TEXAS FOUNDATION SUPPLY
TERMS AND CONDITIONS OF SALE
The customer accepting these Terms (“Customer”) agrees that these Terms and Conditions of Sale (the “Terms”) apply to any product (“Product”) purchased by Customer from Texas Foundation Supply Inc. (“TFS”) and/or services performed by TFS for Customer (“Services”). TFS’s performance hereunder and provision of any Products or Services to Customer is strictly limited to the terms and conditions contained herein, and TFS hereby objects to and expressly rejects any additional or different terms proposed by Customer (whether in Customer’s order, terms and conditions, or other acknowledgment form) at any time.
1. Acceptance of Terms. Retail Customers accept these Terms by making a retail purchase from TFS or by making a retail purchase from a TFS distributor (whether online or in-store). Distributor Customers accept these terms by submitting an order, by submitting a credit application, by manual or electronic execution of these Terms, or by any other affirmative indication of acceptance of these Terms.
2. Orders. All requests for Products or Services must be made by written order. TFS is not obligated to accept any order. An order is binding on TFS only after TFS confirms the terms of the order by written acceptance; provided however, TFS may cancel any unfulfilled order after acceptance in its discretion, with a full refund of amounts paid (if any). Once accepted by TFS, an order cannot be cancelled or modified by Customer except with TFS’s written approval. If TFS does approve Customer’s requested order cancellation, cancellation charges and/or restocking fees may apply. Each order is subject to and governed by these Terms. In the event of a conflict between an order and these Terms, these Terms will prevail. Acceptance or fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these
Terms.
3. Pricing and Availability. Pricing is subject to change at any time prior to TFS’s acceptance of an order from the Customer. Products are subject to availability.
4. Taxes and Shipping Costs. The quoted sales price does not include any applicable taxes or shipping costs. Customer is responsible for the payment of any sales, use, excise, or other similar taxes applicable to the sale of the Product or Services. Customer must provide TFS with a resale/exemption certificate in order to avoid the charging of applicable taxes. In addition, Customer is responsible for all shipping costs to deliver the Product to Customer.
5. Payment; Past Due Accounts. For retail Customers, full payment is due at the time of purchase. For distributor Customers with approved credit, invoices are due and payable, without offset or deduction, thirty (30) days after invoice date. Any past due balance may be charged interest at a rate equal to the lesser of: (a) 18% per year, or (b) the maximum lawful rate that may be charged. Customer must promptly review each invoice and raise any objections in writing within ten (10) days of invoice date or such objections will be deemed to have been waived. TFS may suspend shipments, reject orders, cancel orders, and/or require advance payment for future orders, if Customer’s account is past due or if Customer becomes insolvent, admits its inability to pay its debts, or files for bankruptcy. Furthermore, TFS has no obligation to perform any work under the Products Warranty or the Service Warranty while Customer’s account is past due. Customer will reimburse TFS on demand for any costs and expenses which TFS may incur in connection with collecting any past due amounts or otherwise enforcing TFS’s rights hereunder (including, but not limited to, collection costs, attorneys’ fees, and court costs).
6. Delivery. TFS will arrange for shipment of the Product by third-party carrier to the location specified by Customer in the order. TFS will use commercially reasonable efforts to timely deliver to Customer the Product as specified in the order; however, TFS provides no guarantee that delivery will occur on any specified date. Customer must promptly inspect the Products to confirm delivery of the ordered items and quantities and must notify TFS in writing of any discrepancies within ten (10) days of the third-party carrier’s delivery of the shipment to Customer. Damages or shortages sustained in transit must be raised by Customer directly with the applicable third-party carrier.
7. Title and Risk of Loss. For retail Customers purchasing online and distributor Customers, title and risk of loss or damage to the Product passes to Customer upon TFS’s delivery of the Product to the third-party carrier at TFS’s facility in White Settlement, Texas.
8. Purchase-Money Security Interest in Products. To secure Customer’s prompt and complete payment and performance of any and all present and future indebtedness and liabilities to TFS, Customer hereby grants to TFS a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase-money
security interest under the Texas Uniform Commercial Code. TFS may file a financing statement for the security interest and Customer must execute any statements or other documentation necessary to perfect TFS’s security interest in the Products. Customer also authorizes TFS to execute, on Customer’s behalf, statements or other documentation necessary to perfect TFS’s security interest in the Products. TFS is entitled to all applicable rights and remedies of a secured party under applicable law.
9. Limited Warranties.
a. For a period of twelve (12) months from the date of purchase or delivery, whichever is earlier (the “Products Warranty Period”), TFS represents and warrants that all Products will be free from material defects in workmanship and materials and will materially conform to TFS’s published specifications (if any) for the Product, subject to industry standard tolerances and variations (the “Products Warranty”). If the Products are not in conformance with the Products Warranty, Customer must notify TFS in writing within the Products Warranty Period and, as Customer’s sole and exclusive remedy for a breach of the Products Warranty, provided that Customer’s account is not past due, TFS will repair or replace the non- conforming Products at TFS’s cost within a commercially reasonable timeframe. TFS may require proof of purchase prior to performing any warranty work. Notwithstanding the foregoing, the Products Warranty expressly excludes any damage, defect, or non-conformance caused by or attributable to: (i) Customer’s or any third party’s misuse, modification, or negligence; (ii) Customer’s failure to adhere to TFS’s applicable directions for use, cleaning, and/or maintenance; (iii) accident, act of God, or other casualty; or (iv) damage sustained while in transit with a third-party carrier.
b. For a period of twelve (12) months from the date TFS completes the Services (the “Service Warranty Period”), TFS warrants that the Services will be performed in a good and workmanlike manner (the “Service Warranty”). If any portion of the Services are not in conformance with the Service Warranty, Customer must notify TFS in writing within the Service Warranty Period and, as Customer’s sole and exclusive remedy for a breach of the Service Warranty, provided that Customer’s account is not past due, TFS will re-perform such non-conforming Service at TFS’s cost and expense within a commercially reasonable timeframe. TFS may require proof of purchase prior to performing any warranty work. Notwithstanding the foregoing, the Service Warranty expressly excludes any damage, defect, or non-conformance caused by or attributable to: (i) Customer’s or any third party’s misuse, modification, or negligence; (ii) Customer’s failure to adhere to TFS’s applicable directions for use, cleaning, and/or maintenance; (iii) accident, act of God, or other casualty; or (iv) damage sustained while in transit with a third-party carrier.
c. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS, TFS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY TFS, OR ANY OTHER PERSON OR REPRESENTATIVE ON TFS’S BEHALF, EXCEPT AS STATED IN THESE TERMS.
10. LIMITATION OF LIABILITY. TFS’S ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THE PROVISION OF THE PRODUCTS OR SERVICES BY TFS TO CUSTOMER WILL IN NO EVENT EXCEED THE PRICE FOR THE PRODUCT OR SERVICES OUT OF WHICH SUCH CLAIM OR LIABILITY AROSE. IN NO EVENT WILL TFS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS) ARISING AT ANY TIME FROM ANY CAUSE WHATSOEVER, EVEN IF TFS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
11. Governing Law and Venue. These Terms, including all matters relating to the validity, construction, performance, and enforcement thereof, are governed by the laws of the State of Texas, without giving effect to its conflict of laws provisions. Exclusive venue for any action arising out of the sale of Products or Services or these Terms will lie in Tarrant County, Texas.
12. Assignment. Customer may not assign any of its rights or obligations hereunder or with respect to the sale of the Product or Services without the consent of TFS.
13. Miscellaneous.
a. These Terms form the entire agreement of the parties concerning Customer’s purchase of TFS Products or Services, and these Terms supersede all prior terms or agreements regarding the subject matter herein.
b. No failure by TFS to take action on account of any default by Customer will constitute a waiver of any such default of Customer or any right of TFS hereunder.
c. If any provision of these Terms is held invalid or unenforceable, such provision will be deemed modified or severed (as applicable) to the extent necessary to render the same valid, and these Terms will be construed and enforced to the fullest extent permitted by law.
d. TFS will not be liable to Customer for any failure or delay due to any cause or occurrence beyond TFS’s control, including without limitation, unavailability of or delay in shipment or receipt of the Product, shortages, order backlogs, production difficulties, delays in transportation, fire, strikes, work stoppages, compliance with any law or regulation, acts of God, or acts of terrorism.
e. If payment for the Product or Services or any other provision of these Terms must be enforced in a court of law, the prevailing party will be entitled to recover from the other party reasonable and necessary attorneys’ fees and reasonable and necessary court costs incidental thereto.
f. TFS has no obligation to extend credit at any time. Distributor Customers warrant that all information and documents provided to TFS (in connection with the credit application or otherwise) are true and correct. TFS is relying on such information and documents in its decision to extend credit. Distributor Customers authorize all bank and trade references listed in the credit application to provide TFS with any and all information requested.
g. Customer hereby agrees to indemnify and defend TFS against, and hold TFS harmless from, any and all claims, losses, damages, liabilities, and expenses (including, without limitation, court costs and attorneys’ fees) resulting from or arising out of (i) Customer’s violation of these Terms or breach of a warranty herein, negligence, intentional misconduct, or violation of law; (ii) Customer’s or any third party’s misuse or modification of the Products; or (iii) Customer’s failure to adhere to TFS’s applicable directions for use, cleaning, and/or maintenance of the Products.
h. The section headings used herein are for reference and convenience only, and will not enter
into the interpretation hereof.