THE FOLLOWING TERMS AND CONDITIONS CONTAIN A SECURITY AGREEMENT, INDEMNITY, AND CHOICE OF LAW PROVISIONS - PLEASE READ CAREFULLY.
1. Acceptance. By approving your estimate for labor and/or materials supplied by Seal Tex., Inc., Customer is agreeing to be bound by these Terms and Conditions.
2. Definitions.
a. Company – Seal Tex, Inc., a Texas corporation.
b. Customer – the person, firm or other entity purchasing materials and/or labor from Company.
c. Materials – the materials, products, and/or equipment sold by Company to Customer.
d. Group – Either Company or Customer and its respective parents, affiliates, subsidiaries, and each of their respective officers, members, shareholders, owners, directors, contractors, subcontractors, consultants, agents, employees and invitees.
e. Claims - Damage, loss, liability, claims, demands and causes of action of every kind and character (including all costs and expenses thereof and reasonable attorney fees associated therewith).
3. Payment Terms. Payment for materials and services must be made by cash at the time the services and materials are provided to Customer (“COD customers”) unless Company has approved Customer’s credit application prior to the sale (“Credit customers”). For COD customers, a fifty percent (50%) deposit is due in advance when Customer is requesting special order parts or custom fabrication, with the balance due at the time the services and materials are provided to Customer. All COD customers are required to have a valid credit card on file with the Company before any order is placed. Customer authorizes Company to charge Customer using the payment method on file. Customer’s failure to keep its payment method current and active is a breach of these Terms and Conditions. Where Credit customers have been approved in advance by Company, Customer must pay Company on or before thirty (30) days from the date of the invoice at Company’s office, Dallas County, Texas.
On all accounts, Customer agrees to pay interest on past due balances at the lesser of 1.5% per month (18% annually) or the maximum rate allowed by applicable law. If Customer’s account becomes overdue, Company has the right to revoke any previously applied discounts, and the full invoice price will be immediately due and owing and subject to collection. If Company takes any steps to collect any amounts that are overdue, Customer agrees to pay to Company, in addition to the overdue amount (including interest), the full cost of collecting these overdue amounts, including legal costs, court costs, reasonable attorneys’ fees, and all expenses related to collecting all overdue amounts. Should Customer dispute a portion of an invoice, Customer shall notify Company in writing of the disputed charges and the reasons for disputing same within fifteen (15) days of receiving the invoice, and will pay without delay the undisputed portion, while the disputed portion will be paid promptly after the dispute is resolved. ANY DISPUTE WITH INVOICE CHARGES NOT MADE IN WRITING WITHIN THE TIMEFRAME REQUIRED HEREIN IS WAIVED. Customer acknowledges that Company, in its sole discretion, may refuse to grant Customer the right to request labor and materials on credit or may rescind the right to request materials or labor on credit at any time and for any reason. Company may accept late or partial payments, as well as payments marked “paid in full” or containing other restrictive endorsements without losing or giving up any of its rights.
4. Independent Contractor. In providing any services or products under these Terms and Conditions, it is the understanding and intention of the parties that Company is an independent contractor of Customer at all times, and in no circumstances will Company or anyone employed by Company be considered the agent, representative, employee or servant of Customer.
5. Limited Warranty.
A. Products and accessories supplied by but not manufactured by Company are warranted only to the extent of and by the original manufacturer’s warranty. A new warranty period shall not be established for any product repaired or replaced under warranty. Such items shall remain under warranty only for the remainder of the warranty period on the original materials, products or supplies.
B. When providing ancillary services to the sale of products, Company agrees to perform all services in a good and workmanlike manner. If Customer believes that Company has materially failed to perform the services that Company has agreed to provide, Customer must, within 24 hours from the time that Customer becomes aware of the material failure, inform Company with written notice providing details of the material failure. If this written notice is provided by Customer, and if the material failure is a result of circumstances or reasons that are solely within the control of Company, Company will do one of the following, at its sole discretion: (i) re-perform, within 14 days of receiving written notice from Customer, the services that it materially failed to perform; or (ii) provide a refund of the cost of that portion of the services that it materially failed to perform. Customer agrees and acknowledges that Company’s obligations in respect of services that it has failed to perform as agreed are limited to those described above in 5(B)(i) and 5(B)(ii), and then only if (1) Customer has given written notice as described above; and (2) if the failure to perform is material and as a result of circumstances or reasons that are solely within the control of Company. Customer also agrees and acknowledges that if it fails to give notice as required, Company will have no obligation whatever in respect of services that it has failed to perform as agreed under these terms and conditions.
C. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY SHALL NOT APPLY. COMPANY’S WARRANTIES AND OBLIGATIONS, AND CUSTOMER’S REMEDIES, THEREUNDER (EXCEPT AS TO TITLE) ARE SOLELY AND EXCLUSIVELY AS STATED HEREIN. THIS ARTICLE SHALL APPLY TO ANY ENTITY OR PERSON WHO MAY BUY, RENT, ACQUIRE, OR USE THE PRODUCTS OR SERVICES, INCLUDING ANY ENTITY OR PERSON WHO OBTAINS THE PRODUCTS OR SERVICES FROM CUSTOMER, AND SUCH ENTITY OR PERSON SHALL BE BOUND BY THE LIMITATIONS HEREIN. CUSTOMER AGREES TO PROVIDE SUCH SUBSEQUENT TRANSFEREE CONSPICUOUS, WRITTEN NOTICE OF THIS AGREEMENT.
6. Customer Substituted Work. In no event shall Company be liable for the cost of any repair, replacement or adjustment to the materials or labor obtained by Customer from others to cover any labor and/or materials which are alleged to be defective or otherwise not in compliance with these Terms and Conditions, including without limitation, for labor performed by Customer or others, without Company’s prior written approval.
7. Limitation of Liability.
A. THE TOTAL LIABILITY OF COMPANY ON ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE) OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR USE OF ANY PRODUCTS, GOODS OR EQUIPMENT OR THE FURNISHING OF ANY SERVICE PROVIDED TO CUSTOMER BY COMPANY SHALL NOT EXCEED THE PRICE ALLOCABLE TO THE MATERIALS AND LABOR HEREOF WHICH GIVE RISE TO THE CLAIM.
B. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES OR LOSSES REGARDLESS OF THE SOLE, JOINT OR CONCURRENT NEGLIGENCE (ACTIVE OR PASSIVE) OF ANY PARTY RESULTING FROM OR ARISING OUT OF THE SALE OF THE LABOR AND MATERIALS OR THE BREACH OR NON-PERFORMANCE OF THESE TERMS AND CONDITIONS BY COMPANY OR ITS EMPLOYEES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF RIGHTS FROM UNTIMELY COMPLETION, LOSS OF CONTRACT RIGHTS OR OPTIONS, LOSS FROM RESULTS OF DELAYS, LOSS OF PROFIT, OR BUSINESS INTERFERENCE, WHETHER CAUSED BY THE NEGLIGENCE OF COMPANY OR ITS DIRECTORS, OFFICERS, REPRESENTATIVES, EMPLOYEES, CONSULTANTS, AGENTS OR SUBCONTRACTORS.
8. Indemnification. CUSTOMER AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY GROUP FROM AND AGAINST ANY LIABILITY, DAMAGE, LOSS, EXPENSE, CLAIM OR JUDGMENT ARISING FROM INJURY OR DEATH OF ANY PERSON OR DAMAGE TO ANY PROPERTY ARISING OUT OF OR IN CONNECTION WITH OR FROM THE USE OF ANY OF COMPANY-SUPPLIED MATERIALS OR SERVICES BY THE CUSTOMER GROUP OR ITS CUSTOMERS, IN CONJUNCTION WITH COMPANY OR OTHERWISE. IT IS THE EXPRESSED INTENTION OF CUSTOMER AND COMPANY THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS TO PROTECT COMPANY FROM THE CONSEQUENCES OF THE NEGLIGENCE OF CUSTOMER AND OTHERS, INCLUDING THAT NEGLIGENCE WHICH IS A CONTRIBUTING CAUSE OF THE INJURY, DEATH AND/OR DAMAGE.
9. Default
A. Company has the right to immediately terminate any order from Customer by giving written notice to Customer in the event that Customer defaults on or breaches any obligation hereunder, or if Customer experiences any of the following events:
dissolution, insolvency, filing of a voluntary petition in bankruptcy, adjudication as a bankrupt, appointment of a receiver, trustee or guardian for its business, or an assignment for the benefit of creditors.
B. If Customer should on its part fail to observe or fully comply with any obligation contained herein, Company may, in addition to all other available remedies, take possession of and sell or otherwise dispose of the product(s) in such manner as it deems fit. Any deficiency in price, and all expenses, attending a resale or attempted resale of such product(s) shall be paid by Customer and recoverable from Customer by Company as damages. Any increase in price on resale shall belong to Company.
10. Security Interest. Products shall remain the property of Company until the sales price is paid in full, and in order to secure Customer’s obligation to pay for the products and until such products are paid for in full, the Customer hereby grants to Company a purchase money security interest (“PMSI”) in all products acquired from Company or hereafter acquired from Company and all proceeds thereof. Customer agrees that Company may file any fixture filing and financing and/or Uniform Commercial Code (“UCC”) statement required to perfect such rights. The Parties agree that the term “product(s)” as used herein refers to equipment and that UCC requirements for perfecting a PMSI and/or other security interest in equipment shall apply to all products acquired from Company hereunder. To the extent the products are fixtures or are to become fixtures, Company shall also be entitled to a PMSI and/or other security interest covering fixtures. Customer waives its rights to receive a copy of a financing statement, financing change statement or verification statement relating to the security interest granted herein. In the event of a default of any payment, the unpaid balance of the price shall immediately become due and payable in full. Moreover, upon the occurrence of an event of default, Company shall have, in addition to any remedies provided herein or by any applicable law or in equity, all of the remedies of a secured party under the UCC. Such remedies shall include, without limitation, the right to: (a) peaceably, by Company’s own means or with judicial assistance, enter the premises where the products are located and take possession of the products without prior notice or further demand to Customer or the opportunity for a hearing; (b) render the products unusable; (c) dispose of the products by sale conducted at the premises where the products are located or such other commercially reasonable location; (d) require the Customer to gather the products and make them available to Company at a place designated by Company; and (e) accept the products in full or partial satisfaction of the Customer’s obligation to Company. In addition to the above remedies, if Company requests that the products be made available for pickup, Customer shall immediately: (a) cease using the products and prevent any other persons from using the products; (b) uninstall the products, if already installed; and (c) make the products available and ready for pickup by Company or Company’s agent at the specific location provided by Company. Customer shall take all steps provided in the foregoing sentence within fifteen (15) days of Company’s request that Customer make the products available for pickup. If Customer fails to make the products available for pickup in the time and manner required herein, Company may obtain a temporary restraining order, injunction, or any other available remedy in order to obtain possession of the products. Customer agrees and understands that any such temporary restraining order, injunction, or other available remedy may be utilized by Company regardless of whether the products have already been installed or not, and such remedy may include shutting down or stopping work at the site where the product is located in order to have it uninstalled and repossessed. Such remedies are in addition to all other remedies available to Company at law or in equity. Company will give Customer reasonable notice of the time and place of any public sale thereof or of the time after which any private sale or any other intended disposition is to be made. The requirements for commercially reasonable notice will be met if such notice is sent to Customer at least ten (10) day before the time of the intended public sale or public disposition, or ten (10) days after a private sale or private disposition. The Parties agree that a commercially reasonable location for the sale or other disposition of the products includes but is not limited to: the premises where the products are located at the time of default, the county courthouse in the county where the products are located at the time of default, or at any of Company’s locations. Customer agrees that upon an event of default, it waives the right to object to Company’s acceptance of the product in full or partial satisfaction of Customer’s remaining obligations. Company may resell the product, notwithstanding that a portion of the price may have been paid. Customer shall remain liable for any remaining unpaid balance; however, Customer shall be credited with the proceeds from the resale less Company’s carrying costs and the costs of removal and resale of the products. Customer waives the benefits of any laws which restrict Company from exercising the remedies outlined herein. Company may be entitled to exercise any additional rights and remedies available to it at law, or in equity, or otherwise arising. Until the price is paid in full Customer covenants (a) to keep the products (or any proceeds thereof) free and clear of all security interests, mortgages, charges, liens and other encumbrances, except as otherwise approved by Company in writing prior to their creation or assumption, (b) to not sell, lease or otherwise dispose of the products or any proceeds thereof, except as otherwise approved in writing by Company prior to such disposition, (c) to pay Company all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by Company in connection with enforcing Company’s security interest in the products, or other remedies which Company is entitled to exercise. Company reserves the right to file liens against all properties to which Company has provided services and/or products.
11. Severability. If any part of these Terms and Conditions contravenes any applicable statutes, regulations, rules, or common law requirements, then, to the extent of and only to the extent of such contravention, such part shall be severed from these Terms and Conditions and deemed non-binding while all other parts of these Terms and Conditions shall remain binding.
12. General
A. ANY SALE AND ASSOCIATED SERVICES BY COMPANY TO CUSTOMER HEREUNDER AND THE INTERPRETATION OF THESE TERMS AND CONDITIONS OF SALE SHALL IN ALL ASPECTS BE CONSTRUED UNDER AND GIVEN LEGAL EFFECT IN CONFORMITY WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES
AGREE THAT THE LAW OF THE SELECTED JURISDICTION SHALL APPLY EXCLUSIVE OF ANY PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE APPLICATION OF THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION. ANY SUIT OR PROCEEDING HEREUNDER SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN DALLAS COUNTY, TEXAS. EACH PARTY CONSENTS TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS OF DALLAS COUNTY, TEXAS AND EACH PARTY HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION, OR OTHER PROCEEDING, ANY CLAIM OR ARGUMENT THAT SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT OR THAT SUCH SUIT, ACTION, OR OTHER PROCEEDING IS IMPROPER IN ANY RESPECT OR AN INCONVENIENT VENUE FOR SUCH SUIT, ACTION OR OTHER PROCEEDING.
B. References in these Terms and Conditions to any act, law, statute, rule, or regulation shall be deemed to include references to such as the same may be amended, replaced, or reenacted from time to time.
C. All estimates of Company are subject to change at any time prior to acceptance of an order and expire thirty (30) days from the date thereof, unless otherwise agreed between the parties.
D. Any provisions in any of Customer’s or Company’s previous, current or subsequent purchase orders, quotations, acknowledgements or other contracts, agreements or written forms applicable to this sale, which supplement, are inconsistent with or are in conflict with any provision herein will be void and not enforceable unless specifically agreed to in writing by Company.
13. Assignment. Customer shall not transfer or assign, by operation of law or otherwise, any obligations contained herein without the prior express written consent of Company. Any transfer or assignment of any rights, duties or obligations hereunder by Customer without such consent shall be void.
14. NOTICE. All notices required pursuant to the Terms & Conditions shall be sent by registered or certified mail or email to the addresses identified on the accompanying estimate.
15. WAIVER OF CONSUMER RIGHTS. CUSTOMER WAIVES CUSTOMER’S RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE, INCLUDING ALL SUBSEQUENT AMENDMENTS THERETO, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF CUSTOMER’S OWN SELECTION, CUSTOMER CONSENTS TO THIS WAIVER.
16. DELAY/WAIVER. Company’s delay or failure to exercise any of its rights under this Terms & Conditions shall not waive those rights and Company may, at its discretion, exercise said rights any time thereafter.
17.Construction. The headings in these Terms and Conditions are provided for convenience only and will not affect its construction or interpretation. All words used in these Terms and Conditions will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. Unless otherwise expressly provided, the singular includes the plural, and vice versa. The signatories and their counsel have reviewed these Terms and Conditions before execution, and agree that the normal rules of construction, specifically that “any ambiguities are to be construed against the drafter” will not be employed in the interpretation of any provision of these Terms and Conditions.