Terms and Conditions PDF Print E-mail

For the purpose of this Agreement (“Agreement”), including those items set forth on either a Sales Order or Invoice, “Seller”, means the person or entity printed on the face of the Sales Order or Invoice and its subsidiaries, owners, officers, directors, shareholders, employees, or assigns, and “Customer” shall mean the person named in the bill to section of Sales Order or Invoice, its agents and/or employees.


1. Indemnity/Hold Harmless. UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL SELLER, ITS AFFILIATES OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR:  (A)  ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OF OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST CUSTOMER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY SELLER OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS OR SERVICES; OR (D) ANY UNAVAILABILITY OF THE PRODUCT FOR USE OR SERVICES.  IN THE EVENT OF ANY LIABILITY INCURRED BY SELLER OR ANY OF ITS AFFILIATES, THE ENTIRE LIABILITY OF SELLER AND ITS AFFILIATES FOR DAMAGES FROM ANY CAUSE WHATSOEVER WILL NOT EXCEED THE LESSER OF:  (A) THE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PRODUCT(S) OR SERVICES GIVING RISE TO THE CLAIM OR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM; OR (B) $50,000.00.
In no event shall Seller be responsible to Customer or any other person whom does business with Customer for any loss, damage or injury caused by, resulting from or in any way connected with the products supplied under this Agreement or their use by Customer; or the failure to delivery such items on or by the expected delivery date.   Customer will take all necessary precautions to protect all persons and property from injury or damage from the use of the supplies and products provided in this Agreement, as applicable.


2. Disclaimer of Warranties. Customer understands that Seller is not the manufacturer of the products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Seller.  In purchasing the products or services, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the products or services that may be provided by Seller except as specifically set forth on the face of this Agreement.  SELLER HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES.  THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER’S WARRANTY.  Customer expressly waives any claim that it may have against Seller or its Affiliates based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any product or service and also waives any right to indemnification or contribution from Seller or its Affiliates against any such Claim made against Customer by a third party.  Customer acknowledges that no employee of Seller is authorized to make any representation or warranty on behalf of Seller that is not in this Agreement.
Seller warrants that the Services will be performed in a good and workmanlike manner.  Customer’s sole and exclusive remedy and Seller’s entire liability with respect to this warranty will be, at the sole option of Seller, to either (a) use its reasonable commercial efforts to reperform or cause to be reperformed any Services not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Services not in substantial compliance; provided, in each case, Customer notifies Seller in writing within five (5) business days after performance of the applicable Services.  EXCEPT AS SET FORTH HEREIN OR IN ANY STATEMENT OF WORK THAT EXPRESSLY AMENDS SELL’S WARRANTY, AND SUBJECT TO APPLICABLE LAW, SELLER MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; DURABILITY, TITLE; ACCURACY; OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTTS OR SERVICES.  THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF CUSTOMER’S ESSENTIAL PURPOSE OR OF IT AFFILIATES IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF SELLER OR ANY OF ITS AFFILIATES THAT IS NOT IN THIS AGREEMENT OR IN A STATEMENT OF WORK EXPRESSLY AMENDING SELLER’S WARRANTY.


3. Interest/Cost of Collection. Customer agrees to pay interest on all unpaid balances at the rate of 1.5% per month (18% per year).  Additionally, Customer shall pay all reasonable costs of collection, court costs, attorneys’ fees, cost of third party agencies hired to collect from customer, and other expenses incurred by Seller in the collection of any charges due under this Agreement or in connection with the enforcement of its terms, whether incurred directly by Seller or imposed by a third party collection company, and whether as a part of the lawsuit or in pre-suit collection activities.  Customer agrees to pay any collections costs, whether those of a third party collection company or attorney fees incurred in collection of this account or any dispute arising out of this Agreement.


4. Notice of Non-Waiver/Severability. A)  Any failure of Seller to insist upon strict performance by Customer of any terms and conditions of this Agreement shall not be construed as a waiver of Seller’s rights to demand strict compliance.  Customer has carefully reviewed this Agreement and waives any principle of law which would construe any provision hereof against Seller as the draftsperson of this Agreement.  The provisions of this Agreement shall be severable so that the unenforceability, invalidity or waiver of any provision shall not affect any other provision; B) Customer agrees to pay all reasonable costs of collection, court, attorneys’ fees and other expenses incurred by Seller in the collection of any charges due under this Agreement or in connection with the enforcement of its terms.


5. Arbitration. Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, without limitation, statutory, common law, intentional tort and equitable claims) arising from or relating to the products, the services, the interpretation or application of these Terms and Conditions or any Statement of Work or the breach, termination or validity thereof, the relationships which result from these Terms and Conditions or any Statement of Work (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Seller’s or any of its Affiliates’ advertising or marketing (collectively, a “Claim”) WILL BE RESOLVED, UPON THE ELECTION OF ANY OF SELLER, CUSTOMER OR THE THIRD PARTIES INVOLVED, EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.  If arbitration is chosen, it will be conducted pursuant to the Rules of the American Arbitration Association.  If arbitration is chosen by any party with respect to a Claim, neither Seller nor Customer will have the right to litigate that Claim in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties involved.  Further, Customer will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim.  Notwithstanding any choice of law provision included in these Terms and Conditions, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. 1-16).  The arbitration will take place exclusively in Chicago, Illinois.  Any court having jurisdiction many enter judgment on the award rendered by the arbitrator(s).  Each party will bear its own cost of any legal representation, discovery or research required to complete arbitration.  The existence or results of any arbitration will be treated as confidential.  Notwithstanding anything to the contrary contained herein, all matters pertaining to the collection of amounts due to Seller arising out of the products or services will be exclusively litigated in court rather than through arbitration.


6. Miscellaneous. Seller may assign or subcontract all or any portion of its rights or obligations with respect to the sale of products or the performance of services or assign the right to receive payments, without Customer’s consent.  Customer may not assign these Terms and Conditions, or any of its rights or obligations herein without the prior written consent of Seller.  Subject to the restrictions in assignment contained herein, these Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns.  No provision of this Agreement or any Statement of Work will be deemed waived, amended or modified by either party unless such waiver, amendment or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.  The relationship between Seller and Customer is that of independent contractors and not that of employer/employee, partnership or joint venture.  If any term or condition of this Agreement or a Statement of Work is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or thereof or the whole of this Agreement or the applicable Statement of Work.  Notices provided under this Agreement will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by courier or facsimile transmission.  Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.


7. Governing Law. These General Terms shall be governed by and construed in accordance with the law of the United States and the law of the State of New Mexico.  The Parties acknowledge and agree that exclusive venue for any action arising out of the products, or the business relationship between the Buyer and Seller, shall be in any court of competent jurisdiction in Dona Ana County, New Mexico.  The United Nations Convention for the International Sale of Goods (CISG) is not incorporated in this Contract.


8. Severability. The provisions of these General Terms shall be deemed to be severable and the invalidity or partial invalidity of any provision hereof shall not affect the validity or enforceability of the remaining provisions.


9. Taxes and Other Charges. In addition to the purchase price of the products or services, Buyer shall be solely responsible for any costs, fees, assessments, taxes, levies, and other charges of any kind whatsoever which are imposed upon Seller by the relevant authorities.  Buyer agrees to pay the Seller the amount of any such cost, fee, assessment, tax, levy, or other charge, promptly upon receipt of Seller’s Sales Order and/or Invoice therefore.


10. Claims. No claims will be allowed unless they are reported immediately after arrival of the products or services and accompanied by documents substantiating the loss.