Western of Texas Forge & Flange Co. (WOT) herein after called “the Company”
agrees with the Purchasers, that for a period of one year after the date of shipment, the
Company with respect to its product sold will warrant the product to be free from
manufacturing defects, and if defective, will either repair or replace the product without
charge or refund the purchase price, at the option of the Company, providing the following
conditions are complied with:
- The Company is promptly notified in writing of such defect immediately upon discovery of
same and if the Company requests, the defective product or products are promptly forwarded
to the F.O.B. Company’s plant where made; and
- The defect is not due to faulty installation, misalignment of parts, vibration, ordinary
wear and tear, corrosion, erosion, unusual pressure surges of pulsation, water hammer,
temperature shocking, or fouling; and
- That the product has not been altered or modified after leaving the Company’s
plant.
In respect of other product or items of equipment or accessories, included in the equipment
“sold”, purchased or obtained from or made by other manufacturers or their
suppliers, the Purchaser accepts such equipment, items of equipment and accessories on the
basis of the particular manufacturer’s warranty, if any, and no other and the Purchaser
agrees that there is no warranty, representation condition or agreement in respect of such
equipment, items of equipment or accessories, on the part of the Company, whatsoever relating
to such equipment, items of equipment or accessories.
It is agreed and understood that the Company’s liability in respect to the sale is
strictly limited to the sale price replacement of the product as hereinbefore specified and
that the Company shall not, in any event, be liable for any damages whether for loss of use or
business interruption or expense occasioned by the use of defective product or any other claim
for damages, consequential or otherwise, whatsoever.
The Company’s liabilities as above set out shall not be extended because of advice
given by the Company in connection with the design, installation or use of any product. The
Company does not assume responsibility for the accuracy of Purchaser’s calculations or
specifications or design specifications.
The Company makes no other warranty, condition or representation of any nature whatsoever,
either expressed or implied, by statute or otherwise, except as herein contained.
Purchaser agrees that if the products sold hereinunder are by Purchaser re-sold, Purchaser
will include in the contract for re-sale, provisions that limit recoveries against the Company
in accordance with this paragraph.
PRICE - All prices are quoted F.O.B. Humble, Texas unless
otherwise specified in the quotation. Prices quoted are subject to change without notice prior
to the Company’s acceptance of Purchase Order, and it is understood that the price
stated herein is based upon the Company’s cost under existing law and conditions. If
such is increased by the enactment of any, applicable law or by the increase of the cost of
any of the components of the equipment purchased from others, the amount of such increased
costs shall be added to the price stated. This quotation is made with the understanding that
any sales, use, excise, or any other tax imposed by any present or future law on any of the
materials, components or equipment included in this quotation or measured by the quantity or
value thereof or by all or any part of the receipts from the sale thereof, exclusive of taxes
upon net income, shall be added to the amount to be paid hereinunder.
Prices may be subject to a surcharge to Purchasers, who, by reason of current or prior trade
or business practices or course of dealings with the Company have increased or may increase
marketing or distribution costs.
Any Sales Tax, Manufacturer’s Tax, or Use Tax imposed by Federal, State or Municipal
Law, or taxes imposed by other countries to which the product is sold will have the applicable
tax added to the prices and are to be paid by Purchaser.
FREIGHT - Quotations specifically
including freight or other transportation charges are only estimates based on routing at the
Company’s option and current rates. The Company will favor Purchaser’s routing
whenever same does not cause an increase in freight or other transportation charges, or
whenever such increase is guaranteed by the Purchaser. Charges for freight or other
transportation will be modified to reflect actual rates at the time of shipment, including
hauling permits and transportation taxes.
RISK - Title and risk to the equipment shall pass to the
Purchaser when delivered to the carrier of the Company’s selection, or to the carrier
designated by the Purchaser; but the Company reserves the right to retain or resume possession
until the purchase price is fully paid.
LIEN - The Company holds a vendor’s lien on the equipment
to secure payment of the purchase price, and the Purchaser agrees to execute such documents as
may be required by the Company’s solicitors to make fully effective this provision.
PAYMENT - Terms are net 30 days following shipment or
notification to Purchaser that the product is ready for delivery. Payment shall be due pro
rata on all partial shipments. The extension of credit is at all times subject to the approval
of the Company’s credit department. Purchaser represents that Purchaser is solvent and
can and will pay for products/equipment delivered to Purchaser in accordance with the terms
hereof. If Purchaser’s financial condition at any time does not in the judgement of the
Company justify continuance of the work or shipment hereinunder on specified terms, The
Company retains the right to require full or partial payment in advance. Interest at rate
shown on invoice will be added to the unpaid balance after the said 30 days.
TIME OF DELIVERY - Delivery schedules specified in the quotation
are approximate only, and shipment will be made within reasonable proximity thereto. The
Company will not be responsible for any damage whatsoever caused by delay in shipment whether
the same results from caused within or beyond the control of the Company. Deferred deliveries
are subject to the Company’s written approval. Material quoted as being available from
stock is normally available for immediate shipment but subject to prior sale.
SHORTAGES AND RETURNS - Claims for shortages must be filed
within ten (10) days of receipt of shipment. Product cannot be returned without prior written
consent from the Company.
CANCELLATION - Orders entered on the Company’s books, can
only be cancelled with the Company’s written consent and upon terms which will indemnify
the Company against all loss. Upon request to cancel, the Company will advise amount of
cancellation charges, in addition to charges for dies, work in progress, products produced,
engineering and design, inspection, material and other incurred costs. The Company reserves
the right, at its discretion to cancel the order if the Purchaser becomes bankrupt or
insolvent.
DESIGN CHANGES - The Company shall not be required to make any
changes in applicable product or specifications requested by Purchaser after acceptance of the
Company’s quotation, which shall increase the Company’s cost until there has been
agreement upon the price adjustment for such changes. Should Purchaser change the material
specification of the order after order placement, Purchaser may incur material cancellation
charges in accordance with the preceding Cancellation clause pending material status at time
of requested change. Catalog product presentations including catalog dimensions, designs and
specifications are representative of product availability at time of publication only. Actual
geometry dimensions and designs are subject to designs and manufacturing changes without
notice.
OWNERSHIP OF PLANS - All plans, drawings or specifications
furnished by the Company to the Purchaser shall remain the property of the Company and
Purchaser agrees that it will make no use of such plans, drawings, or specifications and will
not disclose the same to others without the express permission of the Company in writing.
OWNERSHIP OF TOOLING - All dies, tooling, and patterns required to
produce the product/item shall remain the property of the Company. Payment for such items or
other items/equipment of preparation does not entitle the Purchaser to any right, title, and
interest in same.
PATENT RIGHTS - The Company assumes no responsibility for the
manufacture and sale to Purchaser of the product, equipment, items specified by Purchaser is
an infringement of patent rights of other persons, companies, organizations, etc. Purchaser
assumes responsibility for and will protect and hold harmless the Company against charges of
such infringement, if any, except as to the Company’s own manufacturing equipment and
processes.
INSPECTION AND TESTING - The product may be inspected by
Purchaser or Purchaser’s authorized representative during manufacture at the
Company’s plant. Particular inspection requirements of the Purchaser must be stated in
Purchaser’s order. Unless it is otherwise expressly agreed in writing, final inspection
and acceptance will be made at the Company’s plant. Mill Test Reports (depicting
material chemical and physical properties) will be supplied with all standard manufactured
Code products. Supplementary/special inspection and testing requirements will be furnished
upon request.
LIMITATION - The Company shall not be responsible or liable for
any loss, default, damage, delay or failure to deliver the product herein described including,
without limitation, caused by fire, strikes, floods, embargoes, differences with workmen,
civil or military authority, governmental actions or orders, insurrection or riot, by failure
of the manufacturers or suppliers to deliver equipment or materials when promised, or beyond
the reasonable control of the Company.
MODIFICATION OF TERMS OF QUOTATION - The quotation, if accepted,
shall constitute the entire agreement between the parties and these conditions may be modified
only in writing on the face of the quotation in the office of the Company. In the event of
conflict between these terms and the terms of any purchase order issued by Purchaser,
Purchaser agrees that the terms of this quotation shall govern. Clerical and stenographic
errors are subject to correction.
FORCE MAJEURE - Any delay in or failure of performance of the
Company shall not constitute default hereinunder if the extent of such delays or failure of
performance is caused by occurrence beyond the control of the Company, including but not
limited to acts of God, expropriation or confiscation of facilities, act of war, rebellion,
fires, strikes, labor shortages, inability to secure material, thefts, accidents or any causes
whether or not of the same class or kind as those specifically above named which are not
within the control of the Company and which by the exercise of reasonable diligence, the
Company is unable to prevent or prevail against. Should any acts or events of this provision
delay the Company, then the time for performance by the Company shall be extended by a period
of time equal to time lost by reason of such delay.
DELAYS - Should any delays such as standby time or shutdown
time, or any causes whether or not of the same class or kind as those specifically above
mentioned which are not within the control of the Company and which by the exercise of
reasonable diligence, the Company is unable to prevent or provide against will be charged to
Purchaser’s account.
DAMAGES - In no event shall the Company be liable for any
special or consequential loss or damages, of anticipated profits, loss resulting from delays,
or loss of use of equipment or any installation into which its product may be installed.
SERVICE CHARGE ON LATE PAYMENT - For those Purchasers who elect
to go beyond 30 days, a service charge of 1 ½% per month, 18% per annum, will be added
for each 30 day increment or part thereof, for which the payment is late. The service charge
will be billed each period, based on account analysis and aging.
INTERPRETATION - The situs of this agreement shall be in the
state of Texas and it shall be covered by the law of this state.
These terms and conditions shall control in any contract resulting from or arising out of
this quotation, price sheet, or acknowledgement, regardless of printed terms, conditions or
provisions found in responses hereto or documents giving rise hereto, all of such printed
matters incorporated therein being deemed waived insofar as the same differ from these terms
and conditions, unless such differing terms, conditions or provisions shall be specifically
asserted for inclusion in written form other than printing and be specifically accepted by the
Company as a change in these terms and conditions by express reference in writing. The
applicability of this paragraph is an express condition to any contract being formed between
the Company and Purchaser.
The above and forgoing terms and conditions are the final expressions of the terms and
conditions of the contract which may be or is formed between the Company and Purchaser and
they are intended also as a complete and exhaustive statement of the terms and conditions of
such agreement.
