1. General. Seller's prices are based on these sales terms and(i) this document, together with any additional writings signed by or specifically provided by Seller for transaction on its Hisco.com website ("website") at www.Hisco.com , and represents a final, complete and exclusive statement of the agreement between the parties and may not be modified, supplemented, explained or waived by parol evidence, Buyer's purchase order, a course of dealing, Seller's performance or delivery, or in any other way and objection is hereby made thereto, except in writing signed by an authorized representative of Seller, and (ii) these terms are intended to cover all activity of Seller and Buyer hereunder, including sales and use of goods and all related matters, including technical advice and services. ANY REFERENCES BY SELLER TO BUYER'S SPECIFICATIONS AND SIMILAR REQUIREMENTS ARE ONLY TO DESCRIBE THE GOODS COVERED HEREBY AND NO WARRANTIES OR OTHER TERMS THEREIN SHALL HAVE ANY FORCE OR EFFECT. CATALOGS, CIRCULARS, SIMILAR PAMPHLETS AND OTHER MATERIALS OF SELLER ARE ISSUED FOR GENERAL INFORMATION ONLY AND SHALL NOT BE DEEMED TO MODIFY THE PROVISIONS HEREOF.
2. Governing Law. The agreement formed hereby and the language herein shall be governed by and construed in accordance with the laws of the State of Texas, excluding its conflict of laws rules, as enacted and in force on the date of this agreement. To the extent not otherwise stated herein, the terms of this agreement shall be those provided by the Uniform Commercial Code in effect in the State of Texas which would be provided if the parties were silent as to those terms.
3. Venue. It is agreed between Seller and Buyer that venue shall be proper exclusively in Harris County, Texas in any and all legal proceedings that may arise or result from the Agreement formed hereunder.
4. Price Changes. Prices stated hereof shall be adjusted to prices and charges applicable at the time of each shipment. Prices are subject to change without notice.
5. Payment Unless specifically provided otherwise by Seller on a Seller Quote, Order Acknowledgement or Invoice,or specifically provided for by Seller for transactions on its website at www.Hisco.com , (i)invoices submitted by Seller under the Agreement formed hereby are payable by Buyer at Seller's main office located in Houston, Harris County, Texas, and (ii) payment in full shall be received by Seller within thirty (30) days from the invoice date. Whenever reasonable grounds for insecurity arise with respect to due performance by Buyer, Seller may demand different terms of payment from those specified on the face of this Invoice and may demand assurance of Buyer's due performance. Any such demand may be oral or in writing and Seller may, upon the making of such demand, suspend shipments hereunder. If within the period stated in such demand Buyer fails or refuses to agree to such different terms of payment, or fails or refuses to give adequate assurance of performance, Seller may, at its option, treat such failure or refusal as a repudiation of the portion of the Order which has not been fully performed, or may make shipment under reservation of a security interest and, in addition, may demand payment against tender of documents of title, or may require net cash payment in advance of shipment.
6. Taxes. Any municipal, state or federal sales, use, excise, occupational or other similar type taxes imposed on this sale or on this transaction are not included in the price. Such taxes shall be billed separately to Buyer. Any such taxes paid by Seller will be charged to Buyer. Seller will accept a valid exemption certificate from Buyer if applicable; however, if an exemption certificate previously accepted is not recognized by the governmental taxing authority involved and Seller is required to pay the tax covered by such exemption certificate, Buyer agrees to promptly reimburse Seller for the taxes paid.
7. Transportation Risk of Loss. Unless specifically provided otherwise by Seller on a Seller Quote, Order Acknowledgement or Invoice, or specifically provided for by Seller for transactionson its website at www.Hisco.com .Seller’s shipping terms for are as follows: all prices are F.O.B. Seller's or manufacturer's shipping point. Risk of loss shall be on Buyer when the goods are put in the possession of the carrier. Seller assumes no responsibility for breakage, loss or damage in transit. Responsibility for goods lost or damaged in transit rests with the carrier, and claims shall be filed with the carrier by the consignee. Any claim on account of damaged goods shall be deemed waived by Buyer unless made within ten (10) days from date of delivery of goods to which claim relates. Buyer grants Seller a security interest in the goods subject to the Order until final payment by Buyer has been made, and Buyer shall execute any documents requested by Seller to evidence said security interest.
8. Performance, Inspection and Acceptance.
A. Unless specifically provided otherwise by Seller on a Seller Quote, Order Acknowledgement or Invoice,or specifically provided for by Seller for transactions on its website at www.hisco.com , and unless Buyer is required to visually inspect the goods at Seller's facility, which would be noted, all goods shall be finally inspected and accepted within ten (10) days after receipt at point of delivery. All claims whatsoever by Buyer, excepting only those provided for under the Warranty and Limitation of Liability clauses hereof, must be asserted in writing by Buyer within said ten-day period or they are waived. If this contract involves partial performances, all such claims must be asserted within said ten-day period for each partial performance. There shall be no revocation of acceptance. Rejection may be only for defects substantially impairing the value of the goods and Buyer's remedy for lesser defects shall be those provided for under the Warranty and Limitation of Liability clause herein.
B. Seller shall not be responsible for nonperformance or delays in performance occasioned by any causes beyond Seller's reasonable control, including but not limited to, Acts of God, natural disasters, labor difficulties, strikes, delays of manufacturer's vendors or carriers, war, threat of war, riot, embargoes, priorities requested or required by civil authorities, governmental actions, floods, fire, accident, ice, quarantine restrictions, differences with employees or workmen, delays in transportation, shortages of rail cars, ships, trucks or barges, fuel, labor or material, factory conditions, inability to obtain necessary materials or components, breakdown of machinery or any other contingency whatsoever affecting Seller's ability to perform hereunder. If such events occur, the prices quoted herein may be reasonably adjusted by Seller to compensate it for such delay. Any delays so occasioned shall effect a corresponding extension of Seller's performance dates which are, in any event, understood to be approximate. IN NO EVENT SHALL BUYER BE ENTITLED TO INCIDENTAL,CONSEQUENTIAL DAMAGES OR SPECIAL DAMAGES OR LOST PROFITS FOR LATE PERFORMANCE OR FOR FAILURE TO PERFORM. If Seller shall be unable due to events beyond its control to fill completely the orders of all its customers, Seller shall have the right ratably to allocate goods shipped among its customers.
C. If Buyer wrongfully rejects or revokes acceptance of items tendered under this Agreement or repudiates this Agreement, in whole or in part, Seller shall have the right to recover as damages the price stated herein, plus reasonable attorney’s fees and other costs incurred by Seller, together with all other rights which may be provided Seller under the laws of the State of Texas or this Agreement. Upon recovery of these amounts, the items involved shall become the property of Buyer.
D. Buyer is provided the opportunity to create an internet hosted account for the purpose of managing orders. Using an online account, Buyer can place orders, view order history and the status of open orders. Online account set up can be requested by contacting a Hisco branch office or by visiting http://shop.hisco.com/storefrontCommerce/login.do
9. Storage. After the goods are put in the possession of the carrier, it shall be Buyer's responsibility to see that the goods are stored properly.
10. Warranty and Limitation of Liability. Seller warrants that goods to be supplied hereunder will conform to the description on the fact hereof; that Seller will convey good title thereto; and that such goods will be delivered free of any lawful security interest or other lien or encumbrance unknown to Buyer. If the manufacturer(s) of the goods hereby purchased and sold extends any warranties in respect thereto, then Seller hereby assigns, to the extent assignable, to Buyer, solely for the purpose of making and prosecuting any warranty claims in respect thereto, all of the rights, if any, which Seller may have against the manufacturer(s) of the goods for breach of warranty or other representation in respect to such goods. Seller will also furnish Buyer reasonable assistance in prosecuting any such claim.
SELLER MAKES NO WARRANTY THAT THE GOODS SHALL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE. SELLER MAKES NO WARRANTY, EXPRESSED, IMPLIED OR STATUTORY, EXCEPT AS IS EXPRESSLY SET FORTH HEREIN.
Seller's liability and Buyer's exclusive remedy for breach of the above stated warranty shall be expressly limited to Seller's choice of (a) the repair of defective goods, F.O.B. Seller's or its supplier's facility, (b) the replacement thereof of any of the goods proven defective in material or workmanship with conforming goods at Seller's or its supplier's facility in Houston, Texas, or (c) the repayment of the purchase price allocable to the defective goods. Repayment of the purchase price therefor will be made only upon return of the defective goods which may be returned at the cost of Seller only upon prior inspection by Seller and in accordance with the shipping instructions of Seller. The choice of these remedies shall be at the sole discretion of Seller. Before any obligation arises under this warranty, Seller shall have the right to inspect the good on site or at its plant, freight prepaid, to determine if it has any liability under the aforementioned terms. IT IS EXPRESSLY AGREED THAT UNDER NO CIRCUMSTANCES WILL SELLER BE RESPONSIBLE FOR ANY OTHER DAMAGES INCLUDING CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR LOSS OF PROFITS OF ANY KIND. The total liability of Seller on any claim, whether in contract, tort (including negligence), or otherwise, arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement, or use of any good will not exceed the price allocable to the good or any part thereof which gives rise to the claim. The total liability of Seller is limited to repair, replacement or refund, as expressly agreed and set out herein. Buyer is responsible for seeing that goods returned are property packed.
SELLER’S RECOMMENDATIONS OR INSTRUCTIONS AS TO THE USE OF ANY PRODUCT, INCLUDING ITS USE ALONE OR IN COMBINATION WITH OTHER PRODUCTS ARE BASED UPON INFORMATION BELIEVED TO BE RELIABLE, BUT SELLER MAKES NO WARRANTY OR GUARANTEE OF RESULTS AND ASSUMES NO OBLIGATIONS OR LIABILITIES WITH RESPECT THERETO.SELLER ASSUMES NO RESPONSIBILITY FOR ANY ASSEMBLY INTO WHICH SELLER’S PRODUCT IS INCORPORATED AS A COMPONENT PRODUCT OR PART. BUYER SHALL BE RESPONSIBLE FOR DESIGNING AND CONDUCTING ALL TESTING TO DETERMINE WHETHER ANY PRODUCT IS APPROPRIATE FOR ITS APPLICATION. ANY RECOMMENDATIONS OR INSTRUCTIONS FROM SELLER ARE NOT INTENDED TO SUGGEST OPERATIONS THAT WOULD INFRINGE OR NOT INFRINGE AS THE CASE MAY BE, ANY PATENTS BELONG TO THIRD PARTIES, AND SELLER ASSUMES NO LIABILITY OR RESPONSIBILITY FOR INFRINGEMENT OF ANY SUCH PATENTS. SELLER MAY, WITHOUT LIABILITY TO BUYER OF ANY KIND, DECLINE TO CONTINUE DELIVERIES OF ANY PRODUCT, THE MANUFACTURE, SALE OR USE OF WHICH, IN SELLER'S OPINION WOULD INFRINGE ANY SUCH PATENT NOW OR HEREAFTER ISSUED.IN THAT CONNECTION,SELLER RECOMMENDS THAT BUYER TEST ALL NEW SAMPLES AND APPLICATIONS UNDER SIMULATED OR ACTUAL END-USE CONDITIONS TO ENSURE THE SAMPLE PROVIDED MEETS OR EXCEEDS ALL REQUIRED PRODUCT SPECIFICATIONS. BECAUSE ACTUAL USE CONDITIONS MAY BE CRITICAL TO OVERALL PERFORMANCE, IT IS RECOMMENDED THAT TESTING BE PERFORMED ON THE ASSEMBLED PARTS UNDER SIMULATED OR ACTUAL PRODUCT ASSEMBLY CONDITIONS.
UNLESS SPECIFICALLY STATED TO THE CONTRARY IN WRITING BY THE SELLER, THE GOODS CONVEYED HAVE NOT BEEN TESTED OR CERTIFIED FOR USE IN (i) INVASIVE MEDICAL PROCEDURES OF ANY SORT OR (ii) FOR USE AS AN ADHESIVE IN THE AVIATION INDUSTRY OR IN AN AVIONICS APPLICATION.THE GOODS SHOULD NOT BE USED BY BUYER FOR ANY SUCH PURPOSE OR USE.
11. Insurance. Buyer shall procure and maintain Commercial General Liability coverage on Occurrence form (ISO CG 00 01 10 01 or equivalent) to include but not be limited to Premises-Operations, Personal & Advertising Injury, Products-Completed Operations and Contractual Liability coverages.
Limits to be carried are as follows:
Each Occurrence - $1 million
General Aggregate - $2 million
Products-Completed operations - $2 million
Personal & Advertising Injury- $1 million
Fire Damage -$50,000
Coverage shall include:
Seller, its subsidiaries and affiliates as Additional Insureds (ISO Form 2037 or its equivalent)
Blanket Waiver of Subrogation
Primary and Non-Contributory wording
Insurance required herein shall be written in a company with an AM Best rating of A IX or higher.
It is expressly understood and agreed that the insurance coverages required herein shall not negate or waive any of the provisions of this agreement and maintaining this insurance will not be deemed or construed to release, limit, waive or discharge Buyer from any obligations imposed by the agreement including liability in excess of insurance coverage required herein.
Certificates of insurance that comply with the requirements of this contract and that are acceptable to Seller shall be delivered to Seller.
12. Indemnification. TO THE EXTENT PERMITTED BY LAW, BUYER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER, ITS SUBSIDARIES, AFFILIATES,OFFICERS EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIM, LIABILITY, LOSS, COST OR EXPENSE, INCLUDING REASONABLE ATTORNEYS FEES, AWARDS, FINES OR JUDGMENTS ARISING BY REASON OF THE DEATH, BODILY INJURY, OR PERSONAL INJURY TO PERSONS, DAMAGES TO REAL OR PERSONAL PROPERTY, ARISING OUT OF OR RESULTING FROM DESIGN DEFECTS, DEFECTIVE WORKMANSHIP OR ANY OTHER ACTS OF OMISSION OR COMMISSION WHETHER SUCH ACTS OR CAUSES OF ACTION ARISE IN TORT, NEGLIGENCE, VIOLATIONS OF LOCAL, STATE OR FEDERAL LAWS, ORDINANCES OR REGULATIONS, COMMON LAW, CONTRACT OR STATUTORILY, EXCEPT THOSE CLAIMS ARISING OUT OF THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER.
13. Orders. All orders are subject to acceptance and approval by Seller's Credit Department located at Seller's main office in Houston, Texas, and are not binding until and unless so approved and accepted. Written acknowledgment of an order shall constitute and will thereby be a binding contract which cannot be modified or cancelled by Buyer without written consent of Seller.
14. Cancellation or Change of Specifications. Orders cannot be cancelled, specifications be changed, returned or otherwise changed in any respect, without Seller's prior written consent. In the event Seller consents to a cancellation or change of specifications, Buyer agrees to indemnify and hold harmless Seller for any and all losses occasioned by such cancellation, specification change, return or other requested change in the order. Buyer is responsible for seeing that goods returned are property packed.
15. Partial Shipments. Subject to the provisions of Paragraph 8B hereof, partial shipment of an order will not be made without Buyer's knowledge or consent. In the event complete shipment cannot be made by the required date, Buyer will be notified and asked whether the entire shipment should be held or part shipment made. If partial shipment with Buyer's approval is made, excess freight charges, if any, will be billed to Buyer.
16. International Shipments. Shipments to delivery points outside of the continental United States will be made only upon Seller's prior receipt of the following documentation in form and substance acceptable to Seller.
A. Written evidence of establishment of irrevocable letter of credit in favor of Seller for an amount equal to or exceeding the full contract price hereunder, and on terms acceptable to Seller.
B. Import certificate properly issued by destination country where required.
C. Where shipment is FAS port vessel, written instructions to Seller specifically identifying loading berth where equipment is to be delivered.
Buyer acknowledges that the goods provided under this agreement are subject to the customs and export control laws and regulations of the United States of America. Buyer agrees to abide by those laws and regulations. Seller’s acceptance of any order is contingent upon Buyer’s compliance with the laws and regulations described above and is contingent upon the issuance of any applicable export licenses or other approvals required by the United States government or an agency or subdivision thereof.
17. Credit Terms. If the terms of Payment hereunder call for any extension of credit by Seller to Buyer, Buyer hereby agrees that prior to payment in full, (i) the goods sold hereunder are subject to a vendor's lien and security interest in favor of Seller and (ii) Buyer will promptly execute and deliver to Seller such security agreements, Uniform Commercial Code financing statements and other documents as are requested by Seller to reflect this retention as a security interest.
18. Past Due Accounts. Unless specifically provided for in this agreement or in other written evidence of the agreement of Buyer and Seller, all amounts due hereunder that remain unpaid for more than 30 days after the payment date shall bear interest at the highest interest rate allowed by law.
19. Affidavits. Orders requiring affidavits or certificates of compliance must so state when orders are placed.
20. Clerical Errors. Seller reserves the right to correct clerical or stenographic errors in quotations, orders,invoices and other contracts, agreements or documents.
21. Assignment. No right or interest in the Agreement formed hereunder shall be assigned by Buyer without the written permission of the Seller, and no delegation of any obligation owed by Buyer shall be made without Seller's written permission. Any attempted assignment or delegation in violation of this paragraph shall be wholly void and totally ineffective for all purposes.
22. Waiver by Seller. Waiver by Seller of a breach by Buyer of any provision of this Agreement shall not be deemed a waiver of future compliance therewith, and such provision shall remain in full force and effect.
23. WAIVER BY BUYER. BUYER HEREBY WAIVES THE RIGHT TO TAKE LEGAL ACTION UNDER THE TEXAS DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT, IF NOT CONTRARY TO PUBLIC POLICY.
24. Statute of Limitations. An action for breach of this Order must be commenced within two years after the cause of action has accrued. A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. An action for a breach of warranty must be commenced within two years after tender of delivery.
25. Binding Nature. The Agreement formed hereunder inures to the benefit of and is binding upon the parties thereto, their successors and assigns.
26. Headings; Captions. The headings and captions herein are included for convenience only and shall not affect the construction or interpretation of any of the provisions of this Invoice.
27. Severance. Any provisions of this agreement which may be prohibited by law or otherwise held invalid shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate or otherwise render ineffective the remaining provisions of this agreement.