Standard Terms of Sale
Last modified April 23, 2010
- Offer and Acceptance: Southwest Metrics, Inc. d/b/a AMCO Enterprises (AMCO) offers to sell and deliver its products and/or services (Goods) in accordance with the terms and conditions set forth in these Standard Terms of Sale (this Contract). Acceptance of any order is expressly limited to the terms of this Contract as they are in effect at the time of acceptance, unless otherwise agreed upon in writing by AMCO and the Buyer (the Parties). AMCO hereby objects to and rejects any additional or different terms proposed by Buyer, including those contained in Buyer’s purchase order, unless AMCO expressly agrees to such terms in writing.
- Prices and Releases: AMCO’s price in effect at the time AMCO receives Buyer’s purchase order shall continue to apply if the quantity ordered is released by AMCO within twelve (12) months of order acceptance, unless otherwise agreed upon by the Parties in writing. If the price of fuels, metals, raw materials, equipment or other production costs increases significantly, AMCO shall have the right and Buyer shall have the obligation to renegotiate the price of all products not yet shipped, and if an agreement is not reached, AMCO shall have the right to terminate this contract without liability.
- Title and Delivery: Shipments inside the U.S. shall be delivered F.O.B. AMCO’s shipping dock at Fort Worth, TX, USA, unless otherwise agreed upon by the Parties in writing. Shipments outside the U.S. shall be delivered via Buyer’s designated carrier.
- Title and liability for loss or damage shall pass to Buyer upon AMCO’s delivery to Buyer’s designated carrier. Any subsequent loss or damage shall not relieve Buyer from its obligations, including but not limited to those specified in this Contract. Buyer shall reimburse AMCO for insurance and transportation costs on international shipments and shall be responsible for all import duties, taxes and any other expenses incurred or licenses or clearances required, unless otherwise agreed upon by the Parties in writing.
- AMCO may deliver Goods in installments, and will make every reasonable effort to adhere to Buyer’s delivery schedule as specified in writing. However, delivery dates are estimates. AMCO shall not be liable for any damage, losses or expenses incurred by Buyer if AMCO fails to meet the estimated delivery dates.
- Payment Terms: If AMCO extends credit to Buyer, payment terms shall be net thirty (30) days after AMCO’s invoice, unless otherwise specified on the invoice. AMCO reserves the right to refuse credit to any Buyer or prospective Buyer for any reason. AMCO may change or withdraw credit limits or payment terms at any time for any reason. If Buyer fails to make any payment when due, AMCO may suspend or cancel performance under any agreements between AMCO and Buyer. AMCO’s suspension of performance may result in rescheduling delays. If, in AMCO’s judgment, Buyer’s financial condition does not justify the payment terms specified herein or previously agreed upon, then AMCO may terminate this Contract and/or any open order(s) with Buyer unless Buyer immediately pays for all products that have been delivered and pays in advance for all products yet to be delivered. Termination in accordance with this clause shall not affect AMCO’s right to pursue any other available remedies.
- Taxes: Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. AMCO will add sales taxes to the sales price where required by applicable law, and Buyer will pay such taxes unless Buyer provides AMCO with a duly executed sales tax exemption certificate (more information).
- Contingencies: AMCO shall not be in breach of any contract and shall not be liable for any non-performance or delay in performance if such non-performance or delay is due to a force majeure event or other circumstances beyond AMCO’s reasonable control, including but not limited to, shortages of labor, energy, fuel, machinery or materials, technical or yield failures, war, civil unrest, any government act, law or regulation, including any judicial order or decree, any communication or power failure, labor dispute, natural disaster, fire, flood, earthquake, explosion, terrorist act, or Act of God.
- Limited Warranty/Disclaimer of Warranties: AMCO warrants only that Goods shall be manufactured in substantial accordance with the standards and/or specifications contained in the Buyer’s Purchase Order. If any AMCO Goods fail to conform to the properly applicable standards and/or specifications, AMCO’s sole liability shall be, at AMCO’s option, to repair or replace such Goods, credit Buyer’s account for for the purchase price of Goods, or issue Buyer a refund for the purchase price of Goods.
- THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. AMCO’s warranty does not apply to any Goods that have been subjected to misapplication, misuse, mishandling, neglect, accident, improper installation, modification, or adjustment performed by anyone other than AMCO or one of AMCO’s authorized agents.
- Buyer agrees that prior to using or distributing any systems that include AMCO’s Goods, Buyer will thoroughly test such systems and the functionality of such AMCO Goods as used in such systems. AMCO may provide technical, applications or design assistance, Quality Inspection Reports, Certificates of Conformance (C of C), Material Test Reports (MTR), Material Certifications, Production Part Approval Process (PPAP) reports, and/or other documents and services as requested by Buyer. Buyer agrees that providing these documents and/or services shall not expand or otherwise alter AMCO’s warranties, as set forth herein, and no additional obligations or liabilities shall arise from AMCO providing such documents an/or services.
- Buyer represents that it has all necessary expertise in the safety and regulatory ramifications of its applications, and Buyer acknowledges and agrees that it is solely responsible for compliance with all legal, regulatory and safety-related requirements concerning its products and any use of AMCO’s Goods in Buyer’s applications, notwithstanding any applications-related information or support that may be provided by AMCO.
- Cancellations and Rescheduling. No cancellation of orders or rescheduling of deliveries by Buyer will be accepted unless agreed to by AMCO in writing. Any cancellation or rescheduling of deliveries by Buyer may result in a charge to Buyer. Such charge, if any, shall be reasonably determined by AMCO based on factors such as whether the product was manufactured and/or procured specifically for Buyer, AMCO’s ability to change its production schedule within the period of notice provided by Buyer, AMCO’s ability to return the Goods to one of its suppliers, AMCO’s ability to sell the Goods to other customers, whether AMCO acquired or allocated particular supplies, equipment, or other resources to meet Buyer’s order and such other factors as reasonably determined by AMCO.
- Non-waiver of Default: In the event of any default by Buyer, AMCO may decline to make further shipments. If AMCO elects to continue to make shipments, AMCO’s action shall not constitute a waiver of any such default or affect AMCO’s legal remedies for any such default.
- Governing Law: This Contract shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without reference to conflict-of-laws principles. If for any reason a court of competent jurisdiction finds any provision of this Contract to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate its original intent, as determined by AMCO, and the remainder of this Contract will continue in full force and effect. Buyer agrees that non-exclusive jurisdiction for any dispute arising out of or relating to this Contract lies within courts located in the State of Texas, USA, and consents to venue in Tarrant County, Texas, USA. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court, and AMCO may seek injunctive relief in any United States or foreign court.
- Assignment: This Contract shall not be assignable by Buyer without AMCO’s prior written consent. Any unauthorized assignment shall be null and void.
- Entire Agreement: This Contract constitutes the entire agreement between the Parties relating to the sale of Goods and supersedes all previous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. No prior representations or statements relating to the sale of Goods made by any AMCO representative, which are not stated herein, shall be binding on AMCO. No addition to or modification of any provision of this contract shall be binding upon AMCO unless agreed to in writing by an authorized representative of AMCO. No course of dealing or trade usage or course of performance shall be relevant to explain or supplement any term in this Contract. This Contract shall prevail notwithstanding any different, conflicting or additional terms and conditions that may appear on any purchase order or other writing not expressly incorporated herein, including but not limited to data sheets, application notes and purchase order acknowledgements. The section headings contained in this Contract are for reference purposes only and shall not affect in any way the meaning or interpretation of the content herein.