Girard Industries Terms & Conditions
- 1. DEFINITIONS
a. "Buyer" - The Person identified as Buyer or Customer on the face hereof.
b. "Goods" - The items described on the face hereof or attachment which are being sold by Sell to Buyer under the terms of this Agreement.
c. "Person" - An individual, partnership, corporation, association or other entity.
d. "Seller" - Girard Industries.
e. "Seller's Plant" - Seller's plant at Houston, Texas or any other location of Seller.
f. "Shipping Address" - The address to which the Goods are to be shipped, as shown on the face hereof.
- 2. QUOTATIONS
All quotations and offers are contingent on acceptance by Buyer within the period set forth on the face hereof, and if not accepted within such period, shall be subject to change or revocations by Seller without notice.
- 3. SALES BY AGENTS
No person acting as an agent of Seller shall have authority to bind Seller to any contract. All orders must be accepted in writing at Seller's home office.
- 4. DELIVERY AND RISK OF LOSS
a. All sales are F.O.B. Seller's Plant unless otherwise stated on the face hereof.
b. All shipping dates are estimates and do not guarantee a particular date of shipment. SELLER SHALL NOTE BE LIABLE FOR LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (WHETHER INCIDENTAL, CONSEQUENTIAL OR OTHERWISE) ATTRIBUTABLE TO OR RESULTING IN ANY WAY FROM DELAY OF SHIPPING.
c. Seller shall ship the Goods to Buyer at the Shipping Address by any commercially reasonable means and shall have the option of selecting the particular route and carrier. Seller shall not be obligated to make delivery at the Shipping Address. Delivery of the Goods to a carrier at Seller's Plant shall constitute delivery to Buyer for all purposes of this Agreement.
d. All risk of loss with respect to the Goods shall pass to Buyer upon delivery of the Goods to a carrier at Seller's Plant for transportation to the Shipping Address. No Goods are insured by Seller against damage or loss in transit.
- 5. INSPECTION
a. Buyer shall inspect the Goods immediately upon delivery at the Shipping Address and, within thirty (30) days of delivery, shall give written notice to Seller of any claim that the Goods are non-conforming or otherwise defective. Buyer agrees that such 30 day period is a reasonable time for inspection of the Goods, and failure of Buyer to give written notice within such 30 day period shall constitute irrevocable acceptance of the Goods. Buyer shall bear the expenses of inspection under all circumstances.
- 6. RETURNED GOODS
a. Goods may not be returned, and will not be accepted, without Seller's prior written approval.
- 7. FORCE MAJEURE; ADJUSTMENTS
a. If any performance by Seller under this Agreement is delayed or made impracticable or burdensome by reason of any cause beyond Seller's reasonable control, including without limitation, acts of God, fire, flood, explosion, vandalism, sabotage, riot, insurrection, severe weather, curtailment or termination of necessary licenses, permits, materials or equipment, acts or omissions of Buyer or changes or additions to this Agreement, strikes or other labor disputes involving Seller, its subcontractors or suppliers (if being understood that Seller shall not be obligated to settle any strike or other labor dispute on terms unsatisfactory to Seller) and any existing or future laws or acts of any government or body), then (i) Seller shall be excused from performance to the extent that and for so long as such performance is delayed by such cause. (ii) the delivery of the Goods affected shall be rescheduled and (iii) the price of such Goods shall be adjusted to reflect any effects of the delay on Seller's cost.
- 8. CANCELLATION
a. No notice of cancellation or termination shall relieve the Buyer from any obligations under this Agreement without the prior written consent of Seller, which consent must be signed by a corporate officer of Seller in seller's home office or by a Regional Manager of Seller. Any consent by Seller to cancel or terminate this Agreement shall be subject to and contingent on payment by Buyer of a minimum charge equal to (1) fifty percent (50%) of the established list or quoted price for all items completed prior to cancellation, plus (2) an amount equal to all costs incurred by Seller plus (25%) thereof for all incomplete items, plus (3) charges for packing and storing.
- 9. STOP WORK
a. If Buyer shall request Seller to stop work on an order, such order shall be considered completed in its then state of partial completion, and shall be subject to the following terms;
i. Seller will use its best efforts to stop all work on the order as promptly as reasonably practicable.
ii. Seller will store, as bailee for Buyer, all finished and unfinished items not listed in Seller's standard price lists and any standard items which cannot be used at that time to fill another order.
iii. Buyer will immediately pay to Seller (1) the established list or quoted price for all completed items, plus (2) an amount equal to all costs incurred by Seller plus 25% thereof for all incomplete items, plus (3) charges for packing and storing.
iv. Upon Buyer's request within thirty (30) days after the original request to stop work, Seller, at its option, may reinstate an order at the earliest practicable date, subject to buyer's acceptance of prices, terms and shipping schedule quoted prior to such reinstatement, any request to stop work for a period in excess of 30 days will be considered a cancellation request.
v. Upon reinstatement of an order, Seller will credit Buyer for parts held in storage as Buyer's property if such parts can be used in filling the reinstated order.
b. Seller may stop work and refuse to ship any finished Goods in the event that Buyer is bankrupt, insolvent or otherwise in default of the terms of this Agreement or any other agreement between Buyer and Seller.
- 10. SPECIAL TERMS APPLICABLE TO CONSTRUCTION PRODUCTS
a. Allow approximately two (2) weeks lead time prior to initiation of production after delivery of approved sepias to Seller's Plant. Estimated delivery schedule will be determined during lead time period.
b. If production is not authorized by buyer within three (3) months after receipt of the order, the prices on this quotation may be adjusted in accordance with Seller's prices at the time of production.
c. Retainage: No retainage allowed.
d. Backcharge: No backcharge or deductions from invoice amount will be allowed.
- 11. LIMITED WARRANTY
Seller warrants that the Goods shall be free from defects in materials manufactured by Seller and in Seller's workmanship for a period of ninety (90) days following shipment (the "Warranty Period"). This limited warranty shall apply only in favor of Buyer, shall expire on the last day of such ninety (90) day period, and shall apply be subject to the following:
a. This warranty shall not apply to Goods which have been (1) repaired or altered by any Person other than Seller; (ii) subjected to unreasonable or improper use or use beyond rated conditions, improper storage, negligence or accident; (iii) damaged because of use of any Goods with other materials or equipment, after Buyer (or any other Person using the Goods) has, or reasonably should have, knowledge of any defect; (iv) manufactured, fabricated or assembled by any Person other than Seller (Seller shall assign Buyer, to the extent same is assignable, any warranty Seller has received from the manufacturer of such Goods); or (v) improperly installed by any Person (including Buyer) other than Seller.
b. This warranty shall not be effective unless Seller receives a written claim within thirty (30) days after discovery of any defect with respect to which a claim is made.
c. Seller shall have the right (but not the obligation) to verify, with its own representatives, the nature and extent of any claimed defect prior to return of the goods to Seller. Upon request by Seller, Buyer shall, at its own risk and expense, promptly return the Goods in question to Seller's plant.
d. Buyer covenants to inform any subsequent buyers of the goods of the limitation on and exclusion of warranties provided for herein. Buyer hereby indemnifies and agrees to hold Seller harmless from and against all losses, costs, and expenses, including reasonable attorney's fees, incurred by Seller as a result of any third party claim relating to the purchase, sales or use of, or otherwise relating to, the goods covered by the Agreement
e. Seller's liability for any breach of warranty shall be limited either to (i) repair or replacement (whichever Seller shall elect) at Seller's Plant of any Goods determined by seller to be defective, or (ii) payment of an amount equal to the invoiced cost to Buyer of the part of material which is defective, as Seller may elect. In no event shall seller be required to repair, replace or reimburse Buyer for more than the part or material that is found to be defective and Seller's liability shall in no event be greater than the invoiced price of the item and shall not include labor, shipping or other costs incurred in any repair or replacement. The Goods, as a while, shall not be construed to be a "part" or "material" for the purpose of the immediately preceding sentence. Any Goods that are repaired or replaced by Seller shall be re-delivered to Buyer F.O.B. Seller's Plant in accordance with Paragraph 4 and shall be warranted for the remaining term of the original Warranty Period for such Goods. THE REMEDY SET FORTH IN THIS PARAGRAPH 11 IS EXPRESSLY AGREED TO BE THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
f. THE WARRANTY SET FORTH IN THIS PARAGRAPH 11 IS IN LIEU OF ALL OTHER WARRANTIES (EXCEPT OF TITLE), EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND CONFORMITY TO MODELS OR SAMPLES. ALL OTHER LIABILITY, WHETHER IN CONTRACT OR TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, IS HEREBY EXCLUDED.
- 12. INDEMNIFICATION
BUYER HEREBY INDEMNIFIES AND AGREES TO HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS, (INCLUDING ATTORNEY'S FEES), CLAIMS AND CAUSES OF ACTION IN FAVOR OF ANY AND ALL PERSONS ARISING OUT OF, RESULTING FROM OR IN ANY WAY ATTRIBUTABLE TO THE USE OR OPERATION OF THE GOODS OR ANY DEVICE, MATERIAL OR THING OF WHICH THE GOODS ARE MADE A PART OR TO WHICH THE GOODS ARE ATTACHED OR WITHIN WHICH THE GOODS ARE ENCLOSED, WHILE IN BUYER'S POSSESSION OR SUBSEQUENT TO ANY TRANSFER TO ANY THIRD PARTY. REGARDLESS OF WHETHER SELLER AND/OR OTHERS MAY BE WHOLLY, CONCURRENTLY, PARTIALLY, JOINTLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT.
- 13. LIMITATION OF LIABILITY IN GENERAL
IN NO EVENT WHATSOEVER SHALL SELLER BE LIABLE TO BUYER, ITS AFFILIATES, SUCCESSORS, ASSIGNS, VENDEES OR TRANSFEREES, OR TO ANY THIRD PARTY, FOR ANY ECONOMIC LOSS, PHYSICAL HARM, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF, RESULTING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT OR ACTS OR OMISSIONS IN CONNECTION HEREWITH INCLUDING WITHOUT LIMITATION, THE PERFORMANCE WHETHER OR NOT TIMELY, OR NONPERFORMANCE OF THIS AGREEMENT AND THE LOSS OR USE OF ANY OF THE GOODS OR OTHER PROPERTY, REGARDLESS OF WHETHER THE GOODS OR THE USE THEREOF RESULTS IN DAMAGE OR HARM ONLY TO THE GOODS OR TO OTHER PROPERTY OR WHETHER SELLER AND/OR OTHERS MAY BE WHOLLY, CONCURRENTLY, PARTIALLY, JOINTLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT.
- 14. RELIANCE
AS MORE FULLY SET FORTH IN THIS AGREEMENT, SELLER AND BUYER HAVE REACHED EXPRESS AGREEMENT WITH RESPECT TO THE LIMITATIONS OF THE LIABILITY OF SELLER IN CONNECTION WITH THIS AGREEMENT. SELLER AND BUYER EXPRESSLY RECOGNIZE THAT (i) THE PRICE FOR WHICH SELLER HAS AGREED TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT HAS BEEN PREDICATED ON SAID LIMITATION OF LIABILITY, AND (ii) SELLER EXPRESSLY RELIED ON SUCH LIMITATIONS OF LIABILITY AND WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS OF LIABILITY.
- 15. PROPRIETARY INFORMATION
All information furnished by Seller is solely for Buyer's consideration and shall not be used by Buyer or disclosed to any Person without Seller's prior written consent.
- 16. FORM, FORMATION, AND READJUSTMENT OF AGREEMENT
(a) No other representations, warranties or specification, oral or written, including any brochures provided by seller, shall modify or expand the obligations of Seller contained herein, and no sales representative or agent of Seller has any authority to make any additional representations or warranties on behalf of Seller.
(b) The terms and conditions of this Agreement shall not be modified or rescinded except by written instrument executed by an authorized representative of each Buyer and Seller.
(c) Seller's acceptance of Buyer's offer to purchase the Goods is expressly conditional on buyer's assent to all of the terms of this Agreement, notwithstanding any different or additional terms contained in any writing submitted or to be submitted to Seller by or on behalf of Buyer. Buyer's assent will be conclusively established either by Buyer's execution of this Agreement or by Buyer's acceptance of any Goods shipped under this Agreement.
- 17. TIME LIMITATION ON ACTIONS, WAIVER
(a) Any action by Buyer for an alleged breach of warranty, breach of contract or tort arising out of related to this Agreement shall be commenced not later than one (1) year after such cause of action accrues. If Buyer fails to commence any such action within such 1 year period, the action shall be deemed barred and Seller shall have no liability whatsoever to Buyer with respect thereto.
(b) The rights and remedies available to Seller hereunder shall be cumulative and in addition to any other rights and remedies provided by law. The failure of Seller to insist on strict performance hereof shall not constitute a waiver of, or estoppel against asserting, the right to require such performance in the future, nor shall a waiver or estoppel in any one instance constitute a waiver or estoppel with respect to a later breach of similar nature or otherwise.
- 18. GOVERNING LAW: CONSENT TO JURISDICTION
This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the laws of the State of Texas , without regard to otherwise applicable Texas choice of law rules or principles. Buyer hereby submits to the jurisdiction of the state and federal courts in the State of Texas and hereby designates the Secretary of State of Texas in connection with this Agreement.
- 19. SEVERABILITY
If any of the terms and conditions of this Agreement are held by any court to be invalid or unenforceable under applicable law, the parties agree to amend such provision only to the extent necessary to enable it to be valid and enforceable under applicable law, without invalidating the remaining provisions of this Agreement, which shall remain in full force and effect.
- 20. NO ASSIGNMENT
Buyer may not assign any of its rights or obligations under this Agreement.
- 21. SECURITY INTEREST: COSTS OF COLLECTION
Buyer hereby grants to Seller a purchase money security interest in all of the Goods purchased pursuant hereto, together with all accounts receivable and proceeds of the sale thereof, as security for all amounts due to Seller. Upon request by Seller, Buyer shall execute all financing statements and other documents necessary to perfect the security interest granted herein. Buyer will be liable to Seller for all collection, including without limitation attorney's fees.