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Terms and conditions of sale the terms and conditions here in and on all invoices herein and on accompanying papers, if any, signed by seller constitute the entire agreement between purchaser and seller and any offer by seller is expressly limited to such terms and conditions. Additionally, acceptance by seller of any offer made by purchaser is expressly made conditional on assent to these terms and conditions.
1. Quotations. Quotations and prices are for the periods of time specifically stated in a written quotation and in all cases are subject to prior sale of the described goods. If no time is stated, then quotations and prices are subject to change without notice. Orders based on a quotation are not binding on Seller until accepted in writing by an authorize d officer at Seller’s Houston Texas office.
2. Taxes. In any event, quotations and prices on orders accepted are subject to change at the time of and proportionately with the increase of cost to Seller of the goods caused by the imposition or increase of any tax or duty upon the goods or any supplies or materials used in the goods. An amount equal to any tax or other governmental charge upon the production, sale, occupation of selling, shipment, storage or use of material, which is now, or may be hereafter, imposed by governmental authorities upon either Purchaser or Seller and which Seller is obligated to pay or collect, shall be added, to the extent attributable to the goods to be sold hereunder, to the price quoted herein and shall be paid by Purchaser.
3. Currency Fluctuation. If goods delivered to Purchaser have been purchased by Seller abroad in foreign currency, the risk of an increase in value of that currency in relation to the U.S. Dollar on the day of the payment to Seller by Purchaser is Purchaser ís risk and Purchaser shall pay such amount of increase to Seller. If the sale to Purchaser has not been made in U.S. dollars. The risk of depreciation in value of the currency, in which the sale has been made, in relation to the U.S. dollar, on the day of Purchaser ís payment to Seller, is Purchasers risk and Purchaser shall pay such amount of depreciation to Seller.
4. Terms. Method of Payment and Cancellation. Except as otherwise provided herein, the price, terms and time of payment are as shown on all invoices herein. The amount of credit or terms of payment may be changed or credit withdrawn by Seller at any time and all deliveries shall be subject to the approval of Seller’s credit department. Seller reserves the right, notwithstanding any other provision hereof, before or after making any delivery to require payment in cash or to require security for payment. All past due amounts shall bear interest from and after due date at the rate of 18% per annum and, if collected through court, probate or bankruptcy proceedings, or if placed in the hands of an attorney for collection. Seller shall be entitled to recover reasonable attorneys fees and court costs. If the financial position of Purchaser becomes, in Seller’s judgment, weakened or if Purchaser shall fail to comply with any provisions hereof or fail to make payments in accordance with the terms hereof or of any other agreement between Purchaser and Seller, Seller may at its option, defer further shipments or, without waiving any other rights it may have, terminate any agreement between Purchaser and Seller. We, Hesco Oilfield Supply Inc. on the sale or consignment to any buyer of any articles subject to drawback hereby reserve the right to claim drawback in any and every case where drawback is applicable, and this statement shall provide evidence that such reservation was made.
5. Contingencies. Contracts and shipments are subject to strikes, acts of God, accidents, machinery breakdown, delays of carriers or suppliers, governmental acts, or any other cause, similar or dissimilar, beyond Seller is reasonable control, Seller may, during period of shortage however caused and without liability, prorate its goods, among its customers in such manner as Seller may deem fair and practicable.
6. Time and Delivery. Unless otherwise agreed, shipments are F.O.B. Seller is shipping point. Shipments will be made on a freight collect basis and by Seller is choice of transport, unless otherwise specified prior to shipment. Title and risk of loss of goods subject to this agreement shall pass to Purchaser upon delivery to carrier at point of shipment whether or not freight is prepaid by Seller. Any quoted delivery time is approximate and the extension of delivery time shall not be cause for termination of this agreement unless such delay is unreasonable and due to the gross negligence or intentional act of Seller. If Seller tenders the goods for delivery to Purchaser, and so notifies Purchaser, Purchaser will immediately take delivery. Purchaser agrees to furnish adequate facilities for the receipt and unloading of goods. Seller may store goods so tendered, but not accepted for the amount and risk of the Purchaser and invoice Purchaser for the purchase price of the goods.
7. Claims and Returns. Claims by Purchaser must be made promptly upon delivery of shipments (which shall be deemed the invoice date) and Seller given an opportunity to investigate. All claims are deemed waived and Purchaser accepts such goods if objection is not made in writing within eight days after delivery. Written authorization must be obtained by Purchaser from Seller before Seller can accept returned goods.
8. Specifications. Seller may substitute goods on any order accepted by Seller, provided such goods substantially conform to the descriptions herein. The goods to be sold hereunder are subject to standard manufacturing variations and tolerances. If used goods are sold, they are sold AS IS. If new goods are sold, they are sold only with such warranty from Seller is supplier as may be assigned to Purchaser by Seller and Seller makes no warranty thereon.
9. Limited Warranty. THE FOLLOWING ARE IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller warrants that the goods will substantially conform to written specifications, if any, delivered to Purchaser and signed by Seller and that at the time of delivery Seller will have title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can only be amended by written instrument signed by an officer of Seller. Except as otherwise provided in this Paragraph 9; Seller makes NO WARRANTY as to goods not manufactured by Seller. Seller, to the extent permitted by its contracts with its suppliers, shall assign to Purchaser any rights Seller may have under any warranty of its suppliers. It is understood that any descriptions, statements, technical advice or service rendered in connection with the order, installation or use of goods described hereby is given gratis and Seller makes NO WARRANTY and Seller assumes no obligation or liability for such descriptions, statements, advice or service or the results obtained. Any specialized or Custom product is Non Cancellable or Refundable.
10. Remedies and Damages. If Seller breaches its warranties as contained in Paragraph 9 hereof, Seller’s sole and exclusive liability shall be (at Seller’s option) to repair or replace or credit Purchaser’s account for any such goods which are returned by Purchaser during t he applicable warranty period set forth above, provided that (i) Seller is promptly noticed in writing upon discovery by Purchaser that such goods failed to conform to the terms hereof, with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. Seller is designated delivery point, upon Seller is written authorization, or stored for Seller free of charge pending such return, and (iii) Seller is examination of the goods shall disclose that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If such goods fail to conform to the warranty, Seller shall have a reasonable time to make such repairs or replace such goods. If Seller breaches any other provisions hereof, Seller’s sole and exclusive maximum liability shall not in any event exceed the total contract price specified herein less the purchase price for any items delivered and accepted. In no event shall Seller be liable to anyone for special, collateral or consequential damages for breach of any of the provisions hereof, such damage to include but not be limited to, costs of removal and reinstallation of items, loss of goodwill, loss of profits, loss of use or any injury to person or property proximately resulting from any breach of warranty.
11. Indemnity. Purchaser agrees to indemnify Seller for any and all liability resulting from the transportation, storage or use of the goods, including liability resulting from Seller’s actions, whether negligent or intentional, except that Purchaser shall not be required to indemnify Seller against liability caused solely by the actions of Seller if (i) written notice of any claim based thereon is given to Seller within 15 days of such claim, (ii)the goods deemed to be the subject of such claim are returned to Seller, or reasonable opportunity for testing and inspection given, and (iii) Seller is given the opportunity to direct the defense of any action resulting there from hereof without modification if written specific objection is not made prior to shipment. Conflicting printed terms on a purchase order or acknowledgement used by Purchaser shall be deemed not to constitute such specific objection. Failure of either party t o enforce any right hereunder shall not waive any rights in respect of other or future occurrences.
12. Waivers and Modifications. No representations or statements of any kind made by any representative of Seller, which are not stated herein, shall be binding on Seller. No addition to or modification of any provision upon the face of reverse hereof shall be binding upon Seller unless made in writing and signed by a duly authorized representative of Seller located in Houston, Texas. Purchaser shall be deemed to have accepted the terms hereof without modification if written specific objection is not made prior to shipment. Conflicting printed terms on a purchase order or acknowledgement used by Purchaser shall be deemed not to constitute such specific objection. Failure of either party to enforce any right hereunder