Gulf Electroquip, Ltd., Electric Machinery & Equipment, Ltd., Riva Services, L.L.C. or whichever company issues the invoice for the goods or services specified is called “Seller.” The person or entity named in the “Sold To” blank is called “Purchaser.”
Sale of any of the equipment or services of Seller, at the prices indicated hereon, is expressly conditioned upon Purchaser’s acceptance of all the terms and conditions set forth in Seller’s Quotation and Confirmation of Sale and Acknowledgment. Any statement of intent to purchase any such equipment or services, any Purchase Order, any shop work order release, or any direction to proceed with engineering, procurement, manufacturing or shipment, shall constitute an assent to the prices and all terms and conditions and a representation that the Purchaser is solvent. Any additional or different terms, prices or conditions set forth in any communications from the Purchaser, including any purchase order, are objected to by Seller and shall not be effective or binding unless assented to in writing and signed by an authorized representative of Seller.
LIMITED WARRANTY – SELLER WARRANTS ALL GOODS AND SERVICES SOLD HEREUNDER TO BE FREE FROM INHERENT ELECTRICAL OR MECHANICAL DEFECTS ON DATE OF SHIPMENT. SELLER FURTHER WARRANTS THAT ON DATE OF SHIPMENT, THE EQUIPMENT WILL DELIVER ITS RATED OUTPUT AS INDICATED BY THE NAME-PLATE, PROVIDED THE EQUIPMENT IS PROPERLY CARED FOR AND OPERATED UNDER PROPER CONDITIONS, WITH COMPETENT SUPERVISION AND ALL FOUR (4) CONDITIONS PRECEDENT LISTED IN THE FREE REPAIRS PARAGRAPH BELOW, ARE SATISFIED. These warranties are extended to the immediate purchaser only and not transferable, provided however, that if the Purchaser in the course of its usual business, transfers title or leases such apparatus (including equipment incorporating such apparatus) without using the equipment, to a third party, such period shall run to such third party as if it were the Purchaser, subject to the provisions on transfer set forth in the RESTRICTIONS Paragraph.
Provided that: (1) Seller’s personnel are present and participate in the start-up of the equipment; and (2) the equipment has been installed and operated under proper conditions; and (3) the equipment was connected to its rated load; and (4) that NOTICE IN WRITING is given Seller by Purchaser or third party immediately when parts are found to be defective so that representative of Seller may be present to inspect the equipment when it is dismantled, PARTS FOUND TO BE DEFECTIVE WITHIN ONE (1) YEAR, (EXCEPT IN THE CASE OF DIESEL, GAS AND GASOLINE ENGINES, IN WHICH EVENT THE PERIOD OF TIME SHALL BE NINETY (90) DAYS), FROM THE DATE OF (I) SHIPMENT FROM SELLER, OR (II) START-UP OF THE EQUIPMENT, WHICHEVER DATE OCCURS FIRST, WILL BE REPLACED OR REPAIRED, AT THE OPTION OF SELLER, F.O.B. SELLER’S PLANT, HOUSTON, TEXAS, USA, FREIGHT PAID BY PURCHASER OR THIRD PARTY, FREE OF REPAIR CHARGE. PURCHASER’S FAILURE TO COMPLY WITH ALL TERMS OF THE “FREE REPAIRS” AND “RESTRICTIONS” PARAGRAPHS SHALL AUTOMATICALLY VOID ANY WARRANTY PROVIDED BY SELLER.
No claims for damages or for labor done by others or parts furnished by others will be allowed unless authorized by Seller, in writing. THIS WARRANTY IS THE ONLY WARRANTY APPLICABLE AND IS EXPRESSLY IN LIEU OF ANY WARRANTIES OTHERWISE IMPLIED BY LAW, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PURCHASER AGREES THAT NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, HAVE BEEN MADE OR GIVEN AND THAT THE PROVISIONS OF THE “FREE REPAIRS” PARAGRAPH ARE THE SOLE AND EXCLUSIVE REMEDIES TO BUYER FOR SELLER’S BREACH OF WARRANTY. No representations, claims, statements, advertising or promotional activities made or conducted by Seller or Seller’s agents or representatives shall be binding upon Seller unless the same are expressly set forth in the Quotation, the Confirmation of Sale and Acknowledgment or in a subsequent written agreement signed by Seller. In the event the equipment sold fails to comply with any warranty set forth herein or imposed by law and provided Purchaser complies with all conditions precedent, the only obligation of Seller shall be that upon the return of the non-conforming equipment freight prepaid to Seller at its plant in Houston, Texas, USA, Seller shall replace the defective or non-conforming parts, at no cost to Purchaser. In the event of breach or repudiation of this agreement by Seller, or in the event any equipment sold hereunder fails to comply with any warranty extended herein, Seller shall not be liable to Purchaser or any third party for any special, consequential, incidental or penal damages, including, but not limited to, loss of profit or revenues, loss of use of the products or any associated equipment, damages to associated equipment, costs of capital, cost of substitute products, facilities, services or replacement power, down time costs, or claims of Purchaser’s or third party’s customers for such damages, and PURCHASER AGREES TO AND DOES HEREBY INDEMNIFY SELLER FROM SUCH DAMAGES including but not limited to the consequences of sellers own negligence. IF Purchaser transfers title to or leases the products sold to any third party, as a condition precedent to the transference of the warranty to a third party, as set forth above, Purchaser shall obtain from such third party, a provision affording Seller and its suppliers the protection of the preceding sentence and PURCHASER INDEMNIFIES SELLER FROM ANY LIABILITY OR ALLEGED LIABILITY TO ANY THIRD PARTY, in the event Purchaser fails to comply with this condition precedent including but not limited to defense costs, expenses and attorney’s fees. This warranty gives you specific legal rights and you may also have other rights, which may vary from state to state. THERE ARE NO WARRANTIES, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. THIS LIMITED WARRANTY AND THE DAMAGES SET FORTH HEREIN ARE EXPRESSLY AGREED TO BE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO PURCHASER.
Shipping dates are approximate and are based upon prompt receipt of all necessary information. Purchaser agrees that seller is not responsible for late deliveries for any reason, including but not limited to (1) causes beyond Seller’s reasonable control or (2) acts of God, acts of the Purchaser, acts of civil or military authority, priorities, fires, strikes, or other labor disturbances, flood, epidemics, war, or delays in
transportation or car shortages, or (3) inability on account of causes beyond its reasonable control to obtain necessary labor materials, components or manufacturing facilities, (4) or any other delay. In the event of any such delay the date of delivery or of performance shall be extended for a period to the time lost by reason on the delay.
Payments shall become due as specified in the terms, in the Quotation or Confirmation of Sale and Acknowledgment. In the event the terms are silent with respect to payment then payment shall be due thirty (30) days from shipment to Purchaser by Seller, F.O.B. Seller’s plant, Houston, Texas, USA. Purchaser agrees that no amounts will be deducted for late delivery. Any and all amounts due or to become due hereunder, shall bear interest at the rate of ten percent (10%) per annum or at the maximum non-usurious rate, whichever is less, from date due as set forth herein until paid. If the financial condition of the Purchaser at any time does not, in the judgement of Seller, justify continuance of the work performed by Seller hereunder on the terms of payment agreed upon. Seller may require full or partial payment in advance or shall be entitled to cancel any order than outstanding and shall receive reimbursement for its reasonable and probable cancellation charges as set forth below in the Liquidated Damages paragraph in the event of bankruptcy or insolvency of the Purchaser, voluntarily or involuntarily, under the bankruptcy or any insolvency laws. Seller shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its reasonable and proper cancellation charges. The rights of the Seller under this paragraph are cumulative and in addition to all rights available to the Seller at law or in equity.
Purchaser acknowledges that, in order to be able to fabricate and deliver the equipment in accordance with the Quotation and Confirmation of Sale and Acknowledgment, Seller must, and will be purchasing the basic “hull” of the equipment, the cost of which represents a substantial part of the total cost of the equipment, for which there will be no reasonable market, in the event of the cancellation or attempted cancellation of the contract or sale represented herein and that even with the exercise or reasonable efforts, Seller will not be able to “cover” its loss from a default or, cancellation of, this agreement by selling, or otherwise disposing of the “hull” to other persons or entities. Purchaser further acknowledges that, in the event of a default or attempted cancellation, Seller will suffer immediate and substantial damages and losses, the exact amount and extent of which will be difficult, if not impossible, to measure with certainty or precision. Accordingly, and in order to provide a reasonable compensation and remedy to Seller, in the event of a default Seller, shall be entitled to recover, and Purchaser hereby agrees to pay, liquidated damages as follows: (I) if Purchaser shall default in the performance of any of its obligations ninety (90) days or more prior to the estimated shipment date described herein, Purchaser shall pay to Seller, liquidated damages equal to seventy percent (70%) of the purchase price; (ii) if such default shall occur sixty (60) days or more, but less than ninety (90) days prior to the estimated shipping date, the Purchaser shall pay to Seller, liquidated damages equal to eighty percent (80%); (iii) if such default shall occur thirty (30) days or more, but less than sixty (60) days prior to the estimated shipping date, Purchaser shall pay to the Seller, liquidated damages equal to ninety percent (90 %) of the purchase price. Purchaser and Seller each agree that the foregoing liquidated damages constitutes a reasonable and practical agreement for attempting to compensate Seller for the losses and damages it will suffer in the event of a default hereunder.
Sales and Similar Taxes
Seller’s prices do not include sales, use, excise or other similar taxes. Consequently, in addition to the price specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale or use of the equipment hereunder shall be paid by the Purchaser, or in lieu thereof, the Purchaser shall provide Seller with a tax exempt certificate acceptable to the taxing authorities.
Any action or proceeding relating to or concerning any Quotation, Purchase Order or Confirmation of Sale and Acknowledgment or any breach thereof must be commenced by Purchaser within two (2) years after the asserted claim or cause of action shall have accrued (whether or not the party asserting such claim or cause of action had any knowledge or notice thereof, and, if no action or proceeding is commenced within such two (2) year period, the Purchaser shall be deemed to have waived all claims against Seller).
Any sale shall not be subject to arbitration. This agreement shall be construed in accordance with the laws of the State of Texas, USA. All sales and warranties of goods or services will be F.O.B. Seller’s plant in Houston, TX. All terms and conditions of sale, including all payments, are due, performable and payable in Houston, Harris County, Texas, USA. All suits for the enforcement of any rights to either Seller or Purchaser as a result of this agreement or any sale will be brought exclusively in a state court of competent jurisdiction in Harris County, Texas, USA. This Contract supersedes all oral and written communications between Seller and Purchaser, including, but not limited to, any representations, agreements, understandings, order forms of Purchaser, orders of Purchaser and their respective agents, whether issued before or after this Agreement. The provisions of this Contract cannot be waived, changed, modified or terminated, except in writing signed by Seller. The invalidity, in whole or in part, of any of the foregoing provisions will not affect the remainder of such provisions. The purchaser warrants and represents to Seller that it is not a consumer and is a Merchant in the type of goods sold and that the goods or services represented by this sale are purchased for commercial purposes. To the maximum extent allowed by law, Purchaser agrees to release and hold Seller harmless and to indemnify Seller from all damages resulting from suits under the Texas, USA Deceptive Trade Practices Act or other laws insofar as they include recovery for damages in excess of those allowed by this agreement and the Uniform Commercial Code as adopted by the State of Texas, USA, including but not limited to the consequences of Seller’s own negligence.