Terms & Conditions
- THESE TERMS AND CONDITIONS OF SALE APPLY TO ALL SALES OF GOODS BY JKBC, LLC D/B/A ALPHA OILFIELD SUPPLY, A TEXAS LIMITED LIABILITY COMPANY (“SELLER”). ALL REFERENCES HEREIN TO “BUYER” REFER TO THE PURCHASER OF GOODS FROM SELLER.
- SELLER’S ACCEPTANCE OF ANY PURCHASE ORDER BY BUYER IS EXPRESSLY AND STRICTLY SUBJECT TO THESE TERMS AND CONDITIONS OF SALE (“Terms”). Upon the date of Seller’s acceptance of Buyer’s purchase order, Seller and Buyer shall be deemed to have entered into a legally binding agreement for the purchase and sale of the goods described therein (“goods”) and, that, together with these Terms, shall constitute the entire agreement between the Parties (Agreement”).
- Notwithstanding any prior quotations, correspondence, conversations or purchase orders relative to the goods, these Terms and the expressly accepted purchase order are the sole Agreement applicable to the sale of the goods.
- Purchase orders and other documents or verbal requests of similar effect are subject to Seller’s approval shall not be binding upon Seller until expressly accepted by Seller.
- Any proposal by the Buyer to change these Terms shall not become part of the Agreement unless agreed to in writing by an authorized officer of Seller.
- Catalogs, brochures, product descriptions, and similar materials of Seller or manufacturers are provided for general information and promotional purposes only and are not part of the Agreement.
- Prices in Seller’s published price lists are subject to change without notice.
- Any price quotation given by Seller (whether written or verbal) shall expire at the end of its stated validity period, and if not stated, then 30 days after the date of the quotation. Any price quotation given by Seller may be modified or withdrawn by Seller prior to receipt of Buyer’s written acceptance of the quotation. All orders are accepted on the basis that they are non-cancelable and non-returnable by Buyer.
- Unless otherwise agreed in writing by Seller, Seller’s prices do not include sales, use, value added, excise, or similar type taxes, or duties, packing, insurance, freight, loading, handling and related delivery expenses, all of which shall be payable by and billed separately to Buyer. Seller shall accept a valid tax exemption certificate from Buyer (if applicable). If an issued exemption certificate is not accepted by the relevant taxing authority, and Seller is required to pay the taxes, Buyer shall promptly reimburse Seller for the taxes paid.
- PAYMENT TERMS
- Payment is due in full, in cash, on or before the due date stated on the invoice or, if no due date is so stated, then net 30 days from the invoice date.
- All past due amounts will bear interest at eighteen percent (18%) per annum, or otherwise, the highest rate allowed by law, whichever is less.
- If default is made in the payment of any sums due to the Seller, the Buyer agrees to pay all necessary and reasonable attorneys’ fees, court costs, and other expenses incurred by the Seller for collection.
- If Buyer defaults on any payment obligation, Seller may: (i) withhold deliveries; (ii) place the goods in storage pursuant to the provisions of Section 5(c) below, and/or (iii) seek any other remedy available under applicable law. All costs incurred by Seller as a result of Buyer’s default shall be payable by Buyer upon submission of Seller’s invoices for same. If Buyer’s default is not rectified promptly upon written notice thereof, Seller may terminate the Agreement, and Buyer shall pay Seller its charges for termination upon submission of Seller’s invoices for same.
- The currency of payment shall be U.S. Dollars.
- References in these Terms to “days” shall mean calendar days.
- Unless payment for goods is made in cash in advance or by C.O.D., Buyer’s credit is subject to pre-approval by Seller. If, in Seller’s sole discretion, Buyer’s credit becomes unsatisfactory prior to delivery, Seller may defer delivery until Buyer’s credit improves to a level satisfactory to Seller or cancel the Agreement with no liability.
- In the event Buyer’s business is incorporated after the date of its credit application, the proprietor, or all partners of the business, as the case may be, shall agree to remain personally liable for the payment of Buyer’s account unless a new credit application is submitted for the corporation and Seller approves the new credit application.
- If Buyer does not pay in full prior to or upon delivery, then Buyer shall be considered to be buying the goods on credit and a debtor of Seller. In such cases, Buyer authorizes Seller to prepare and/or file and/or add additional information as it becomes available (which Seller in its sole discretion may deem necessary to create and perfect a security interest in the goods) including, but not limited to, a security agreement, initial financing statement, initial financing statement in lieu of a continuation statement, amendments, and continuation statements, by any means authorized by law, whether such law is currently in effect or becomes effective after the execution of this agreement, including electronic filing. Buyer understands and agrees that it has authenticated this Agreement as a record and authorizes Seller, as its attorney-in-fact, to (i) prepare and file such record(s) without the signature of Buyer, (ii) file such writing bearing any general, generic or super-generic description of the collateral authorized by the applicable code, and (iii) file any future records, which shall be deemed authenticated (as defined in the applicable commercial code) by Buyer.
- Buyer represents and warrants to Seller that it is not insolvent, and that it will immediately notify Seller if it becomes insolvent. If Buyer becomes bankrupt or insolvent, or if any bankruptcy proceeding is brought against Buyer, voluntarily or involuntarily, under any bankruptcy or insolvency laws, Seller shall be entitled to automatically terminate the Agreement without any further liability.
- DELIVERY, TITLE, AND RISK OF LOSS
- Delivery dates are approximate and are based upon prompt receipt from Buyer of all information and materials necessary to complete the order. Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or its customer(s) if Seller fails to meet the estimated delivery schedule.
- Delivery terms shall be in accordance with Incoterms 2010. Delivery dates shall be the dates the goods are ready for shipment or pick up from Seller’s facility. Seller shall, unless otherwise agreed to in writing, deliver the goods to Buyer ExWorks (“EXW”) unloaded at Seller’s facility. Partial deliveries shall be permitted unless otherwise agreed in writing.
- Title and risk of loss (including transportation delays and losses) shall pass to Buyer at the EXW point, or if the parties have agreed in writing that delivery is other than EXW, then title shall pass at the named shipping point and risk of loss shall pass in accordance with the agreed delivery terms, unless otherwise modified in writing by the parties. If Seller consents to a delay in the scheduled delivery date, then upon Seller’s notification to Buyer that the goods are ready for shipment or pick up. However, Seller retains title, for security purposes only, to all goods until paid for in full in cash, and Seller may, at its option, repossess the same upon Buyer’s default in payment and charge Buyer with any deficiency.
- If any goods are not shipped when ready due to Force Majeure (as set forth in Section 8 below), Seller may place such goods in storage. In that case, (i) Seller shall notify Buyer of placement of the goods in storage; (ii) Seller’s delivery obligations shall be deemed fulfilled; (iii) any amounts otherwise payable to Seller upon delivery shall be immediately payable; and (iv) Buyer shall, promptly upon presentation of Seller’s invoice, reimburse Seller for all expenses incurred by Seller incident to storage, handling, inspection, preservation, and insurance.
- Drop Shipments
Buyer acknowledges that from time to time delivery of goods ordered from Seller may be made directly from a manufacturer or original supplier of the goods (collectively, “Manufacturer”) directly to Buyer without coming into Seller’s possession or passing through Seller’s facility (a “Drop Shipment”). In the event of a Drop Shipment, all such deliveries shall be FCA port of shipment of Manufacturer’s facility. Buyer bears cost of shipment and title. Risk of loss or damage shall pass to Buyer upon delivery of the goods by Manufacturer to the carrier, and any loss or damage thereafter shall not relieve Buyer from any obligation in the Agreement. If Buyer does not provide written shipping instructions, Seller (or Manufacturer on Seller’s behalf) will select the carrier and method of shipment without assuming any liability or cost. Shipping and insurance charges shall be paid by Buyer and will be collected on delivery, or if pre-paid, will be invoiced to Buyer.
- Inspection and Acceptance
All goods shall be finally inspected and accepted by Buyer upon receipt with respect to conformity with the agreed description and quantities of the goods. All claims by Buyer for shortages or non-conformity with the description of the goods must be asserted in writing by Buyer no later than 1 business day after receipt and prior to any use (other than limited use solely for inspection), or they are waived and deemed accepted. If an order involves partial shipments, all claims must be asserted as above for each partial shipment. There shall be no revocation of acceptance. Rejection shall be allowed only for failure of the goods to conform with the agreed description of the goods. Buyer’s remedy for lesser defects shall be those provided under Section 9 below.
- FORCE MAJEURE
Seller shall not be responsible for any delay or failure to make delivery due to: (i) failure by Buyer to promptly furnish to Seller information and materials necessary to prepare Buyer’s order; (ii) Buyer’s failure to comply with payment terms; (iii) denial by the U.S. government of export authorization, revocation of export authorization previously granted, placement by the U.S. government of a relevant embargo prior to shipment, or other governmental actions or inactions; or (iv) other causes beyond Seller’s control, including, but not restricted to, fires, floods, strikes, labor disputes, accident, delays or interruptions of transportation, delays of vendors or carriers, material or labor shortages, failure to obtain delivery from manufacturers or subcontractors, acts of military or civil authorities, sabotage, or by any ruling, regulation or law of any governmental bureau or agency. Any delays so occasioned shall affect an extension of Seller’s delivery dates corresponding to the time lost by Seller by reason of the delay and its consequences. Delays shall not release Buyer from Buyer’s obligation to accept and pay for goods.
- DISCLAIMER OF WARRANTIES
- THERE ARE NO WARRANTIES OF ANY KIND PROVIDED BY SELLER HEREBY. The only warranties applying to goods sold by Seller are those, if any, specifically provided by the manufacturer to be honored by the manufacturer. Seller makes no warranties, whether written or oral, express or implied.
- Seller disclaims any express or implied warranties of performance, merchantability, fitness for a particular purpose, workmanship, quality, durability, suitability, or non-infringement, including without limitation in those instances where changes, alterations, or modifications are made in materials at the request or instruction of Buyer, and Buyer agrees not to claim or commence suit against Seller based on any such disclaimed warranties or such manufacturer’s warranties.
- Buyer acknowledges that Seller is a distributor/broker/intermediary only and is not a manufacturer, fabricator, and/or packager, and all applicable product specifications, representations, and warranties are solely those of the fabricator, manufacturer, or packager of the products sold. Buyer’s sole and exclusive recourse for such loss or damage is to the manufacturer, fabricator, or packager of the goods. Buyer waives any right of set-off or cover under the Uniform Commercial Code or otherwise against Seller.
- THE GOODS ARE ACCEPTED BY BUYER AS DESCRIBED ON THE FACE THEREOF. SELLER HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY WHICH MIGHT OTHERWISE ARISE FROM THE COURSE OF DEALING BETWEEN BUYER AND SELLER OR FROM ANY USAGE OF TRADE. SELLER WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, COST OR EXPENSE (WHETHER GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL) SUFFERED OR INCURRED BY BUYER AS A RESULT OF OR IN CONNECTION WITH THE GOODS.
- Buyer agrees that in the event of any resale of products purchased from Seller, Buyer will expressly make the sale (i) “as is” and are without any warranties, and (ii) subject to the limitations of liabilities stated herein. Buyer agrees to indemnify and hold Seller harmless from any claim, loss, or damage, including attorney’s fees and expenses, resulting from a breach of this duty.
- Buyer shall indemnify, defend and hold Seller harmless from any claim, cause of action or liability incurred by Seller as a result of third-party claims caused by Buyer’s negligent and/or intentionally wrongful acts.
- Seller shall no duty to indemnify Buyer from any claim, cause of action or liability incurred by Buyer whatsoever, unless expressly required by applicable law. If applicable law imposes any such indemnification obligation on Seller, then Seller shall have the sole authority to direct the defense of and settle any indemnified claim. Seller’s indemnification is conditioned on Buyer (i) promptly, within the Warranty Period, notifying Seller of any such claim, and (ii) providing reasonable cooperation in the defense of any claim.
- Limitation of Liability
The remedies stated in these Terms are Buyer’s exclusive remedies against Seller for all claims, whether such claims are based on breach of contract, breach of warranty, tort, or other theories. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, SHALL SELER’S LIABILITY TO BUYER EXCEED THE TOTAL PRICE PAID BY THE BUYER TO SELLER FOR GOODS HEREUNDER, NOR SHALL THE SELLER BE LIABLE TO THE BUYER FOR INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BY WAY OF EXAMPLE ONLY AND WITHOUT LIMITATION, LOST REVENUE, LOST PROFIT, LOST PRODUCTION, COST OF CAPITAL, LOSS OF USE, COST OF SUBSTITUTE PARTS, OR DOWNTIME COSTS.
- OWNERSHIP OF MATERIALS
All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information related to the goods, and all related intellectual property rights, shall remain Seller’s and/or the manufacturer’s property and no such rights are transferred whatsoever to Buyer. All new intellectual property conceived or created by Seller in the performance of this agreement, regardless of whether or not done at the request of Buyer, and regardless of whether alone or with any contribution from Buyer, shall be owned exclusively by Seller. Buyer agrees to deliver assignment documentation, if necessary, to achieve that result. Seller grants Buyer a non-exclusive, non-transferable license to use any such material solely for Buyer’s operation and maintenance of the goods. Buyer shall not disclose any such material to third parties without Seller’s prior written consent.
Orders placed with and accepted by the Seller may not be canceled except with the Seller’s written consent. No goods may be returned for credit or replacement except on written approval by Seller.
- APPLICABLE LAW AND VENUE
- As used in these Terms and except as otherwise specifically provided herein, trade or shipping terms shall have the meanings contained in Incoterms 2010.
- Except as otherwise specifically provided by such define Incoterms or in these Terms, the duties and obligations of Buyer and Seller shall be governed the laws of the State of Texas, U.S.A. including the Uniform Commercial Code, as effective and in force on the date of the Agreement, without regard to conflicts of law principles that would cause the law of any other jurisdiction to be applied.
- The courts in Harris County, Texas, U.S.A. shall have exclusive jurisdiction over all disputes between the parties arising out of or in connection with the Agreement formed hereby.
- The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goodsis expressly waived by the parties.
- Export Compliance
All shipments hereunder shall at all times be subject to the export control regulations of the U.S. and any amendments thereto. Buyer warrants and represents to Seller that it shall not make any disposition of U.S. origin goods purchased from Seller by way of trans-shipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified in Buyer’s purchase order and/or Seller’s quotation, as may be applicable, or declared as the country of ultimate destination on Seller’s invoices, except as said laws and regulations may expressly permit. If Buyer is located outside of the U.S. and goods are to be exported by Buyer, and delivery to Buyer is EXW unloaded Seller’s facility in the U.S., Buyer shall be responsible for compliance with export controls, and Buyer, or its authorized forwarding agent, and Seller shall enter into an Assignment of Export Responsibilities in Routed Export Transaction pursuant to the U.S. Code of Federal Regulations (15 CFR 758.3). Seller shall furnish to Buyer information in its possession about the goods that may be needed by Buyer for export authorization and reporting. Buyer further represents and warrants to Seller that, absent export authorization, it shall not, directly or indirectly, export, re-export, or trans-ship any of Seller’s information made available to Buyer, whether such information is received verbally, or in written or electronic format, and whether an actual export or a “deemed” export (as that term is defined in §734.2(b)(2)(ii) of the U.S. Export Administration Regulations).
- The Agreement formed hereby shall inure to the benefit of and be binding upon the parties and their respective affiliates, subsidiaries, successors, and permitted assigns, and no others. Neither the Agreement formed hereby, nor any rights hereunder may be assigned by Buyer without first obtaining the written consent of the Seller, may be withheld at Seller’s sole discretion. Any attempted assignment without such prior written consent shall be void. Seller may, without consent, assign the Agreement formed hereby to its subsidiaries, affiliates, or parent of Seller, or to an acquirer of substantially all of the assets of or a majority of the shares of Seller.
- Forbearance or failure of Seller to enforce any of the conditions or to exercise any right set forth in the Agreement will not affect or impair its rights, nor shall such forbearance be deemed a waiver of it rights in the event of a future default by Buyer.
- The relationship of Buyer and Seller is one of independent contractors. Nothing in these Terms shall be interpreted as authorizing either party to bind the other, to incur any liability on behalf of the other, or to act as an agent for the other.
- In the event that any provision of these Terms is held to be illegal, invalid or unenforceable under any present or future law, rule or regulation, such provision shall be deemed severed from these Terms, but such illegality, invalidity or unenforceability shall not invalidate any of the other provisions of these Terms, and the remainder of these Terms shall continue in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from these Terms. In lieu of such severed provision, there shall be added a legal, valid and enforceable provision as similar in terms and intent to such illegal, invalid or unenforceable provision as may be possible.
- These Terms and the purchase order, quotation, or written order acknowledgment to which they are attached supersede all prior and contemporaneous understandings between Buyer and Seller concerning the goods and constitute their sole and exclusive agreement with respect to the sale by Seller and purchase by Buyer of the goods.