By accepting delivery of goods supplied by Lynco Associates LTD, dba Lynco Flange & Fitting (“LFF”), Purchaser agrees to be bound by these terms and conditions and any purchase order (the “Terms”). Terms contained in any purchase order or other document submitted by Purchaser which are inconsistent with or in addition to these Terms are rejected, objected to and shall be deemed void and of no force or effect.
Any quote provided by LFF is firm only if Purchaser places a corresponding order within the time specified on the quote or, if no time period is mentioned, within 5 days.
Once submitted to LFF, any changes to any purchase order may be made only with written approval of LFF. Such changes may require different Terms, including a change in the price and/or time of delivery.
Once submitted to LFF, Purchaser may not cancel any order unless expressly approved by LFF in writing. Approval may be contingent on Purchaser’s payment of LFF’s costs and other charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on LFF by its suppliers, and all other costs resulting from Purchaser’s cancellation. A verified bill of costs issued by an authorized representative of LFF shall be conclusive as to the amount of such costs. LFF reserves the right to cancel any purchase order, in whole or in part, upon Purchaser’s breach of these Terms or Purchaser’s bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading LFF to reasonably question Purchaser’s willingness or ability to perform.
Unless otherwise noted, all sales will be delivered at LFF’s shipping point. If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs. Delivery of goods to the carrier at LFF’s shipping point shall constitute delivery to Purchaser and Purchaser shall bear all risk of loss or damage in transit. The general method of shipment for each item is listed in LFF’s product directory. However, LFF reserves the right, in its sole discretion, to determine the exact method of shipment. LFF reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Purchaser of its obligations to accept remaining deliveries. Immediately upon Purchaser’s receipt of any goods shipped hereunder, Purchaser shall inspect the same and shall notify LFF in writing of any claims for shortages, defects or damages and shall hold any such nonconforming goods for LFF’s written instructions concerning disposition. If Purchaser fails to notify LFF of any nonconformance within five days after receipt of the goods, such goods shall be conclusively deemed to conform to the Terms and are irrevocably accepted by the Purchaser.
Any specified delivery dates are estimates only and do not represent a promise by LFF to deliver goods at a date certain. LFF’s performance is excused and LFF shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder during causes beyond its control, including without limitation, unsuccessful reactions, acts of Purchaser, embargo or other governmental act, regulation or request affecting the conduct of LFF’s business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate the purchase order and Purchaser will pay LFF for work performed prior to termination. In the event of delays in delivery or performance caused by force majeure or by Purchaser, the date of delivery or performance shall be extended by the period of time LFF is actually delayed or as mutually agreed. If, for reasons other than the foregoing, LFF should default or delay or not deliver goods, Purchaser’s sole remedy against LFF is an option to cancel the purchase order, through written notice to LFF.
Payment & Interest
Unless otherwise stated, payment in full shall be made within 30 days of invoice. LFF reserves the right to require an advanced deposit of up to 100% of the purchase price at the time of order or any time prior to delivery as a condition of performance. Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law). If for any reason, in its sole and unfettered discretion, LFF deems the collectability of the purchase price to be in doubt, LFF may, without notice to Purchaser, delay or postpone the delivery of the goods and at its option may demand payment in full or in part in advance, with respect to the entire undelivered balance of goods.
In the event of default by Purchaser in the payment of the purchase price or otherwise, LFF may, at its option, defer delivery, cancel Purchaser’s order and any other order of Purchaser, or sell any undelivered goods for the account of Purchaser and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and Purchaser agrees to pay the balance then due to LFF on demand. Purchaser agrees to pay all costs, including, but not limited to, reasonable accounting and attorneys’ fees and other expenses of collection resulting from any default by Purchaser in any of the Terms.
Taxes & Other Charges
LFF shall not be responsible for the payment of any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on, or measured by, the sale of goods, with the sole exception of any sales taxes invoiced and collected by LFF from Purchaser. All other such charges must be paid by Purchaser separately and in addition to the prices quoted or invoiced. In the event LFF is required to pay any such tax, fee or charge, Purchaser shall reimburse LFF; or, in lieu of such payment, Purchaser shall provide to LFF, at the time the order is submitted, an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.
LFF warrants that its goods shall, at the time of delivery, conform to the description of such goods as provided to Purchaser by LFF through LFF’s product directory, analytical data or other then-current literature. THIS WARRANTY IS EXCLUSIVE, AND LFF MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. Any warranty made by LFF in connection with this sale shall not be effective if LFF has determined, in its sole discretion, that Purchaser has misused the goods in any manner, has failed to use the goods in accordance with industry standards and practices, or has failed to use the goods in accordance with instructions, if any, furnished by LFF.
LFF’s Liability & Purchaser’s Remedies
LFF’S SOLE AND EXCLUSIVE LIABILITY AND PURCHASER’S EXCLUSIVE REMEDY WITH RESPECT TO GOODS PROVED TO LFF’S SATISFACTION TO BE NONCONFORMING SHALL BE REPLACEMENT OF SUCH GOODS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE UPON THE RETURN OF SUCH GOODS IN ACCORDANCE WITH LFF’S INSTRUCTIONS. LFF SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE GOODS, EVEN IF SUCH DAMAGES ARE FORESEEABLE, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF PURCHASER TO A THIRD PARTY, OR FOR ANY LABOR OR OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH GOODS, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE, UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY LFF’S GROSS NEGLIGENCE. THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS. LFF’S LIABILITY FOR DAMAGES SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC GOODS THAT GIVE RISE TO THE BREACH. THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY.
Statute of Limitation
Any claim against LFF must be brought within one (1) year of shipment, regardless of its nature.
Goods may not be returned for credit except with LFF’s written authorization. The return of goods must be accompanied by a written return authorization document in the form then in use by LFF, and only in strict compliance with LFF’s return shipment instructions. Certain goods and quantities may not be returned for credit under any circumstances. These items include, but are not limited to, custom goods or special orders. Any returned goods may be subject to a 30% processing fee and must be returned within 90 days of purchase.
Waiver/Rights & Remedies Cumulative
The rights and remedies provided LFF herein are cumulative and are given in addition to any other rights LFF may have by law, statute, ordinance, or otherwise. Nothing herein shall limit the remedies available to LFF. LFF’s exercise of any right or remedy will not preclude or waive its right to exercise any other right or remedy. LFF’s failure to insist on performance of any of the terms herein or to exercise any right or privilege hereunder shall not thereafter waive any other terms or privileges whether of the same or similar type. No waiver by LFF of a breach of the terms herein or any purchase order may be construed as a waiver of any succeeding or preceding breach.
Choice of Law/Service of Suit
Any dispute between Purchaser and LFF shall be subject to the exclusive jurisdiction of the Courts of Harris County, Texas and governed by and interpreted according to the laws of the State of Texas, without regard to principles of conflict of law. Purchaser agrees to submit itself to the jurisdiction of the state courts of Texas and will comply with all requirements necessary to give such court jurisdiction.
Purchaser grants to LFF a security interest in the goods sold hereunder and in any goods made or fabricated therefrom and the proceeds thereof, said security interest securing all obligations of Purchaser at any time owing to the LFF, whether now existing or hereinafter incurred. Purchaser agrees, until such time as LFF has been paid in full for the goods purchased hereunder, that it will keep the goods free from any adverse security interest. LFF may file a copy of the applicable invoice as a financing statement at any time.
Any provision found to be invalid by a competent court of jurisdiction shall be severable and shall have no effect on the validity of the remaining terms and conditions.