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Each invoice issued by DGA Houston is subject
to the following terms and conditions as
detailed in this document and printed on each
invoice.
For purposes of this document, "Seller" refers
to DGA Houston. Each invoice expressly limits
acceptance to the terms and conditions on the
face and reverse side of each invoice and as
detailed in this document; it supersedes all
other previous agreements or buyer's purchase
order, if any. Objection is hereby made to any
additional terms in the buyers purchase order
or other writing of any other party. Each
invoice does not insist that an expression of
acceptance mirror any offer before a contract
will be formed. It shall become a contract when
the common carrier has received delivery of the
whole or any part thereof, or when the buyer
has otherwise consented to the terms and
conditions hereof, whichever occurs first.
1. Shortages.
The Buyer must make all claims for shortages in
writing within a period of 48 hours from
receipt of product. Unless such notice is given
within the stated period of time, Buyer agrees
that it shall be conclusively presumed that
Buyer has fully inspected the product and
acknowledged that NO shortage exists.
2. Title/Risk of
Loss. Title to the product shall pass to
the Buyer upon delivery of product to the
common carrier (at Seller's dock) or any other
location directed by buyer. All risk of loss,
damage, theft or destruction to the product
shall be borne by the Buyer at F.O.B. shipping
point. No such loss, damage, theft or
destruction to the product, in whole or in
part, shall impair the obligations of the Buyer
under this agreement, all of which shall
continue in full force and effect.
3. Security
Interest. Buyer agrees that Seller shall
retain a security interest in all product
detailed herein and to all product now or
hereafter acquired by Buyer, and to any
proceeds thereof, until the purchase price and
any other charges due to the Seller have been
paid in its entirety. Buyer agrees to execute
any financing statement or other documents that
Seller requests in order to protect Seller's
security interest. Upon any default by Buyer of
this agreement, Seller shall have all rights
and remedies of a secured party under the
Uniform Commercial Code, which rights and
remedies shall be cumulative and not exclusive.
4. Payment.
Unless otherwise specified, payment terms are
COD. All past due amounts are subject to a 1.5%
monthly financing charge or the maximum
permissible under applicable law. All drafts
dishonored for any reason shall be assessed a
$25.00 service charge. In the event that Buyer
stops payment on any drafts issued to Seller,
for any reason, Buyer hereby recognizes that
Seller would suffer damage, the exact amount
which cannot be determined with certainty and
Buyer shall pay Seller liquidated damages of
$500 for each such draft. In the event that
Buyer utilizes a credit card to purchase
products, Buyer agrees to not unnecessarily
dispute such charges and further agrees to use
best efforts to resolve any good faith dispute.
5. Returns.
The terms for product return are limited to
those set forth in Seller RMA
policies and procedures in effect on the
date of the invoice, or as otherwise provided
by Seller to Buyer in writing. SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESSED OR IMPLIED, AS TO THE PRODUCTS,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SELLER WILL NOT BE LIABLE
FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR
BREACH OF WARRANTY. All returns must be
accompanied by a copy of the original purchase
invoice and a return merchandise authorization
from Seller. All returns are subject to a 25%
restocking fee and must be received by Seller
with the original packing materials and cartons
in like-new re-sellable condition. All returns
subject to in-house credit only. Product
manufacturers determine the time allowed for
returns.
6. Events of
Default. Buyer shall be in default under
this agreement upon the happening of any of the
following events or conditions: (a) Default by
Buyer on payment of any installment, invoice,
bill or any other indebtedness or obligation
now or hereafter owed by Buyer to Seller under
this agreement; (b) Default in the performance
of any obligation, covenant or liability
contained in this agreement or any other
agreement or document with Seller; (c) Any
inaccuracy, warranty, representation or
statement made or furnished by Buyer, and (d)
Dissolution, termination of existence,
discontinuance of Buyer's business, insolvency,
business failure, or appointment of a receiver
of any part of the property of, or assignment
for the benefit of creditors by Buyer or the
commencement of any proceedings under any
bankruptcy reorganization or arrangement laws
by or against Buyer or the attachment, levy,
seizure or garnishment of any of Buyer's
property, rights, assets (contingent or
otherwise) or the product.
7. Remedies of Seller.
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A. In
General. Upon the occurrence of
any event of default or at any time
thereafter, Seller may, at its option and
without further notice, exercise one or
more of the following remedies as Seller
in its sole discretion shall elect: (1)
Demand or, without demand, sue for
amounts then due or thereafter accruing
under any invoice, bill or other
documentation evidencing indebtedness;
(2) Suspend deliveries as to any or all
product; (3) Take possession of the
product wherever found and for this
purpose enter upon any premises of Buyer
and remove the product, without court
order or process of law, without any
liability for damages, suit, action or
other proceeding by the Buyer for such
entry and/or removal; (4) Cause Buyer, at
its expense, to promptly return the
product to Seller in good, like-new
condition; (5) Sell the goods, or any
part thereof at public or private sale
(for cash or credit) at such time or
times as Seller shall determine, free and
clear of any rights of Buyer, and if
notice thereof is required by law, any
notice in writing of any such sale by
Seller to Buyer not less than ten days
prior to the date thereof shall
constitute reasonable notice thereof to
Buyer; (6) Exercise any and all rights
accruing to Seller under any applicable
contract or law upon a default by Buyer.
B. Mitigation
of Damages. Should Seller
repossess any of the product because of a
default by Buyer, Seller may make a
commercially reasonable effort to sell
product at a reasonable price to a third
party, provided, however, that Seller
shall have no obligation to actively seek
out and solicit potential buyers for said
goods.
C. Collection
Costs. In the event of any default
on the part of Buyer hereunder, Buyer
shall pay any and all collection costs,
including reasonable attorneys fees
incurred by Seller.
D. Rights and
Remedies Not Exclusive. No right
or remedy conferred upon or reserved to
Seller by this agreement shall be
exclusive of any other right or remedy
herein or by contract or law provided,
all rights and remedies conferred upon
Seller by this agreement and by law shall
be cumulative and in addition to every
other right or remedy available to
Seller.
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8. Time of the
Essence. Time is of the essence of this
agreement.
9. Indemnification.
The Buyer agrees to and shall indemnify, defend
and hold harmless Seller, its employees and
agents for and against all claims, lawsuits and
losses from any third party using the product
provided under this agreement. Any defense
provided hereunder shall be by counsel of
Seller's choice.
10. Limitation of
Liability. In the event that a product's
malfunction leads to damage or injuries to the
product, to the Buyer's business, the
end-user's business, or other equipment, or
residence, or to employees or to other persons,
Seller shall not be liable for such damages or
injuries. The Buyer understands and agrees that
if Seller shall be found liable for loss or
damage due from failure of Seller to perform
any of Seller's obligations hereunder or the
failure of the product in any respect
whatsoever, Seller liability shall be limited
to $250.00 and this liability shall be
exclusive, and that the provisions of this
section shall apply if loss or damage,
irrespective of cause or origin, results
directly or indirectly to persons or property,
from performance or non-performance of Seller
obligation, breach of express or implied
warranty, or from negligence, active or
otherwise, Seller, its agents, servants,
assignees or employees. In no event shall
Seller be responsible for any damages,
including special or consequential damages.
11. Assignment. This
agreement and all rights, obligations and
performance hereunder may not be assigned
without prior written consent of Seller.
12. Waiver. No
failure on the part of Seller to exercise, and
no delay in exercising any right hereunder,
will operate as a waiver thereof nor will any
single or partial exercise of any right
hereunder by Seller preclude any further
exercise hereof or of the exercise of any other
right.
13. Severability. If
any section, term, condition or portion thereof
shall be found to be illegal or void as being
against public policy, it shall be stricken and
the remainder of this document shall stand as
the original.
14. Governing
Law/Venue. This agreement shall be
construed and enforced in accordance with the
laws of the State of Texas. All claims,
actions, disputes, controversies or suits shall
be litigated exclusively in the courts of the
State of Texas.
15. Entire
Agreement/Modification. The parties
intend this agreement to be a complete
statement of the terms of their agreement and
replaces and supersedes any prior agreements
between them with respect to the subject matter
hereof. No course of prior dealings or usage of
trade shall be relevant to amend or interpret
this statement. This agreement may not be
changed, modified or amended except by an
instrument in writing signed by Seller and
Buyer.
Revision Date:
06/14/2000
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