TERMS AND CONDITIONS
1. GENERAL. TKP INC ("Seller"), and the purchaser ("Buyer") of the materials, goods, and products fabricated by Seller to Buyer's specifications (collectively, the "Goods"), pursuant to a purchase order placed by Buyer with Seller (the "Order"), which Order may be placed by paper copy or electronic transmission, agree that the following general terms and conditions (the ''Terms") shall apply to such purchase of Goods. The Terms and the Order are referred to heritn, collectively, as the “Agreement."
2. SOLE TERMS. The Agreement is expressly conditioned upon Buyer's acceptance of these Terms, and any Order accepted by Seller is accepted with the sole understanding that Buyer assents to these terms, regardless of the form of Buyer's Order. To the extent these terms accompany a bid or quotation or otherwise constitute an offer, Buyer's acceptance of such bid, quotation or offer is expressly limited to the terms set forth herein, and no others. No terms additional to, deviating from, or different from these Terms shall become part of the Agreement, unless such additional, deviating, or different terms are expressly accepted in a written agreement signed by an authorized agent of Seller. Buyer's acceptance of any Goods supplied by or on behalf of Seller shall, without limitation, constitute acceptance of these Terms. If Buyer should submit subsequent Orders for additional Goods, such additional Orders shall be subject to the terms and conditions contained herein.
3. CONFLICTS. To the extent that any terms or conditions contained in the Order conflict with the express provisions of these Terms, the provisions contained in these Terms shall govern and control the Agreement.
4. FREIGHT; RISK OF LOSS. Unless otherwise stated in the Order, delivery of all Goods shall be F.O.B. Seller's facility in Monterrey, Mexico (INCOTERMS 2010) via carrier of Seller's choosing, with all freight charges to be paid by Buyer. For the avoidance of doubt, Buyer assumes all risk of loss to the Goods from the time they are delivered to a carrier, and any claims for losses or damage shall be made by Buyer directly to the carrier.
5. PRICE; PAYMENT.
a. Unless otherwise stated in the Order, all quoted prices are F.O.B. Seller's facility. The quoted prices are subject to increase, without notice, in an amount equal to any additional costs incurred by Seller as a result of (i) alterations in specifications, quantities, designs, or delivery schedules; (ii) Increases in the costs of fuel, power, materials, or labor; (iii) foreign or domestic legislation enacted by any level of government.
b. The quoted prices for the Goods do not include any sales, use, excise, or other tax, duty, or charge now or hereafter Imposed by any federal, state, local, or foreign governmental authority. Buyer hereby agrees to pay or to fully reimburse Seller for the full amount of any such taxes or other charges.
c. Seller shall promptly deliver invoices to Buyer. Unless otherwise stated In the Order, payment for the Goods shall be due and payable to Seller in U.S. dollars at Seller's Houston, Texas office no more than fifteen (15) days following Buyer's receipt of a valid and correct Invoice or as agreed in the purchase order. To the extent there is a dispute as to the accuracy of an invoice, Buyer must notify Seller within five (5) days of receipt of such invoice, and Buyer and Seller use good faith efforts to correct such invoice; provided, however, that failure by Buyer to so object will be deemed an acceptance of the invoice and prompt payment will be required in accordance herewith.
a. Unless otherwise stated in the Order, Goods in stock will be shipped immediately, and Goods not in stock will be shipped as soon as reasonably possible.
Notwithstanding the foregoing, all shipping dates are approximate, and are based upon current availability of materials, present production schedules, and prompt receipt of all necessary information from Buyer.
b. Seller reserves the right to make partial shipments when necessary; payment shall be due for quantities actually shipped.
c. Seller is not liable for any delay in delivering Goods
7. INSPECTION; ACCEPTANCE OF GOODS. Upon receipt of the Goods, Buyer or Buyer's agent shalt immediately inspect the Goods. Unless Buyer provides Seller with written notice of any shortages, non-conformities or defects with the Goods within forty-et11ht (48) hours of delivery, the Goods shall be deemed to be fully accepted by Buyer. Goods that are not accepted may be returned to Seller at Buyer's expense and Seller, at its option, shall refund any payments received from Buyer related to such Goods or shall replace the Goods with confirming goods.
8. BUYER'S CREDIT. All shipments shall at all times be subject to the approval of Seller's credit department. Seller reserves the right to decline to make shipment, to require payment in advance, or to require cash on delivery whenever, in Seller's sole reasonable discretion, there is doubt as to Buyer's financial responsibility, and Seller shall not, in such event, be liable for breach or nonperformance of this Agreement in whole or in part.
9. SECURITY INTEREST. To secure prompt payment of the purchase price for the Goods, Buyer hereby grants Seller a purchase money security Interest in the Goods and all proceeds thereof (the "Collateral"). In the event that Buyer breaches the terms and conditions of the Agreement, Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code ("UCC"). Buyer agrees to execute and deliver to Seller, at Seller's request, UCC financing statements, continuation statements, and any and all other documents that Seller may reasonably request, and shall take such other actions as may be required to assist Seller in perfecting, recording, and protecting Seller's security interest in the Collateral.
a. Orders cannot be terminated, cancelled, or modified after acceptance of Buyer's Order by Seller, except with Seller's prior written consent.
b. Seller may cancel Buyer's Order, In whole or in part, If: (i) Buyer breaches any terms or conditions of this Agreement; (ii) any material representation made by Buyer to Seller proves to be false or misleading; (iii) Buyer is Insolvent; (iv) a case naming Buyer as "debtor" is commenced under any chapter of the United States Bankruptcy Code; (v) Buyer makes an assignment for the benefit of its creditors; (vi) a receiver or trustee is appointed for Buyer's property; or (vii) a formal or informal proceeding for dissolution, liquidation, or winding up of the affairs of Buyer is commenced. To the extent that cancels Buyer's Order for any of the foregoing reasons, Seller shall have the right, In addition to any other rights of Seller, to refuse to deliver any Goods and to receive reimbursement from Buyer for Seller's expenses incurred prior to the date of cancellation in connection with the cancelled Order.
11. FORCE MAJEURE.
a. "Force Majeure" means unavoidable conditions beyond the control of Seller and/or Buyer, including, but not limited to strikes, fires, storms, disasters, riots, terrorist acts or threats, war, acts of God, shortages of labor, fuel, power, materials (resins), supplies, transportation, or manufacturing facilities, governmental actions, subcontractor or supplier delay, including, but not limited to, failure by subcontractor or supplier to make timely delivery, or (vi) any other cause or condition beyond Seller's reasonable control.
b. Should Force Majeure prevent the total or partial performance required under the Agreement, the party claiming Force Majeure shall promptly notify the other party in writing. Such notice shalt be given not more than seven (7) days after a condition occurs giving rise to the Force Majeure claim. In the event a condition of Force Majeure is declared and substantiated, the parties shall consult with each other to extend the delivery date of the Goods.
c. In the event that the delay and/or non-performance of the obligations exceeds sixty (60) days due to Force Majeure, Buyer shall be entitled to terminate any affected Orders under this Agreement by so notifying Seller in writing. In such case, Seller shall promptly refund to Buyer all sums advanced to Seller by Buyer, if any.
12. LIMITED WARRANTY.:
a. Seller warrants to Buyer that the Goods (i) will be fabricated to Buyer's design and specification as provided for in the Order, unless otherwise noted, (ii) will conform to customary industry tolerances, and (iii) will be free from defects in material and workmanship at the time of shipment and for a period of one (1) year from the date such Goods are completed. THE FOREGOING WARANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED. NOTWITHSTANDING THE FOREGOING, GOODS THAT ARE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY SELLER ARE NOT WARRANTED BY SELLER, AND THE FOREGOING WARRANTY DOES NOT APPLY TO ANY GOODS WHICH HAVE BEEN PROPERLY FABRICATED BY SELLER BUT IMPROPERLY DESIGNED BY BUYER OR HAVE BEEN SUBJECTED TO MISUSE, MISHANDLING, MISAPPLICATION, USE OUTSIDE OF ITS INTENDED PURPOSE, NEGLECT, ACCIDENT, IMPROPER INSTALLATION, MODIFICATION, OR NORMAL WEAR AND TEAR. THIS LIMITED WARRANTY IS EFFECTIVE ONLY FOR THE BENEFIT OF THE ORIGINAL BUYER.
b. In the event of a breach of any of the warranties set forth in Section 12(a) above, Seller will, at Seller's option, either (i) repair or replace the Goods at Seller's expense, or (ii) refund the purchase price or provide Buyer a reasonable allowance thereof.
c. Any warranty claim with respect to the Goods shall be deemed waived by Buyer unless such claim is submitted In writing to Seller no later than the earlier of (I) thirty (30) days following the date Buyer discovered, or by reasonable inspection should have discovered, any claimed breach of the foregoing warranty, or (ii) except with respect to the warranty set forth in Section 12(a)(iii) above, ninety (90) days following the date of delivery. Any cause of action for breach of this Section 12 shall be brought within one (1) year from the earlier of the date such breach was discovered or should have been discovered.
d. Buyer's remedies hereunder shall constitute Buyer's exclusive remedies for Seller's breach of any warranty with respect to the Goods.
13. LIMITATION OF LIABILITY, SELLER'S LIABILITY FOR ANY CLAIMS, DAMAGES, LOSSES, OR LIABILITIES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OF AN ORDER MADE HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS SOLD PURSUANT TO SUCH ORDER AT THE PLACE OF DELIVERY AGREED UPON REQUESTOR AT THE OPTION OF THE SELLER, SELLER MAY REPLACE THE GOODS WITH CONFIRMING GOODS IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR BUYER'S AFFILIATES, EMPLOYEES, REPRESENTATIVES, CUSTOMERS, OR AGENTS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOSS OF REPUTATION, OR LABOR COSTS, RESULTING FROM THE USE OR INABILITY TO USE THE GOODS, FROM THE GOODS' INCORPORATION INTO OR BECOMING A COMPONENT OF ANOTHER PRODUCT, FROM ANY BREACH OF THIS AGREEMENT, FOR DEMURRAGES OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED IN WARRANTY (EXPRESS OR IMPLIED), CONTRACT, TORT (INCLUDING STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY REGARDLESS OF ANY ADVICE OR REPRESENTATION THAT MAY HAVE BEEN RENDERED BY SELLER REGARDING THE GOODS.
14. NO WAIVER. The failure of Seller to enforce any provisions of this Agreement shall in no way be construed as a waiver of such provisions, nor in any way affect the right of Seller thereafter to enforce any such provisions. No waiver by Seller of any default of Buyer under this Agreement shall constitute a waiver of any subsequent default, whether or not the subsequent default is of a similar or different nature.
15. CONFIDENTIALITY. Except as expressly stated otherwise In this Section 15, all drawings, technical data, design information, specifications, and other information furnished by Seller ("Seller's information") to Buyer in connection with an Order shall be used solely for the purpose of entering Into this Agreement, and for no other use. Buyer agrees not to copy and not to disclose any of Seller's lnformation to any third party without the express prior written consent of Seller, and to deliver all documents containing any of Seller's lnformation (including all copies thereof) to Seller upon completion of this Agreement, or whenever Seller requests Buyer to do so (whichever occurs first). The obligations of this paragraph shall survive any termination or expiration of this Agreement. The obligations of confidentiality and restrictions on use contained in this Section 15 shall not apply to such information as Buyer can demonstrate (a) had been or is hereafter published or otherwise was available to the general public without any obligation of confidentiality through no breach of Buyer's obligations hereunder; or (b) was already in the lawful possession of Buyer without any restriction on use or disclosure.
16. GOVERNING LAW; DISPUTE RESOLUTION. This Agreement and any disputes arising hereunder shall be governed by and construed in accordance with the laws of the State of Texas, without regard to Its conflicts of laws principles. The parties expressly waive all rights under the United Nations Convention on Contracts for the lnternational Sale of Goods. All disputes arising out of or in connection with the Agreement shall be settled under the Rules of Arbitration of the International Chamber of Commerce ("ICC") by one or more arbitrators appointed in accordance with said Rules. The arbitrator shall either be: (i) mutually agreed by the parties within fifteen (15) days from receipt of written notice from the party requesting arbitration; or (ii) failing such agreement, selected under the expedited rules of the ICC. The parties shall divide equally the cost of the arbitrator and the hearing equally, and each party shall be responsible for its own expenses and those of its counsel and representatives. Evidence concerning the financial position or organizational make-up of the parties, any offer made in settlement or the details of any negotiation of the dispute prior to arbitration, and the cost to the parties of their representatives and counsel shall not be permissible. Discovery shall be permitted, and the scope of any required discovery shall not be more restrictive than provided for In the Federal Rules of Civil Procedure. The determination of the arbitrator shall be rendered within thirty (30) days after the arbitration.
17. ENTIRE AGREEMENT. Except as otherwise set forth herein, this Agreement is the final written expression of all of the terms of the agreement between Buyer and Seller with respect to the sale of the Goods.
18. ASSIGNMENT. Buyer may not assign or transfer this Agreement or any portion thereof to any third party, by operation of law or otherwise, without the prior written consent of Seller.
19. SEVERABlLITY. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect.
20. SURVIVAL. Expiration or termination of this Agreement will not serve to eliminate any of Buyer's obligations or liability on or in respect to this Agreement arising prior to the date of such expiration or termination.