1) TERMS OF AGREEMENT. The specifications on the face hereof together with the following terms and conditions constitute the entire agreement between Seller and Buyer (the “Agreement”). The terms and provisions of Agreement shall control over any contrary provision of any other document, including Buyer’s purchase orders and forms. Any objection to any item herein, including provisions which are in addition to or different from those contained in Buyer's forms, must be in writing and shall not be deemed timely unless received by Seller within seven (7) days from the date of mailing of this Agreement. If Buyer makes timely objection to any term herein, Seller shall have the right to withdraw its acceptance and this acknowledgment. Buyer's failure to object, as specified, will be deemed conclusive acceptance of all the terms and conditions of this acknowledgment. No acceptance by the Seller of any order shall be deemed to be an acceptance of any provision of the Buyer's purchase order form. No purchase order or written or oral agreement will modify this order, including these terms and conditions, unless specifically agreed to, in writing, by Seller. The invalidity of any provision of this Agreement will not affect the validity of any other provisions.
2) PRICES AND TERMS. Price, terms and availability of merchandise are subject to change without notice, including but not limited to changes caused by the fluctuations in market price, availability of the quality of precious metals employed in the manufacture of the goods described herein. Unless otherwise provided on the face hereof, payment hereunder shall be due net thirty (30) days from the date of shipment. All amounts past due shall bear interest at the rate of 1.5% per month or at the maximum rate allowable by Texas law. Seller's obligation to produce or deliver hereunder is conditioned upon continued good credit of Buyer and upon Buyer's payment when due of any sum owing by Buyer to Seller under any agreement between the parties. Based on Seller's reasonable judgment, if Buyer's financial condition at the time the merchandise is ready for shipment does not justify the terms specified, the Seller reserves the right to change these terms, to require full or partial payment in advance, or to ship the goods C.O.D.
3) TAXES. Any taxes which Seller may be required to pay', or collect, under an existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the material covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer, who shall promptly pay the amount thereof to Seller upon demand.
4) SHIPMENTS. Dates are based upon Seller's best judgment and are subject to factory schedules and production limitations, and are not guaranteed.
5) DELIVERY IN INSTALLMENTS. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.
6) DELAY. Seller shall not be liable for delays in performance caused by any act of God, fire or other casualty, accident, strike, shortage of labor or materials, governmental action or other cause beyond Seller's reasonable control; and the time for Seller's performance shall be extended by the period of any such delay. Seller reserves the right to apportion its production among its customers as it may determine.
7) SPECIALLY MANUFACTURED GOODS. On any order of specially manufactured goods, an over-run or under-run of 5% of the quantities specified shall be considered fulfillment of such order. Buyer shall pay in accordance with the units shipped.
8) LIMITED WARRANTY. Seller makes no warranty as to the design, capabilities, capacity or suitability of merchandise, except that for period of ninety (90) calendar days from the date of shipment of merchandise to Buyer. Seller warrants to Buyer that all its products shall be free from defects in material and workmanship during normal use and service.
EXCEPT AS PROVIDED HEREIN, SELLER EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
No agent, employee, or representative of the Seller has any authority to bind Seller to any affirmation, representation or warranty concerning the goods sold under this Agreement, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included within this Agreement, it is not deemed a part of the basis of this bargain and shall not in any way be enforceable.
9) INSPECTION. Prior to shipment, Buyer shall have the right and shall be given the opportunity to inspect the goods at the Seller's place of manufacture. Such inspection shall be so conducted as not to interfere unreasonably with the Seller's operations, and consequent approval or rejection shall be made before shipment of the material. Notwithstanding the foregoing, if, upon receipt of such material by Buyer, the same shall appear not to conform to the contract between Buyer and Seller, Buyer shall notify Seller, in writing, within thirty-five (35) days from date of shipment of the goods of such condition. Failure to give notice within the time specified shall constitute an irrevocable acceptance of the goods. No claims, of any kind, by Buyer shall be valid without notice, as specified, Buyer shall afford Seller a reasonable opportunity to inspect the material and repair or replace any materials determined by Seller to be non-conforming. No material shall be returned without Seller's consent.
10) REMEDY FOR NON-CONFORMING GOODS. If the material furnished to Buyer shall fail to conform to the contract, or to any warranty as stated herein, Seller, at his discretion, shall, within thirty (30) days of notice of said non-conformity, issue credit for or shall replace such nonconforming material at the original point of delivery and shall furnish instructions for the disposition of the non-conforming material. Any transportation charges involved in such disposition shall be for Seller's account. Unless Seller agrees otherwise, Buyer's exclusive and sole remedy on account of or in respect to the furnishing of material that does not conform to this contract, or to any express or implied warranty, shall be to secure credit replacement. Seller shall not, in any event, be liable for the cost of any labor expended on any such material or for any special, direct, indirect, incidental or consequential damages to anyone by reason of the fact that such material does not conform to this contract, or to any express or implied warranty herein. No claim of any kind will be considered on materials that have been converted, changed, processed or used, in manufacture.
11) PERMISSIBLE VARIATIONS, STANDARDS AND TOLERANCES. Except in the particulars specified by Buyer and expressly agreed to in writing by Seller, products ordered shall be produced in accordance with Seller's standard practices. All products, however, shall be produced subject to Seller's tolerances and variation in respect to dimension, weight, surface conditions, composition, mechanical properties, internal conditions and quality to deviations from tolerances and variations consistent with practical testing and inspection methods; and to regular practice on over and under shipments. All representations and certifications on the part of Seller with reference to such products shall be limited by the foregoing.
12) SPECIFICATION CHANGES. Specification changes are subject to acceptance by Seller, including price revisions and any adjustments necessary to cover material procured and processed and labor expended prior to receipt by Seller of revised specifications.
13) FAIR LABOR STANDARDS ACT. The Seller represents that all items shall be manufactured or furnished in accordance with the applicable requirements of the Fair Labor Standards Act of 1938, as amended.
14) GOVERNING LAW. All contracts between Buyer and Seller shall be governed by and construed in accordance with the applicable laws of the State of Texas.
15) NON-WAIVER. Waiver by Seller of the breach of any of the terms and conditions of this contract shall not be construed as a waiver of any other breach.
16) RISK OF LOSS. Identification of the goods sold herein occurs at such time as Seller places said goods in the hands of the carrier for the delivery as herein provided for. Upon identification, the risk of loss passes to the Buyer. Title remains with Seller until Seller receives payment for said goods.
(a) NOTWITHSTANDING ANY OTHER TERM OR PROVISION OF THIS AGREEMENT, BUYER WILL INDEMNIFY AND DEFEND SELLER AGAINST ANY LOSS, SUIT, CLAIM OR LIABILITY TO PERSONS OR PROPERTY, ARISING OUT OF THIS AGREEMENT OR BUYER'S POSSESSION OR USE OF THE PRODUCTS PROVIDED, OR ANY SUBSEQUENT PURCHASER'S POSSESSION OR USE OF THE PRODUCTS PROVIDED.
(b) BUYER FURTHER AGREES THAT ITS OBLIGATION TO INDEMNIFY AND DEFEND SELLER DESCRIBED IN THE PRECEDING SUBPARPAGRAPH SHALL CONTINUE IN FULL FORCE AND EFFECT, EVEN IF A CLAIM, CAUSE OF ACTION, LIABILITY OR LOSS IS ALLEGED OR PROVEN TO BE THE RESULT OF SELLER’S SOLE NEGLIGENCE OR THE CONCURRENT OR COMBINED NEGLIGENCE OF SELLER AND BUYER, AND WHETHER SUCH CLAIM, CAUSE OF ACTION, LIABILITY OR LOSS INVOLVED DEATH OR INJURY, PROPERTY LOSS, STRICT LIABILITY, NEGLIGENCE, AN ALLEGED TEXAS DECEPTIVE TRADE PRACTICES ACT VIOLATION, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
18) EXCLUSIVITY OF REMEDY. The parties acknowledge and agree that the remedies provided and set forth in paragraph 17(a) and (b) INDEMNIFICATION shall be the party’s sole and exclusive remedy with respect to any subject matter of this Agreement. The parties agree that Seller is to have no liability or responsibility whatsoever to Buyer for any claim or losses of any nature, except as set forth in this Agreement. No party shall be able to avoid the limitations expressly set forth in this Agreement by electing to pursue some other remedy.
19. CANCELLATION. Buyer may cancel or reschedule an order, provided written notice is received by Seller thirty (30) days prior to original scheduled ship date or shipment of the goods. On scheduled orders, the terms of the blanket purchase agreement control all cancellations.. In all cases, Buyer shall be liable for the payment of reasonable cancellation charges, which shall not exceed the cost to Seller for the products cancelled and shall include, but not be limited to, expenses already incurred by Seller and proper allowable indirect charges. Buyer cannot cancel and/or return any Cut Tape orders after the order has been received by Venkel.
20) COLLECTION FEES. Buyer agrees to pay any and all costs and expenses incurred by Seller to collect any unpaid balance due by Buyer to Seller, including interest on the unpaid balance as provided in paragraph 2 above, but not to exceed the maximum rate allowed by Texas law, together with any reasonable attorney's fees and expenses incurred by Seller. Buyer shall not cancel any order for delay in delivery until five (5) days after written notice of such intention has been received by Seller. Buyer shall accept any conforming goods shipped by Seller during such five-day period.