MENGER VALVE, LLC.
TERMS AND CONDITIONS OF SALE
- TERMS EXCLUSIVE:
The terms and conditions of the purchase order or requisition to which these GENERAL TERMS AND CONDITIONS OF SALE (these “Terms and Conditions”) relate or are attached (“Order”), are exclusive and represent the full and final agreement of Menger Valve, LLC., a Texas Limited Liability Company (“Menger”) and the purchaser (“Purchaser”) as they relate to the goods, material, labor, or services covered in the Order (the “Products”), and may not be added to, modified, superseded, or altered except by written agreement or modification signed by Menger’s authorized representative, notwithstanding any additional or other proposals, terms, and/or conditions which may now or in the future appear on Purchaser’s Orders or other forms and notwithstanding any shipment of Products, acceptance of payments, or other similar acts of Menger, notification of objection thereto being hereby given.
Orders may be submitted to Menger in writing or orally, provided, however, that if Purchaser fails to provide a detailed, formal written Order (a) within ten (10) days of an oral Order or (b) before shipment of the Order, whichever is earlier, then Product descriptions, quantities, specifications, etc., as set forth in Menger’s acknowledgement, acceptance, and/or invoice, shall be conclusive and binding on both parties. All Orders are subject to credit approval and acceptance by Menger. An Order shall be deemed to have been accepted by Menger upon the first to occur of the following: (i) Menger’s first shipment or other tender of the Order or (ii) acceptance thereof by Menger in writing.
Prices for Products are quoted and payable in U.S. dollars (“USD”). Prices stated in general price lists are subject to change without prior notice, at Menger’s sole discretion. Prices that are provided in a specific quotation will remain firm for thirty (30) days of the issued date of the written quotation. All prices are exclusive of freight costs, taxes, and duties. All taxes, duties, fees, charges, and assessments levied on or with respect to the Products, and whether levied against Purchaser or Menger, are for Purchaser’s account and, unless invoiced, shall be paid by Purchaser directly to the appropriate governmental agency.
- SHIPPING TERMS:
Delivery of Products to Canada, the United States, and Mexico shall be F.O.B. (as defined in the Uniform Commercial Code as in effect in the State of Texas) Menger’s office and warehouse at 11252 East Hardy Road, Houston, Texas 77083.
All transportation expenses, freight, and insurance shall be paid by Purchaser, and risk of delay, loss, or damage incurred in transit shall be borne by Purchaser, who shall be responsible to file any such claims with the relevant carrier(s) or insurers.
Upon tender of delivery, title shall pass to Purchaser, subject to Menger’s right of stoppage in transit and to Menger’s security interest in the Products, as set forth in Section 6.
If the Products are held by Menger subject to receiving instructions from Purchaser or in any case where Menger, in its sole discretion, determines any part of the Products should be held for Purchaser’s account, Menger may invoice the Products, and Purchaser agrees to make payment in accordance with these Terms and Conditions. Products invoiced and held at any location by Menger will be held at Purchaser’s risk, and Menger may charge for (but is not obligated to carry) insurance and storage.
If Purchaser has declared or manifested an intention not to accept delivery in accordance with these Terms and Conditions, no tender will be necessary, but Menger may, at its option, give notice to Purchaser that Menger is ready and willing to deliver and such notice will constitute a valid tender of delivery.
- INSPECTION AND ACCEPTANCE:
Each shipment shall be inspected by Purchaser for observable damage and/or non-conformity at the time of delivery of the Products. Failure to so inspect shall constitute a waiver of Purchaser’s rights of inspection and
shall constitute an unqualified acceptance of the Products. If, after such inspection, Purchaser attempts to reject any Products, Purchaser shall fully specify all claimed damage or non-conformity in writing in a notice of rejection sent to Menger within five (5) days of delivery of the Products. Purchaser’s failure to so specify shall constitute a waiver of that damage or non-conformity. Partial deliveries shall be accepted by Purchaser and paid for according to these Terms and Conditions.
- PAYMENT TERMS:
Payment shall be due net thirty (30) days from the date of invoice. Overdue accounts shall be subject to a charge of one and one-half percent (1.5%) per month on any unpaid balance until paid in full. In the event Purchaser defaults on its obligations hereunder, Purchaser shall be liable for all of Menger’s costs and expenses of collection, including reasonable attorneys’ fees. Menger may, at its option, cancel and/or sell any unshipped Products should Purchaser fail to fulfill the complete terms of payment. Purchaser will have no right to offset any amounts against any payment or other obligation which Menger may owe to Purchaser. Menger hereby reserves a security interest in the Products to secure Purchaser’s payment of the purchase price and any other amounts owed by Purchaser, and Purchaser agrees that Menger may (but is not obligated to) take such action as Menger deems advisable to evidence and perfect such interest and that Purchaser will cooperate with Menger in the taking of such actions.
- CREDIT APPROVAL:
Notwithstanding the provisions of Section 8, Menger may at any time decline to make any shipment or delivery or perform any work except upon receipt of payment or upon terms and conditions or security satisfactory to Menger, including, but not limited to, requiring that Purchaser provide Menger one or more letters of credit.
- LEAD TIMES:
Estimated lead times, if specified, are approximate only and are not guaranteed. Failure to ship on or near the estimated date shall not entitle Purchaser to any remedy or to cancel the Order without charge.
- RETURN OF PRODUCTS:
No Product shall be returned to Menger without Menger’s prior written agreement. Products returned by Purchaser shall be returned in the same condition as when delivery was affected by Menger. Only Products that are new, unused, and in a condition suitable for immediate resale shall be considered for return. Only applicable to standard items shipped with the past 60 days. Menger reserves the right to assess a minimum thirty-five percent (35%) restocking charge for Products returned for reasons other than defects or non-conformity.
Purchaser shall not cancel or suspend an Order without Menger’s prior written consent, which such consent Menger shall be under no obligation to provide. In the event of cancellation or suspension of an Order without Menger’s prior written consent, in addition to Menger’s other rights and remedies available hereunder and under applicable law, Purchaser shall pay cancellation charges applicable to the canceled or suspended purchase. The charges shall be determined by Menger at the time of cancelation and detailed in the written approval of cancelation.
Menger may cancel all or part of an Order immediately upon the happening of any of the following: Purchaser is delinquent on any of its obligations hereunder or under any order or transaction with Menger, insolvency of Purchaser; the appointment of a custodian as that term is defined in Title 11 U.S.C., as amended (the “Bankruptcy Code”), or the commencement of a case under any chapter of the Bankruptcy Code or the bankruptcy, receivership, insolvency or similar laws of any country for, by or against Purchaser; Purchaser’s suspension or termination of business or assignment for the benefit of creditors; or any event, whether or not similar to the foregoing, which materially impairs Purchaser’s ability to perform hereunder. Menger’s rights to cancel or postpone set forth herein may be exercised by Menger without liability.
Menger reserves the right to make corrections to price lists, quotations, invoices, or other contract documents in the event of clerical or typographical errors.
- MENGER PRODUCT WARRANTY:
For a period of twelve (12) months from date of shipment of the Products, Menger warrants to Purchaser that the Products, as applicable, are free of defects in material and workmanship, under normal use and proper operation. If any such Products fail to comply with such warranty, Menger, at Menger’s option, shall either: (i) replace such defective Products; (ii) furnish replacement parts for repairing Products (iii) issue written authorization for Purchaser or others to replace or repair, without charge to Purchaser, at costs comparable to manufacturer’s normal manufacturing costs, those parts proven defective; or (iv) refund all monies paid by Purchaser to Menger for such Products and, at the sole discretion of Menger, have the Products returned to Menger at Menger’s expense. Finished materials and accessories purchased from manufacturers are warranted only to the extent of the manufacturer’s warranty to Menger (to the extent transferable by Menger to Purchaser). Any alteration in material or design of the Products or component parts thereof by Purchaser or others and/or the undertaking of repairs or replacement by Purchaser or its agents without Menger’s written consent shall relieve Menger of all responsibility herewith.
Menger’s obligations under this warranty shall be conditioned upon (a) Purchaser’s notifying Menger of any alleged defect(s) in a writing that references Purchaser’s Order number and provides complete identification of any allegedly defective Products within ten (10) days of the discovery of the damage or defect, and (b) Menger satisfying itself upon inspection that its warranty has been breached. Purchaser may not bring any action under or arising from an Order or these Terms and Conditions unless such action is commenced within one year after the cause of action accrues.
EXCEPT AS SET FORTH IN THIS SECTION 12, MENGER MAKES NO WARRANTY CONCERNING THE PRODUCTS WHATSOEVER; MENGER DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE OBLIGATIONS SET FORTH IN THIS SECTION 12 ARE MENGER’S SOLE OBLIGATIONS AND PURCHASER’S EXCLUSIVE REMEDY. MENGER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND PURCHASER HEREBY WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, (A) ANY AND ALL CLAIMS FOR PUNITIVE DAMAGES AND (B) ALL CLAIMS OF NEGLIGENCE OR STRICT LIABILITY OR BOTH. WITHOUT LIMITATION TO THE FOREGOING, IN NO EVENT SHALL MENGER BE LIABLE FOR THE LOSS OF USE OF THE PRODUCT OR FOR THE LOSS OF USE OF ANY OTHER PRODUCT, PROCESS, EQUIPMENT, OR FACILITIES OF PURCHASER OR OF THE END-USER, WHETHER PARTIALLY OR WHOLLY DUE TO DEFECTS IN MATERIAL AND/OR WORKMANSHIP AND/OR DESIGN OF MENGER’S PRODUCT, AND IN NO EVENT SHALL MENGER BE LIABLE FOR REMOVAL OF APPURTENANCES OR INCIDENTALS SUCH AS CONNECTIONS, PIPE WORK AND SIMILAR ITEMS OF OBSTRUCTION OR FOR ANY COSTS BROUGHT ABOUT BY NECESSITY OF REMOVING THE PRODUCT FROM ITS POINT OF INSTALLATION.
Purchaser (a) recognizes that the limitations contained in this Section 12 are material factors in Menger’s sale of the Products at the price(s) specified, and (b) agrees that any accommodation to Purchaser by Menger, whether for sales policy reasons or otherwise, shall not be taken to establish any liability of Menger or any contract term inconsistent with this Agreement.
Purchaser shall neither make nor purport to make (a) any warranty to any person by or on behalf of Menger or (b) any warranty or representation inconsistent with this Section 12.
- COMPLIANCE WITH LAWS:
Menger shall endeavor to comply with all applicable Texas and United States federal laws. Menger is not responsible for compliance with any other laws or regulations, or with any standard or specification, whether of general or particular application, unless Purchaser has furnished specific written notice thereof prior to Menger’s entry of Purchaser’s Order.
All sales of Products are conditioned upon and subject to strict compliance with United States export control laws, rules and regulations, including, without limitation, the Export Administration Act, the Export Administration Regulations, the Arms Control Act, the International Traffic in Arms Regulations, the Trading With the Enemy Act, the International Economic Powers Act and the Foreign Assets Control Regulations, as they may be amended and supplemented from time to time (each, an “Export Law” and collectively, the “Export Laws”). For any sale of Products requiring a license, permit or other approval under any Export Law (“Restricted Products”), Menger shall determine the feasibility of obtaining such license, permit or other approval (“Export Approval”) and whether it will fill the order for the Restricted Products in light of required Export Approval. In the event Menger applies for Export Approval for the Restricted Products, it shall do so at Purchaser’s cost and expense and Purchaser agrees to reimburse Menger for any cost or expenses (including Menger’s reasonable attorneys’ fees) incurred by Menger in pursuing Export Approval. Menger shall not be under any obligation to ship any such Restricted Products unless and until such Export Approval is granted, and only in strict compliance with the terms and conditions of such Export Approval. Purchaser shall be responsible for timely obtaining and maintaining any required import license, permit or approval necessary to import any Restricted Products into Purchaser’s country and any other required governmental authorization (“Import Approval”). Menger shall not be liable if any Export Approval or Import Approval is delayed, denied, revoked, restricted or not renewed, and Purchaser shall not be relieved thereby of its obligations to pay Menger for the Restricted Products or Menger’s costs and expenses of obtaining Export Approval in respect of Restricted Products under the Export Laws.
For Products other than Restricted Products, Purchaser (or its designated export agent) shall be responsible for the timely application for any required export authorization and the payment of any required fees, duties, taxes, tariffs, levies or other charges necessary to export the Products out the United States of America and shall be responsible for timely obtaining and maintaining any required Import Approval and the payment of any required fees, duties, taxes, tariffs, levies or other charges necessary to import the Products into Purchaser’s country. Menger shall not be liable if any export authorization or Import Approval is delayed, denied, revoked, restricted, or not renewed, and Purchaser shall not be relieved thereby of its obligations to pay Menger
for the Products.
Purchaser shall not make any disposition of any Products purchased hereunder, by way of transshipment, reexport, diversion or otherwise, other than in and to the ultimate end user and country of destination specified on Purchaser’s order or declared as the ultimate end user and country of ultimate destination on Menger’s invoices, except as the Export Laws or Export Approval may expressly permit. Purchaser shall not distribute or resell any Product to or within any country or to any individual, government authority or other entity that is presently or at any time in the future subject to sanctions of the United States government, or is in violation of any Export Laws or other United States federal laws, statutes, codes, Executive Orders, decrees, rules or regulations relating to terrorism, drug trafficking or money laundering, or is designated under any such authority as being subject to sanctions or connected in any way to terrorism, drug trafficking or money laundering, including, without limitation, on the Specially Designated Nationals List and Block Persons List maintained by the Office of Foreign Assets Control (OFAC), United States Department of the Treasury, and the Denied Persons List, the Entity List and the Unverified List maintained by the Bureau of Industry and Security, United States Department of Commerce.
Purchaser shall indemnify and hold harmless Menger from and against any damages, liabilities, or expenses of any kind incurred by Menger as a result of Purchaser’s direct or indirect breach of any term or condition related to the Export Laws.
Purchaser warrants that it will comply with all laws, regulations, standards and requirements which are applicable to the use of the Products and Purchaser’s business.
Purchaser will not disclose or otherwise disseminate, directly or indirectly, any of the terms of these Terms and Conditions or any other information of Menger given to or received by Purchaser or its associates or agents, unless Purchaser received Menger’s written permission or such information is required to be disclosed by law or becomes part of the public domain through no fault of Purchaser, its associates or agents.
- GOVERNING LAW; JURISDICTION AND VENUE:
These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of Texas, without regard to such state’s choice of law principles. These Terms and Conditions shall not be governed by or construed in accordance with the United Nations Convention on the International Sale of Products, 1980, for any purpose. Customer and Menger hereby submit to the jurisdiction and venue of the state and federal courts in Houston, Harris County, Texas over any controversy relating to or arising from these Terms and Conditions. Notwithstanding the foregoing, Menger’s right to institute or defend any proceedings in any jurisdiction, in or out of the United State of America, shall not be limited.
If any of the provisions of these Terms and Conditions are deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby.
- FORCE MAJEURE:
Delivery of all or any part of the Products is contingent upon Menger’s ability to obtain supplies, raw materials, and services through its regular and usual sources of supply. If by reason of any contingency beyond Menger’s reasonable control, including (but not limited to) war, governmental requests, restrictions or regulations, fire, flood, casualty, accident, or other acts of God, strikes or other difficulties with employees, delay or inability to obtain labor, equipment, material and services through Menger’s usual sources, failure or refusal of any carrier to transport materials, delay in transport thereof, or any other similar occurrence, Menger is not able to meet anticipated deliveries, Menger shall not be liable therefore and may, in its discretion without prior notice to Purchaser, postpone the delivery date(s) under this document for a time which is reasonable under all the circumstances. If during the occurrence of any of the foregoing contingencies, Menger holds any of the Products, Menger may invoice and hold the same for the account of Purchaser and Purchaser agrees to make payment at the maturity of the invoice so rendered.
No right or interest in the contract arising from these Terms and Conditions shall be assigned by Purchaser and no delegation of any obligation owed by Purchaser shall be made without the prior written permission of Menger. As used herein, “Purchaser” and “Menger” include the respective heirs, executors, personal representatives, successors and permitted assigns of each.
- REMEDIES CUMULATIVE; NO WAIVER:
The individual rights and remedies of Menger reserved herein shall be cumulative and additional to any other or further remedies provided in law or equity or in this document. Waiver by Menger of performance or breach of any provision hereof by Purchaser, or failure of Menger to enforce any provision hereof which may establish a defense or limitation of liability, shall not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision shall remain in full force and effect as written.
- LIMITATION OF LIABILITY:
In no event shall MENGER, its suppliers, or subcontractors be liable for special, indirect, incidental, or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including but not limited to, loss of profits or revenue, loss of use of the product or any associated product, cost of capital, cost of substitute product, facilities or services, downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages.
UNDER NO CIRCUMSTANCES SHALL MENGER BE LIABLE TO PURCHASER UNDER OR IN CONNECTION WITH ORDERS FOR PRODUCTS AND THESE TERMS AND CONDITIONS, WHETHER ANY CLAIM FOR RECOVERY IS BASED UPON OR ARISES OUT OF THEORIES OF BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY) OR OTHERWISE, IN EXCESS OF AN AMOUNT EQUAL TO THE NET CONTRACT VALUE OF THE PRODUCTS PROVIDED BY MENGER TO PURCHASER DURING THE MOST RECENTLY ENDED CALENDAR QUARTER.