HARBACH MARKETING, INC.
STANDARD TERMS AND CONDITIONS OF SALE
NO TERMS OR CONDITIONS, OTHER THAN THOSE STATED HEREIN, AND NO AGREEMENT OR UNDERSTANDING, ORAL OR WRITTEN, IN ANY WAY PURPORTING TO MODIFY THESE TERMS AND CONDITIONS, SHALL BE BINDING ON SELLER AND ANY SUCH ATTEMPTED MODIFICATIONS ARE HEREBY REJECTED.
All sales are FOB Houston, Texas, unless otherwise specified in writing by Seller. Other than Seller’s limited warranty, below, Seller’s responsibility ceases upon delivery of goods to carrier and title shall transfer to, and risk of loss shall be borne by, Buyer at that point. Any premium transportation charges requested by Buyer will be for Buyer’s account. A minimum shipping and handling charge shall apply on all orders of less than $500.00. All prices are subject to change and goods are subject to prior sale, unless and until Seller accepts Buyer’s order in writing.
LIMITED WARRANTY – PADEYES ARE FOR SINGLE-USE, ONE-TIME PLACEMENT APPLICATION ONLY, SUBJECT TO END-USER EVALUATION OF FITNESS FOR PURPOSE AND QUALIFIED INSTALLATION WITHIN RECOMMENDED TOLERANCES. UNDER NORMAL USE AND SERVICE, ALL PADEYES ARE WARRANTED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP FOR A PERIOD OF THREE (3) YEARS FROM THE DATE OF SALE. THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.
The limited warranty provided herein is extended to the immediate purchaser only and is not transferable.
In the event any goods manufactured and sold by Seller and furnished hereunder are claimed to be defective within three (3) years after the date of shipment, Buyer shall return ship the claimed defective or non-conforming goods freight prepaid to Seller at its facility in Houston, Texas. Seller will, at its sole option, either (1) replace the goods at the delivery point specified herein or (2) refund the purchase price for those goods determined to be defective or non-conforming. Buyer’s remedies are limited as aforesaid, whether Buyer’s claim of defect or non-conformity is based on principles of contract or tort. Any and all claims with respect to the goods sold hereunder must be made first in writing to Seller promptly following shipment of the goods to Buyer, but in no event later than three (3) year from the date of shipment. Seller must be given a reasonable opportunity to investigate and cure any claims made hereunder prior to Buyer taking any further action against Seller.
SELLER SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTIAL, DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT, DAMAGES TO ASSOCIATED EQUIPMENT, COSTS OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF BUYER’S OR THIRD PARTY’S CUSTOMERS FOR SUCH DAMAGES. Buyer agrees that it is solely responsible for, and shall hold Seller harmless from and against, any and all claims, regardless of their basis, by third parties that may arise from the goods after delivery, except for replacement or repair, at Seller’s sole option. Seller’s total cumulative liability in any way arising from, or pertaining to, any goods sold shall in no case exceed the purchase price paid by Buyer for such goods.
DELIVERY - Shipping dates are approximate, subject to change, and are based upon information available at the time orders are accepted. Buyer agrees that Seller is not responsible for late deliveries for any reason including, but not limited to, (1) causes beyond Seller’s reasonable control; (2) acts of God, acts of the Buyer, acts of civil or military authority, priorities, fires, strikes, other labor disturbances, floods, hurricanes, epidemics, war, or other similar causes beyond Seller’s reasonable control; or (3) Seller’s inability to obtain necessary labor, materials, components, or manufacturing facilities for any reason. In the event of an anticipated delay, the date of delivery shall be extended for a period of the time lost by reason of such delay. Seller uses reasonable efforts to ship within the time specified, but does not guarantee to do so and shall not be liable for any damage caused by delay in delivery, irrespective of the cause of delay. Seller reserves the right to make partial deliveries. Delivery delays requested by Buyer are subject to storage charges, unless Seller agrees otherwise in writing. NO GOODS WILL BE SHIPPED WITHOUT FULL PAYMENT.
TAXES - All federal, state, provincial, municipal and other taxes, if any, now or hereafter imposed in respect to the goods sold by the Seller and/or the processing, manufacture, delivery, transportation and/or proceeds of the goods herein specified shall be for the account of the Buyer and, if taxes are required to be paid by the Seller, the amount thereof shall be added to and become part of the price payable by the Buyer.
PAYMENTS – All payments shall be made in United States Dollars in immediately available funds. A minimum fifty percent (50%) down payment will be required prior to acceptance of any order. All orders must be paid in full prior to shipment, unless Buyer and Seller otherwise agree in writing. In the event it becomes necessary to place the account in the hands of an attorney for collection, Buyer agrees to pay reasonable attorneys’ fees incurred by the Seller. Buyer shall pay interest of eighteen percent (18%) per annum for all amounts not paid when due.
CANCELLATION - If Buyer cancels an order after five (5) business days of the order being placed, a minimum fifteen percent (15%) cancellation and restocking charge will be assessed. Any cancellation or return permitted by Seller, in its sole discretion, after shipment will be subject to payment by Buyer of both cancellation and restocking charges and all freight, insurance and other costs incurred in shipment and return of the goods. No goods will be shipped without payment of cancellation and other charges properly due.
EXPORT SALES - Seller will not provide any certification or other documentation, nor agree to any contract provision, or otherwise act in any manner which may cause Seller to be in violation of United States law including, but not limited to, the Export Administration Act 1979 and regulations issued pursuant thereto. This contract shall be construed at all times in accordance with United States law and the laws of the State of Texas.
All orders for foreign delivery shall be conditioned upon the granting of export licenses or any other permits which may be required. Buyer shall obtain at its own risk and expense any and all required export licenses and permits and Buyer shall remain liable for all charges incurred even if licenses are not granted or are revoked.
ACKNOWLEDGEMENT – The written terms and conditions contained herein are the only terms and conditions upon which Seller will sell the goods identified in any purchase order. All other terms and conditions, whether contained in a purchase order or other document are hereby objected to and rejected by Seller. By payment of the required deposit, Buyer acknowledges its agreement to these terms and conditions and further acknowledges there are no other warranties, representations or terms and conditions applicable to this sale other than those set forth herein. Once accepted, this agreement may be modified or rescinded only by a writing signed by both parties or their authorized representatives.
GENERAL - This sale is made pursuant to and shall be construed in accordance with the terms and conditions of this agreement under the laws of the State of Texas. All sales and warranties of goods are FOB Houston, Texas. Venue of any and all claims arising out of the sale shall be proper only in a court of competent jurisdiction in Harris County, Texas and the parties hereby stipulate to the jurisdiction of such courts for the purposes of this agreement. Buyer agrees that any notice or service of process may be accomplished on Buyer via certified or registered U.S. Mail to Buyer’s address provided to Seller and Buyer hereby expressly waives all other forms of service. All terms and conditions of this sale, including all payments, are due, performable and payable in Houston, Harris County, Texas.