independent contractor and this agreement does not create a joint venture or partnership, employer/employee, or any other relationship other than contractual of any kind, nor shall this agreement give rise to any fiduciary duty on the part of any party to any other party. Neither party shall have the authority to bind the other party hereto.
12. FORCE MAJEURE. Seller shall not be liable for any loss, delay, or failure to perform if Seller is limited in or is unable to perform hereunder because of any casualty, interruption of business, event or circumstance beyond Seller’s control, including, without limitation, riots, bombings, terrorist acts, insurrections, civil commotions or wars; labor disputes, strikes, lockouts, boycotts, picketing or other industrial disturbances; acts of God or other force majeure events.
13. MISC. No waiver will be valid unless in writing, signed by an authorized representative of Seller and no waiver granted will release Buyer from subsequent strict compliance herewith. Seller may assign its rights and obligations by giving Buyer written notice thereof but without being obligated to obtain Buyer’s consent prior thereto. Buyer may not assign its rights nor delegate its obligations under this order without Seller’s written consent. Any such assignment or delegation without such consent shall be void. This agreement, and the rights, powers and duties set forth herein, shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. The agreement between the parties shall be deemed to be made in Texas and shall be governed by the laws of Texas. By accepting this document, Buyer hereby submits to the jurisdiction of the courts of Texas for any purposes dealing with this document or any subsequent agreement between Buyer and Seller or of the breach of or the enforcement thereof or for any purposes of Seller enforcing any of its rights against the Buyer. Whenever a term defined by said Code is used in this instrument, the definitions in the Code shall control its meanings. The parties submit to the jurisdiction of the courts of Texas which shall be on the only forum for litigating any disputes arising under this agreement. In the event that any provision of this agreement shall be invalid under the laws of any jurisdiction, such invalidity shall not affect the other provisions of this agreement which shall remain in full force and effect.
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