COMPRESSORS UNLIMITED INTL., LLC TERMS AND CONDITIONS
1. COMPRESSORS UNLIMITED INTL., LLC is herein called CUILLC. The persons, firm, or entity to whom the quotation accompanying these terms and conditions is made is herein called “Buyer.” These terms and conditions are and shall be incorporated into any sales transaction that may arise between CUILLC and Buyer. No representations, warranties, promises or other statements, either verbal or written, shall affect, change or in any way alter the terms herein contained. The terms hereof may not be changed or superceded by any documentation of Buyer, including purchase orders, bills of sale or other terms or conditions contained in Buyer’s documentation, unless such changes are expressly agreed to in writing, signed by CUILLC’s authorized representative. Acceptance is expressly limited to the terms and conditions contained herein. If any of the terms or conditions, or the application of same to any person, entity or circumstance is found to be invalid, illegal or unenforceable in any respect, the remainder of the terms and conditions shall be valid and enforceable as if the invalid term, condition or provision were not a part of the terms and conditions of this Invoice.
2. DELIVERY. Buyer agrees to inspect all material before unloading, and if transit damage has occurred, Buyer will substantiate the claim with the carrier on the freight receipt before removal from truck. Unless so noted, any materials offloaded will be considered as delivered in good condition. Time is not of the essence to this agreement. If delivery of conforming goods or services is not capable of being completed by the time(s) promised for any reason, CUILLC reserves the right, in addition to its other legal rights and remedies, to cancel this order or to substitute comparable goods or services for the same price and under the same terms and conditions as otherwise stated herein. Any provision herein for delivery of goods or performance of services by installments shall not be construed as making the obligations of Buyer severable. All shipments sent C.O.D. will be at Buyer’s loss (that is, all such deliveries are deemed to be F.O.B. at CUILLC’s address).
3. QUALITY CONTROL. CUILLC reserves the right to have a representative on site during construction or installation until satisfied with the quality of product installation and compliance with construction and architectural drawings and specifications. Buyer acknowledges and recognizes that CUILLC must rely on the model and performance specifications that Buyer furnishes to CUILLC to manufacture the product and perform the services reflected on the front side of this Invoice. Therefore, if the product and services are defective due to the inaccuracy or inoperability of Buyer’s design, Buyer agrees that CUILLC shall be paid the price on this Invoice for the product and services that are defective due to the Buyer design error.
4. PRICE. Prices stated herein do not include any tax, excise, duty or levy now or hereafter enacted or imposed by any governmental authority on the manufacture, sale, delivery and/or use of any goods or services delivered. CUILLC will add all such assessments to the price stated if no proper exemption certificate is received relieving CUILLC of the responsibility for paying or collecting such assessments. Unless otherwise agreed in writing by CUILLC, all prices are FOB CUILLC’s plant, Dallas, Texas. Charges will be added for factory preparation and packaging for shipment. Nothing in this agreement requires CUILLC to continue to sell goods or materials to Buyer or others on the terms of this agreement on any future orders. If any of the terms of this agreement are changed, including but not limited to delivery date, quantity ordered or shipping terms, CUILLC reserves the right, at its sole option, to increase the prices quoted to reflect current prices on the date the change occurs, and to charge Buyer for any additional charges incurred. Buyer is not entitled to credit or reduction for any price decreases in such circumstances. Payment terms will be as indicated in the quotation. Interest shall be due and payable to CUILLC on overdue amounts at the maximum rate allowed by law.
5. CUILLC’S SECURITY INTEREST. To secure payment of the purchase price of the equipment identified and listed in the quotations accompanying these terms and conditions, CUILLC will retain and hereby retains a security interest in said equipment and in any proceeds of said equipment under Chapter 9 of the Texas Business and Commerce Code until the obligation is fully paid.
6. IMPORTS AND EXPORTS. The Buyer shall obtain all permits or licenses, customs approvals and similar documents necessary for the importation, if any, of any products. CUILLC agrees that said goods shall be imported in the Buyer’s name. The Buyer declares and agrees that it is exclusively responsible for all costs, procedures, and any tax, interest, penalty, rate, right, value or fine associated with said importation, if any.
7. CONTINGENCIES. Failure of either party to perform hereunder, in whole or in part, occasioned by act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riot, sabotage, accident, embargo, government priority, requisition of allocation, or any circumstance of the like or different character beyond the reasonable control of the party so failing to perform, or by interruption of or delay in transportation, labor strikes, lockouts or trouble from whatever cause arising and whether or not the demands of the employees involved are reasonable and within the affected party’s power to concede, or compliance with any order or request of any governmental officer, department agency or committee, shall not subject said party to any liability to the other party. At CUILLC’s option, the period specified for delivery of goods or performance of services hereunder shall be extended by the period of delay occasioned by any such circumstances and deliveries or services omitted (or portions thereof) shall be made or performed during such extension, or the total order hereunder shall be reduced by the deliveries or services (or portions thereof) so omitted. The provisions of this paragraph shall be effective notwithstanding that such circumstance shall have been operative at the date of this order.
8. WARRANTIES AND REMEDIES. CUILLC warrants the equipment manufactured by it only in accordance with the Limited Warranty Statement delivered with each CUILLC product to Buyer. Written notice of a warranty defect must be provided to CUILLC within thirty (30) days of its discovery. Accessories or equipment furnished by CUILLC, but manufactured by others, shall carry whatever warranty the manufacturers have conveyed to the CUILLC and which can be passed to the Buyer. CUILLC shall not be liable for any repairs, replacements or adjustments to the equipment or any costs of labor performed by the Buyer without CUILLC’s prior written approval. CUILLC makes no performance warranty unless specifically stated within its proposal and the effects of corrosion, erosion and normal wear and tear are specifically excluded from CUILLC’s Warranty. Correction by CUILLC of nonconformities, whether patent or latent, in the manner and for the period of time provided above, shall constitute fulfillment of all liabilities of CUILLC for such nonconformities, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise with respect to or arising out of such equipment.
BUYER AGREES THAT ITS REMEDIES FOR BREACH OF ANY PART OF THIS AGREEMENT, INCLUDING THE EXPRESS WARRANTY HEREIN GRANTED, SHALL BE LIMITED TO THE LESSER OF:
(a) ACTUAL DAMAGES SUSTAINED AND NOT REASONABLY CAPABLE OF MITIGATION OR COVER, OR
(b) THE PURCHASE PRICE OF THE GOODS ACTUALLY PURCHASED FROM CUILLC AND DELIVERED OR REPLACEMENT OF SUCH GOODS, AT CUILLC’S ELECTION.
THE CUILLC MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND TO THE GREATEST EXTENT ALLOWED BY LAW ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
CUILLC EXPRESSLY DISCLAIMS LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, AND BUYER AGREES THAT THIS REMEDY FULFILLS THE ESSENTIAL PURPOSE OF THE WARRANTY GIVEN.
9. INDEMNITY. Buyer shall defend, indemnify and hold harmless CUILLC, its affiliates, partners, successors, assignees, its legal representatives, directors, shareholders, agents and employees against any loss, damage, claim, suit, liability, judgement, and expense (including but not limited to attorney’s fees and other costs of litigation) and any fines, penalties and assessments arising out of injury, disease or death of persons (including but not limited to the employees of either party) or damage to or loss of any property (including but not limited to the Buyer’s existing facilities) or the environment or violation of an applicable law of any governmental authority having jurisdiction, resulting from or in connection with the performance or non-performance of the Services by CUILLC, its agents or subcontractors. The obligations, indemnities and liabilities assumed by Buyer hereunder shall survive the termination and/or completion of the job referenced in the quotation accompanying these terms and conditions.
10. GOVERNING LAW. The quotation accompanying these terms and conditions, acceptance of same and any resulting agreement shall be governed by the laws of the State of Texas, including the Texas Uniform Commercial Code. Unless otherwise indicated by the context, whenever a term used in this Invoice is defined in the Texas Uniform Commercial Code, the definition contained therein is controlling as to the meaning of the term.
11. FORUM. Any controversy or claim arising out of or relating to this agreement or relating to any sales transaction between CUILLC and Purchaser, shall be settled by binding arbitration with the American Arbitration Association in Houston, Texas U.S.A., in accordance with the Commercial Arbitration Rules of the American Arbitration Association this in effect, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof.