1. CONTRACT
AND ACCEPTANCE: Any
written or oral purchase order received from buyer by Radoil,
Inc., ("Seller"), shall be construed as a written
acceptance of seller's offer to sell and shall be filled in
accordance with the terms and conditions of sale set forth
herein, SELLER'S ACCEPTANCE OF THIS ORDER IS EXPRESSLY
CONDITIONED ON BUYER'S ASSENT TO THE TERMS CONTAINED HEREIN. The
terms and conditions of Seller's proposal (if any) and
acknowledgement shall prevail over any conflicting or different
terms in Buyer's order unless Buyer notifies Seller in writing of
its objections thereto within fifteen (15) days from receipt of
Seller's acknowledgement. Buyer's standard terms of purchase will
not be considered a counteroffer to Seller's terms and conditions
of sale. The failure of Seller to object to any provision on
conflict herewith whether contained on Buyer's purchase order or
otherwise, shall not be construed as a waiver of the provisions
hereof nor as an acceptance thereof.
2. QUOTATIONS
AND PRICES: All
quotations are made for prompt acceptance and any terms quoted
therein are subject to change without notice after thirty (30)
days from the date quoted unless specifically stated otherwise on
the quotation. Any product, service capability or manufacturing
capability, which may be available at the time a quotation is
made, is subject to prior sale. Prices quoted are valid for
thirty (30) days unless specifically stated otherwise on the
quotation and are subject to change without notice. The price in
effect at the time of shipment, including any escalation formula
will apply, unless a valid quotation or written agreement to the
contrary exists between Buyer and Seller. All prices shown are in
U.S. dollars and are F.O.B. Seller's shipping point. Seller
reserves the right to place a service charge on past due accounts
at the highest rate permitted by law. Any documentation
pertaining to traceabillity requirements for raw materials or
products or documentation required for any routine or special
processes must be identified by the Buyer at the time of the
quotation (if any) or at the time of order placement.
3. TAXES: Any tax or other charge imposed by law on
the sale or production of goods or the performance of services
shall be paid by the Buyer, unless the law specifically provides
that such payment must be made by Seller, in which case Buyer
shall reimburse Seller for such payment as part of the purchase
price. Custom duties, consular fees, insurance charges and other
comparable charges will be borne by Buyer.
4. SHIPPING
SCHEDULE AND DELIVERY: Shipment schedules are given as accurately as
conditions permit and every effort will be made to make shipments
as scheduled. Seller will not be responsible for deviations in
meeting shipping schedules nor the any losses or damages to Buyer
(or any third party) occasioned by 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, fire, flood, shortages or failure of raw
materials, supplies, fuel, power or transportation, breakdown of
equipment or any other causes beyond Seller's reasonable control.
Whether of similar or dissimilar nature than those enumerated,
Seller shall have additional time within which to perform as may
be reasonably necessary under the circumstances and shall have
the right to apportion its production among its customers in such
a manner as it may consider to be equitable.
Seller reserves the
right to furnish commercially equivalent or better substitutes
for materials or to subcontract the Buyer's order or portions
thereof as Seller deems necessary. In no event shall Seller be
liable for any consequential damages for labor resulting from
failure or delay in shipment. If Buyer requires drawings,
procedures, standards or similar material for approval, shipping
schedules will be calculated from the time such approvals are
recieved by Seller, since shipping schedules are based on Seller
having all required information and a firm order from Buyer which
is enterable into production. Any hold points, witness points, or
need for inspection by Buyer's representatives must be identified
by Buyer at the time of quotation (if any) and/or order placement
in order that the effect on the prices or shipping schedules (if
any) can be taken into account. Additional inspection or testing
required by Buyer which affects normal production sequence will
be considered as extending the shipping dates accordingly.
5. MINIMUM
BILLING: Seller
reserves the right to impose a minimum billing charge on all
sales, change orders, or order supplements.
6. TERMS OF
PAYMENT: Terms of
payment are thirty (30) days from date of invoice unless
otherwise stated in the quotation or Seller's order
acknowledgement.
7. CANCELLATIONS
AND RETURNS: Purchase
Orders once placed by Buyer and accepted by Seller can be
cancelled only with Seller's written consent and upon terms,
which will save Seller from loss. No goods may be returned for
credit or adjustment without written permission from the Seller's
office personnel authorized to issue such permission.
8. WARRANTIES:
All products of
Seller's manufacture are warranted against defects of material
and workmanship for a period of twelve (12) months from the date
of installation or eighteen (18) months from the date of
shipment, whichever period first expires, when such products are
used in the service and within the pressure range for which they
were manufactured. In the case of products or parts not wholly of
Seller's manufacture, Seller's liability shall be limited to the
extent of its recovery from the manufacturer of such products or
parts under its liability to Seller.
Any repair work
performed by Seller is warranted for one year from completion of
such repairs and applies only to work performed by Seller.
If, within these
specified periods, the Seller receives notice from Buyer of any
alleged defect on or nonconformance of any product or repair,
and, if in the Seller's sole judgment the product or repair does
not conform or is found to be defective in material or
workmanship then, Buyer shall, at Seller's request, return the
part or product F.O.B. to Seller's designated plant or service
location. Seller, at it's option and expense, shall repair or
replace the defective part, repair, or product. Any replacement
of purchase price shall be without interest.
Seller's warranty
liability, including defects caused by Seller's negligence, shall
be limited to such repair, replacement or refund and shall not
include claims for labor costs, expenses of Buyer resulting from
such defects, recovery under general tort law or strict liability
or for damages resulting from delays, loss of use or other
direct, indirect, incidental, or consequential damages of any
kind. Seller will not be responsible for failures due to lack of
compliance with recommended maintenance procedures, or products
which have been repaired or altered in such a way by Buyer (in
Seller's judgment) as to affect the products adversely. THIS
WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED,
STATUTORY, OR IMPLIED. INCLUDING THE WARRANTY OF MERCHANTABILITY
AND FITNESS FOR PARTICULAR PURPOSE, WHICH EXCEED THE FOREGOING
WARRANTY.
9. SELLER'S
RIGHT TO MANUFACTURE: Seller,
in its sole discretion, shall have the right to manufacture the
products 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 product 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.
10. ENGINEERING
AND SERVICE: Upon
request, Seller will provide engineering and/or technical
information regarding its products and their uses and if feasible
will provide personnel to assist Buyer in effecting field
installations 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
the Buyer assumes any liability for the acts or omissions of the
other party except as may be provided in these terms.
11. LABOR STANDARDS: Seller hereby certifies that these products
were produced in accordance with all applicable requirements of
Section 6, 7, and 12 of the Fair Labor Standards Act as amended
and of regulations and orders of the United States Department of
Labor issued under Section 14 thereof.
12. INSPECTION: Unless otherwise agreed in writing, final
inspection and acceptance of products must be made at Seller's
plant or other shipping / receiving point designated by Seller
and shall be conclusive except as regards latent defects. Buyer's
representative may inspect at the Seller's plant or shipping
point during working hours prior to shipment in such manner as
will not interfere with operations.
13. TITLE: Title to the products sold hereunder passes
to Buyer upon payment of the full purchase price.
14. TRANSPORTATION
CHARGES, ALLOWANCES, CLAIMS: All prices are F.O.B. Seller's plant or other
designated shipping point. No freight is allowed unless stated in
Seller's quotation (if any) or in a written contract which may
exist between Seller and Buyer at the time of shipment. If
Seller's quotation or written contract states that all or a
portion of freight is allowed, all prices are F.O.B. Seller's
plant or other designated shipping point, with most economical
surface transportation. Seller reserves the right to designate
the common carrier and to ship in the manner it deems most
economical. Added costs due to special routing requested by the
Buyer are chargeable to the Buyer. Under no circumstance is any
freight allowance absorbed by Seller to be deducted from the
selling price. If the quoted price or contract includes
transportation, no deduction will be made in lieu thereof whether
Buyer accepts shipment at plant, warehouse, freight station, or
otherwise supplies its own transportation. When sales are made
from the Seller's warehouse, Seller reserves the right to charge
actual or pro-rated freight from Seller's principle point of
manufacture to Seller's warehouse. Buyer assumes risk of loss
upon delivery to the carrier, regardless of who pays shipping.
Seller endeavors to pack or
prepare all shipments so that they will not break, rust, or
deteriorate in transit, but does not guarantee against such
damage. Unless requested in writing by the Buyer, no shipments
are insured by Seller against damage or loss in transit. Seller
will place insurance as nearly as possible in accordance with
Buyer's written instructions, but in such case Seller acts only
as agent between the insurance company and the Buyer, assuming no
liability whatsoever.
Any claims for shipping loss,
breakage, or damage (obvious or concealed) are Buyer's
responsibility and should be made to the carrier. All claims
regarding shortages must be made within thirty (30) days from
receipt of shipment and must be accompanied by the packing
list(s) covering the shipment.
15. CONSULAR INVOICES: Consular fees for legalizing invoices,
stamping bills of landing, or other documents required by the
laws of any country or designation, are not included in
quotations or selling prices. If instructed in writing, Seller
will make arrangements for consular documents and declarations as
agent of the Buyer, but Seller assumes no liability whatsoever as
a result of making such arrangements. Seller assumes no
responsibility for any fines or other charges imposed due to
errors or incorrect declarations.
16. INDEMNIFICATION AND
LIMITATION OF LIABILITY:
A. INDEMNIFICATION:
Seller agrees to indemnify Buyer
and hold harmless against any claims, demands or causes of action
for property damage or personal injury (including death) caused
by the negligent act or omission of any employee, agent, or
subcontractor of Seller and not contributed to by the negligence
of Buyer, its employees, its agents, or any third party. Seller
shall not be responsible for the acts and workmanship of
employees, agents, contractors, or subcontractors of Buyer or any
third party, nor for failure or malfunction of any tools,
materials, equipment, products, supplies, facilities, or devices
not manufactured and supplied by Seller. Buyer agrees to hold
Seller harmless from any and all losses, claims, or damages
arising from subsurface damage, surface damage caused by
subsurface damage, loss of hydrocarbons and from pollution,
regardless of whether such damages, losses, or claims were caused
by the negligence of Seller, it being the intent of the parties
that this indemnity shall apply to property of Buyer or to that
of any third party.
B. LIMITATION OF LIABILITY:
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
OF FACILITY INTO WHICH SELLER'S EQUIPMENT MAY BE LOCATED OR AT
WHICH SELLER, ITS AGENTS, OR SUBCONTRACTORS MAY BE PERFORMING
WORK. Seller's total responsibility for any claims, damages,
losses, or liabilities arising out of, or related to its
performance of this contract or the products or services covered
hereunder shall not exceed the purchase price.
17. MODIFICATION,
RECISSION AND WAIVER: The
terms herein may not be modified or rescinded nor any of its
provisions waived unless such modification, rescission, or waiver
is in writing and signed by an authorized employee of Seller at
its office in Houston, Texas.
Failure of Seller to insist in any
one or more instances upon the performance of any of the terms
and conditions of the contract or the failure of Seller to
exercise any of the rights hereunder, shall not be construed as a
waiver or relinquishment of any such term, condition, or right
hereunder and shall not affect Seller's right to insist upon
strict performance and compliance with regard to any unexecuted
portions of this contract or future performance of these terms
and conditions.
All orders must be accepted by an
authorized employee of Seller. The rights and duties of the
parties and construction and effect of all provisions hereof
shall be governed by and construed according to the internal laws
of the State of Texas. Any disputes, which arise under this
agreement, shall be venued in the District Court of Harris
County, Texas or in the Southern District of Texas.
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