| This
Acknowledgment shall constitute an
acceptance, solely upon all of the
terms and conditions contained
herein, of buyers offer to purchase
the goods specified herein and shall
become the entire contract between
Buyer and Seller and shall supersede
Buyers order form upon (a) receipt
by Buyer of the Acknowledgment or
(b) acceptance by Buyer of goods
delivered by Seller hereunder.
Seller hereby expressly rejects all
terms and conditions set forth on
Buyer’s order forms which are
contrary to or in addition to, or
which in any way modify or vary, any
of the terms and conditions set
forth herein. |
| 1. PAYMENT,
CREDIT AND INTEREST |
| If the Seller
believes that Buyer’s ability to
make any payment(s) called for
by this Acknowledgment is or may
be impaired, Seller may, in its
sole discretion, require payment
in cash in advance of shipment
of any or all of the goods
specified here or otherwise
change the terms of Buyer’s
credit or cancel Buyer’s order
for all or any of the then
remaining balance of goods
covered by the Acknowledgment,
without Seller incurring any
liability for such change or
cancellation and with Buyer
remaining liable to pay for any
goods already shipped. Interest
on overdue payments shall be
payable at the rate of the lower
of (a) the maximum rate
permitted by law or (b) one and
one-half percent (1 ½%) per
month. |
|
2. SHIPMENT
|
| Subject to
Seller’s right of stoppage in
transit and unless otherwise
stipulated on the face of this
Acknowledgment, delivery of all
goods covered by this contract
shall be F.O.B. Place of
Shipment within a reasonable
time of the date for shipment,
if any, as set forth on the face
of this
Acknowledgment. Seller
reserves the right to select the
means of shipment, point of
shipment and routing. |
| 3. PRICE
INCREASE AND TERMS |
| If Seller
announces a price increase on
any product model covered by
this Acknowledgment, which
increase is to take effect prior
to any estimated date for
shipment set forth on the face
of this Acknowledgment, then
such increased price shall apply
to any shipment hereunder made
after the effective date of such
price increase, other than
shipments made within five (5)
days after such announcement is
provided, however, that Buyer
may, by written notice received
by Seller no later than five (5)
days after such announcement,
cancel its order for any goods
otherwise subject to such price
increase. All taxes, duties of
assessment of any kind
applicable to the goods listed
herein shall be added to the
purchase price and shall be paid
by Buyer, except to the extent
that Buyer shall provide seller
with a tax exemption certificate
acceptable to all relevant
taxing authorities. |
| 4. FORCE
MAJEURE |
| Seller shall
not be liable to Buyer or to any
other party for losses or
damages of any kind whatsoever,
including, but not limited to,
direct, indirect, special,
consequential or incidental
damages or loss of profits, if
Seller’s supply of the goods of
hereunder shall be curtailed of
limited, directly or indirectly,
by acts of God, acts of a public
enemy, acts of governmental
bodies or agencies, foreign or
domestic sabotage, fire, floods,
explosions or other
catastrophes, epidemics or
quarantine restrictions, labor
unrest, accident, delays
occasioned by carriers, or other
causes beyond Seller’s control
in whole or in part. No
deliveries of the goods shall be
required to be made hereunder
for the period of time
occasioned by any such
occurrence. This provision shall
have the effect of permitting
delay in deliveries under this. |
| Acknowledgment
for such time as is occasioned
by any of the aforesaid
conditions, but such delay shall
not in any event reduce the full
amount of the goods purchased
and sold but only defer delivery
and payment in the event (s) and
to the extent herein provided
for. Notwithstanding the
foregoing, Seller shall have the
right to prorate the quantity of
goods deliverable under this
contract and orders of others
during the period of time
occasioned by the conditions set
forth above and as so prorated
this contract shall remain
binding upon Seller and Buyer. |
| 5. WARRANTIES
AND LIABILITY OF SELLER |
| a) Seller
hereby warrants to Buyer only
that the goods sold hereunder
will have been manufactured in
accordance with, and will
conform to, the manufacturer’s
usual standards for said goods
and that any defects in material
or workmanship in said goods
will be repaired, or, in
Seller’s sole discretion, said
goods replaced, for a period of
(6) months from the date of
seller’s shipment thereafter (or
such other period may be set
forth on the face of this
Acknowledgment). Buyer shall not
issue any warranties or
guarantees with respect to said
goods to any person or party
which in any way obligate or
purport to obligate Seller to
any such person or party. The
warranty does not apply if the
goods have been damaged by
articles not supplied by Seller,
accident, neglect, abuse,
misuse, mishandling
modification, misapplication,
alternation, acts of God,
improper installation, service
or maintenance, or during
shipment or storage. |
| (b) Buyer
shall give Seller written
notice, as soon as possible, but
not later than thirty (30)
calendar days from the date of
Buyer’s receipt of the goods, of
any claim which Buyer believes
it has against Seller based on
shortages, and Buyer shall give
Seller written notice, as soon
as possible, but not later than
(15) calendar days from the date
of termination of the warranty
period refers to in 5(a) above
(or on the face of this
Acknowledgment, of any claim
which Buyer believes it has
against Seller based on breach
of warranty, and Buyer’s failure
to do so shall constitute a
waiver of Buyer of all claims in
respect of such goods. No
charges, expense replacements or
repairs incident to any claim
will thereafter by allowed. No
such goods shall be returned to
Seller without Seller’s prior
written authorization, if
unauthorized shipments are made
to Seller, Seller reserves the
right to refuse the shipment or
accept it, and in the latter
case, the shipment will be held
as Buyer’s property and without
any responsibility whatsoever by
Seller. |
|
| (c) Any goods
confirmed by Seller, in Seller’s
sole and absolute discretion,
upon inspection, as not
confirming to the standard put
forth in the above warranty
shall be, at Seller’s option,
repaired or exchanged by Seller,
F.O.B. Seller’s warehouse, so
the same will then confirm to
such standards, or Seller may,
at Seller’s sole option, refund
to Buyer the purchase price of
such good. Seller shall have no
other obligation with respect to
said goods. |
| (d) THE
WARRANTS SET FORTH IN THIS
PARAGRAPH 5 ARE EXCLUSIVE TO
BUYER AND ARE IN LIEU OF ALL
OTHER WARRANTIES, GUARANTEES OR
REPRESENTATIONS, OTHER THAN
WARRANTY OF TITLE, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF
MERCHANTABILITY AND OF FITNESS
FOR A PARTICULAR PURPOSE, ON THE
PART OF SELLER, ITS AGENT,
DEALERS AND EMPLOYEES, ALL OF
WHICH ARE HEREBY WAIVED BY
BUYER. Seller’s liability under
this warranty shall be limited
solely to the cost of any
necessary repairs to,
replacements of or refunds of
Buyer’s purchase price for, the
goods, and Seller assumes no
risk of, and shall not in any
case be liable for, any other
damages, including, without
limitation, any special,
incidental, consequential or
punitive damages, arising from
breach of warranty or contract,
negligence or any other legal
theory, including, without
limitation, loss of goodwill,
profits or revenue, loss of use
of the goods or any associated
equipment, cost of any
associated equipment, cost of
capital, cost of any substitute
equipment, facilities or
services, downtime costs, or
claims of any party dealing with
Buyer of such damages. |
| (e) No suit
shall be brought on an alleged
breach of the warranties set
forth in this Paragraph 5 more
than twelve (12) months
following the date of Buyer’s
receipt of the goods or three
(3) months after the termination
of the warranty period referred
to in Paragraph 5 (a) above (or
on the face of this
Acknowledgment), whichever is
later. This Paragraph 5
allocates the risk and the
limitations of liability
contained in this contract. |
| 6.
CANCELLATIONS, RESCHEDULINGS |
| Except as
otherwise provided herein, an
order once placed with and
accepted by Seller shall be
non-cancelable, and shall not be
subject to rescheduling by
Buyer, unless pursued to a
written agreement duly executed
by both Buyer and Seller and in
such only upon the condition
that Buyer promptly pays to
Seller any cancellation or
rescheduling charge specified by
Seller. |
| 7. REJECTED
MERCHANDISE |
| In no case are
goods to be returned without
first obtaining Seller’s written
permission. Only unused goods in
their original sealed containers
which are then currently sold by
Seller and which have been
delivered to Buyer within thirty
(30) days of Buyers request to
return will be considered for
return. Goods accepted for
credit upon return are subject
to a service charge of ten
percent (10%) plus all return
transportation charges.
Custom-made goods are not
subject to return under any
circumstances. Goods that must
be securely packed and delivered
to Seller in an undamaged
condition. |
| 8. TRADEMARK
INFRINGMENT |
| Buyer warrants
that the use of any trademark,
trade name or other identifying
symbol or indicia authorized by
Buyer to be place upon or used
by Seller in connection with
goods sold to Buyer pursuant to
this Acknowledgment shall not
infringe any trademark or
copyright and Buyer hereby
agrees to and shall defend,
indemnify and hold seller, any
supplier of Seller, their
successors and assigns, harmless
from and against any and all
claims, liabilities, losses,
judgments, suits, damages,
costs, charges, awards and
counsel fees relating to any
claim and trademark or copyright
infringement or unfair
competition made by third
parties and/or arising out of
the printing, marking or
affixing of any such trademarks,
trade names or other identifying
symbols and indicia which have
been authorized by Buyer for use
in connection with the goods
sold to the Buyer hereunder. |
| 9. The laws
of the State of Texas, without
regard to its conflict-of-laws
rules shall govern the entire
transaction contemplated
hereunder. |
| 10. ENTIRE
AGREEMENT |
| This
Acknowledgment contains all of
the terms and conditions with
respect to the sale and purchase
of the goods sold hereunder and
there are no representations,
warranties, covenants,
agreements, or collateral
understanding, oral or
otherwise, express or implied,
affecting this instrument not
expressly set forth herein. No
delay on the part of either
party in exercising any of their
respective rights hereunder or
the failure to exercise the same
shall operate as a waiver of
such rights except in the
specific instance. None of the
terms, conditions or provisions
hereof may be, nor shall they be
held, deemed or construed to
have been, changed, waived,
varied, modified or altered by
any act or knowledge of either
party, their respective agents,
servants or employees, and the
terms of this application may
not be changed, waived, varied,
modified or altered except by a
statement in writing signed by
duly authorized representative
of both parties. |
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