STANDARD TERMS AND CONDITIONS OF SALE
All quotations, bids, contracts and sales made by Hoffmeier, Incorporated (“Hoffmeier” or “Seller”) are expressly subject to the following terms and conditions. A quotation from Hoffmeier is valid only for thirty (30) days from the date of the quote.
1. ACCEPTANCE. Any order to Seller shall be subject to the terms and conditions set forth herein. Absent Buyer’s acceptance of these terms and conditions Seller would not accept any order from Buyer. There are no understandings or agreements other than as set forth herein, and no additions, deletions or modifications of these terms proposed in Buyer’s printed forms or otherwise will bind Seller unless accepted in writing by an officer of Seller. Buyer understands and agrees that these terms and conditions shall apply to all orders placed at any time by Buyer including any subsequent orders made after the order to which these terms and conditions were first delivered by Buyer. These terms and conditions may not be altered, changed or amended by any course of dealing or e-mail or other written communication between the Buyer and Seller. Further, these Terms and Conditions are controlling regardless of any subsequent response by Buyer with its own terms and conditions. The Parties hereto agree that these provisions are not subject to any superseding by a subsequent form, or claim of a battle of the forms under the Uniform Commercial Code.
2. TERMS OF PAYMENT. Payment in US Dollars is due net 30 days from the invoice date, unless otherwise expressly agreed in writing. Progress payments may be required. If payments are not made when due Buyer promises to pay all costs of collection including reasonable attorneys’ fees and any amounts past due accrue a service charge of 1.5% per month (or fraction thereof) or at the maximum rate permitted by law. If Seller determines the continuance of production or shipment on the terms specified herein is not justified, in its sole discretion Seller may require full or partial payment in advance.
3. CHANGES. If a quotation is for custom made products, services, and/or for special applications, the quoted price is good only when Buyer provides correct and complete specifications and tolerance requirements in print or through a sample. If changes in components, fabrication or design are required because of incorrect tolerances furnished, or deviations from specifications or samples, Buyer shall bear, and agrees to pay the cost of such changes and they shall be added to the quoted price. If any purchase order or other writing contains terms or conditions contrary to those contained herein, Seller’s acceptance of any order is not assent to any additional terms or conditions, nor will it be a waiver of terms or conditions stated herein. Due to extreme fluctuation in market pricing, should a supply chain issue arise and Seller is required to provide product from alternate sources, the chemical prices quoted will be estimated only.
4. TAXES. No Sales, Use or other similar taxes or fees, permits, tariffs or other government assessments are included in Seller’s quoted prices unless otherwise indicated. Any such taxes which are paid or payable, or assessed, in connection with any order shall be paid by the Buyer either to Seller or directly to the taxing authority.
5. SHIPMENT. Unless otherwise agreed to in writing, all shipment dates quoted are approximate and estimated from the date of indicated. Any alteration of an order will affect the estimated delivery date. Seller will not be liable for any failure to deliver or delays in delivery occasioned by causes beyond Seller’s control, including without limitation, strikes, lockouts, fires, embargoes, war or other outbreak of hostilities, acts of God, inability to obtain shipping space, supply chain issues, breakdowns, delays of carriers or suppliers and governmental acts and regulations. Seller will never be liable for any special, indirect, punitive, consequential or incidental damages resulting from any delay or failure in delivery regardless of the cause thereof, and receipt of goods specified herein shall constitute acceptance of delivery and waiver of any claims.
All shipments are DAP Incoterms 2011. Seller will decide how to pack and to ship goods unless specific instructions are given by Buyer. When goods have been delivered to Buyer at Buyer’s facility have been receipted in good condition, Seller’s responsibility ends. Shipments should always be examined carefully before acceptance. Promise of delivery represents only a reasonable estimate of the time required to complete the work and ship the material. All orders are accepted with the understanding that shipping dates are approximate and subject to change because of factory conditions, fires, strikes, material shortages, civil or military authority, mandatory priority and/or other causes beyond our knowledge or control.
6. CANCELLATION OR SUSPENSION. Cancellation or suspension of orders may be made only on Seller’s written approval and on terms that will indemnify Seller against all costs and will include a restocking charge, plus an overhead charge of 20% of total direct and indirect expenses incurred.
7. INSPECTION AND ACCEPTANCE: Claims for damage, shortage or errors in shipping must be reported within five (5) days following delivery to Buyer. Buyer shall have seven (7) days from the date Buyer receives any products to inspect such products and services for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Seller, in writing, of any defects, nonconformance or rejection of such products. After such seven (7) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any product or service previously ordered by Buyer or its representatives or cancel any order without Seller’s written consent and payment to Seller of all charges, expenses, commissions and reasonable profits owed to or incurred by Seller. Specially fabricated or ordered items may not be cancelled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the manufacturer’s inspection and warranty.
8. RETURNED GOODS. No goods will be accepted for return unless authorized in writing by Seller. Buyer may return any product which Seller stocks with 25% restocking charge if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been used, installed, contaminated, modified, rebuilt, reconditioned, repaired, altered or damaged and (iii) meets all Local, State and Federal laws governing the type of product that can be sold or put into transit in the State in which the product is being returned. Buyer’s surplus job returns, and those not meeting (i), (ii) and (iii), above, will be evaluated on an individual basis after Buyer has contacted Seller’s authorized representative for prior written permission. Special orders or non-stock items may be returned if the manufacturer will accept the return. Except for items Seller stocks which meet (i), (ii) and (iii), above, credit memoranda issued for authorized returns shall be subject to the following deductions: (a) cost of putting items in salable condition; (b) transportation charges, if not prepaid; and (c) handling and restocking charges.
9. WARRANTIES. On any work performed by Seller, it warrants that the Product delivered meets the specifications of Buyer and that the items covered by this warranty will perform in accordance with specifications if properly installed and operated. Seller does not warrant that any item covered by this warranty will perform in accordance with specifications to the extent that equipment of which the item is a part is not supplied by or approved for incorporation by Seller. Seller will correct any deficiency in meeting specifications. If Seller cannot correct said deficiencies, after reasonable efforts Seller will make an equitable price adjustment based on the performance actually provided, not to exceed the purchase price. Seller further warrants that the products and services supplied by it and forming a part of the item covered by the warranty to be free from defects in material and workmanship. On any work performed on behalf of Seller, Seller will pass through to Buyer any warranty it receives from its contractor. Said pass-through will be the only warranty Buyer receives on work performed by Seller’s contractors. Seller’s total liability shall be limited to supplying replacement products and services. Installation will be deemed to have occurred either when the item is partially or completely put into use. No separate warranty shall apply to repaired services, products or equipment as a whole or to parts not repaired or replaced by Seller. The warranties stated herein are the sole and exclusive warranties provided by Seller. Seller expressly disclaims any and all implied warranties including, but expressly not limited to any implied warranty of fitness for a particular purpose.
10. RECOMMENDATIONS BY SELLER: Buyer acknowledges that Seller does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) the products sold, their use, design, application or operation, their merchantability, their physical condition or their fitness for a particular purpose, (ii) the maintenance or other expenses to be incurred in connection with the products, (iii) the engineering, design, fabrication work or any other work or service (whether gratuitous or for payment) supplied by Seller and/or its agents, suppliers and employees or (iv) the accuracy or reliability of any information, designs or documents furnished to Buyer. Seller neither assumes, nor authorizes any person to assume for it, any other obligation in connection with the sale of its products and/or rendering of its services. Any recommendations made by Seller concerning the use, design, application or operation of the products shall not be construed as representations or warranties, expressed or implied. Failure by Seller to make recommendations or give advice to Buyer shall not impose any liability upon Seller.
11. ASSUMPTION OF RISK. Buyer expressly assumes all risk of patent infringement by reason of its use of product(s) provided hereunder. All use and applications made of the products are solely at Buyer’s risk and it assumes all risk and liability resulting from use of the product(s) supplied hereunder, whether used singly or in a combination with other products.
12. GOVERNING LAW. The rights and obligations of the parties and the construction and effect of any contract formed hereunder shall be governed by the laws of the State of Texas and exclusive venue for any dispute between Seller and Buyer shall be in Harris County, Texas.
13. SAFETY NOTICE. Buyer shall comply with and shall require its agents and employees to comply with any and all directions, safety notices, warnings or other instructions that may be furnished by Seller or of which Buyer is aware, and shall use and require its agents and employees to use reasonable care in the handling and use of the product(s). Buyer agrees to disseminate any product safety data sheets, including warnings and safety and health information concerning the product(s) and/or the containers for such product(s) furnished by Seller to any person who may be exposed to such hazards, including, but not limited to, Buyer’s employees, agents, contractors, and customers.
14. ASSIGNMENT. Buyer may not assign this order or any contract resulting from this order without Seller’s prior written consent.
15. INDEMNITY. To the fullest extent permitted by law, Buyer expressly and unconditionally agrees to indemnify, defend, save and hold harmless Seller, its officers, agents, representatives and employees, from any and all costs, expenses, reasonable attorney’s fees, claims, suits, causes of action, damages, losses or liabilities for injuries to property, or persons (including employees or representatives of Seller, Buyer or any subcontractor), including death, and from any other costs, expenses, reasonable attorney’s fees, claims, suits, causes of action, damages, losses or liabilities of any and every nature whatsoever arising in any manner, directly or indirectly, out of or in connection with or in the course of or incidental to this Agreement, from the negligence, sole negligence, error or omission, joint negligence, concurrent negligence, comparative negligence, active negligence, passive negligence, negligence per se, gross negligence, failure to comply with any of the provisions of this Agreement, or strict liability of Buyer or its employees. Seller shall have the right at all times and without notice to offset against any contract payments owing hereunder any and all costs, expenses or judgments incurred by Seller and subject to Buyer’s indemnity obligations set forth in this Section. Except for gross negligence and willful misconduct, THE INDEMNIFICATION PROVIDED FOR IN THIS SECTION SHALL BE APPLICABLE WHETHER OR NOT THE LOSSES, COSTS, EXPENSES, AND DAMAGES IN QUESTION AROSE SOLELY OR IN PART FROM THE ACTIVE, PASSIVE, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF ANY INDEMNIFIED PARTY. THE PARTIES ACKNOWLEDGE AND STIPULATE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS.
15.1 Consequential Loss. Seller shall not be liable to the Buyer for Consequential Loss incurred by the Buyer in connection with or arising out of Seller’s performance arising out of any orders regardless of the applicability of these Terms and Conditions, whether such liability is based or claimed to be based upon contract, tort, including negligence, strict liability, or any other act or omission on the part of the Seller, causing the damage or loss to the Buyer. Buyer shall indemnify, defend and hold harmless the Seller from any claims for Consequential Loss by the Buyer. Consequential Loss shall mean loss of product or production, loss of revenue, loss of profits, loss of use, loss of business, loss of opportunity, increased expense of operation (including overhead), interest, liquidated damages, exemplary or punitive damages, or indirect loss or consequential loss of any other kind arising out of or in connection with the Agreement.
15.2 Limitation of Liability. The liability of Seller to Buyer for all claims arising out of the performance of any orders placed by Buyer to which these Terms and Conditions apply, whether arising in contract, tort (including negligence), strict liability or otherwise, shall be limited, excluding the Seller’s liability for Liquidated Damages, out-of-pocket legal costs, costs awarded and interest charges associated with a claim, to the Purchase Order Price regardless of the value of any insurance carried by Seller.
16. COMPLIANCE WITH LAWS AND REGULATIONS. Each party shall comply with all effective federal, state, and local regulations applicable to Buyer’s and Seller’s respective business and hereby certifies and warrants that any product delivered or service rendered under this Agreement complies with applicable standards and requirements when delivered or rendered.
17. FORCE MAJEURE. Each party shall be excused from performance (except for payment obligations), and shall incur no liability for any loss or damage due to any delay or failure to perform its obligations under this Agreement when caused by occurrences beyond the reasonable control of such party and which that party is unable to prevent or overcome through the exercise of reasonable care or proper planning (“Force Majeure”). Force Majeure events include, without limitation, acts of God, acts of war, insurrection, natural disasters, strikes, equipment failures, supply chain disruptions, and similar events. A party seeking to be excused from performance hereunder due to the occurrence of an event of Force Majeure must notify the other party orally or by facsimile or email as soon as reasonably possible (but in all events within two business days) after the occurrence of the event, with a separate formal notice to follow within a reasonable time in accordance with the notice provisions hereof, specifying the nature and extent of the event, the anticipated duration of such party’s inability to fully perform hereunder as a result of such event, and the efforts such party is undertaking to mitigate the impact of the event. A party whose performance hereunder is impacted by an event of Force Majeure must undertake diligent efforts to minimize the impact of such event on its performance.
18. REMEDIES OF SELLER: Upon default by Buyer, Buyer agrees to reimburse Seller all attorney fees and court costs incurred by Seller in connection therewith. Buyer agrees that any of the following shall constitute an event of default which shall enable Seller, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by this order or the filing of any petition to adjudicate Buyer bankrupt; (d) the death, incompetence, dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by Seller or (f) if Seller, in good faith, believes that Buyer’s prospect of performance under this Agreement is impaired. All rights and remedies of Seller herein are in addition to, and shall not exclude, any rights or remedies that Seller may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys’ fees, will be added to the balance due and Buyer shall pay all such charges.
19. SEVERABILITY: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom.
20. SET-OFF: Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Seller in connection with this transaction unless agreed to in writing by Seller.
21. NON-WAIVER: Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Seller’s Branch Manager.
22. ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by the Seller. All transactions shall be governed solely by the terms and conditions contained herein.