Terms & Conditions of Sale and Limited Warranty
In consideration of Prosecutor (“Seller”) selling its products to Buyer, and for all sales by Seller, unless specifically agreed in writing by Seller, the following Terms & Conditions shall exclusively apply to all such sales, regardless of any other documents, prior agreements, or prior course of dealing;
1. Acceptance. The acceptance of all offers by Seller is expressly limited to the terms herein and any additional or different terms suggested by Buyer or printed on Buyer’s own terms and conditions are hereby rejected unless expressly assented to in writing by Seller.
2. Shipment and Deliveries
a. ) Unless otherwise specifically agreed to in writing, Seller does not guarantee a particular date for shipment or delivery of the goods quoted. Shipment and delivery dates quoted are estimates of approximate dates.
b. ) Unless otherwise specified, all shipments and deliveries shall be F.O.B. Seller’s warehouse dock in Houston, Texas. Upon shipment request, Sellers shall only assume expenses and risks of placing the goods quoted into the possession of the carrier, making contracts for the transportation of such goods as may be reasonable under the existing circumstances at time of shipment, giving notification to Buyer of shipment and delivering or tendering in due form any document necessary to obtain possession of the goods. Any losses, damages or claims arising out of the acts or omissions of the carrier shall be the responsibility of the Buyer.
c. ) If partial shipments are contemplated pursuant to the order, Seller shall have the right to deliver any portion of the equipment or material ordered to bill Buyer therefor. Buyer agrees to pay for the same in accordance with the terms of payment herein.
3. Assignment. This agreement is not assignable without written consent of Seller and any attempted assignment without such consent shall be void.
4. Excusable Delays. Seller shall be excused from and under no circumstances shall be liable for any loss or damage caused by, included but not limited to, delay in performance, or failure to fill any order or orders due to fire, strikes, labor matters, governmental regulations, acts of the elements, transportation, failure “to receive materials or cause of a like or different nature reasonably beyond its control in the reasonable conduct of its business.
5. Returns. Returns of standard stocking items with no restocking fee can only be made within thirty (30) days of invoice to Buyer. All such returns must be in unopened original packaging. Any other returns must have prior written consent of Seller and restocking fee of not less than fifty percent (15%) will apply.
6. Changes or Cancellation. Order(s) may be changed or canceled by Buyer only with the consent of Seller and upon payment of equitable adjustment charge or cancellation charges. Such charges shall take into account costs and expenses thereto incurred, purchase or contract commitments made by the Seller and all other losses due to such modifications or cancellations including a reasonable profit.
7. Limited Warranty. The only warranty to Buyer is the one printed on the warranty certificate included with the product; except as otherwise provide in any written agreement signed by Seller.
a. ) Seller’s Printed Product Warranty. The entire warranty period of (1) year including parts and labor from the date of sale or verified installation date to the final end user. An additional (1) year of warranty will include labor only. Any use or installation of said equipment prior to the installation to the final end user will cause the warranty start date to be reverted to the first installation regardless whether end user or other party. Seller warrants to Buyer that the equipment and materials quoted is free from defects in material or workmanship under normal use and service. If a printed product factory warranty certificate is supplied with the equipment and such certificate specifies a warranty period of a longer duration, said warranty certificate shall control the length of the warranty period. If said warranty certificate contains other terms and condition which either conflict with or are additional to the provisions of these terms, terms which are additional shall be incorporated by reference herein and terms which are in conflict with any provisions contained herein shall have no force or effect.
b. ) Permissible Variations, Standards and Tolerances. Except in the particulars specified by Buyer and expressly agreed to in writing by Seller, all material and equipment shall be produced in accordance with Seller’s standard practices. All equipment and material, including that produced to meet an exact specification, shall be subject to tolerances and variations consistent with uses of the trade and within practical and reasonable factory inspection methods. Equipment or materials which are rated or certified by independent rating or certifying trade associations or organizations and bear their respective symbols or sales, shall signify only that such equipment was produced to meet such standard within the permissible variations and tolerances, such equipment or material will meet the safety, ratings or capacity requirements to which the symbol or seal applies under laboratory testing procedures specified by said associations or organizations as distinguished from field testing. Seller makes no certification as to installed performances of the equipment or material other than as heretofore set forth. Within the aforementioned limitations seller expressly disclaims and excludes any implied warranty as to correctness or any standards or ratings, which are inconsistent with the aforestated facts and restrictions.
c. ) Warranties Excluded. Seller expressly disclaims and excludes any express or implied warranty or merchantability or fitness for a particular purpose, which exceeds or is inconsistent with the warranty herein expressly, set forth.
d. ) Equipment manufactured or supplied by others (manufacturers other than Seller) but furnished by Seller hereunder carries the same warranty to Buyer as Seller receives from the other manufacturer.
e. ) Notwithstanding any provision to the contrary, should Buyer specify that Seller supply a particular manufacturer’s product which is not the brand standardly supplied by Seller, Buyer shall look only to the other manufacturer’s warranty and Seller shall not warrant such item. Buyer shall obtain only the warranty, which comes with such other manufacturer’s product.
f. ) Exclusions: Seller’s warranty does not cover the following;
g. ) In the event Buyer makes a warranty claim and Seller’s warranty does not apply, Buyer shall reimburse Seller for all reasonable expenses incurred by Seller in diagnosing the installation/repair problem. Seller shall not be responsible for any damages to the Product or other property due to installation or service by a party not authorized by Seller.
8. Buyer’s Exclusive Remedies. If the Product to be supplied to Buyer shall fail to conform to this contract or any applicable express or implied warranty, Buyer shall immediately notify Seller of such condition and afford Seller a reasonable opportunity to inspect said Product. Seller shall, at its option, either repair or replace such nonconforming Product. Seller shall not be responsible for labor charges for removal or installation of such equipment or material or charges for transportation, handling and shipping except as provide in Seller’s written service policy. No Product shall be returned without Seller’s consent. Seller shall not be liable for any special, direct, incidental or consequential damages of a commercial nature arising out of the use of or inability to use seller’s product by reason of the fact that such product does not conform to the contract or to any express or implied warranty. Seller’s maximum liability shall be limited to the cost of repair and/or replacement of the product claimed to be defective or nonconforming subject to seller’s right of removal and return of product. All of the foregoing shall constitute Buyer’s sole and exclusive remedy and Seller’s sole and exclusive liability for supplying nonconforming or defective product.
9. Credit Approval. Shipments and deliveries of Product shall at all times be subject to the approval of Seller’s Credit Department. If Buyer shall fail to make any payments in accordance with the terms and provisions of this agreement, Seller, in addition to its other rights and remedies, but not in limitation thereof, may, at its option, decline to make shipments or deliveries hereunder except upon receipt of payment or satisfactory security or upon such terms and conditions satisfactory to Seller.
10. Terms and Payment. Payment terms for goods shipped hereunder will be net thirty (30) days from the date of invoice. Seller reserves the right to add to any account outstanding for more than (30) days and Buyer agrees to a service charge of 1-1/2% of the principal amount due at the end of each month or the maximum allowable legal interest rate, if a lesser amount.
11. Creation of a Lien. In the event that “the purchase price is not paid when due and credit is extended to the Buyer, then in consideration therefor Buyer grants to Seller a security interest in the Product and said security interest shall extend to all parts or accessories now or hereafter attached to the Product and the proceeds therefrom.
12. Texas. Prices quoted by Seller do not include any existing or future sales, use or similar taxes, which are or may be levied upon the sale, delivery or service of the Product by federal, state or other governmental authorities. Such taxes shall be for the account of the Buyer who shall promptly pay the amount thereof to the Seller on or before the time when such tax or taxes is payable by Seller to applicable taxing authority or authorities. If the sale is tax exempt, Buyer shall provide Seller with a proper tax exemption certificate upon acceptance of order or in any event, prior to shipment of Product. Should any question as to applicability of such taxes to any sales later arise, Buyer shall fully cooperate in resolving such question and pay any such taxes then determined to be owing.
13. Waiver. Seller’s failure at any time to require performance by Buyer of any provision of these terms and conditions shall not be deemed a waiver of future compliance therewith and shall not affect the right of the Seller to require compliance therewith at any time thereafter.
14. Indemnity. Buyer agrees to save and indemnify and keep harmless Seller against all liability, claims, demands or judgment for damages arising from accidents to persons or property occasioned by Buyer, his agents, or employees, and will defend any and all suits and will reimburse and indemnify Seller for all expenditures or expenses including court costs and counsel fees made or incurred by Seller by reason of such accident.
15. Unauthorized Representations. Buyer agrees that it is not Seller’s agent, assign or authorized dealer. All performance claims, additional warranty periods, or other representations made to third party purchasers shall not be binding on Seller and shall be the sole responsibility of the Buyer. Buyer shall indemnify Seller for any and all damages incurred by Seller due to any unauthorized representations.
16. Time for Claims. Any claim(s) by Buyer arising from the performance or nonperformance by seller must be brought within one (1) year from the date such claim arose.
17. Applicable Law. All sales shall be governed and construed under the laws of the State of Texas. Should any part of this agreement, for any reason be declared invalid, such decision shall not affect the validity of the remaining portion, which will remain in force and effect as if this agreement had been executed with the invalid portion eliminated.