GENERAL TERMS & CONDITIONS
1. Acceptance - Unless otherwise specifically agreed to in writing and signed by an authorized representative of Vertex Distribution (collectively referred to as "VTX"), all orders received by VTX are subject to the following Terms and Conditions of Sale. Offers to purchase can be accepted only by an authorized representative of VTX and offers to purchase are not effective or binding until approved in writing by VTX. Any different or additional Terms and Conditions proposed by Buyer in its purchase order or otherwise are hereby rejected by VTX and shall not be incorporated into the Agreement. These Terms and Conditions shall apply to all of Buyer's purchase orders, irrespective of any provisions in Buyer's purchase orders or other business forms. These terms constitute the entire Agreement and notice of objection to any different or additional terms is hereby given or is waived. These Terms and Conditions may not be modified except by written agreement signed by both Buyer and a Vice President of VTX. No modification of this Agreement shall be effected by the acknowledgment or acceptance of confirming purchase orders, invoices or other documents from the Buyer. These Terms and Conditions supersede all previous Terms and Conditions and are subject to change at any time without prior notice.
2. Acknowledgment - VTX will issue an order acknowledgment form upon acceptance and authorization of an order. The acknowledgment constitutes the entire agreement between VTX and the Buyer and supersedes any previous agreements. Prices and delivery dates stated on the order acknowledgment shall prevail in the event of a discrepancy between it and the Buyer's written order. Stock material is subject to prior sale.
3. Prices - Prices and charges per applicable quotation are stated in U.S. dollars unless otherwise noted and are subject to any price adjustment necessitated by VTX's compliance with any act of government, laws or regulations. Buyer's order is subject to VTX's applicable Price Escalation Policy (to be determined in VTX's sole discretion) as follows: Firm Price All shipments will be invoiced at the prices agreed to on the quotation and the order acknowledgment and are not subject to change on date of shipment. Should shipment be deferred by Buyer beyond two months from date of order acknowledgment, shipments will then be invoiced at VTX's price in effect on date of shipment. Price in Effect All shipments will be invoiced at VTX's price in effect on the date of shipment. Firm Except Metals All shipments will be invoiced at the prices agreed to on the quotation and the order acknowledgment except for adjustments either upward or downward for the price of metals on date of shipment. Should shipment be deferred by Buyer beyond two months after the date of order acknowledgment, shipments will be invoiced at VTX's price in effect on date of shipment.
4. Taxes - Any tax or other governmental charge upon the production, sale, shipment, or use of the product which VTX is required to pay or collect from Buyer shall be paid by Buyer unless, prior to shipment, Buyer has furnished VTX with a tax exemption certificate acceptable to the appropriate taxing authority. Unless specifically identified on the face of an invoice, invoices include no federal, state, or local property, license, privilege, sales, use, excise, gross receipts or other like tariffs which may now or hereafter be applicable to, measured by, or imposed upon or with respect to the transaction, the property, its sale, its value, or its use, or any service(s) performed in connection therewith. Buyer agrees to indemnify, pay or reimburse any such taxes or tariffs which VTX, VTX's vendors, suppliers or subcontractors are required to pay, accumulative with other penalties or fees thereto.
5. Minimum Order - The minimum order is $50.00 for all authorized stock products. Higher minimum orders may apply for non-stock and made-to-order products. Please contact your local VTX sales office for details.
6. Payment - Pro rata payments are due as shipments are made. If shipments are delayed by Buyer, payments are due from the date when VTX is ready to ship. If fabrication is delayed by Buyer, payment shall be made based on the contract price and percent of completion. Products held for Buyer shall be at the risk of and the expense of Buyer.
7. Terms of Payment - Domestic Shipments - Net 30 (Credit Approval Required); Export Shipments - Unless otherwise approved by VTX's Credit Department, all export sales must be secured by a confirmed irrevocable letter of credit or wire transfer of funds. Both of the above must be in U.S. dollars and issued by a national banking association with a branch in Texas and/or a correspondent bank of such a national banking association with a branch in Texas.
8. Loss, Damage, or Delay - VTX shall not be obligated to perform under this Agreement, and shall not be liable for any damages (including, but not limited to, consequential, special or punitive damages or damages for lost profits) in connection with such nonperformance, when VTX's ability to perform is impeded, restricted or affected by strikes, work stoppages or other action by workmen, any act or omission by a governmental authority or by Buyer, insurrection or riot, war, terrorism, embargo, railcar shortage, wreck or delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources under usual terms, breakdown in the manufacturing process, disruption in the supply chain, acts of God and/or nature or any other cause beyond the reasonable control of VTX, whether similar or dissimilar to any of the aforementioned causes. In the event of a delay in performance due to any such cause, VTX may postpone its performance by such length of time as may be reasonably necessary.
9. Cancellation / Default - Orders will not be canceled or modified either in whole or in part, after VTX has issued its acknowledgment to Buyer, without VTX's written consent and then may be subject to a payment of a reasonable and proper cancellation charge that will reimburse VTX for applicable costs incurred by virtue of the order, including cost of materials and a reasonable allowance for profit. NON-STOCK AND SPECIAL MADE-TO-ORDER PRODUCTS AS IDENTIFIED ON THE ORDER ACKNOWLEDGMENT ARE NOT SUBJECT TO CANCELLATION BY THE BUYER UNDER ANY CIRCUMSTANCES.
10. Manufacturers' Warranties - Product may be covered, to the extent available, by warranties that are extended by the manufacturer of the product. Copies of applicable warranties are available upon request. Please contact your local VTX sales office for details. Buyer acknowledges that any applicable warranties are the warranties of the manufacturer of the product only, not warranties of VTX, and that any claim brought by Buyer with respect to these warranties will be brought against such manufacturer.
11. VTX's Product Warranty - Should any VTX product not covered by a manufacturer's warranty prove to contain a manufacturing defect within one (1) year from the date of VTX's invoice, upon written notice and return of the product to VTX, the product will be replaced or repaired at VTX's sole option f.o.b. original destination point. VTX will not be obligated in any way for installation costs, incidental or consequential damages or costs, loss of profits, or any other costs resulting from any defect.
1. VTX'S PRODUCT WARRANTY APPLIES ONLY TO OEM, COMMERCIAL OR INDUSTRIAL USERS OR PURCHASERS FOR PURPOSES OF RESALE OF PRODUCTS THAT ARE NOT OTHERWISE COVERED BY A MANUFACTURER'S WARRANTY. VTX'S PRODUCT WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED. VTX EXPRESSLY DISCLAIMS ALL UCC AND COMMON LAW IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability - Neither party shall be liable for any lost profits or any special, indirect, incidental, or consequential damages. The remedies of Buyer set forth herein are exclusive, and the liability of VTX with respect to any contract or sale, or anything done in connection therewith, whether in contract, in tort under any warranty, or otherwise, shall not exceed the price of the product or part on which such liability is based. Responsibility is limited to the cost of the product and does not include the cost of any labor charges. VTX shall have no responsibility or liability with respect to:
1. matters not reported in writing within twelve (12) months of the date of shipment;
2. failure or damage due to misapplications, abuse, improper installation or abnormal conditions of use;
3. products damaged in shipment or otherwise damaged through no fault of VTX;
4. expenses incurred by Buyer for installation of products prior to discovery of the alleged defect or expenses incurred in an attempt to correct the same;
5. expenses incurred by Buyer for removal of non-conforming products and the expense of installation of replacement products;
6. failure or damage which cannot conclusively be proven to have proximately and solely resulted from a defect in materials or workmanship.
7. BUYER HEREBY WAIVES ANY RIGHTS THAT BUYER MAY HAVE UNDER THE TEXAS DECEPTIVE TRADE PRACTICES ACT AS SET OUT IN THE TEXAS BUSINESS & COMMERCE CODE SECTIONS 17.41 ET SEQ. (EXCEPT RIGHTS UNDER SECTION 17.55A WHICH CANNOT BE WAIVED) TO THE EXTENT THAT BUYER MAY LAWFULLY DO SO.
13. Indemnification and Hold Harmless - Buyer assumes responsibility and liability for any claim or action based on or arising out of injuries, including death, to persons or damages to or destruction of property, sustained or alleged to have been sustained in connection with or to have arisen out of or incidental to the performance of this Agreement by Buyer, its agents and employees, and its subcontractors, their agents and employees, regardless of whether such claims or actions are founded in whole or in part upon alleged negligence by VTX, VTX's representatives, or the employees, agents, invitees, or licensees thereof. Buyer further agrees to indemnify and hold harmless VTX and its representatives, and the employees, agents, invitees, and licensees thereof in respect of any such matters and agrees to defend any claim, suit or action brought against VTX, VTX's representatives, and employees, agents, invitees, and licensees thereof, regardless of whether such claims or actions are founded in whole or in part upon the alleged negligence of VTX, VTX's representatives, or the employees, agents, invitees, or licensees thereof. IT IS THE EXPRESS INTENT OF THE PARTIES THAT VTX MAY BE INDEMNIFIED FOR CHARGES ARISING FROM ITS OWN NEGLIGENCE, HOWEVER ALLEGED, WHETHER CONCURRENT, CONTRIBUTORY OR SOLE.
14. Patents - Since products sold by VTX are not manufactured by it, but are sold under their respective manufacturer's brand or trade names, VTX disclaims all warranties against patent infringement. It shall, however, if given prompt notice by the Buyer of any claim of patent infringement with respect to any product sold hereunder, use commercially reasonable efforts to secure for the Buyer such indemnity rights as the manufacturer may customarily give with respect to such product.
15. Governing Law - This Agreement, the relative rights and obligations of the parties arising out of or relating to this Agreement and any other matter referred to in this Agreement, and the terms and provisions of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, without giving any effect to any choice or conflicts of law provision or rule that would result in the application of the laws of another jurisdiction.
16. Forum Selection - In partial consideration, the Parties expressly and irrevocably waive any and all objections they may have to the jurisdiction and/or venue concerning the litigation of claims arising from or relating to this Agreement. The Parties expressly agree that only state or federal courts in Houston, Texas, Harris County, shall have exclusive jurisdiction to settle any and all disputes arising from or relating to this Agreement. The Parties irrevocably waive any objection they may have to;
1. any proceedings being brought in any such court as is referred to in this clause and;
2. any such proceedings being brought in an allegedly inconvenient forum. The Parties expressly and irrevocably agree that a judgment in any proceeding brought in the state or federal courts in Houston, Texas, Harris County shall be binding upon the Parties and may be enforced in the courts of any other jurisdiction.
17. Error, Mistake or Assignment - VTX reserves the right to correct any clerical or stenographic error made in the preparation of quotations, orders, acknowledgments or invoices. Corrections shall be considered as binding amendments to the original contract of sale. This agreement is not assignable without the prior written consent of VTX. Any attempt to assign any of the rights, duties or obligations of this Agreement without such consent shall be void. The Buyer acknowledges that Buyer has read this Agreement, understands it and agrees to be bound by its Terms and Conditions.
18. Severability - If any provision or provisions of this Agreement, or parts thereof, shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and this Agreement shall be interpreted to effect the original intent of the parties as closely as possible. If any provision in this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.
19. Quantity - All VTX products will have shipping tolerances as detailed below, unless otherwise agreed upon prior to receipt of an order:
1. Authorized Stock Products -0 + 10%
2. Made-to-Order Products -0 + 10%
3. Customer is responsible for paying any overages within the above tolerances.
4. Claims for shipping shortages must be received by VTX within fifteen (15) days from date of invoice.
20. Delivery and Transportation - F.O.B. Shipping location - for all shipments to destinations in the Continental U.S. served by common carrier. At Buyer's request, orders will be shipped either freight collect, billed to a third party, freight charges prepaid and charged to the Buyer or with will call (no freight charge). Buyer is responsible for material identification, footage count and visual inspection for damage upon receipt of shipment. Claims for freight charge or allowances of any kind will not be considered after fifteen (15) days from receipt of goods. VTX will ship via conventional methods unless otherwise specified.
21. Title and Risk of Loss - Title to product and risk of loss shall pass from VTX to buyer as product is loaded onto carrier's equipment at VTX shipping location.
22. Certified Test Reports and Certificates of Compliance: The price for Certified Test Reports (CTR's) which includes the cost to perform necessary tests, collect the data, publish the original test report and maintain reports on file for a minimum of five years will be as follows: No Charge for CTR's requested on the original purchase order prior to or with initial shipment. $75.00 For CTR's requested within one (1) year after initial shipment. $150.00 For CTR's requested one (1) year or more after initial shipment. A Certificate of Compliance (COC) is included on the packing list of each shipment from an VTX shipping location at no charge. The price per order for a line item COC, which includes the cost to publish a certified, notarized, original copy will be as follows: $25.00 For COC's requested on the original purchase order prior to or with initial shipment. $75.00 For COC's requested within one (1) year after initial shipment. $150.00 For COC's requested one (1) year or more after initial shipment.
23. Returns - Permission must be obtained in writing from VTX before any product is returned in the form of an approved Returned Material Authorization (RMA) number. A restocking charge, plus freight, will be assessed for authorized returns of standard stock material in saleable condition. Returns will not be accepted after 90 days of shipment. NON-STOCK AND SPECIAL MADE-TO-ORDER PRODUCTS AS IDENTIFIED ON THE ORDER ACKNOWLEDGMENT ARE NOT SUBJECT TO RETURN BY THE BUYER UNDER ANY CIRCUMSTANCES.
PURCHASING TERMS & CONDITIONS
1. No variation in any of the terms, conditions, deliveries, prices, quality, quantity, and specifications of this order, irrespective of the wording of Seller's acceptance, will be effective without Buyer's written consent. There is no agreement or understanding other than stated or referenced to herein.
2. This order is not assignable or transferable without the written consent of the Buyer.
3. If terms of this order do not appear on or agree with Seller's invoice as rendered, Seller agrees that Buyer may change invoice to conform to this order and make payment accordingly.
4. Merchandise will conform to approved samples or to Buyer's specifications whichever the case may be, or to both, if there are both.
5. Buyer may return rejected merchandise or hold at the Seller's risk and expense, and may in either event charge the Seller with cost of transportation, shipping, unpacking, examining, repacking, reshipping, or other like expense. Buyer reserves the right to refuse merchandise shipped contrary to instruction, or not in recognized standard containers, or not on specified shipping dates, in addition to other rights provided by law. Buyer reserves the right to reject all over-shipments.
6. Invoice must not be dated prior to specified shipping date.
7. This order must not be filled at higher prices than last quoted or charged without advice and express agreement by Buyer.
8. Seller will give Buyer the benefit of any price declines to actual time of shipment, except that should Buyer permit shipments to be made before specified shipping date, Buyer shall have advantage of lower prices which occur before specified shipping date.
9. Payment under this order will be subject to deductions of any valid claim of Buyer against Seller arising from this or any other transaction.
10. Buyer will not allow charges for boxing, packing, or crating, unless by agreement.
11. Buyer reserves the right to cancel this order or any unfilled portion thereof if deliveries are not made as specified herein.
12. If shipment by express becomes necessary in order to fulfill the Seller's delivery obligations, Seller shall pay express charges, except if shipment is F.O.B. point of shipment. Seller shall pay the difference between express charges and freight charges.
13. No designs, tools, patterns, or drawings specified by the Buyer to the Seller for use in manufacture of articles contracted for herein shall be used in the production, manufacture, or design of any other articles for any other purchaser and not for the manufacture or production of larger quantities than those specified except with the express consent in writing of the Buyer. At the termination of this contract, they, together with all excess materials, shall be disposed of as Buyer shall direct. All such designs, tools, patterns, drawings and materials supplied by the Buyer shall be segregated by the Seller in the Seller's plant and whenever possible clearly marked, so as to be easily identified as Buyer's property. Where materials are furnished by Buyer, title to such materials in all stages of construction shall be and remain in Buyer.
14. The Seller represents and warrants that the price or prices of the supplies or service to be furnished hereunder, shall at the time of delivery of any supplies or performance of any services hereunder, comply with any Federal, State, or Municipal laws concerning said price or prices.
15. By acceptance and in consideration hereof, the Seller warrants that the articles ordered herein, or the use thereof do not infringe on any United States Patent, that Seller will defend any suit that may arise in respect thereto; and that Seller will save the Buyer harmless from any loss which may be incurred by the assertion of any patents rights therein.
16. In the event of fire, floods, strikes, lockout, accident, war or other causes beyond Buyer's control, interfering with the consumption or the transportation of the goods herein described, or of the Buyer's manufactured products, deliveries under this order may be suspended during the period required to remove the cause.
17. Seller represents that the items called for herein will be produced, manufactured and delivered in accordance with the applicable statutes including, without limitations, the Fair Labor Standards Act of 1938 as amended. Seller agrees to furnish on each invoice a statement (in form approved by U.S. Department of Labor) certifying that the items covered by such invoice were produced, manufactured, and delivered in accordance with said Fair Labor Standards Act of 1938, as amended, and all regulations and orders issued thereunder.
18. Seller agrees to comply with workmen's compensation laws, rules and regulations and to furnish a certificate of compliance if requested.
19. Seller shall save Buyer harmless from all claims or judgments for personal injury or property damages made or obtained against Buyer by third persons, which injury or damage result from the delivery of the items ordered herein, from the presence of Seller's employees on Buyer's premises for the purpose of erecting or constructing such items by Seller, or for the use of such items as are proven defective. Without limitation, such third person shall include purchasers or users of the items ordered herein and employees of either Buyer or Seller.