TERMS AND CONDITIONS
Buyer agrees to pay the full purchase price and other charges for the goods (“Goods”) described in this document. All purchase orders received by Durable Blast Parts (“Seller”) are subject to acceptance or rejection by Seller. Seller shall not be obligated to Buyer unless Seller accepts such purchase order in writing. Acceptance of these terms and conditions, orally or in writing, or acceptance of the subject Goods by Buyer, or Buyer’s acceptance of Seller’s quotation, shall evidence Buyer’s agreement to be bound by the following terms, covenants and conditions of sale, notwithstanding the terms set forth in Buyer’s purchase orders or any other document. BUYER UNDERSTANDS AND AGREES THAT THE TERMS OF THIS CONTRACT SHALL SUPERSEDE ANY TERMS CONTAINED ON BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER.
- Prices, Payment and Late Charges. Prices are F.O.B. point of shipment. All freight charges will be paid by Buyer. If such costs are prepaid by Seller, Buyer shall immediately reimburse Seller for such costs. In addition, all costs and expenses incurred in connection with excess packing shall be paid by Buyer. Full payment of the purchase price and other charges is due within thirty (30) days after invoice date. Each incremental shipment of Goods or other items covered by this order may be invoiced at the time of shipment in an amount proportionate to the total contract price. If full payment is not received by the applicable due date, Buyer agrees to pay Seller attorneys’ fees and other costs of collection incurred by Seller, and a monthly late charge equal to one and one-half percent (1.5%) of all outstanding amounts. Buyer understands that Seller may refuse to sell any Goods to Buyer until overdue accounts are paid in full. Buyer shall be responsible for the payment of all taxes, duties, customs and other fees of any nature imposed relating to this transaction, the Goods, or their construction, or inventory, or upon the manufacture, storage, sale, transportation, importation, delivery, use or consumption of the Goods, by any federal, state, local or foreign government authority including, without limitation, all state and local sales and use taxes and all taxes of a similar nature. In the event Seller is required to prepay any such tax, duty or fee, Buyer will reimburse Seller immediately.
- Credit Approval. All orders are subject to approval of Buyer’s credit. If Buyer’s credit is not approved by Seller prior to shipment of the Goods, Seller may require, in its sole discretion, different terms of payment from those specified in this document, including, without limitation, requiring Buyer to pay Seller cash upon delivery, or to return the Goods to Seller at Buyer’s expense. Any such demand may be oral or in writing and Seller may, upon making such demand, stop production and suspend shipments hereunder. If within the period stated in such demand Buyer fails or refuses to agree to such different terms of payment or refuses to give adequate assurance of due performance, Seller may, at its option, treat such failure or refusal as a repudiation of the portion of this agreement which has not been fully performed or may resume production and make shipment under reservation of a security interest and may demand payment against tender of documents of title.
- Telephone Orders. If the Goods are sold to Buyer as a result of a telephone order or under other circumstances when Buyer is not available to execute this agreement at the time the order is placed, Buyer agrees, in any event, to be bound by these terms and conditions of sale.
- Delivery. Seller shall ship the Goods to the location designated by Buyer via commercial carrier at the earliest available shipment date.
Shipping date are estimates only. Changes in the shipping schedule by Buyer may at Sellers’ discretion result in an increase in the purchase price of the Goods.
- Irrevocability. Buyer acknowledges that Seller may not have on hand in Sellers’ open stock all of the items purchased by Buyer and that Seller will be relying on Buyer’s agreement to purchase such items as a basis for Seller to enter into binding agreements with others for the delivery of such items. Because of Sellers’ reliance, Buyer agrees that Buyer’s obligation to purchase the Goods shall be unconditional and irrevocable. Buyer’s cancellation or refusal to accept the Goods shall be subject to such cancellation charges as Seller shall determine is appropriate, together with such other remedies as may be provided herein and under applicable law.
- Seller’s Right to Substitute. Seller shall have the right to substitute Goods of comparable quality for Goods ordered by Buyer which are not currently in Seller’s open stock. The obligation of Seller to sell the Goods to Buyer is subject to prior sale, and if Seller is unable to furnish some or all of the Goods specified, Seller reserves the privilege to cancel such items and deduct the price thereof from the balance owed by Buyer.
- Nonconforming Goods. Buyer shall notify Seller in writing within ten (10) days after delivery of any nonconforming Goods or any deficiencies or shortages; otherwise all such claims shall be deemed waived by Buyer. The use or resale by Buyer of any Goods claimed to be nonconforming or deficient shall constitute acceptance of such items by Buyer. Buyer shall have no right to withhold payment of the purchase price or to adjust the amount of the purchase price because of any such claim. The sole remedy of Buyer shall be the replacement or repair by Seller, at Seller’s option, of nonconforming or deficient items, which remedy shall be in lieu of Buyer’s right to consequential damages or any other remedy available under applicable laws; provided, Seller shall have no obligation to replace or repair any such items if Buyer is in default under this agreement in any respect. Any Goods delivered to Buyer but not accepted shall be held and stored by Buyer in a commercially reasonable manner until returned by Buyer to Seller upon Seller’s authorization, freight prepaid. Claims of Buyer for damages or loss of Goods during shipment shall be made solely against the carrier.
- Title and Risk of Loss. Title to all goods and risk of loss shall pass to Buyer at the time the Goods are delivered to the carrier for shipment, or when delivered to the location specified by Buyer, whichever occurs first.
- Assignment. No loss, injury, destruction, sale, transfer or pledge of all or a portion of the Goods shall release Buyer from Buyer’s obligations or operate to pass title to all or any portion of such Goods to any third party. Seller shall have the right to assign all or a portion of its rights under this agreement and such assignee shall be entitled to all the rights and remedies of Seller without liability for any right of recoupment, setoff or counterclaim which Buyer may have against Seller.
- Disclaimer and Limited Warranty. The Goods shall be covered by the applicable standard warranty attached hereto as exhibit “A” (the “Warranty”). Any description of the Goods in an invoice or purchase order is for the sole purpose of identifying the Goods, and any such description is not part of the basis of the bargain, and does not constitute a warranty that the Goods shall conform to that description. The use of any model or sample in connection with this contract is for illustrative purposes only, is not part of the basis of the bargain and is not to be construed as a warranty that the Goods will conform to the sample.
i. Any express or implied reference to specifications or plans outside of the specifications set forth in attached exhibit “A” shall not alter or enlarge the Seller’s warranty. Goods and services supplied by other vendors are excluded from Seller’s warranty and only carry such warranties as provided by those vendors to Purchaser.
ii. In the event a defect is determined by Seller in material or Seller’s workmanship, Seller’s sole obligation and Buyer’s sole remedy shall be as set forth in Section 11.3. If such defect is not covered by the Warranty, Seller shall have no obligation or liability with respect to such defect.
iii. All Goods and any equipment, component or part thereof, replaced or repaired by Seller under an applicable warranty shall be warranted by Seller for the remainder of the original warranty period.
iv. The Warranty is conditional upon the Buyer’s (i) giving Seller notice of the warranty breach within 30 days from the date Buyer discovers or should have discovered such breach, (ii) giving Seller prompt and reasonable opportunity to inspect the Goods, (iii) operating the Goods according to the manner prescribed by Seller and without alteration or substitution to the Goods, (iv) keeping adequate logs and records to establish proper operation of the Goods, and (v) Buyer’s being in full compliance with, and not being in default under, the terms of this agreement. The Warranty shall apply only to normal wear and tear in standard operating and underfoot conditions, not to any damages to the Goods caused in transit or by misuse, neglect, extreme operating environments, accident, improper installation, alterations or repairs made by anyone (including Buyer) other than Seller or its authorized representative.
v. Buyer has no right to and may not back charge Seller for warranty claims.
vi. Seller shall undertake its warranty obligation of repair, replacement or repayment within a reasonable time of receiving actual notice of the warranted defect. Seller shall be fully compensated for expenses of travel and for job time (at the Seller’s then prevailing per diem rates for straight time and premium time, as applicable) of its service representatives who inspect warranty claims, supervise repairs, or advise and consult during the replacement or repair of Goods.
vii. If Seller determines the defects in the Goods returned by Buyer are not covered by the Warranty, Seller shall charge Buyer the customary repair and replacement charges of Seller then in effect.
viii. This warranty is given only to Buyer and is not transferable and shall terminate immediately upon the sale or other disposition by Buyer.
ix. No agent, employee or other representative has the right to modify or expand any warranty applicable to the Goods or to make any representations as to the Goods other than those set forth herein, and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not be a part of this contract.
- “THE WARRANTY” IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY,INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, WHICH WARRANTIES ARE EXCLUDED. THE REMEDIES SET FORTH HEREIN ARE EXPRESSLY DECLARED TO BE THE SOLE AND EXCLUSIVE REMEDIES HEREUNDER, AND, NOTWITHSTANDING ANY TERM IN THIS AGREEMENT TO THE CONTRARY, THERE SHALL BE NO LIABILITY TO ANYONE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THE GOODS OR FOR ANY RELATED ECONOMIC LOSS OR PROPERTY DAMAGE.
- Limitation of Liability; Remedies.
i. The aggregate liability of Seller, including with respect to Seller’s subcontractors, employees and agents, for or with respect to claims of Buyer (and any successor to or assignee of Buyer) arising out of the performance or nonperformance of Seller’s obligations under or in connection with this agreement including liquidated damages or for claims for indemnity, and whether based on contract, tort (including negligence), strict liability, pollution, disease or otherwise, shall not exceed an amount equal to the purchase price set forth on the reverse side of this document.
ii. In no event shall Seller be liable for damages for loss of profits or revenues, the loss of use of the facility in which the Goods are located, including due to shutdowns or operation at less than capacity, claims of Buyer’s customers, or incidental, special or consequential damages of any other kind or nature. Further, no claim may be asserted against Seller, including Seller’s employees, agents, or subcontractors, unless the injury, loss or damage giving rise to the claim occurs or is sustained prior to the expiration of the warranty period specified in the Warranty and no suit or action thereon may be instituted or maintained unless it is initiated by Buyer in accordance with and is filed in a court of competent jurisdiction within one year after the date the cause of action first accrues.
iii. In the event a defect is determined by Seller in material or Seller’s workmanship, or in the event of any other breach by Seller of any obligation hereunder or relating to the subject matter of this agreement, Buyer’s sole remedy, if any, shall be to require Seller (i) to repair the defective Goods; (ii) to provide replacement parts for or to repair the defective Goods; or (iii) to repay to the Buyer the purchase price paid for the defective Goods, with the remedy provided to be determined by Seller, at its option. All replaced and repaired Goods shall be shipped F.O.B. point of manufacture, with removal and reinstallation expenses and transportation costs payable by the Buyer. Buyer understands and agrees that it shall have no remedy whatsoever unless Seller is in material breach of this agreement and has failed to cure such breach within a reasonable time period.
iv. The provisions of this Section 11 shall prevail over any conflicting or inconsistent provision contained elsewhere in this agreement, except to the extent that such conflicting or inconsistent provisions act to further restrict or reduce Seller’s liability under this agreement.
- Technical Advice. Seller may, in its discretion, furnish technical assistance, advice and information with respect to the Goods. Such assistance, advice or information shall be provided at Buyer’s risk, and Seller shall have no liability with respect thereto.
- Cancellation. Cancellation charges after the date of this document will be the greater of 20% of the purchase amount or the sum of expected profit plus the loss amount of materials, labor and overhead.
- Liens and Insurance. Prior to full payment of the purchase price, Buyer shall not permit any lien, encumbrance, or security interest to attach to the Goods or to be levied upon the Goods under legal process or dispose of the Goods, other than in the ordinary course of business, or permit anything to be done that may impair the value of the Goods. Buyer shall insure the Goods against risk of loss or damage by fire, including extended coverage, theft and such other casualties in an amount equal to full replacement value.
- Buyer’s Default. Occurrence of any of the following with respect to Buyer shall constitute an event of default under this agreement:
- Failure to pay any amount when due;
- Failure to pay when due any costs or expenses necessary to preserve or protect the Goods;
- Failure to perform any covenant or obligation in this agreement;
- Giving any representation of warranty or furnishing any financial information to Seller that should prove untrue or materially misleading;
- Refusal by Buyer to accept delivery of all or a portion of the Goods or Buyer’s rejection of all or a portion of the Goods upon delivery;
- Business failure or failure or inability to pay debts in the ordinary course or as they become due, or insolvency within the meaning of the federal bankruptcy laws or state insolvency laws or otherwise;
- Commission of any act of bankruptcy, assignment for the benefit of creditors, composition of creditors or commencement of any proceedings, whether voluntary or involuntary, under any federal or state bankruptcy, reorganization or insolvency laws; or
- Attachment or garnishment of or levy or execution upon the assets, property, business or income of Buyer or appointment of a receiver or trustee of or for any part of the assets, property or business of Buyer.
- Seller’s Remedies Upon Buyer’s Default. Upon the occurrence of any event of default, Seller shall have all the rights and remedies available to Seller under the Texas Uniform Commercial Code or other applicable law and all rights provided in this agreement, all of which rights and remedies shall, to the fullest extent permitted by law, be cumulative. Without limiting the generality of the foregoing, upon the occurrence of any such event of default, Seller shall have the right, either in person or by agent with or without bringing any action or proceeding, or by a receiver to be appointed by a court, to take possession of all or part of the Goods, to reclaim the Goods, to withhold delivery or stop delivery in transit, or otherwise, or to rescind this agreement and to take such other action as Seller may deem necessary and appropriate for the protection of its interests. After any such event of default, Seller may require Buyer to assemble the Goods and to make them available to Seller at a place designated by Seller which is reasonably convenient to Seller and Buyer. Seller shall have the right to take immediate possession of the Goods and shall have the right to take such action as may be required to enforce Buyer’s obligations to Seller, including the retention of the Goods without accounting to Buyer, sale of the Goods at public or private sale upon reasonable notice to Buyer of Seller’s intent to resell, such sale to include, at the option of Seller, all Goods reclaimed by Seller as well as Goods not yet delivered to Seller. Seller shall not be accountable to Buyer for any proceeds received by Seller as a result of such private or public sale, but Seller shall have the right to recover from Buyer the difference between such resale price and Buyer’s purchase price of the Goods, together with all expenses of sale, including without limitation, transportation, removal, storage, repair, maintenance, sales commission and such other expenses as may be allowed under the Texas Uniform Commercial Code and other applicable laws, less the expenses actually saved by Seller in consequence of Buyer’s default. Seller shall have the right to purchase the Goods at any such private or public sale.
- Subsidiaries and Affiliates. This order may be performed and all rights hereunder against Buyer may be enforced, in whole or in part, by Seller or by its parent corporation or any one or more subsidiary or affiliate of Seller.
- Indemnity. Buyer shall release, hold harmless, indemnify and defend Seller from and against any loss, liability, claims, suits and costs caused by, arising out of, or relating to (i) the design of Goods supplied hereunder or the design of the packages or containers in which they are shipped, if such Goods, packages or containers are made in compliance with Buyer’s design or specifications, (ii) the condition of Buyer’s premises, including without limitation accidents or injuries occurring on such premises in connection with the delivery or installation of the Goods, or (iii) the breach by Buyer of its obligations hereunder.
- Force Majeure. Seller shall not be liable to Buyer for any breach hereunder, including for failure to deliver or delays in delivery, construction, erection, or startup, occasioned by causes beyond the control of Seller or Seller’s suppliers or subcontractors, including, but not limited to, unavailability or excessive cost of materials, strikes, labor slowdowns and stoppages, labor shortages, lockouts, fires, floods, earthquakes, storms, drought, adverse weather, riots, thefts, accidents, embargoes, war (whether or not declared) or other outbreak of hostilities, civil strife, acts of governments, acts of God, acts of the public enemy, unusually severe weather, machinery breakdowns, delay or unavailability of carriers or suppliers, shortages of labor, and governmental acts or regulations, orders or injunctions, or other reasons, whether similar or dissimilar to the foregoing (together a “Force Majeure Event”). In addition, in the event of a Force Majeure Event, (i) the time for Seller’s performance shall be reasonably extended, (ii) Seller and Buyer shall take reasonable steps to adjust all affected dates in this agreement, and (iii) an adjustment in the purchase price shall be made for the resulting additional costs to Seller.
- General Provisions. If either party commences or is made a party to any action or proceeding to enforce or interpret this agreement, the
prevailing party in such action or proceeding shall be entitled to recover from the other party all attorneys’ fees, costs and expenses (including the allocated costs of in-house counsel) incurred in connection with such action or proceeding or any appeal or enforcement of any judgment obtained in any such action or proceeding. All notices, request, demands and other communications under this agreement shall be in writing and shall be deemed duly given (i) on the date of delivery if personally delivered, (ii) if transmitted by facsimile transmission, upon telephone confirmation of receipt of the transmission thereof, (iii) if sent by overnight courier, one business day after delivery to the subject overnight courier, or (iv) three business days after mailing if mailed by first-class mail, postage prepaid, to the parties at their addresses on the reverse side of this document, or such other address designated from time to time in writing by such party to all other parties. This agreement may be amended only by a written agreement signed by all parties to this agreement. Waiver of any provision of this agreement shall not be deemed to constitute a waiver of any other provision, nor shall such waiver constitute a continuing waiver. This agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, beneficiaries, legal representatives, successors and assigns, provided that Buyer shall not have the right to assign this agreement without the written consent of Seller which Seller may withhold in its sole and absolute discretion. This agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument. This agreement shall be governed by and construed in accordance with the laws of the State of Texas. Nothing contained herein shall be construed so as to require the commission of any acts contrary to law, and wherever any provisions of this agreement are invalid or there is a conflict between any provisions of this agreement and any present or future statute, law, ordinance or regulation, such provisions shall (a) be curtailed, limited and/or deemed not to be a part of this agreement only to the extent necessary to make it comply with such statute, law, ordinance or regulation, and (b) not affect the validity or enforceability of the remaining provisions. This agreement represents the entire agreement between the parties with respect to the subject matter set forth above, and supersedes all previous oral and written agreements, communications, representations or commitments.
- OSHA Compliance. Durable Blast Parts warrants that the Equipment and Parts furnished hereunder shall, to the extent such Equipment and Parts is used in accordance with Durable Blast Parts instructions, comply with safety equipment requirements of the Occupational Safety and Health Act of 1970 regulations, as amended (OSHA requirements) in effect on the date of Durable Blast Parts proposal. Durable Blast Parts shall not be responsible for failure to comply with OSHA requirements which result from the location, operation, use or maintenance of the Equipment or from alteration of the Equipment by persons other than employees of Durable Blast Parts or from an option or accessory to the equipment which was available to the buyer but omitted at the Buyer’s direction, or from design or instructions furnished by Buyer. Durable Blast Parts responsibility for breach of this warranty is limited to modification or replacement of the equipment cited as violating OSHA requirements. All OSHA requirements with respect to noise are specifically excluded from this warranty. The remedies and warranty provided herein are the entire and exclusive responsibility of Durable Blast Parts with respect to OSHA requirements. This OSHA warranty is subject to the conditions in the Warranty applicable to the equipment.
- Compliance. Durable Blast Parts warrants that it will, at all times, comply with all applicable laws, statutes, regulations and codes relating to sanctions, anti-corruption, anti-money laundering, anti-bribery and improper payments including but not limited to the Criminal Code Act 1995 (Cth) (Australia), the Foreign Corrupt Practices Act 1977 (USA) and the Bribery Act 2010 (UK).
i. Notwithstanding the forgoing, Durable Blast Parts must:
- Not give or offer or promise to give, receive or agree to accept any payment, gift or other benefit or advantage which breaches the applicable law.
- Have and maintain in place throughout the term of this Contract its own policies and procedures under the applicable laws to ensure compliance and enforce such compliance where appropriate.
- Cause any of its agents or subcontractors who are performing work under or supplying goods in relation to this Contract, to comply with the same.