TERMS AND CONDITIONS OF SALE AND WARRANTY

GENERAL

These terms and conditions of sale and warranty, and the Ryan Herco Products Corp., d/b/a Master Pumps and Power (“Seller”) Quote or Order Acknowledgement to which they have been incorporated by reference, shall constitute the final, complete and exclusive statement of this contract and may not be modified or rescinded, except by a written instrument signed by the parties. As an offer, the Seller’s Quote or Order Acknowledgement expressly limits acceptance to these terms and conditions. As an acceptance of the Buyer’s offer, this acceptance is expressly conditioned on the Buyer’s assent to any additional or different terms contained herein. As a confirmation of an existing contract, the parties agree that the Seller’s Quote or Order Acknowledgement and these terms and conditions of sale and warranty constitute the final, complete and exclusive terms and conditions of the contract between the parties. Any varying, differing or additional terms and conditions contained in the Buyer’s purchase order, request for quotation or elsewhere in any other document shall not be binding upon Seller.

 

SHIPPING AND PAYMENT

  1. All sales are F.O.B. Shipping Point and Buyer assumes all risk and liability for loss, damage, or destruction after delivery of the product to the carrier. Such changes as may occur in the tariff freight rates or transportation charges are used in determining delivered prices after date of quotation or sale and on or prior to dates of shipments, will be for the account of the Buyer. All sales are subject to increase without notification by the amount of any sales or excise tax leveled or charged by any governmental agency and are subject to any price adjustment necessitated by our compliance with any governmental action. All applicable federal, state or local sales, use, occupational, excise, export, import or like taxes now in force or enacted in the future are the responsibility of the Buyer and shall be in addition to the price or prices stated on the reverse side of this document. Unless otherwise specifically stated, Seller shall have the right to invoice separately any such tax as may be imposed later. Applicable tax exemption certificates must accompany any order to which the same applies.
  2. All payments are due Net thirty (30) days from invoice date. For any payment made more than thirty (30) days past invoice date, Buyer agrees to pay interest on the unpaid balance at the rate of I .5% (18% per annum) or the maximum allowed by law if less than 1.5% (18% per annum) plus any costs of collection and any costs associated with the purchase money security interest, including filing fees, legal fees and court costs.
  3. All quotations are for immediate acceptance and subject to change without notice and expire unless accepted within 30 days from the date of quotation.
  4. Seller’s responsibility ceases upon delivery of goods to carrier, and Buyer, by accepting same from carrier, agrees that goods are free of defects which a reasonably careful inspection would disclose.
  5. All shipping dates given are approximated. While effort is made to maintain schedules, Seller will not be liable for damages due to delays.

 

INDEMNITY

Buyer agrees to indemnify and save harmless, Seller from all costs incurred by Seller, including legal fees and court costs, as a result of any claim brought against Seller arising from Buyer’s conduct, including, but not limited to, Buyer’s misuse of the goods or, for any custom-designed goods, design decisions or product choices made by Buyer.

 

WARRANTY & DISCLAIMER

  1. Subject to the terms and conditions hereinafter set forth. The Seller warrants products and parts sold by it, insofar as they are of its own manufacture, against defects of material and Workmanship, under us and service in accordance with manufacturers written instructions, recommendations and ratings for installation, operations, maintenance and service of products, for a period of three months from the date of initial use, provided that such three months period shall in no case extend beyond one year from the date of shipment by Seller. THIS WARRANTY IS LIMITED TO REPAIR OR REPLACEMENT, AS SELLER MAY ELECT, OF ANY DEFECTIVE PARTS, REGARDING WHICH, UPON DISCOVERY OF DEFECTS, THE BUYER HAS GIVEN IMMEDIATE WRITTEN NOTICE. Installation and transportation costs are not included. Seller shall have the option of requiring the return to it of the defective material, transportation prepaid, for inspection. Because of varying conditions of installation and operation all guarantees of performance are subject to variation of 3%.
  2. Seller has not authorized anybody to make any representation or warranty other than the warranty contained herein.
  3. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY & FITNESS FOR A PARTICULAR PURPOSE.
  4. Seller hereby assigns to Buyer any rights it may have under any warranty extended by a third party covering any good, product or component sold by Seller to Buyer. Materials manufactured by others and resold by Seller do not carry any additional warranty by Seller.
  5. Any “custom conversion” or adaptation hereunder is pursuant to the Buyer’s specific request, and the Seller shall bear no risk of loss resulting therefrom.
  6. Seller’s warranty shall not apply to any good, product or component which has been repaired, modified or altered outside of Seller’s locations in any manner or has been installed or used in a manner contrary to the original manufacturer’s printed instructions. In the event Buyer modifies the goods sold hereunder without the express written consent of Seller, Buyer agrees to indemnify and hold Seller harmless from any and all claims, demands, actions or causes of action or costs or expenses incurred thereby.
  7. Buyer is solely responsible for the design, selection and application of fabricated goods, equipment, products, components and materials purchased from Seller. Any drawings, specifications, or information prepared by or furnished by Seller are for reference purposes only, and Seller makes no warranty or representations concerning the accuracy of such materials or information. Seller has no responsibility for the design, selection and application of products, components and materials purchased by Buyer.
  8. The foregoing limitations on Seller’s liability shall also be the absolute limit of Seller’s liability for negligence or defect in the manufacture, installation or other action with respect to the articles sold hereunder.

 

DELAY AND FORCE MAJEURE

In no event shall Seller be liable for any delays in performance or delivery arising from the acts or omissions of Buyer or of any third party unrelated to Seller, or arising from an event of Force Majeure.  As used herein, the term “Force Majeure” includes catastrophic storms or floods, lightning, tornadoes, hurricanes, earthquakes and other acts of God, wars, action by governmental authority, civil disturbances, terrorist attacks, revolts, insurrections, sabotage, commercial embargoes, epidemics and pandemics, fires, explosions, labor disturbances, manufacturing delays, materials shortages, and supply chain delays.

 

CANCELLATION

Orders cannot be cancelled by Buyer under any circumstances and all goods are Non-Cancellable and Non-Returnable by Buyer without the Buyer first reaching an agreement in writing with the Seller covering all Seller’s damages. In every event, written permission from Seller must be secured prior to returning goods for credit. Return of any goods must be authorized in writing by Seller, have Seller’s “authorized material return” Return Goods Authorization (RGA) number and be accompanied by a copy of original packing slip verifying shipment from Seller’s plant or warehouse. Any request to return goods must be made within ten (10) days from the receipt of the goods by Buyer. Returned goods must be in first class saleable condition, in their original container, shipment prepaid. Subject to the limitations of Seller’s Warranty, if goods are returned because of an error acknowledged by Seller, Seller will remedy any such error without expense to the Buyer. Components, systems and Software Materials designed to meet Buyer’s unique requirements or specifications are not returnable. Nonstandard or used material shall not be subject to return. Unless otherwise expressly agreed, an order for equivalent value must accompany returned goods and all such goods are accepted for credit only after factory inspection. Buyer returning merchandise must pay transportation charges and bear risks of loss or damage to goods while in transit.  A minimum 20% of invoice shall be charged for all goods returned to Seller.

 

CREDIT APPROVAL

Shipments and deliveries shall be subject to approval of Seller’s Credit Department if Buyer fails to fulfill the terms of payment, Seller may defer shipment or at its option, cancel the unshipped balance, or charge vendor account if applicable. Seller reserves the right, previous to making any shipments, to require from Buyer’s obligation. No failure of Seller to exercise any right accruing from any default of Buyer shall impair Seller’s rights in case of any shipment default of Buyer.

 

LIMITATION OF LIABILITY

Seller shall not be liable under any circumstances for consequential, incidental, indirect or remote damages. No claim by Buyer hereunder, whether relating to goods delivered or for non-delivery, shall be greater than the purchase price of the goods in respect to which such claim is made.

 

SECURITY INTEREST

Seller hereby retains a security interest in all materials and services purchased by customer under this agreement to secure payment of the same, and all delivery tickets and invoices pertaining to sales by Seller to all incorporated herein by reference. In case of no payment by customer for an invoice or invoices, Seller shall have the right to re-possess and sell items purchased under this agreement in accordance with the applicable provisions of the TEXAS BUSINESS COMMERCE CODE or other laws governing jurisdiction outside the State of Texas.

 

MISCELLANEOUS

(a) This Agreement may not be assigned or otherwise transferred by Buyer without the prior written consent of Seller, and any such prior written consent shall be null and void and of no force or effect whatsoever.

(b) Seller’s failure to insist, in one or more instances, upon the performance of any term hereunder shall not be construed as a waiver or relinquishment of its right to such performance or the future performance of such term and Buyer’s obligation with respect thereto shall continue in full force and effect.

(c) Any notice or other communication required or permitted hereunder shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid, to the other party thereto at its respective address contained herein. Seller’s address is P.O. Box 1778 Grapevine, Texas 76099. Any such notice, if so mailed, shall be deemed to have been received on the third business day following such mailing. Either party hereto may change its address for notice purposes by written notice to the other party.

(d) The invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity or enforceability of any other of its provisions.

(e) All sales under all orders and these terms and conditions are subject to the Seller’s and/or Governmental Policies, laws and regulators, now or hereafter established.

(f) Seller reserves the right to change, discontinue or modify the design and construction of any product or to substitute material equal to or superior to that originally specified.

(g) This proposal shall not become effective until accepted by an authorized official of the Buyer.

(h) This proposal cannot be changed or varied by any verbal agreement and all orders are accepted under the provisions set forth. There are no other oral agreements in force.

 

APPLICABLE LAW

This Agreement, and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Texas. THE JURISDICTION AND VENUE OF ANY LEGAL PROCEEDINGS FOR THE RESOLUTION OF DISPUTES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SALE BY SELLER TO BUYER SHALL BE IN THE FEDERAL OR STATE COURTS SITTING IN TARRANT COUNTY, TEXAS. BUYER HEREBY SUBMITS TO THE JURISDICTION OF ALL SUCH FEDERAL AND STATE COURTS SITTING IN TARRANT COUNTY, TEXAS.

 

INSTALLATION

Equipment shall be transported, installed, and connected at Buyer’s RISK & EXPENSE. The Buyer is to furnish all labor, supplies and facilities for such installation and erection of package supplied pump on his own installation site. In no event shall Seller be liable for consequential damages, loss of anticipated profit or loss of use of equipment, or any installation into which its equipment may be installed. At the original installation of supplied unit, if requested, Seller will furnish a qualified field representative. Buyer shall pay time and a half for overtime and double time for Sundays and Holidays plus all living and travel expenses. Seller shall not be liable for damages or injury for property or persons arising from its service work unless such is attributable solely to its field representative.

Performance or Delivery In Governing Law Seat of Dispute Resolution
United States State of Texas Tarrant County, Texas