All material sold by Webco Industries is done so under the following Terms and Conditions of Sale. Any other Terms and Conditions are hereby rejected.
The President of Webco Industries is the only person authorized to make or accept modifications to our Standard Terms and Conditions of Sale.
CONDITIONS OF SALE
FEBRUARY 1, 2003
As used herein "Seller" is Webco Industries, Inc. and "Buyer" is the buyer of goods from Seller who has placed a purchase order with Seller for goods to which this document responds.
1. All orders are accepted only at our General Office at Sand Springs, Oklahoma, and shall be construed under and governed by the law of the State of Oklahoma.
2. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s receipt of our acknowledgment without prompt written objection thereto or from acceptance by Buyer of all or any part of the goods ordered. Seller specifically objects to and does not accept any terms proposed in Buyer’s offer which are not consistent herewith.
3. All base prices, together with related extras and deductions, are subject to change without notice, and all orders are accepted subject to prices in effect at the time of shipment. Except as otherwise provided on the face hereof, prices, quotations, shipments and deliveries are f.o.b. Webco facilities. If delivery is included on the face hereof, delivered prices are computed by adding to the price actual transportation costs to the f.o.b. point of destination. If freight rates are increased or decreased prior to shipment, the delivered price on the unshipped portion of any order so priced shall be increased or decreased accordingly. Title to and risk of loss or damage to goods ordered shall pass to Buyer at the f.o.b. Webco facility.
4. The amount of any tax which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of goods or services covered hereby shall be for the account of Buyer and may be added to the price of such goods or services.
5. Production, shipments and deliveries are at all times subject to approval of Seller’s Credit Division, and Seller may at any time refuse to manufacture or ship if Buyer fails to fulfill the terms and conditions of payment or fails to provide security satisfactory to Seller’s Credit Division.
6. Seller shall use all reasonable means to comply with any packaging, loading or bracing requirements specified in Buyer’s order. Any extras due to compliance with such requirements shall be charged according to the extra lists of Seller for the goods shipped. If no packaging, loading or bracing requirements are specified by Buyer, Seller shall comply with the minimum requirements customarily applying to the method of transportation used for such products.
7. Seller shall use all reasonable efforts to comply with Buyer’s request as to method of transportation, but Seller reserves the right, if such method of transportation is not available, to use an alternate method of transportation, whether or not at a higher rate. In any such case, Seller shall notify Buyer of any such changes as promptly as possible.
8. "DISCLAIMER OF EXPRESS AND IMPLIED WARRANTIES AND LIMITATION OF LIABILITY:
Seller warrants that the goods were manufactured according to specifications set forth herein. No other warranty is made and, in the event the goods fail to conform to specifications, Seller will not be liable for any loss, damage, expense or any consequential damages directly or indirectly arising because of the goods or their use, but will be liable only for the repair or replacement of the goods or, at Seller’s sole option, reimbursement to Buyer of the purchase price against return of the goods. This remedy is the sole and exclusive remedy. Any claim that goods fail to conform with specifications shall be deemed waived by Buyer unless made in writing within ninety days from the date of shipment of the goods. Except as otherwise specifically provided herein, all sales are, "as is", and "with all faults." If Buyer is not the end user of the goods, it shall take steps to advise the end user of the disclaimers and limitations contained in these terms.
SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY OF THE GOODS." THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
9. If any goods should arrive at Buyer’s destination in a damaged condition or should a shortage exist, the damage or shortage shall immediately be reported to the delivering carrier and the Seller. In case of damaged goods, a joint inspection of the loaded car, truck or barge shall be arranged with representatives of the carrier and Seller. Where the carrier’s equipment cannot be held for inspection, the material shall be unloaded, protected and held for joint inspection. Before unloading, the alleged damage or shortage shall be noted on the carrier’s delivery receipt and signed by the carrier’s agent. Any losses occasioned by shortage or damage in transit shall be for the account of Buyer.
10. Claims respecting the condition of goods, compliance with specifications or any other matter affecting the goods must be made promptly by the Buyer but in no event later than ninety (90) days after receipt of the goods by Buyer. The Buyer should set aside, protect and hold such goods without further processing until the Seller has an opportunity to inspect such goods and advise Buyer of the disposition, if any, to be made of such goods. No goods, in any event, shall be returned without first securing the authority of the Seller. No allowance will be made to Buyer for materials or labor involved in the movement of rejected goods from the plant of Buyer.
11. It is expressly understood that any technical advice furnished by Seller with respect to the production or use of its goods is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer’s risk. Seller is not an engineering firm. Any issues, concerns, specifications or requirements for Buyer’s use of the goods is beyond Seller’s knowledge and Buyer agrees no reliance is given to any suggestion or advice given by Seller. Buyer represents that it has consulted with or had an opportunity to consult with engineers and any such other expert or specialist and has satisfied itself that the specifications required for the goods ordered are satisfactory for its use. Seller has not been provided with and has made no advice, recommendation or representation that the goods specified are adequate for the purpose Buyer intends. See paragraph 8, above.
12. Seller will not be liable for any delay in performance resulting in whole or in part from fires, floods, or other catastrophes; unusually severe weather conditions; strikes, lockouts or labor disruptions; wars; riots or embargo delays; mill conditions; shortage of transportation or other equipment, fuel, labor or materials; or any other circumstances or causes, whether similar or dissimilar, beyond the control of the Seller in the reasonable conduct of its business.
13. Buyer hereby authorizes Seller to credit toward the payment of any monies that may become due Seller hereunder, any sums which may now or hereafter be owed to Buyer or Seller or by any subsidiary or other affiliate of the Seller.
14. Variation in weight and footage measurements by the Buyer up to one percent is a permissible variation from invoiced quantities to account for differences in kind, type, location and accuracy of measuring devices and possible human errors.
15. The Buyer cannot cancel or modify purchase orders or hold up releases after the order is in process, except with Seller’s consent. Any such action shall be subject to conditions then to be agreed upon. This shall include protection of the Seller against all loss.
16. Waiver by Seller of any breach of any of the terms and conditions of this agreement shall not be construed as a waiver of any other breach, and the failure of Seller to exercise any right arising from any default of Buyer under this agreement shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
17. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in Tulsa, Oklahoma, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Costs (including the fees of the American Arbitration Association and the costs and expenses of the arbitrators) shall be divided equally between the parties. Attorney’s fees are not awardable to the prevailing party and each party shall bear its own attorney’s fees and costs. The decision shall be made by a panel of three (3) arbitrators and shall be a reasoned award.
18. The terms and conditions set forth herein shall constitute the sole terms and conditions of this contract. No other terms or conditions, whether contained in Buyer’s purchase order, shipping release, or elsewhere, will be binding upon Seller, and Seller hereby expressly objects to any such terms and conditions. All proposals, negotiations, and representations, if any, made prior to the date hereof are merged herein. The parties acknowledge that no warranties, express or implied, have been made or established in their course of dealing, course of performance or usage of trade.
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