Terms & Conditions
The products, equipment, materials and services (collectively, the “Equipment”) which you (“Buyer”) have, in each instance, ordered, received and/or purchased from Advanced Piping Products, Inc. (“APP” or “Seller”) are sold by Seller only upon the following Standard Terms and Conditions of Sale (the “Contract”), unless otherwise agreed to in a document signed by Buyer and Seller:
CONTRACT ACCEPTANCE: The Seller agrees to sell the Equipment covered herein under the terms and conditions as set forth in this Contract. Any purchase order received from Buyer by the Seller, whether written or oral, will be interpreted as a written acceptance of Seller’s offer to sell and will be filled in accordance with terms and conditions of sale as set forth in this Contract. SELLER’S ACCEPTANCE OF THIS ORDER IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THE TERMS OF THIS CONTRACT. Buyer will be deemed to have assented to all such terms and conditions by accepting any part or portion of the Equipment ordered. Buyer’s standard terms and conditions will not be considered a counteroffer to Seller’s Contract. The failure of Seller to object to any provision in conflict herewith whether contained on Buyer’s purchase order or otherwise will not be construed as a waiver of the provisions hereof nor as an acceptance thereof. ANY REPRESENTATIONS, PROMISES, WARRANTIES, OR STATEMENTS BY SELLER’S AGENT OR EMPLOYEE THAT DIFFER IN ANY WAY FROM THE TERMS OF THIS CONTRACT SHALL BE GIVEN NO FORCE OR EFFECT UNLESS INCLUDED IN A WRITTEN DOCUMENT SIGNED BY BOTH PARTIES. All shipments are made pursuant to this Contract. This Contract is intended as a final and complete expression of the agreement between Buyer and Seller. The failure of either Buyer or Seller to enforce any rights under the Contract shall not constitute a waiver of such rights or any other rights under the Contract.
Where Seller does not issue either a quotation or a sales confirmation and ships Equipment pursuant to Buyer’s purchase order, verbal request, or other form of order, such sale shall be subject to Seller’s Contract as set forth on Seller’s invoice and Buyer shall be deemed to have agreed thereto unless Equipment is returned to Seller at Buyer’s expense within ten days of date of invoice (in new, unused condition), in which event such sale shall be canceled for all purposes.
This Contract represents a separate and independent transaction and contract between Buyer and Seller for the sale of Seller’s Equipment, for each individual order, shipment and purchase, regardless of what other sales or other business is pending between Seller and Buyer.
Any typographical or clerical error herein is subject to correction by Seller and the intended language of the Contract will remain in effect.
PAYMENT TERMS: Unless otherwise specified by the Seller, with the establishment of satisfactory credit, terms are 30 days from the date of invoice payable in U.S. dollars to Seller at its offices in Houston, Texas, or as Seller otherwise directs. No discounts are given for early payment.
The amount of any invoice will be deemed to be accurate unless Seller receives written notification from Buyer disputing the amount or validity of any such invoice prior to the payment due date and prior to payment of the invoice. Any such notification will be sent to Seller at 5611 Guhn Rd. Suite A-1 Houston, TX 77040, Attention: Accounts Receivable. Any such notice shall include the invoice number and a description of the alleged error.
Seller will have the right, among other available legal remedies, to terminate this Contract and/or to suspend further deliveries under this or other agreements with Buyer if Buyer fails to make payments to Seller when due. A service charge of 1.5% per month may be assessed all accounts over 30 days past due (60 days past the invoice date), subject to a minimum charge of $5.00 per month, or the legal rate of interest, whichever is lower.
DELIVERY AND DOCUMENTATION: Buyer will bear the risk of loss of damage to or destruction of the Equipment from the earlier of the time that Seller delivers such Equipment to the carrier or to Buyer or Buyer’s agent. Any claims for loss or damage after risk of loss has passed to Buyer will be filed with the carrier. Buyer will give written notice to Seller of any claim for shortage, error in Equipment shipped or error in charges within thirty (30) days after receipt of Equipment or such claim will be deemed waived.
Quoted delivery dates are approximate estimates determined at the time of quotation and are subject to revision at any time.
All shipping dates are approximate and are based upon prompt receipt by Seller of all necessary information from Buyer to properly process the order. Equipment offered from stock are subject to prior sale.
Delivery dates are subject to changes caused by additions to or modifications of the original order agreed to by both Seller and Buyer.
Under no circumstances will Seller have any liability whatsoever for loss of use or for any indirect or consequential damages as a result of delayed delivery.
Unless otherwise agreed in writing Seller will have the option of partial or complete shipment of the Equipment.
SERVICES: (a) Services rendered by Seller, whether with or without charge, are covered by warranty only to the extent of the Limited Warranty set forth in Section 5 below. All Equipment installed according to Seller’s specifications shall be covered by warranty but only the extent of the Limited Warranty set forth in Section 5 below and all Equipment installed other than according to Seller’s specifications shall not be covered by any warranty express or implied.
(b) If Seller furnishes technical or other advice to Buyer, whether or not at Buyer’s request, with respect to Buyer’s process or equipment, such advice will be made in good faith, and Buyer assumes all risk of such advice and the results thereof.
LIMITED WARRANTY AND DISCLAIMER: As to all Equipment, except as expressly set forth in this section, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO ANY OF THE EQUIPMENT. Seller warrants Equipment against defects and provides remedy for such defects up to, but only up to, the extent set forth in Section 7 below. Seller assigns to Buyer all of Seller’s rights and remedies under warranties to the extent that such rights and remedies are assignable for Equipment purchased by Seller from a third party for resale (“Resale Products”). Buyer agrees that Seller will have no liability for warranty defects alleged to exist in Resale Products. However, Seller agrees to make a reasonable commercial effort, if requested to do so by Buyer, to arrange for procurement and shipping of replacement Resale Products, at Buyer’s expense.
No warranties for modified, refurbished or remanufactured Equipment are expressed or implied by Seller nor is Seller liable for any damages that may occur as a result of use of the Equipment.
BUYER DATA/SPECIFICATIONS: To the extent that Seller has relied upon any specifications, information, representation of operating conditions or any other data supplied in writing by Buyer to Seller in the selection or design of the Equipment or otherwise in connection with this Contract or the preparation of Seller’s quotation, and in the event that the actual operating conditions or other conditions differ from those supplied by Buyer and relied upon by Seller, ANY WARRANTIES OR OTHER TERMS AND CONDITIONS CONTAINED HEREIN WHICH ARE AFFECTED BY SUCH CONDITIONS SHALL BE NULL AND VOID.
LIMITATION OF REMEMDY AND LIABILITY: BUYER’S EXCLUSIVE REMEDY WILL BE FOR DAMAGES, AND SELLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY AND ALL CAUSES WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) WILL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE EQUIPMENT IN RESPECT OF WHICH SUCH CAUSE ARISES OR, AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF SUCH EQUIPMENT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE.
NOTWITHSTANDING THE FOREGOING, SELLER WILL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. The term “Consequential Damages” will include, but not be limited to, a loss of anticipated profits, loss of use, loss of revenue and cost of capital. Seller will not be liable for, and Buyer assumes liability for, all personal injury and property damage connected with handling, transportation, possession, use, further manufacture, or resale of the Equipment. No costs or charges incurred by Buyer will be paid by Seller unless authorized in writing in advance by Seller.
EXCUSE OF PERFORMANCE: Deliveries may be suspended, delayed, or cancelled by Seller, without liability to Buyer or any other person, in the event of: Act of God, war, riot, fire, explosion, accident, flood, natural disaster, sabotage, equipment or computer failures; acts, omissions, or failures by Seller’s suppliers or other third parties, lack of or delays in obtaining adequate fuel, power, raw materials, components, labor, containers, or manufacturing or transportation facilities; compliance with governmental requests, laws, regulations, order or actions; breakage or failure of machinery or apparatus; force majeure; national defense requirements or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller; or in the event of labor trouble, strike, lockout or injunction (provided that Seller will not be required to settle a labor dispute against its own best judgment); which event makes impracticable the manufacture or delivery of a shipment of the Equipment or of a material or component upon which the manufacture of the Equipment is dependent.
Deliveries suspended or not made by reason of this section shall at Seller’s option, either be cancelled or the time of delivery will automatically be extended for a period of time equal to the suspension period, without liability, but this Contract will otherwise remain unaffected.
WAIVERS AND RELEASES: Except as provided in paragraphs 5 and 7 and except for the willful misconduct or gross negligence of Seller, its employees or agents, Buyer hereby releases Seller, its employees, agents, management and owners from all liabilities, claims, costs, expenses, losses and damages of any and every kind arising out of or resulting, directly or indirectly, from any defect or failure of the Equipment or any act, omission, error or delay in the performance, or nonperformance of Seller’s obligations and duties under this Contract. To the extent, if any, that Seller, its employees, agents, management or owners shall have any liability under this Contract, Buyer’s exclusive remedy will be set for as set forth in paragraph 7. BUYER WAIVES ALL CLAIMS FOR CONSEQUENTIAL DAMAGES AND ALL CLAIMS REGARDING LOSS OF REVENUE, INCOME, PROFIT AND USE OR DAMAGES, WHETHER SAME BE DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL.
GOVERNING LAW, VENUE AND LIMITATIONS: This Contract will be governed by and construed in accordance with the laws of the State of Texas.
Each of the parties hereto submits irrevocably to the non-exclusive jurisdiction of the courts of the State of Texas, in Harris County, as regards any claim or matter arising under this Contract.
No action or claim, regardless of form, arising out of transactions under this Contract may be brought by either party, more than two years after the cause of action or claim has accrued.
EXPORTS: Export of the Equipment sold hereunder may be subject to required governmental licenses and authorizations. Buyer agrees to comply with all U.S. export regulations applicable to the Equipment it purchases from Seller, including Export Administration Regulations of the U.S. Department of Commerce and the International Traffic in Arms Regulations of the U.S. Department of State. Buyer shall be responsible for procuring any required licenses and authorizations. Buyer further warrants that it will not re-export the Equipment or technical information to any country to which export is prohibited by applicable U.S. law.
OTHER TERMS AND CONDITIONS: Buyer will not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of Seller, and any attempted assignment or delegation by Buyer without such consent shall be void.
Seller reserves the right to modify the design of any Equipment without obligations or notifications, and Seller is not obligated to so modify Equipment previously or subsequently sold.
Should any clause, sentence or part of this Contract be held invalid, such holding shall in no way affect the validity of the remainder, which will remain in full effect. Failure to enforce any or all provisions of this Contract in a particular instance or instances, will not constitute a waiver or preclude subsequent enforcement thereof.