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.
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.
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.
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 received 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.
Seller reserves the right to impose a minimum billing charge on all sales, change orders, or order supplements.
Terms of payment are thirty (30) days from date of invoice unless otherwise stated in the quotation or Seller's order acknowledgement.
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.
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.
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.
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.
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.
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.
Title to the products sold hereunder passes to Buyer upon payment of the full purchase price.
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 and practical. 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, Seller assumes 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.
Consular fees for legalizing invoices, stamping bills of lading, 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 delays, errors or incorrect declarations.
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.
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.
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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