Terms & Conditions
PRICES: All prices exclude all sales, revenue or excise taxes, value added taxes, import duties (including brokerage fees) or other applicable taxes regarding the manufacture and/or sale of any products. Any such taxes will be paid by Buyer. Unless otherwise agreed to in writing by the parties, prices quoted by Seller are current at the time of quotation only. Seller retains the right to change its prices.
PAYMENT TERMS: Unless otherwise agreed in writing, Payment will be prepaid in United States dollars. . In the event that Seller is required to bring legal action to collect delinquent accounts, Buyer agrees to pay reasonable attorneys fees and costs of suit.
RISK OF LOSS AND DELIVERY TITLE: Unless otherwise agreed in writing, sales are FCA Houma, La. (Incoterms 2010). Seller may deliver products in one or more shipments and invoice each shipment separately. Seller reserves the right to ship product that is not subject to cancellation in advance of the agreed shipping date. Unless otherwise agreed in writing, delivery time is not of the essence. Seller does not accept liability for any loss arising from delay in delivery of products.
CONTINGENCIES: Seller shall not be liable for any delay in performance or for non-performance, in whole or in part caused by the occurrence of any contingency beyond the control either of Seller or Seller’s suppliers, including but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot, or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this contract or otherwise judicial action, labor dispute, accident, fire, explosion, flood, storm or other Act of God, shortage of labor, fuel, raw materials, tools, molds, dies or equipment or technical or yield failure. Any and all such delays will excuse Seller from performance, and Seller’s time for performance shall be extended for the period of the delays and for a reasonable period thereafter. If any contingency occurs, Seller may allocate production and deliveries among any or all of Seller’s customers as Seller may determine, including without limitation, regular customers not then under contract and Seller’s own requirements for further manufacture of other use.
SUBSTITUTION AND MODIFICATION OF GOODS: Seller has the right to modify the specifications of goods designed by Seller and substitute substantially equivalent goods manufactured to such modified specifications.
WARRANTIES: Except as specified below, products sold hereunder shall be free from defects in materials and workmanship and shall conform to Seller’s published specifications or other specifications accepted in writing by Seller. The foregoing warranty does not apply to any products which have been subject to misuse, neglect, accident or modification or altered such that they are not capable of being tested under normal test conditions. Seller will make the final determination as to whether its products are defective. Seller’s sole obligation for products failing to comply with this warranty will be, at Seller’s option, to either repair, replace or issue credit for the nonconforming product where, (i) Seller has received written notice of any nonconformity; (ii) after Seller’s written authorization, Buyer has returned the nonconforming product to Seller; and (iii) Seller has determined that the product is nonconforming and that such nonconformity is not the result of improper installation, repair or other misuse. ALL WARRANTIES NOT EXPRESSLY MADE HEREIN ARE DISCLAIMED. THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SELLER DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. Buyer shall not pass this warranty to any other person or entity. Seller’s warranties as herein above set forth, shall not be enlarged, diminished, or affected by, and no obligation or liability shall arise or grow out of, Seller’s rendering of technical advice or service in connection with Buyer’s order of the goods furnished hereunder.
REMEDIES AND DAMAGES: (a) Where Buyer timely and properly rejects or justifiably revokes acceptance of items, or where Buyer has accepted nonconforming items and has timely notified Seller of breach of warranty, Seller’s sole and exclusive liability will be (at Seller’s option) to repair, replace or credit Buyer’s account with respect to any nonconforming goods returned to Seller during the applicable warranty period, and with respect to any nonconforming services, on condition that (i) Seller is, promptly upon Buyer’s discovery of the nonconformity, notified in writing with a detailed explanation, (ii) the nonconforming goods are returned to Seller FCA Seller’s facility from which the goods were shipped, and (iii) Seller’s examination discloses that such items are nonconforming. WHERE SELLER FAILS TO MAKE DELIVERY OR REPUDIATES OR BREACHES ANY OTHER PROVISION OF THIS CONTRACT (OTHER THAN THE WARRANTY AGAINST PATENT INFRINGEMENT), INCLUDING, WITH LIMITATION, SELLER’S OBLIGATION WITH RESPECT TO NONCONFORMING ITEMS, BUYER SHALL PROMPTLY GIVE WRITTEN NOTICE TO SELLER, IN THE EVENT THAT SELLER DOES NOT CURE ANY SUCH FAILURE TO DELIVER, REPUDIATION, OR BREACH WITHIN (30) DAYS AFTER RECEIPT OF SUCH NOTICE, THEN BUYER SHALL HAVE THE RIGHT AT ITS OPTION, TO CANCEL THE SPECIFIC QUANTITY OF PRODUCTS AS TO WHICH SUCH REPUDIATION OR BREACH RELATED, AND THE SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY IF BUYER DESIRES TO EXERCISE SUCH RIGHT OF TERMINATION, IT SHALL GIVE WRITTEN NOTICE TO SELLER. EXCEPT AS SET FORTH ABOVE, IN NO EVENT WILL SELLER BE LIABLE TO ANYONE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY OF THE PROVISIONS OF THIS CONTRACT INCLUDING, BUT NOT LIMITED TO, PROVISIONS REGARDING WARRANTIES, INDEMNITIES, AND PATENT INFRINGEMENT, SUCH EXCLUDED DAMAGES TO INCLUDE, WITHOUT LIMITATION, COSTS OF REMOVAL AND REINSTALLATION OF ITEMS, LOSS OF GOODWILL, LOSS OF PROFITS OR LOSS OF USE. (b) Seller has the right to cancel this contract if in the Seller’s sole judgment, Buyer’s financial condition, does not justify the terms of payment applicable from time to time, and upon demand, therefore, Buyer shall not immediately comply with any modification of payment terms required by Seller in accordance with paragraph 2 above. If Seller exercises such right to cancel, Buyer shall be liable for the charges set forth above in addition to any other remedies Seller may have hereunder or at law.
WAIVER: Failure by Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
APPLICABLE LAW: Unless otherwise agreed in writing, the terms and conditions contained herein shall be governed by and construed under the laws of the State of Louisiana, excluding any such laws that might direct the application of the laws of another jurisdiction. The federal court located in the United States District Court for the Eastern District of Louisiana and the State Court for the 32nd Judicial District Court for the Parish of Terrebonne, State of Louisiana will both have exclusive jurisdiction and venue to hear any dispute arising under the terms and conditions contained herein, along with any agreement based in whole or in part on the terms and conditions contained herein.
SEVERABILITY: If any of these Terms of Sale is declared invalid and/or unenforceable by a court, agency, commission or other tribunal or entity having jurisdiction thereof, the application of such provisions to parties or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term not so declared invalid or unenforceable shall be valid and be enforced to the fullest extent permitted by law and the rights and obligations of the parties shall be construed and enforced as though a valid commercially reasonable term consistent with the undertakings of the parties under the order had been substituted in place of the invalid provision.
SET-OFF: Buyer may not set-off any amount owing from Seller to Buyer against any amount payable by Buyer to Seller whether or not related to this contract. TAXES: In the event any sales tax, manufacturer’s tax, occupational tax or other tax is applicable to any shipment made to you on your order, such tax shall be added to the selling price and shall be paid by Buyer.
LIMITED LIABILITY: No party will be liable for incidental or consequential damages, including but not limited to, lost profits, the cost of labor, requalification, rework charges, delay, or loss of goodwill arising out of the sale, installation or use of any product. The aggregate liability of Seller to Buyer will be limited to the contractual value of the products or services sold to Buyer.
FORCE MAJEURE: Seller will not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay when such delay is due to the elements, storms, acts of god, acts of the Buyer, act of civil or military authority, war, riots, concerted labor action, shortages of materials, or any other causes beyond the reasonable control of Seller. The anticipated delivery date will be deemed extended for a period of time equal to the time lost due to any delay excusable under this provision.
NOTICES: Any notice hereunder will be given by prepaid first class mail to the other party at its last known address. Notice to Seller shall be to PUNCH POINT TOOLS, LLC 7837 PARK AVE. HOUMA, LA. 70364.
DEFINITIONS: The term “Buyer” as used herein shall mean the Customer indicated on the face of the quote or sales order acknowledgement attached hereto and incorporated herein. The term “Seller” as used herein shall mean PUNCH POINT TOOLS, LLC.