1. General Terms.
All terms of the Quote may be modified, amended, or added to, but only if: (a) the modification, amendment, or addition is in writing, (b) the writing is a stand-alone, separate agreement, (c) the writing is signed by hand by the Seller and the Buyer, at or after the last communication concerning the Quote, (d) the writing refers specifically to the paragraph or section of the Quote (including those in these General Sales Terms and Conditions) that is being altered or added to, and (e) the writing clearly, unequivocally, and obviously reflects that the Parties intent to modify, amend, or add to the Quote. Buyer’s standard language in any of its contracts, communications, or documents clearly does not meet these requirements.
3. No Warranties or Guarantees.
Unless specified in writing by Seller in the Quote, the Products come with no warranties or guarantees; the Products are sold “as is”. Absent such a specific, written exception, the Seller makes no representation, guarantee, or warranty that the Products (a) adhere to or comply with any international, national, state, or local code, law, ordinance, standard, or regulation of any type or nature (including, e.g., building codes and regulations), (b) are of any particular quality, craftsmanship, or merchantability, or (c) will perform in any particular manner or under any particular conditions. Seller also expressly disclaims any implied warranty, including any implied warranty of fitness, merchantability, or purpose.
4. Acceptance of Goods—Shortages and Shipping-related Damages.
Buyer shall inspect the Products upon delivery. Within 24 hours of the Products’ delivery, Buyer must bring to Seller’s attention in writing all potential errors, problems, or losses with the Products relating to shortages and shipping-related damages. If Buyer does not so notify Seller, then it has accepted the Products and waived all errors, problems, and losses with respect to shortages and shipping-related damages. If the Buyer does so notify Seller, Seller has additional rights.
5. Acceptance of Goods—All Other Issues.
Buyer shall promptly inspect the Products thoroughly for all issues not covered by. Within three (3) business days of when the Buyer—exercising reasonable diligence—should have discovered (or did discover) any potential error, problem, or loss not covered by, Buyer must bring to Seller’s attention in writing all such potential errors, problems, or losses. If Buyer does not so notify Seller, then it has fully accepted the Products and waived all errors, problems, and losses relating to the Products. If the Buyer does so notify Seller, Seller has additional rights.
6. Seller’s Right to Inspect.
After receiving Buyer’s notice under 4 or 5, Seller and its agents and insurers shall be allowed a reasonable time, place, and opportunity to inspect the Products for all potential errors, problems, and losses identified by Buyer. The Products may not be returned without Seller’s prior written consent. Seller will not be responsible for any inspection, testing fees, or costs conducted or incurred by Buyer or by third parties.
7. Seller’s Right to Repair.
After receiving Buyer’s notice under 4 or 5, Seller shall be allowed a reasonable time, place, and opportunity to repair any Products which arguably or potentially do not meet its standards (“Deficient Products”). Seller shall have the right to perform the repairs wherever the Products are located (including on-site). Seller shall not be responsible for costs, expenses, and damages that could have been avoided had Seller been given timely and appropriate notice under 4 or 5. If (a) Buyer provides Seller appropriate and timely notice under 4 or 5, (b) Seller is allowed a reasonable time, place, and opportunity to repair any Deficient Products, and (c) Seller still fails to repair the Deficient Products in a reasonable amount of time, then Buyer shall have the right to conduct reasonable repairs to the Deficient Products and charge Seller for the cost of such reasonable repairs. Nothing herein precludes Seller from disputing whether or not the goods are Deficient Products.
8. No Consequential Damages.
Seller is not involved in the erection of any end product or structure and shall not be liable to anyone for any loss, claim, or damage relating to the improper erection of any end product or structure. Moreover, the Seller and its directors, officers, partners, employees, related entities, and agents shall not, under any circumstances, be liable for any direct, consequential, incidental, indirect, or special damages of any kind. Nor shall those persons be responsible in any way for any decision made or action taken by Buyer or others in reliance upon anything besides the contents of this Quote.
9. Payment Terms and Taxes.
All sales are COD Terms (Cash on Delivery) unless specified in writing by Seller in the Quote. Buyers with authorized credit line shall be allowed a discount of 0.5% of the net invoice amount if payment in full is received by Seller within ten (10) days of its invoice date. Otherwise, Buyer shall pay in full (without set-off or defense of any kind) each invoice’s net invoice total within thirty (30) days from each invoice date. Buyer shall not be allowed any retainage. If Buyer fails to make any such payments when due, then Seller may at any time terminate this Quote and any other orders pending with Buyer. Payments not made when due shall accrue interest at the rate of eighteen percent (18%) per annum until paid. Buyer is solely responsible for payment for all taxes relating to the Products (including, e.g., sales, use, and value added taxes).
10. Collection Efforts and Payment Security.
If Buyer fails to make any such payments when due, then Buyer agrees to pay all collection costs incurred by Seller, including Seller’s reasonable attorney’s fees spent attempting to collect such payments and/or interest on such payments. Buyer will also provide to Seller all information necessary to file, perfect, and/or record a security interest, lien and/or bond within five (5) days of a request for such information by Seller.
11. Assurances of Payment, and Solvency.
Seller may at any time condition its performance of the Quote upon receipt of advanced payment, acceptable security, or additional credit-related terms and conditions. By agreeing to the Quote, Buyer covenants, represents, and warrants that it is not “insolvent” (as defined in the Uniform Commercial Code). Should Buyer become “insolvent” before delivery of the Products, Buyer will immediately notify Seller in writing. If Buyer does not so notify Seller, then Buyer agrees that this failure is deemed a representation, covenant, and warranty that Buyer is solvent as of the date of shipment.
12. Native American Projects.
In the event that the Products may be used in a project on any federally-recognized lands owned, controlled, or leased by any Native American tribe or organization (“Native American lands”), at least three (3) days before delivery of the Products Buyer will (a) alert Seller in writing that the project may involve Native American lands, and (b) provide to Seller any and all assures of payment that Seller requests (e.g., letters of credit, personal guarantees, partial or full pre-payments, and payments on delivery).
If Buyer breaches any of the terms of this Quote, in addition to any other rights and remedies Seller may have, Seller has the right to cancel the Quote. In the event either party cancels or is deemed to have cancelled the Quote, Seller shall be entitled to payment for Seller’s materials to the date of cancellation plus a charge of 10% of the total order.
14. Shipping Costs and Risks.
Buyer shall be responsible for selecting the carrier and for paying the shipping costs, unless the Quote provides otherwise. The risk of loss shall be borne by the party responsible for the selection of the carrier, to this extent: If Seller selects the carrier, then the risk of loss shall pass to Buyer upon delivery of the Products to Buyer (or to the job site, whichever comes first); however, if Buyer selects the carrier, then the risk of loss shall pass to Buyer upon delivery of the Products to Buyer’s carrier. The parties acknowledge that shipping may expose the Products to road salt or other external agents and agree that Seller is not responsible for any resulting damage to the Products regardless of which party selects the carrier.
15. Shipping Delays.
Seller will exercise reasonable diligence to deliver the Products by the date specified but shall not be responsible for any delays if (a) the delays are caused by events and circumstances beyond Seller’s reasonable control or (b) the Buyer does not fulfill any of its other obligations (e.g., with assurances of payment, with payments, etc.).
16. Storage Fees.
Seller may charge to Buyer reasonable storage fees on delayed shipments if (a) Buyer requests and Seller agrees to a delay or deferral of shipment of Products that have already been manufactured; (b) Buyer fails to fulfill any of its obligations (e.g., assurances of payment, payments); or (c) Buyer’s carrier does not arrive on time to pick up the Products. Seller may also invoice Buyer when and as fabrication of the Products is completed, even if the Products have not shipped.
17. Terms Freely Agreed To.
The parties (a) have not been forced, coerced, or threatened to enter into this Quote; (b) have relied exclusively on the terms found in this Quote; (c) have not relied on any written or oral agreement, understanding, or statement outside this Quote; (d) have negotiated this Quote at arm’s length, as sophisticated parties; and (e) expressly waive all claims of fraud and fraud-in-the-inducement against each other.
18. Entire Agreement.
This Quote constitutes the entire and exclusive agreement between the parties. All prior or contemporaneous proposals, negotiations, course of dealings, representations, and agreements, if any, are superseded and merged herein. Without limiting the foregoing, (a) all
1 references in any document to the effect that time is of the essence are specifically rejected by Seller and form no part of this Quote and (b) shipments by Seller shall not be deemed acceptance of any provision of Buyer’s terms that are inconsistent with, modify, or add to this Quote.
19. Successors and Assigns.
The terms of this Quote shall be binding on, and inure to the benefit of Buyer, Seller, and their respective successors and assigns. Buyer may not assign this Quote without the prior written consent of Seller which consent Seller shall not unreasonably withhold. It is reasonable for Seller to require any potential assignee of Buyer to provide detailed assurances of payment, proof of solvency, and/or lien perfection documentation.
This Quote is entered into and will be substantially performed in Harris County, Texas. All disputes, arguments, and claims arising out, relating to, or concerning this Quote shall be heard exclusively in the courts of Harris County, Texas. Buyer consents to the jurisdiction of those courts and expressly waives any objection to venue there (including any objection on forum non conveniens grounds). This Quote shall be enforced, interpreted, and construed according to the laws of the State of Texas (without regard to any conflict-of-law principles).
21. Savings Clause.
If any court declares any part of this Quote invalid or unenforceable, then the Parties request that the court modify such clause to allow the clause to be valid or enforceable to the fullest extent possible. If the clause cannot be valid or enforceable even after modification, then the Parties request that the court sever such clause and enforce the remainder of this Quote.
The Buyer agrees to indemnify, defend, and hold the Seller (and Seller’s shareholders, members, partners, directors, managers, officers, employees, related entities, agents, information providers, and attorneys) harmless from any and all liabilities, losses, claims, damages, and expenses (including, but not limited to, all legal fees and costs) arising from, connected with, or relating to (i) Buyer’s failure to comply with any of the terms of this Quote; and (ii) Buyer’s use, distribution, storage, or sale of the Products.
23. Joint “Drafters”.
The Parties are sophisticated parties who had ample opportunity to negotiate this Quote, whether they did or not. As such, the parties shall be considered to have jointly drafted this Quote. No part of this Quote shall be construed against the Seller.