These Terms and Conditions of Sale (these “Terms”) are a binding legal agreement that is made a part of and will apply to all sales made pursuant to all invoices, quotes or proposals between American Excelsior Company (“AEC”) and its customer (“Customer”). AEC may change these Terms and Conditions of Sale from time to time in its sole discretion; any changes will be posted at the above-mentioned URL and all orders entered into after such changes will be governed by the then-currently posted version of these Terms and Conditions of Sale.
(a) No customer will be allowed to purchase goods on credit without the prior approval of AEC’s credit department, and all such purchases shall be subject to compliance with the terms of such credit, including the Credit Terms and Conditions. In the event credit has not been established, all orders will be shipped C.I.A.
(b) Prices do not include taxes of any kind by federal, state, municipality or other governmental authority, which AEC may be required to collect or pay with respect to the sale or shipment of goods sold hereunder. Regardless of when any such taxes are determined or become payable, all taxes are the responsibility of the Customer and are in addition to the prices quoted hereon. Customer must provide AEC with a resell/exemption certificate in order to avoid the withholding of applicable taxes. No refund or adjustment to previously withheld taxes will be made by AEC sixty (60) days after the invoice date.
(c) Price quotes are based on the cost of materials and labor as of the date of the quotation or proposal. AEC expressly reserves the right to alter its prices to reflect any changes in such costs at any time.
(d) Pricing is based on the quantities provided at the time of the quote. If a different quantity is ordered, AEC expressly reserves the right to revise the pricing.
(e) Special order materials or non-stock items which are required to fulfill a Customer order become the responsibility of the Customer.
2. SHIPMENT, TITLE, RISK OF LOSS, WAIVER OF CLAIMS
(a) All prices and shipments are FOB point of shipment. Title and all risk of loss or damage passes to the Customer upon presentation of the goods to the Customer’s carrier at AEC’s facility, provided, further that title and all risk of loss or damage to Customer’s partially manufactured parts and raw materials delivered to AEC, and as to jigs, fixtures and tools specially ordered for Customer shall at all times remain with Customer even while such items are in the possession of AEC.
(b) If, at Customer’s request, AEC quotes a Common Carrier freight rate for a “Pre-Pay and Add” shipment, AEC will not be responsible for the additional freight costs due to the carrier changing the freight classification. Any additional cost incurred due to the reclassification by the carrier is solely the responsibility of the Customer. AEC reserves the right to charge a handling fee on all Pre-Pay and Add shipments.
(c) All shipments delivered on an AEC truck will be charged a delivery surcharge.
(d) AEC DOES NOT CARRY CASUALTY INSURANCE UPON JIGS, FIXTURES AND TOOLING BUILT BY AEC FOR CUSTOMERS OR SUPPLIED TO AEC BY CUSTOMERS, NOR DOES AEC CARRY INSURANCE UPON RAW MATERIALS SUPPLIED TO AEC BY CUSTOMERS. CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR DESTRUCTION OF JIGS, FIXTURES, TOOLING OR RAW MATERIALS BELONGING TO CUSTOMER IN AEC CUSTODY CAUSED BY FIRE, WATER, GAS, ACTS OF GOD, STRIKES, INSURRECTION, RIOTS OR BY ACTS OF THE CIVIL OR MILITARY AUTHORITIES AND REGARDLESS OF WHETHER SAME IS CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE (WHETHER SOLE, CONCURRENT, OR JOINT), GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL FAULT OF AEC OR OF AEC’S AGENTS OR EMPLOYEES.
3. QUANTITY, MATERIALS AND TOLERANCES
(a) Unless dimensions are limited by a specific tolerance specified in the quote, it is understood and agreed that the production variations as published by AEC will be acceptable.
(b) AEC will not be responsible for color, thickness variations, or flaws in sheets or parts from which fabrications are made, nor for other material variations beyond AEC’s reasonable control.
(c) AEC shall in no event be liable or responsible for any loss or damage resulting from or occurring by reason of unavailability of or delay in shipment or receipt of any order caused by temporary product shortages, unavailability, order backlogs, production difficulties, delays in or unavailability of transportation, fires, strikes, accidents, embargoes, car shortages, delays of carriers, insurrection, riots, acts of the civil or military authorities, or acts of God or any other cause beyond the reasonable control of AEC.
(d) Unless otherwise specified, delivery of ten percent (10%) more or less of completed parts than the quantity specified shall constitute fulfillment of this order and any excess not exceeding ten percent (10%) shall be accepted and paid for by Customer.
(e) In the event any raw material specified for incorporation into the product covered by the quote shall become unavailable, AEC shall notify Customer and Customer, as its sole remedy, may either cancel the order or Customer may direct AEC to substitute available material for that originally specified, it being understood and agreed that Customer shall assume any and all consequences resulting from such substitution, and AEC shall have no liability or responsibility for the adequacy or sufficiency thereof.
Unless specifically otherwise stated, any and all software associated with, incorporated into, or made a part of any product sold, loaned on trial or demonstration to Customer shall be considered proprietary to AEC. Customer agrees not to duplicate for distribution or to sell or distribute in any way the software or any portion thereof without the prior written consent of AEC.
5. CHANGES AND CANCELLATION, REJECTION, CLAIMS
(a) Orders placed with AEC are not subject to cancellation, change or reduction in amount, or suspension of deliveries except with AEC’s consent and upon terms that are acceptable to AEC including indemnifying AEC for any loss resulting from such cancellation, change, reduction or suspension. Unless confirmed in writing by AEC, all verbal agreements or change orders are void.
(b) AEC will not be responsible for changes in design, specifications, deliveries or other instructions, unless they are agreed to by AEC in writing. Customer agrees to pay for all tooling charges or other expenses caused by such changes.
(c) Samples submitted shall be deemed approved unless written rejection is received by AEC from Customer within two weeks of submission.
(d) Manufactured parts will be shipped and billed as they are produced.
(e) Claims for shortages or rejections for defects pursuant to the limited warranty must be made within ten (10) days of Customer’s receipt of goods. Credit will be rendered on such defective parts after AEC has had an opportunity to inspect them and verify the defect, provided they are returned to AEC, transportation charges prepaid, within thirty (30) days, and provided they have not been altered, damaged or defaced in any way.
(f) Reasonable care will be taken by AEC in crating items. It is the Customer’s sole responsibility to verify both the count and condition of shipped items prior to signing the receipt of shipment. Shortages and damages should be listed on the delivering carrier’s Bill of Lading at the time of delivery. AEC shall not be held responsible for damage after having received “in good order” receipts from the transportation carrier. All claim for loss and damage must be made by Customer to the carrier on a timely basis, but AEC will provide reasonable assistance to Customer with its efforts in securing satisfactory adjustment of such claims from the carrier.
(g) Returned Merchandise is subject to a 20% restocking fee. All returns must follow AEC Return Merchandise Approval (RMA) procedure. Contact your AEC Salesperson for instructions.
6. TOOLING AND DESIGNING
(a) In consideration of the engineering service necessary in the designing of jigs, fixtures and tooling not being charged for, but being quoted on the basis of labor and material only, and not at their fair market value, such jigs, fixtures and tooling shall remain in AEC’s possession for at least one year. Thereafter, Customer may purchase such jigs, fixtures and tooling by paying an engineering charge of fifty percent (50%) of the original cost of said jigs, fixtures and tooling, which will be provided by AEC as is, without warranty of any kind.
(b) When requested, AEC may submit suggestions concerning design and construction of parts, but AEC does not assume or accept responsibility or liability for the design or sufficiency of the suggestions in the event that same are accepted by Customer. Such suggestions are made solely as a convenience to Customer and without warranty of any kind.
7. DELIVERY AND ADJUSTMENT TO PRICE
(a) If the Customer requests that the goods be manufactured and shipped on a date (or dates) earlier than originally agreed to by AEC and Customer, and AEC agrees to the earlier date (or dates), Customer will pay AEC for any increase in the cost of performance incurred by AEC resulting from earlier manufacture and shipment.
(b) Should shipments be held beyond scheduled date for convenience of the Customer, Customer will pay AEC for the cost of warehousing, trucking, and other expenses incident to such delay.
8. PAYMENT AND LIENS
(a) Unless otherwise stated on an invoice, all invoices shall be due and payable upon receipt.” No withholding of funds, offsets, back charges or credits against amounts otherwise due AEC is permitted unless specifically agreed to in writing by AEC. Settlement of any amounts due Customer will be negotiated as separate items and not as offsets or credits against amounts otherwise due AEC from Customer for products sold hereunder.
(b) Any unpaid account shall entitle AEC to exercise all available remedies, at law or in equity, including the foreclosure of any liens on any jigs, fixtures, manufactured parts, and raw materials belonging to Customer in AEC possession. In the event any balance remains unpaid for ninety days: (i) AEC may use the Customer’s jigs and fixtures to make parts therefrom, and sell or dispose of manufactured parts and raw materials; and (ii) Customer will pay a service charge of 1.5% per month, or the maximum allowed by law (whichever is less) on all unpaid amounts.
(c) Customer shall not assign or transfer any rights or obligations arising from the quote or these Terms and Conditions of Sale without AEC’s prior written consent, and any such assignment or transfer made without such written consent shall be deemed null and void.
(d) Credit card payments will not be accepted as payment when paying invoices that have been allowed payment terms on an “open account”. Credit cards are only accepted as payment for C.O.D. or C.B.D. shipments.
9. WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY
(a) For products supplied without prior approval of a sample by Customer, AEC warrants for a period of thirty (30) days from delivery that products manufactured or supplied by it will be free from material defects in material and workmanship when shipped from AEC’s facility. If products shall be proved to AEC’s satisfaction to be defective, such products shall, at AEC’s sole option, be repaired or replaced.
(b) For products supplied after prior approval of a sample by Customer, AEC warrants that all products supplied will be substantially similar to such sample.
(c) The warranty in Paragraphs 9(a) and 9(b) shall not apply to any non-conformities, errors, or defects:
(1) in jigs, fixtures and tooling, which are provided “as is”;
(2) existing in or caused by any components, designs, specifications, or any other materials or items supplied by Customer that may be used or incorporated into the products provided by AEC; or
(3) due to: (i) the misuse of any goods, parts, components, or products, (ii) the modification of any goods, parts, components, or products, (iii) the failure by Customer to utilize materials or processes compatible with the goods, parts, components, or products, (iv) the failure by Customer to adhere to AEC’s directions or specifications concerning the goods, parts, components, or products, or (v) any damage incurred as a result of the prolonged or improper storage of the goods, parts, components, or products by Customer.
(d) CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT AEC MAKES NO WARRANTIES IN REGARD TO ANY GOODS, PARTS, COMPONENTS, OR PRODUCTS PROVIDED HEREUNDER EXCEPT AS EXPRESSLY PROVIDED IN THIS PARAGRAPH 9. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PARAGRAPH 9 IS THE SOLE AND EXCLUSIVE REMEDY AND MEASURE OF DAMAGES WITH REGARD TO ANY GOODS, PARTS, COMPONENTS, OR PRODUCTS PROVIDED BY AEC, AND AEC SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER WITH RESPECT TO PARTS OR SERVICES PROVIDED BY AEC.
(e) ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, AEC SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, NOR FOR ANY OTHER REMEDIES WHICH CUSTOMER MAY HAVE UNDER ANY APPLICABLE LAW INCLUDING BUT NOT LIMITED TO COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, PRODUCTS AND SERVICES, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF BUSINESS REGARDLESS OF WHETHER OR NOT AEC HAS BEEN INFORMED OF SUCH DAMAGES OR POTENTIAL DAMAGES. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AGAINST AEC FOR ANY BREACH OF WARRANTY OR ANY OTHER BREACH RELATING TO GOODS DELIVERED PURSUANT HERETO SHALL BE FOR REPAIR OR REPLACEMENT (AT AEC’S OPTION) OF THE GOODS, PARTS, COMPONENTS OR PRODUCTS FAILING TO COMPLY WITH THE WARRANTY. NOTWITHSTANDING THE PRECEDING, IN THE EVENT THAT CUSTOMER IS DEEMED ENTITLED TO MONETARY DAMAGES, IN NO EVENT SHALL AEC’S ENTIRE LIABILITY FOR MONETARY DAMAGES ARISING OUT OF OR RELATED TO ANY GOODS, PARTS, COMPONENTS, OR PRODUCTS EXCEED THE PURCHASE PRICE PAID BY CUSTOMER TO AEC FOR THE ITEMS OUT OF WHICH SUCH CLAIM OR ACTION AROSE.
(f) Customer will indemnify, defend, and hold AEC harmless from and against all liability, damages, penalties, awards, judgments, settlements, and costs or expenses (including reasonable attorney’s fees) incurred in relation to any claim based on: (i) Customer’s use of the goods, parts, components, or products provided by AEC other than in strict accordance and compliance with AEC’s directions or specifications or in combination with other materials or processes not expressly approved by AEC; (ii) the actual or alleged infringement of patents, trade secrets, trademarks, copyrights, or other intellectual property rights of any third parties, if based on any parts, goods or other products made specifically for the Customer or supplied by Customer; and (iii) Customer’s use of the goods, parts, components, or products provided by AEC in violation of any applicable codes, regulations, or laws.
(g) CUSTOMER ACKNOWLEDGES THAT AEC IS SIMPLY FULFILLING CUSTOMER’S ORDER AND HAS NOT DONE ANY INVESTIGATION INTO THE FITNESS OF SUCH PRODUCT FOR CUSTOMER’S INTENDED USE. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THE PRODUCTS SUPPLIED MEET THE FEDERAL, STATE, AND LOCAL CODES AND REGULATIONS APPLICABLE FOR THE INTENDED USE AND AT THE INTENDED LOCATION.
10. Additional Provisions
(a) AEC is hereby authorized by Customer to make corrections of any stenographic and clerical errors contained on any quote or proposal.
(b) These Terms and Conditions of Sale together with the Credit Terms and Conditions, if applicable, and the quote/quotation/proposal constitute the entire agreement between Customer and AEC regarding the subject matter hereof and supersedes and replaces all prior and collateral representations, promises, and conditions in connection with such subject matter. All purchase orders submitted shall be subject solely to these Terms and Conditions of Sale (and any additional terms contained in an AEC quote/quotation/proposal); any preprinted or linked terms on a Customer purchase order form or similar form are objected to and shall not alter or amend the terms of these Terms and Conditions of Sale. Any representation, promise, or condition not incorporated herein shall not be binding on AEC. These Terms and Conditions of Sale, including all matters relating to the validity, construction, performance, and enforcement thereof, shall be governed by the laws of the State of Texas without giving effect to its conflict of laws provisions. AEC and Customer agree that the state and federal courts located in Tarrant County, Texas shall have sole and exclusive jurisdiction over any dispute which arises concerning or in any way related to the quote and these Terms and Conditions of Sale, and each of the parties shall submit and hereby irrevocably and unconditionally consent to such courts’ exercise of sole and exclusive jurisdiction. In any successful action by a party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs of court incurred in such action.
(c) AEC certifies that these goods were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.