Terms and Conditions of Sale
1. GENERAL CONDITIONS/PARTIES/CONTRACT ACCEPTANCE:
These terms and conditions of sale (hereinafter, the “Terms and Conditions”) set forth the exclusive agreement between Seller and Buyer regarding Seller’s provision of products, materials, supplies, machinery, parts, tools or equipment (the “Equipment”) to Buyer. As used herein, “Buyer” shall be defined to be the customer identified in the proposal, work order, field ticket, delivery ticket, notes to pricing, contract or invoice referencing these Terms and Conditions or to which these Terms and Conditions are attached (the “Order Document”). As used herein, “Seller” shall be defined to mean GJR Meyer Service, Inc. Any written or oral purchase order received by Seller from Buyer shall be construed as a written acceptance of Seller’s offer to sell and shall be billed in accordance with these Terms and Conditions. Seller’s acceptance of Buyer’s purchase order is expressly conditioned on Buyer’s consent to these Terms and Conditions n, notwithstanding different or additional terms and conditions contained on any of Buyer’s forms, which are hereby objected to and rejected, and which will not be binding on Seller. Further, in the event that Seller signs and returns an acknowledgment copy of a Buyer work order, purchase order, service agreement, rental agreement or similar document relating to Seller’s provision of Equipment, the Buyer agrees that Seller’s signature thereon is provided solely (i) as an accommodation to Buyer for Buyer’s internal administrative purposes only, (ii) does not signify Seller’s agreement to any terms or conditions contained therein which vary, conflict with, or impose additional obligations to the provisions set forth in these Terms and Conditions and (iii) shall be void and of no force or effect and shall not alter, modify, amend, or otherwise change the terms of these Terms and Conditions. Buyer’s standard terms of purchase will not be considered a counter offer to Seller’s Terms and Conditions. The failure of Seller to object to any provisions and conflict herewith, further contained on Buyer’s purchase order or otherwise, shall not be construed as a waiver of the provisions hereof nor an acceptance thereof. No partial invalidity of these Terms and Conditions will affect the remainder.
All Equipment of Seller’s manufacture, remanufacture or repair are warranted against defects of material and workmanship for a period of thirty (30) days from date of invoice only so long as Buyer’s use of the Equipment is in the manner in which originally specified by the Seller and in the environmental conditions originally specified by the Seller. All Equipment components not manufactured by Seller shall be limited to the warranty from the manufacturer of such products or parts. Equipment components subject to regular replacement due to operational wear are not covered by this warranty. All Equipment not manufactured, remanufactured or repaired by Seller is sold “as is” without warranty. If Seller receives a notice from Buyer for any alleged defect in or nonconformance of any Equipment or repair within six (6) months from date of invoice and if in Seller’s sole judgment the Equipment or repair does not conform or is found to be defective in material or workmanship, then Buyer shall, at Seller’s request, return the defective part or Equipment FOB to Seller’s facilities whereupon Seller at its option and expense shall repair or replace the defective Equipment or part. Seller’s warranty liability, including defects caused by Seller’s negligence, shall be limited to such repair or replacement and shall not include claims for labor or expenses incurred by Buyer resulting from such defects, recovery under any tort or strict liability law or for damages resulting from delay, loss of use, or other direct, indirect, incidental or consequential damages of any kind. Seller will not be responsible for failure of any Equipment which has been modified, altered or repaired by anyone other than Seller or for failures due to Buyer’s failure to comply with recommended maintenance procedures or use of Equipment outside of its proscribed operating parameters. Any repairs made by Seller will fall under the original warranty and do not extend any warranties given to the Buyer. THERE ARE NO OTHER GUARANTEES OR WARRANTIES PROVIDED HEREUNDER, EXPRESSED OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANIBILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXCLUDED FROM THESE TERMS AND CONDITIONS.
3. QUOTATIONS/PRICES/TERMS OF PAYMENT:
All quotations are made for prompt acceptance and any terms quoted are subject to change without notice after thirty (30) days from the quotation unless otherwise noted on the quotation. Any quotation for any Equipment or services is made subject to prior sale. All prices quoted, shown or invoiced are in U.S. Dollars and are FOB Seller’s point of shipment. Any cost for banking charges resulting from electronic funds transfers or similar such charges as a result of Buyer’s choice of method of payment shall be borne and paid for by Buyer. All amounts due to Seller from Buyer are payable in Corpus Christi, Nueces County, Texas and shall be due net thirty (30) days from date of invoice, unless otherwise stated. Buyer agrees that any past due amount shall bear interest from due date until paid at the lesser amount of 18% per annum or the maximum non-usurious rate of interest permitted by applicable laws in effect, from time to time. In each Order Document, the Buyer shall be deemed to grant to Seller a first priority purchase money security interest in the Equipment purchased under such Order Document and any proceeds therefrom to secure Buyer’s payment obligations under such Order Document and these Terms and Conditions. Seller is hereby expressly given authority, and Buyer shall cooperate with Seller, to execute and file such documentation as may be necessary or advisable to perfect and maintain such security interest.Notwithstanding anything herein to the contrary, this section and the security interest granted herein shall survive termination of these Terms and Conditions and shall remain effective until all obligations of Buyer secured hereunder have been satisfied in full. If Buyer defaults on payment or breaches any other material provision of these Terms and Conditions, Seller shall have the right to pursue all rights and remedies afforded to it at law, or in equity, with respect to such security interest. Buyer shall indemnify Seller for all claims, losses, liabilities, damages, costs and expenses, including reasonable attorneys' fees, which Seller may incur in connection with the enforcement of the security interest granted herein.
4. CANCELLATION AND RETURNS:
Purchase Orders once placed and accepted by Seller can be canceled only with Seller’s written consent, and upon terms, which will save Seller from loss. No Equipment may be returned for credit or adjustment without written permission from an authorized officer of Seller.
Buyer shall pay the cost of all taxes or charges imposed by law on the sale or production of the Equipment or services being purchased, unless the law specifically provides that Seller shall pay such charges, in the event of which, Buyer shall be obligated to reimburse Seller for such payment as part of the purchase price. Buyer shall pay the cost of all customs duties, insurance charges, consigners fees, and other comparable charges imposed as a result of the Sale. Any consular fees required for legalizing invoices, stamping bills of lading or other documents required by the laws of any country or destination are not included in any quotation or selling price. All of such charges shall be borne and paid by Buyer. Seller assumes no liability whatsoever for making any arrangements on behalf of Buyer relating to such consular documents or declarations, nor assumes any liability for any fines or charges imposed due to errors or incorrect declarations, all of which costs and obligations are expressly assumed by, and are the obligation of, Buyer.
Seller shall use every effort, as conditions permit, to make shipment as scheduled. However, Seller shall not be responsible for any loss or damage to Buyer resulting from deviations in the shipping schedule, whether due to Acts of God, orders bearing priority ratings established pursuant to law, differences with workmen, local labor shortages, shortages of product sources or failure of raw materials, supplies, fuel, power or transportation, breakdown of equipment or any other causes beyond Seller’s reasonable control or any such other cause not expressly enumerated herein, which is out of Seller’s reasonable control. Seller shall have such additional time as required to perform as may be reasonably necessary under the circumstances and shall have the right to apportion Equipment among its customers in such a manner as Seller, in its sole discretion, may consider to be equitable. In no event shall Seller be liable for any consequential damages or labor costs resulting from failure or delay in shipment. If the Equipment being provided to Buyer requires drawings, procedures, standards or other material for approval, shipping schedules will be calculated from the time such approvals are received by Seller. Any inspections or testing required may affect Equipment production and/or delay shipment accordingly.
Delivery shall be in accordance with the requirements of the Order Document provided, and in the event that Buyer is unable to accept delivery upon completion of the Equipment being purchased, Buyer agrees that title shall pass to Buyer on the date of Seller’s invoice and Buyer will make payments to Seller in accordance with the terms of payment herein. Seller shall retain custodial risk of loss until delivery is made in accordance with such requirements.
Seller warrants that the use or sale of Equipment sold to Buyer hereunder will not infringe United States’ patents of others covering such material or apparatus by itself, and hereby agrees to indemnify Buyer against judgment for damages for such infringement of any such patent, provided, that Buyer, shall upon receipt of any claim for infringement of any such patent or threat of suit for such infringement or upon the filing of any suit for infringement, whichever comes first, promptly notify Seller in writing and afford Seller full opportunity, at Seller’s option and expense, to answer such claim or threat of suit, assume control of the defense of said suit, and settle or compromise same in any way Seller sees fit. Other than court awarded judgments as aforesaid, Seller shall not be liable for any delays, loss of use or for other direct, indirect, incidental or consequential damages incurred by reason of any such judgment. Seller does not warrant that such Equipment (a) will not infringe any such patent when not manufactured by or for Seller or when specially made in whole or in part to the Buyer’s design specification and such infringement arises from the inclusion of such specified design, (b) will not infringe any such patent when it has been modified or altered by Buyer or any party not under Seller’s control, or, (c) if used or sold in combination with other material or apparatus, or if used in the practice of a process. Seller shall not be liable for and does not indemnify Buyer for damages or losses of any nature whatsoever resulting from actual or alleged patent infringement arising pursuant to (a), (b), or (c) above.
9. SELLER’S RIGHT TO MANUFACTURE:
Seller in its sole discretion shall have the right to manufacture the Equipment provided hereunder as far in advance of its estimated shipping schedule as it deems appropriate. Seller expressly reserves the right to change or modify the design and construction of any Equipment in due course of Seller’s manufacturing procedure without incurring any obligation or liability to furnish or install such changes, modifications or improvements to products previously or subsequently sold.
Upon request Seller will provide engineering and/or technical information regarding its Equipment and their uses and, if feasible, will provide personnel to assist Buyer in effecting field installation and/or field service. Any such information, service or assistance so provided, whether with or without charge, shall be advisory only. In that regard, neither Seller nor Buyer assumes any liability for the acts or omissions of the other party except as may be provided herein.
Unless otherwise agreed in writing, any final inspection or acceptance of any Equipment being purchased must be made at Seller’s location or point of shipment and shall be conclusive. Any such inspections shall be conducted during Seller’s normal posted hours of operation and in such a manner as to not interfere with Seller’s operations.
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE OF EQUIPMENT OR OF ANY INSTALLATION, SYSTEM, OR FACILITY INTO WHICH THE EQUIPMENT PURCHASED BY BUYER HEREUNDER MAY BE LOCATED. SELLER’S TOTAL RESPONSIBILITY FOR ANY CLAIMS, DAMAGES, LOSSES OR LIABILITIES ARISING OUT OF OR RELATED TO SELLER’S PERFORMANCE OF THIS CONTRACT OR THE EQUIPMENT SOLD HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF SUCH EQUIPMENT.
In consideration of the purchase of the Equipment hereunder, Buyer assumes all risks inherent in the operation and use of such Equipment and releases Seller from any claim for bodily injury (including death) resulting therefrom or damage to Buyer’s property resulting from or arising in connection with Buyer’s use or possession of the Equipment purchased. Buyer further agrees to assume the entire liability for, defense of and to pay, indemnify and hold Seller harmless from any and all claims for damage to property or bodily injury (including death) resulting from the use, operation of or possession of such Equipment, whether or not it be held or claimed that such damage or injury resulted, in whole or in part, from Seller’s negligence, from the defective conditions of such Equipment being purchased, strict liability or otherwise.
14. WAIVER OF JURYTRIAL:
Buyer and Seller both waive a trial by jury of any and all issues arising in any action or proceeding between the parties hereto or their successors, under or connected with this sale, these Terms and Conditions, or the Equipment being purchased under these Terms and Conditions.
15. ALTERNATIVE DISPUTE RESOLUTION:
Seller and Buyer shall submit any and all claims arising under the Terms and Conditions in good faith to mediation in Nueces County, Texas before filing a suit for damages or enforcement of these Terms and Conditions. Notwithstanding the foregoing, but subject to Section 16 hereof (Governing Law and Venue), Seller may initiate a proceeding before any court of competent jurisdiction in order to protect and enforce its rights in any Equipment, pursuant to Section 3 hereunder.
16. GOVERNING LAW AND VENUE:
The laws of the State of Texas shall govern the validity, construction, interpretation, and enforcement of these Terms and Conditions. Venue for any suit or proceedings arising under these Terms and Conditions shall be in Nueces County, Texas. Buyer agrees to pay, on demand, all costs and reasonable attorney fees that Seller may incur in the enforcement of these Terms and Conditions.
MEYER reserves the right to make changes to terms and conditions without notice.
MEYER RENTAL AGREEMENT INCLUDED AS PART OF STANDARD TERMS AND CONDITIONS
In consideration of the mutual covenants and promises contained herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
I. RENT OF EQUIPMENT
Owner hereby rents to Renter and Renter hereby rents from Owner (the “Equipment”) subject to the terms and conditions set forth herein. DELIVERY AND ACCEPTANCE OF EQUIPMENT Upon delivery of the Equipment to the location identified above, Renter will inspect the Equipment and if no written objection is provided to Owner within one (1) day, the Equipment will be deemed accepted as of that delivery date (the “Commencement Date”). Commencement date is date of pick-up of equipment by Renter on portal-portal terms.
This Agreement shall become effective on the Commencement Date and shall, unless terminated hereunder, continue in full force and effect, as provided herein, for an initial term of six (6) month(s), or one hundred eighty (180) day(s) from Commencement Date (the “Initial Term”), and thereafter shall automatically renew for successive terms of one (1) month(s), or thirty (30) day(s) (each a “Renewal Term” and collectively with the Initial Term, the “Rental Term”) unless and until the Renter gives Owner written notice of termination at least ten (10) days prior to expiration of the then current Rental Term.
III. RETURN OF THE EQUIPMENT –
Rental billing for the equipment stops once the equipment has been returned to a MEYER facility.
RENTAL FEE: Prior to delivery of the Equipment Renter agrees to pay Owner an amount equal to second and last months’ Rental Fee for each item of the Equipment at Owner’s address listed above or such other place as Owner may direct which shall be deemed non-refundable. Rental fees as quoted and invoiced. The ongoing Rental Fee and any other amount due under this Agreement is payable within thirty (30) days of the date of an invoice from Owner. If Renter fails to timely pay any amounts due under this Agreement: (a) interest shall accrue on the outstanding amount at the lesser of the rate of eighteen percent (18%) per annum or the maximum lawful rate for so long as such amount remains unpaid; and (b) Renter shall pay to Owner an administrative fee of $250 for each payment not paid timely
IV. LOCATION OF EQUIPMENT AND USE OF THE EQUIPMENT
Renter will use the Equipment for business purposes and keep it in good working condition. Some local governments require permits for or restrict certain promotional items. The Owner will assist in complying with these requirements, but gaining clearance and obtaining required permits is the responsibility of the Renter.
V. CARE AND OPERATION OF EQUIPMENT.
Renter agrees that use of the Equipment will comply with all laws, ordinances and regulations relating to the possession of and use of the Equipment, including registration and/or licensing requirements, if applicable. Renter promises and agrees to indemnify, defend and hold Owner harmless from and against all fines, forfeitures, seizures, confiscations or penalties arising out of any violations of such laws, ordinances or regulations in accordance with Article XIV.
VI. TITLE; PERSONAL PROPEPRTY
The Equipment is and at all times shall remain the sole property of Owner. No right, title or interest in the Equipment shall pass to renter other than the right to maintain possession and use of the Equipment for the full Rental Term, conditioned upon Renter’s compliance with the terms and conditions of this Agreement. Renter agrees to keep the Equipment free and clear of all liens, claims and encumbrances.
Renter shall make no alterations or modifications to the Equipment without prior written consent of the Owner, which may be given or withheld in its sole discretion.
VIII. MAINTENANCE AND REPAIR
The renter is responsible for all repair, maintenance, transportation, delivery and service costs during the rental period. The Owner shall maintain the Equipment at Renter’s expense or approve the maintenance work being performed by a third party. The Renter shall be responsible for any and all damage to the Equipment caused by Renter’s or it representative’s acts or omissions or any damage to any vehicle on or around the Equipment.
IX. BREACH OR DEFAULT.
If Renter breaches or defaults on any obligation of this Agreement, Owner may, without notice or demand, do one or more of the following: (a) take peaceful possession of the Equipment; (b) terminate this Agreement; (c) require Renter to deliver the Equipment to Owner; and (d) exercise any other right or remedy available at law or in equity. Each right and remedy shall be cumulative and may be exercised singly or in combination.
X. INSURANCE; RISK OF LOSS OR DAMAGE
During the Rental Term, Renter, at its own expense, shall keep insurance against all risks of loss, theft, damage, or destruction of the Equipment for the full replacement value thereof and general liability insurance on an occurrence basis, with minimum limits of $1,000,000 in any one occurrence and $2,000,000 general aggregate, with contractual liability coverage. Renter assumes all risks of loss or damage to the Equipment or any other property from any cause, and agrees to return Equipment to the Owner in the condition received from the Owner, with the exception of normal wear and tear.
XI. NOTICE PROVISION.
All notices or other written communications hereunder shall be deemed to have been properly given: (a) upon delivery, if delivery in person or by facsimile transmission with receipt acknowledged by the recipient thereof, (b) one business day after having been deposited for overnight delivery with any reputable overnight courier service, or (c) three business days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage pre- paid, return receipt requested to the addresses set forth above.
RENTER AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER AND ITS LENDERS, OFFICERS, MANAGERS AGENTS AND EMPLOYEES (COLLECTIVELY;OWNER INDEMNITEES), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITIES OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS FEES, FOR INJURY TO OR DEATH OF ANY PERSON OR PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE OPERATION, USE, MAINTENANCE, REPAIR OR CONDITION OF THE EQUIPMENT. THE FOREGOING DEFENSE AND INDEMNITY SHALL APPLY: (A) WHERE THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION SUITS OR LIABILITIES ARISE IN WHOLE OR IN PART FROM THE ACT OR OMISSION OR NEGLIGENCE OF OWNER INDEMNITEES; AND (B) WHETHER SUCH DEFECT AND THE INJURY OR DEATH RESULT IN WHOLE OR IN PART FROM THE DESIGN, MANUFACTURE, MAINTENANCE, REPAIR, MARKETING OR DISTRIBUTION OF THE EQUIPMENT OR FROM THE FAILURE BY OWNER INDEMNITEES TO WARN ANY PERSON OF SUCH DEFECT.
XIII. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties and supercedes all previous negotiations, understandings, or written or oral agreements with respect to its subject matter. Modifications or amendments to this Agreement are valid only when made in a writing that is signed by all contracting parties.
Renter may not assign, sublet, lend transfer or pledge this Agreement or the Equipment without the prior written consent of Owner. Owner may assign, transfer, pledge or sell Owner’s interest in the Equipment and this Agreement.
XV. GOVERNING LAW AND VENUE.
The laws of the State of Texas shall govern the validity, construction, interpretation, and enforcement of the Agreement. Venue for any suit or proceedings arising under this Agreement shall be in Nueces County, Texas. Renter agrees to pay, on demand, all costs and reasonable attorney fees that Owner may incur in the enforcement of this Agreement.
Owner’s failure to require performance by renter of any provision of this Agreement shall not be a wavier thereof or of any subsequent similar non-performance.
In the event that any provision of this Agreement shall be deemed invalid, illegal, or unenforceable, the remaining provisions of the Agreement shall remain valid, binding and in full force and effect as if the invalid, illegal or unenforceable provisions had never been contained in this Agreement.
XVIII. WAIVER OF WARRANTIES
OWNER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
MEYER reserves the right to make changes to terms and conditions without notice.