1. AGREEMENT: The terms and conditions of sale shall constitute a continuing sale Agreement between ProMaxima Manufacturing Ltd. (hereinafter referred to as ProMaxima) and buyer for all products and services to be provided by ProMaxima to Buyer, and no other terms and conditions and no modifications or amendments thereof shall be binding upon the parties unless consented in writing by Promaxima. Buyer may use Buyers standard form of purchase to place orders for products and services, but any terms and conditions on such standard form which are in addition to or inconsistent with the terms and conditions of this Agreement shall be deemed to have been stricken for such orders.
2. DELIVERY: Promaxima will use its best efforts in the ordinary course of its business to effect deliveries as specified, but in no event, shall ProMaxima be liable for any damages, consequential or otherwise, arising from any failure of ProMaxima to meet any delivery date. Delays in delivery at Buyer’s request or due to Buyer’s failure may result in storage fees.
3. PARTIAL SHIPMENT: ProMaxima shall be entitled to make partial shipments of products ordered by Buyer as such products become available for shipment and may invoice separately for each shipment. Partial shipment of products shall not relieve Buyer from Buyer’s obligation hereunder to accept shipments of the remainder of the order.
4. RISK OF LOSS: Title and risk of loss with respect to the ordered products shall pass to Buyer at the time of delivery of the Products to the carrier for the shipment or in the case of delivered and installed Products, shall pass at the time of installation. F.O.B. point of shipment shall be ProMaxima’s plant unless otherwise specified.
5. PAYMENT: ProMaxima shall invoice Buyer for the purchase price of each of the products shipped and services pursuant to this Agreement, which invoice may also reflect charges for freight, handling, taxes, installation and other amounts payable to ProMaxima hereunder. All amounts specified in any such invoice shall be paid by Buyer to ProMaxima within thirty (30) days from the date of the invoice. ProMaxima may require payment in advance of all or any part of the purchase price of any product or service. Any amounts due hereunder from Buyer and not paid within thirty (30) days from the due date thereon shall bear interest at the lesser of the rate of one and one- half percent (1- ½ %) per month or the maximum rate permitted by applicable law. Such interest shall be in addition to and without limitation of any other rights or remedies which ProMaxima may have under this Agreement or at law or in equity. Buyer agrees to pay any attorney’s fees and costs incurred by ProMaxima in the collection of any delinquent amounts due under this Agreement. Buyer shall be responsible for all taxes arising out of or related to the provision of products and services ordered, including but not limited to sales, use and excise taxes. Such taxes shall be in addition to the sales price unless otherwise provided.
6. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Texas and the exclusive forums for the resolution of any disputes hereunder shall be Texas state courts in the County of Harris, or federal courts in the Southern district of Texas.
7. RETURNS: New, unused parts currently stocked by ProMaxima may, but only with prior written authorization of ProMaxima’ s Customer Service Department, (hereinafter referred to a SERVICE) be returned for credit within the first thirty (30) days from purchase. Returns submitted without authorization or returns received after thirty (30) days of the authorization date will NOT receive credit as outlined in this section. To obtain a Return Authorization (RMA), contact customer service at (800) 231-6652, (8:00AM- 5:00PM Central Time) or email: firstname.lastname@example.org. The RMA must be clearly written on the outside of each carton being returned. ProMaxima assumes no responsibility for damage caused by shipping or improper packaging, and all items being returned must be received by ProMaxima in the same condition as when it was originally shipped to the Buyer. All returned items must be returned freight prepaid, returns not freight prepaid will be refused. Each returned item is subject to a 20% restocking charge of the purchase price of such product. Orders cancelled after shipment by ProMaxima or after production begins for built to order parts and product are subject to a 20% restocking fee of the purchase price. Errors in orders shipped by ProMaxima must be reported within fifteen (15) days after receipt for credit or replacement to be permitted.
8. ACCEPTANCE BY BUYER: The products shall be deemed accepted by Buyer as of the date of receipt of the products by the Buyer unless within fifteen (15) days after such date Buyer gives ProMaxima written notice that the products are not accepted and specifies in detail the reasons thereof. ProMaxima may then, at its sole election, proceed to make necessary corrections, in which case such corrective action by ProMaxima shall be Buyers sole remedy for non-acceptance of a product. Upon completion and acceptance of such corrections, the products will be deemed accepted by Buyer. Under no circumstances shall Buyer be entitled to revoke Buyer’s acceptance of the produce.
a) Each product shall have its own Limited Warranty. Such Warranty shall be the original Buyers sole and exclusive remedy for any breach of the Warranty. SUCH WARRANTY IS THE SOLE WARRANTY MADE BY PROMAXIMA WITH RESPECT TO THE PRODUCT OR SERVICE PURCHASED BY OR PROVIDED TO BUYER PURSUANT TO THIS AGREEMENT AND IS IN LIEU OF ALL OTHER WARRANTIES BY PROMAXIMA, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. CONSEQUENTIAL DAMAGES: NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTARY, PROMAXIMA SHALL HAVE NO LIABILITY WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, FOR LOSS OF CAPITAL, LOSS OF PRODUCT, LOSS OF PROFIT, LOSS OF USE, LOSS OF POWER, POWER OUTAGES, COST OF REPLACEMENT POWER OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
10. LIABILTY: Promaxima assumes no liability relating to injuries that may occur from any activity other than those solely caused by Promaxima manufacturing defects. This includes: a) any improper or incomplete installation performed by the customer, b) installations that have been compromised after professional installation by Promaxima, or c) any misuse of the equipment by the end user.
11. LIMITATIONS OF LIABILITY: IN NO EVENT SHALL PROMAXIMA’S LIABILITY TO BUYER ARISING OUT OF OR RELATING TO THE SALE OF ANY PRODUCT OR SERVICE PURSUANT TO THIS AGREEMENT EXCED THE PURCHASE PRICE PAID BY BUYER TO PROMAXIMA FOR SUCH PRODUCT OR SERVICE.
12. FORCE MAJEURE: Delay in or failure to carry out the duties imposed upon either party (except Buyer’s duty to make invoiced payments to Promaxima) under this Agreement shall not constitute default hereunder or give rise to any claim for damages if such delay or failure results directly or indirectly from acts of God, acts of any civil or military authority, civil disturbances, war, strikes, or other labor disputes , shortages of labor or materials, fire, transportation contingencies, laws, regulations, acts or order or any government or agency or official thereof, other catastrophes or any other similar occurrences beyond such party’s control, all of the aforesaid being herein for convenience referred to as “events of force majeure”. In the event that ProMaxima’s work is delayed, impeded or rendered more costly to ProMaxima by any event of force majeure, the price to the Buyer hereunder shall be increased accordingly, upon at least thirty (30) days prior written notice to Buyer, to reflect such increase in the cost to Promaxima, including without limitation, its increase in costs occasioned by the indirect effects of such event. Force majeure delays shall also extend the estimated delivery date on a day by day basis
13. TERMINATION: Either party may terminate this Agreement at any time on fifteen (15) days written notice without cause. In the event of termination, Buyer and ProMaxima shall be relieved of all further obligations hereunder except Buyers obligation to pay ProMaxima the total of ProMaxima’s outstanding invoices as of the date of termination and invoices on all orders and invoices in progress including without limitation, all costs, expenses and liabilities (including cancellation charges) incurred by ProMaxima as a result of such termination.
14. WAIVER: No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective or a continuing waiver, except pursuant to a written instrument signed by the party or parties waiving compliance. Any such waiver shall be effective only in the specific instance and the specific purpose stated in such written document.
15. SEVERABILITY OF PROVISIONS: In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree, the remainder of the Agreement shall remain valid and enforceable according to its terms. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPEND NET OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLEY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTAIL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT.