Manufacturer of Lubrication Equipment for the Energy Industry,
Light and Heavy Industry, Recreation, Transportation, and Aerospace
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Manufacturer of Lubrication Equipment for the Energy Industry, Light and Heavy Industry, Recreation, Transportation, and Aerospace
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All sales of DUALCO are subject to the Terms and Conditions shown below: 1. OFFER AND ACCEPTANCE All contracts, orders, and sales, whether written or verbal, between DUALCO (Seller) and the party to whom the merchandise is sold (Buyer) are subject to final acceptance by DUALCO. The words Seller and Buyer shall be used continually in the following Terms and Conditions of sale. The Terms and Conditions of sale contained herein, any additional “Supplement to Terms and Conditions of Sale,” and Terms and Conditions of sale stated in the Seller’s quotation, whether written or verbal, shall constitute the only agreement between Seller and Buyer. Any Terms and Conditions of sale originating with the Buyer are hereby expressly rejected and shall not be or become a part of the contract between Seller and Buyer unless specifically accepted in writing by duly authorized officer or agent of the Seller. The Seller’s quotation given for merchandise shown in this contract, order, or sale will become void if not accepted by the Buyer within thirty (30) days from the date of the offer. Seller reserves the right to hold shipment of telephone or oral orders until written confirmation has been received from Buyer. Buyer assumes complete and full responsibility for inaccurate or incomplete information given to Seller concerning merchandise ordered, whether standard, custom, or special items shown in this contract, order, or sale. If shipment of the merchandise ordered by Buyer is made before Seller has received Buyer’s written confirmation, such orders must be considered as accurate. To avoid duplication of verbal orders, Buyer should mark confirming orders prominently and clearly “Confirmation.” Otherwise, duplication will result and the charges involved will be at the Buyer’s expense. Acceptance of all verbal orders is expressly limited to these Terms and Conditions of sale as stated herein. 2. PRICE The price indicated for the merchandise shown in this contract, order, or sale is the price in effect according to the date the merchandise was shipped and is subject to change without notice to the Buyer at the time of shipment. Buyer will be billed at the Seller’s price in effect at the time of shipment. All prices are based in part on the applicability of the Terms and Conditions of sale set forth herein. If the Buyer desires different Terms and Conditions of sale than the ones set forth herein, written acceptance by Seller must be approved and prices may be adjusted accordingly. Prices are F.O.B. shipping point (SP) unless otherwise noted herein. All prices are subject to adjustment to reflect changes at the time of shipment including but not limited to packing, crating, shipping, export, or special handling or storage charges. If the Buyer should delay shipment beyond the original contract date, the prices charged will be those in effect at the time shipment is made. Cash discounts, if any, are allowed from the date the shipment has been made and apply only to the selling price F.O.B. shipping point, exclusive of all packing, storage, shipping charges, insurance or taxes. Buyer is not entitled to any cash discount if any past due balances are owed to DUALCO (Seller). Seller reserves the right to cancel Buyer’s order in the event that (a) any government price regulation, schedule or ceiling prescribes a price lower than Seller’s price, as established in the order acknowledgement (whether written or verbal) or in any way prevents Seller from purchasing or otherwise acquiring any commodity or service necessary to the performance of the order, or in any way prevents Seller from adjusting its prices when the cost of any such commodity or service is increased and (b) in the event any major change in economic conditions renders Seller’s performance unprofitable. Clerical errors or other errors shown by the Seller in the contract, order, or sale are subject to correction and rebilling if necessary, without time limitation. Prices do not include documentation pertaining to traceability for raw materials or product or for other special processes. 3. TAXES Prices do not include sales, excise, property, use, value added or special taxes that may be levied by Federal, State, Local, Foreign or other governmental entities. If any such tax is applicable then it will be added to the sale as required by law for the Seller to collect from the Buyer. If Buyer claims exemption from all or a portion of taxes, the proper exemption certificate is furnished to the Seller. 4. TERMS OF PAYMENT –- DOMESTIC Unless otherwise specified in the Seller’s quotation, the terms of payment will be net cash to be received by Seller thirty (30) days from date of the invoice, subject to credit approval by Seller’s credit department. The invoice date will be the date the merchandise is ready, completed, and/or shipped. In cases where shipment of a completed order is delayed at request of Buyer, Seller reserves the right to issue invoice for the order as of the date it becomes ready for shipment. Invoice amount must be paid and received by Seller on or before the due date. On any amount not paid within one day of the date it is due, liquidated damages will accrue and be payable. Liquidated damages shall include, but not be limited to, interest on the amount due at the maximum rate allowed by state law or laws of the United States of America, whichever is greater. Interest will accrue at a daily rate. Payment of all funds due to the Seller shall be paid by legal tender of the United States of America unless otherwise specified and agreed to in writing by Seller and Buyer. If terms, herein, are violated, Seller has the right to make all future sales C.O.D. or initiate other payment terms without notice to Buyer. If Buyer is unable to pay for merchandise conveyed by Seller, according to the terms and conditions stated herein, Seller’s rights to merchandise shall not be waived. If all reasonable efforts made by the Seller to collect total sums due, according to the transaction, are thwarted by Buyer’s inability to pay, Seller shall have first of title above all others who may try to exhibit a security interest to said merchandise. If default is made in the payment of any sums due to the Seller, and collection is made or attempted to be made through an agent or attorney, Buyer agrees to pay all reasonable and necessary attorney’s fees, expenses, court costs, and collection fees. Buyer also agrees to pay all reasonable and necessary fees associated with a payment default from a returned, stop payment, or otherwise insufficient check that has been submitted to Seller. FOREIGN Unless otherwise specified in the Seller’s quotation for the merchandise shown in this contract, order, or sale and upon mutual acceptance between Seller and Buyer of the order contained herein, the terms of payment shall be through an irrevocable Letter of Credit with all payments to be made in legal tender (dollars) of the United States of America. Letter of Credit to be established through and confirmed by a United States of America Bank and shall provide for payment against Seller’s Sight Draft accompanied by a commercial invoice and Buyer’s forwarding agent’s receipt acknowledging delivery of order to a United States of America port or established port of embarkation and by such other documents, if any, as may be required by the Governments involved. Any amount of funds due to the Seller are payable according to the terms and conditions of the invoice and a statement indicating these funds which are due is not necessary and may not be sent to the Buyer. All invoices, whether domestic or foreign, are due and payable in Houston, Harris County, Texas, U.S.A. and must be remitted to DUALCO at the address shown on the reverse side. 5. CREDIT The sale, unless for cash in advance or C.O.D., is subject to approval by the Credit Department of DUALCO. If the credit worthiness of the Buyer becomes unsatisfactory in the opinion of the Credit Department of DUALCO prior to delivery of the merchandise shown in this contract, order, or sale, the sales contract may be cancelled by the Seller. If the Buyer fails to fulfill any terms of the purchase agreed upon in connection with this or any other order, Seller may defer delivery until compliance therewith is made, or at its option, may cancel the sales agreement. 6. DELIVERY The quoted delivery dates are approximate and a more specific date will be established upon the acceptance of Buyer’s order. Delivery dates are subject to revision at any time due to causes beyond the Seller’s control. The causes would include, but not be limited to, delay in receipt of Buyer’s signed order or complete specifications; fire; war; riots; labor disputes; labor or material shortages; accidents; failure of suppliers or subcontractors to meet delivery schedules; transportation delays; and by any action or prior system imposed by authority of any governmental agency. Any delay or non-delivery caused by the foregoing shall not result in liability to the Seller. Delays so caused shall not release the Buyer from obligation to accept and pay for the merchandise shown in the contract, order, or sale. Delivery to a common carrier or licensed trucker shall constitute tender of delivery to the Buyer and all risk of loss or damage in transit shall be borne by the Buyer. In no event shall the Seller be held liable for damages or contingent expenses caused by delays in delivery. The Seller’s responsibility for the merchandise shown in this contract, order, or sale ceases upon delivery of the merchandise to the transport carrier. Notification of lack of receipt of delivery should be made to Seller and transport carrier within thirty (30) days from receipt of the invoice. Acceptance of merchandise by Buyer is demonstrated by signature(s) of Buyer, Buyer’s Agent, or Transportation Agent on delivery receipts, bill(s) of lading, or other commercially accepted documents relating to merchandise transfer between Seller and Buyer. Seller reserves the right to stoppage in transit and to repossess merchandise shown in this contract, order, or sale, notwithstanding delivery to the transport carrier, until payment has been made to Seller. Buyer, by acceptance of the merchandise, grants a security interest to Seller in such merchandise until paid in full together with all of the rights and remedies of a secured party under the uniform commercial code. No claim by the Buyer relating to quality, quantity, condition, loss, or damage to merchandise; or discrepancies relating to correctness of specific ordered products, parts or services will be accepted by Seller after five (5) days after date of delivery to the Buyer. All claims to be made in writing and must be received by the Seller five (5) days after date of delivery to the Buyer, and in any event shall be limited to the selling price of the merchandise, not including shipping charges. 7. PACKING AND SHIPPING Unless the Buyer has furnished shipping instructions prior to the time Seller has completed packaging or tagging the merchandise, all orders will be shipped by either common carrier, Seller’s trucks, or other commercial accepted methods. Merchandise shown in this contract, order, or sale will be packaged in the usual and normal manner which is customary for the Seller to do so in order to protect in routine transit. If, in the Seller’s discretion, special protection is necessary in packaging beyond the normal procedure conducted by Seller or as required by tariff regulations, the extra cost incurred, if any, will be passed to the Buyer. 8. RETURNS No merchandise shall be accepted for return without the prior written authorization of DUALCO, the Seller. Merchandise, which has been processed, altered, used, repaired without authorization from Seller, neglected, abused, overloaded, or otherwise in less than new condition may not be returned to Seller. No returns will be accepted after thirty (30) days from delivery and Buyer’s receipt of merchandise from seller. If, after receiving merchandise from Seller, Buyer cannot fulfill the terms and conditions stated herein, Buyer shall immediately return merchandise at Buyer’s expense to Seller and Buyer will be subject to a restocking charge. 9. CHANGES Buyer may request, by written order to Seller, changes in the drawings, designs, specifications, quantity, material, or services ordered hereunder and/or delivery dates. If Seller consents to such change, and the cost of furnishing the merchandise ordered hereunder is thereby increased, Buyer will be billed for such increased costs. 10. CANCELLATION Buyer may not cancel work, services, merchandise ordered hereunder in whole or part without the written consent of the Seller. Upon written request from Buyer to cancel all or part of an order, Seller will stop all work as promptly as possible. Any and all work that is complete on date of notification in writing to stop work or cancel shall be invoiced and paid for in full. For work that is not completed, a cancellation charge will be rendered on the basis of the Seller’s full cost plus twenty (20%) percent (for all engineering work, if performed, all work in progress, raw materials, all supplies and commitments made by Seller in connection with this order), less such allowances as the Seller may be in a position to make for any standard components and for the balance of material as scrap. Buyer shall promptly instruct Seller as to the disposition of the merchandise and the Seller, if instructed, shall hold the merchandise for Buyer’s account. All costs of storage, insurance, handling, boxing, or other costs in connection therewith shall be borne by the Buyer. 11. RIGHT OF RESALE If the Buyer breaches or repudiates a provision of this contract or fails to comply with this contract, DUALCO may resell the merchandise that has not already been delivered to Buyer, together with any merchandise reclaimed by DUALCO or to which DUALCO may agree to accept. The sale may be public or private, wholesale or retail, and DUALCO may hold more than one (1) sale. In addition, the Buyer shall pay DUALCO the amount by which the price in this contract being established exceeds the amount received from the public or private sale, together with all incidental damages which may be incurred by Buyer’s default. Buyer and Seller agree that five (5) days written notice of resale at public or private sale which DUALCO conducts as a result of Buyer’s default is reasonable notice to the Buyer of the sale. 12. PRODUCTION ESTIMATES Any projected production figures and performance data are estimates based on Seller’s understanding of material machineability, amount of material to be removed, accuracy desired, available facilities, operator skill, and other specified factors affecting production, and do not constitute a guarantee of production. 13. SPECIAL TOOLS Costs for special tools and dies billed to Buyer does not convey title or the right to remove such tools and dies from Seller’s possession.. Maintenance of such tools and dies will be at Buyer’s expense. In the event that Buyer does not reorder merchandise from Seller for twenty-four (24) consecutive months, Seller has the right to scrap such tools and dies without further notice to Buyer. 14. SPECIFICATIONS Outside testing facilities are used when necessary and firms which are hired to perform services for Seller are those who exhibit skills common to their respective industry. Unless otherwise specified herewith, Seller will furnish merchandise to industry and commercially accepted standards, specifications and tolerances where applicable. In some cases ten (10%) percent over or under shipment of merchandise quantity ordered by Buyer will be permissible. Some material purchased by Seller for manufacture comes with mill test reports and all items that are heat-treated come with test reports. All manufactured parts are inspected on a periodic basis to insure compliance with Seller’s machine drawing specifications. Assembly units are inspected on a periodic basis to insure integrity and random pressure checks are conducted for compliance where necessary. In some cases with some product lines, pressure checks are conducted on all assembly units. The Seller manufactures and assembles products in the U.S.A. Each shipped DUALCO order has a certification statement on the invoice. Any other certification, third party certification or additional paperwork beyond the normal order transaction is charged for separately and invoiced additionally. 15. PROPERTY RIGHTS Seller retains for itself any and all property rights in and to all designs, engineering details and other data pertaining to any equipment designed in connection herewith and to all rights of discovery, invention or patent rights arising out of work done for Buyer. The Buyer expressly agrees that it will not assert any property rights therein, except the rights for itself and subsequent owners to use the equipment. Any prints, brochures, drawings or other information furnished to the Buyer by the Seller are intended solely for the confidential use by the Buyer and shall remain the property of the Seller, and shall not be used to the detriment of the Seller’s competitive position. Merchandise conveyed to Buyer by Seller shall remain the property of Seller until paid for in full by Buyer. If Buyer fails the responsibility of paying for merchandise, Seller shall have exclusive rights to reclaim the merchandise wherever it may be located, without time limitation. 16. RESERVATION OF RIGHTS Seller reserves the right to make subsequent improvements and changes in design in its products without imposing any obligation to make such changes or improvements upon products sold to the Buyer. DUALCO reserves the right to make changes in the terms and conditions of sale at any time for any reason without notification to Buyer. 17. INSTALLATION COSTS All costs incidental to installation or erection or both of any products sold by Seller shall be borne solely by the Buyer. This includes any instruction for the use of such products that Seller deems as excessive. 18. LIMITED WARRANTY DUALCO guarantees all lubrication guns, couplers, fittings, accessories, related and other equipment manufactured by DUALCO to be free of defects, which are not commercially acceptable, regarding material and workmanship. This warranty is good for a period of one year (12 months) following delivery to original retail purchaser (end user). Should problems occur with any equipment, at DUALCO’s discretion, items will be repaired or replaced free of charge. Transportation of defective items would be F.O.B. DUALCO. This warranty does not apply to items damaged due to misuse, neglect, accident, abuse, faulty installation, corrosion, or overload. Action taken by Buyer or Buyer’s customers against merchandise sold by DUALCO that is adverse or contrary for purposes intended, shall be a breach of contract and the warranty will not apply. Seals, “O” Rings, Gaskets, Packing, Filters, items subjected to normal wear are not included in this warranty. Boxes, packing, wrapping, and other product protection is not included in this warranty. DUALCO will not be liable for original equipment alteration or repairs other than those authorized by DUALCO. No liability will be assessed DUALCO for any incidental or consequential damages. Any claim settlement shall, in no event exceed the purchase price of DUALCO’s original equipment. The cost of repairing or servicing any equipment not covered by the foregoing may be charged for by the Seller at a per diem rate per man per work day, plus transportation and living expenses, whatever is applicable. DUALCO will in no way be responsible for incorrect usage of any equipment, product, merchandise, material, or components which are manufactured and/or resold by DUALCO. The terms of this warranty do not in any way extend to any product or part thereof which has a life under normal usage inherently shorter than the one year period indicated herein or which was not manufactured by the Seller. Seller’s obligation and liability with respect to components not manufactured by the Seller shall be limited to the extent of express warranties received by Seller from such component manufacturers. With respect to the products described herein, there is no expression or implication of warranty regarding merchantability or fitness for use. Written notice of any claimed defect within the warranty period must be presented to Seller immediately upon Buyer’s discovery of the defect. Merchandise that is rebuilt, repaired, or exchanged by DUALCO is warranted for ninety (90) days following delivery to original retail purchaser (end user). Liability will not be accepted by DUALCO for any components not manufactured by DUALCO, and such components are not warranted against failure by DUALCO. The limited warranty and terms and conditions of sale, as stated herein, does not apply to merchandise sold by the Seller, which is in less than new condition, used, altered, scrap, recycled, waste, surplus or damaged. 19. INDEMNIFICATION Buyer agrees to indemnify and hold Seller harmless from any and all liability, loss or damages which Seller may suffer as a result of claims, demands, costs, or judgements made against Seller arising out of any use whatsoever of the merchandise sold pursuant to this agreement, which liability, loss or damages, claims, demands or judgements are based upon or result from (a) any alteration or modification of the merchandise by Buyer, Buyer's officers, agents or employees; or (b) the failure of Buyer, Buyer’s officers, agents or employees to follow manufacturer’s instructions, warnings or recommendations which are communicated by Seller to Buyer in any form before, during, or after the time of this sale; or (c) the failure of Buyer, Buyer’s officers, agents or employees to comply with Federal, State, or local laws or regulations applicable to the use of such merchandise, including but not limited to the 1970 Occupational Safety and Health Act, as amended; or (d) the failure of Buyer, Buyer’s officers, agents or employees to properly train and instruct anyone using such merchandise. Seller is entitled to indemnity from certain of its suppliers and the rights and options vested in Seller shall extend to such suppliers and may be exercised by them. 20. WAIVER No waiver of any breach or default of Buyer, under these terms and conditions of sale, operates as a waiver of any future default, whether of a like or different character, except as otherwise provided in these terms and conditions of sale. 21. SEVERABILITY If any provision of these terms and conditions of sale as applied to any party or circumstance shall be found by a court to be void, invalid, or unenforceable, it shall not affect any other provision of these terms and conditions of sale. The application of any such provision in any other circumstance shall not diminish the validity of enforceability of these terms and conditions of sale. 22. APPLICABLE LAW The Equal Employment Opportunity Clause prescribed by Executive Orders No. 11246 of September 24, 1965, and No. 11375 as amended, and regulations issued pursuant thereto by the Office of Contract Compliance, are incorporated herein, unless this transaction is exempt under applicable regulations. Merchandise covered by this contract, order or sale has been produced in compliance with the Federal Wage and Hour Law (Fair Labor Standards Act of 1938, as amended). The laws of the State of Texas and/or the U.S.A. shall apply to the terms and conditions of sale for this contract, order, or sale. This document is a standard binding contract and supersedes all other documents in the performance of the terms and conditions of sale set forth herein.
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Copyright © 2008
DUALCO Inc.
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