Seller’s Terms & Conditions of Sale (“Terms & Conditions”)
1. ACCEPTANCE: Acceptance of any order is subject to approval by the Seller, including but not limited to credit approval; and, when applicable, Seller’s vendors (i.e. manufacturers, vendors, or other third parties that provide goods to Seller for resale to Buyer (“Vendors”)). If Seller, in its sole discretion, determines that Buyer's ability to pay or credit becomes unsatisfactory or Seller has reasonable grounds for insecurity, Seller reserves the right, upon notice to Buyer, to demand adequate assurance of due performance from Buyer and/or terminate any agreement or quotes with the Buyer with no liability to Seller. BY REQUESTING A QUOTE FROM SELLER OR PRESENTING AN ORDER TO SELLER, BUYER CONFIRMS THAT THESE TERMS & CONDITIONS SHALL GOVERN ALL PURCHASES OF GOODS, MATERIALS AND/OR SERVICES PROVIDED TO BUYER BY SELLER (COLLECTIVELY “GOODS”) AND ALL SALES BY SELLER. SELLER OBJECTS TO AND REJECTS ANY CHANGES, MODIFICATIONS, ADDITIONAL OR DIFFERENT TERMS (WHETHER CONTAINED IN A PURCHASE ORDER ACCEPTED BY SELLER, OR OTHERWISE) AND NO SUCH TERMS WILL CHANGE THESE TERMS & CONDITIONS UNLESS ACKNOWLEDGED IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. NO SELLER EMPLOYEE OR AGENT HAS THE AUTHORITY TO MODIFY THESE TERMS & CONDITIONS VERBALLY. SELLER OBJECTS TO AND REJECTS ANY TERMS BETWEEN BUYER AND ANY OTHER PARTY, AND NO SUCH TERMS, INCLUDING BUT NOT LIMITED TO ANY GOVERNMENT REGULATIONS OR “FLOWDOWN” TERMS, SHALL BE A PART OF OR INCORPORATED INTO ANY ORDER FROM BUYER TO SELLER, UNLESS AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF SELLER.
2. PRICES AND TAXES: Buyer agrees to pay the prices quoted by Seller and is responsible for any additional applicable shipping and handling charges, taxes and duties. Seller shall collect applicable taxes unless Buyer at the time of order submits a valid and complete tax exemption, reseller’s permit, or resale certificate. Buyer agrees to indemnify the Seller for any tax, penalty and interest incurred as a result of Seller’s good faith acceptance of a tax exemption, reseller’s permit, or resale certificate that is later found to be incomplete or invalid. Prices on special-order Goods may be subject to change before shipment; and if so, Seller shall notify Buyer of any price change, and Buyer may, at its discretion, cancel the special-order Goods if the revised prices are unacceptable at no charge to Buyer, except for applicable Vendor related charges. Buyer acknowledges that any increase in Seller’s costs associated with the imposition of new tariffs after the date of quotation may affect the initial prices quoted; and therefore, Seller reserves the unrestricted right to increase prices upon any such occurrence.
3. Invoices; Payment: Unless otherwise stated in writing and acknowledged by Buyer and Seller, payment for the Goods is due within 30 days of the date of the Seller’s invoice, which date will not be before the date of the Seller’s delivery of the Goods. Buyer expressly represents it is solvent at the time it places any order with Seller, and it will remain solvent upon delivery of the Goods. Seller, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. Seller may obtain and use Buyer credit history for credit evaluation purposes. If Buyer fails to make any payment when due, Seller reserves the right to suspend performance. The Buyer shall pay a delinquency charge of the lesser of 1.5% per month, or the highest rate allowed under applicable law, on all overdue amounts until the amounts are paid in full. In the event of non-payment, Buyer agrees to pay Seller’s reasonable attorney fees and court costs, if any, incurred by Seller to collect payment, and all applicable interest charges. Buyer acknowledges that transactions to which these terms relate are commercial transactions.
4. Delivery; Title; and Risk of Loss: Unless otherwise stated on the quotation or other sales agreement to which these Terms & Conditions are attached or in which they are incorporated by reference, delivery of the Goods will be handled by Seller’s Vendors. Buyer acknowledges and agrees that (i) no title to or risk of loss of the Goods will pass to Seller and (ii) any stated delivery dates are approximate. The Seller will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date.
(a) SELLER’S WARRANTIES: Seller warrants that all Goods sold are new and, upon payment in full by Buyer of the Goods, free and clear of any security interests or liens. Buyer’s exclusive remedy for breach of such warranties shall be replacement with a new product or termination of any security interests or liens. Seller is a distributor and not a manufacturer and makes no independent warranties other than those set forth herein.
(b) VENDOR’S WARRANTIES: Seller shall assign to Buyer any Vendor warranties and/or remedies provided to Seller by its Vendor.
(c) INTELLECTUAL PROPERTY INFRINGEMENT: SELLER DISCLAIMS ANY AND ALL WARRANTIES AND/OR INDEMNIFICATIONS AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY NATURE. SELLER SHALL, IF GIVEN PROMPT NOTICE BY BUYER OF ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT WITH RESPECT TO ANY GOODS SOLD HEREUNDER, REQUEST THE MANUFACTURER TO GRANT FOR THE BUYER SUCH WARRANTY OR INDEMNITY RIGHTS AS THE MANUFACTURER MAY CUSTOMARILY GIVE WITH RESPECT TO SUCH GOODS.
(d) LIMITATIONS: THERE ARE NO OTHER WARRANTIES WRITTEN OR ORAL, EXPRESS, IMPLIED OR BY STATUTE. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. NO REPAIR OF GOODS OR OTHER COSTS ARE ASSUMED BY SELLER UNLESS AGREED TO, IN ADVANCE, IN WRITING. VENDOR WARRANTIES, IF APPLICABLE, ARE ONLY VALID IN THE UNITED STATES OF AMERICA AND ITS TERRITORIES UNLESS OTHERWISE IN WRITING BY SUCH VENDOR. REPAIR OR REPLACEMENT OF ANY GOODS SHALL BE AT THE ORIGINAL PLACE OF DELIVERY.
6. LIMITATIONS OF LIABILITY: UNLESS APPLICABLE LAW OTHERWISE REQUIRES, SELLER’S AND ANY VENDOR’S TOTAL LIABILITY TO BUYER, BUYER’S CUSTOMERS OR TO ANY OTHER PERSON, RELATING TO ANY PURCHASES GOVERNED BY THESE TERMS & CONDITIONS, FROM THE USE OF THE GOODS FURNISHED OR FROM ANY ADVICE, INFORMATION OR ASSISTANCE PROVIDED BY SELLER (BY ANY METHOD, INCLUDING A WEB SITE), IS LIMITED TO THE PRICE OF THE GOODS GIVING RISE TO THE CLAIM. NEITHER SELLER NOR ITS VENDORS SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PENAL DAMAGES (INCLUDING, BUT NOT LIMITED TO BACKCHARGES, LABOR COSTS, COSTS OF REMOVAL, REPLACEMENT, TESTING OR INSTALLATION, LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED GOODS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, CLAIMS FROM BUYER’S CUSTOMERS OR OTHER PARTIES OR ANY OTHER SUCH CLAIMS OF DAMAGES). IF SELLER FURNISHES BUYER WITH ADVICE OR OTHER ASSISTANCE WHICH CONCERNS ANY GOODS SUPPLIED HEREUNDER, OR ANY SYSTEM OR EQUIPMENT IN WHICH ANY SUCH GOODS MAY BE INSTALLED, AND WHICH IS NOT REQUIRED PURSUANT TO THESE TERMS & CONDITIONS, THE FURNISHING OF SUCH ADVICE OR ASSISTANCE WILL NOT SUBJECT SELLER TO ANY LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHER GROUNDS.
7. Limitation of Actions: No action arising out of or relating to these Terms & Conditions, or the transactions it contemplates may be commenced against the Seller more than 12 months after the basis for such claim could reasonably have been discovered.
8. Security Interest: The Buyer hereby grants to the Seller a security interest in the Goods sold to the Buyer under these Terms & Conditions and any proceeds therefrom (including accounts receivable), until payment in full for the Goods has been received by the Seller. The Buyer shall sign and deliver to the Seller any document to perfect this security interest that the Seller reasonably requests.
9. Governing Law and Designation of Forum:
(a) The laws of the State of Texas (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to these Terms & Conditions and the transactions it contemplates, including, without limitation, its interpretation, construction, validity, performance (including the details of performance), and enforcement.
(b) A party bringing a legal action or proceeding against the other party arising out of or relating to these Terms & Conditions or the transactions it contemplates must bring the legal action or proceeding in any court of the State of Texas sitting in Harris County. Each party to these Terms & Conditions consents to the exclusive jurisdiction of the courts of the State of Texas sitting in Harris County and its appellate courts, for the purpose of all legal actions and proceedings arising out of or relating to these Terms & Conditions or the transactions it contemplates.
10. Unforeseen Circumstances: The Seller will not be liable for delays in performance or for non-performance due to unforeseen circumstances or causes beyond the Seller’s reasonable control.
11. Assignment; Delegation: The Buyer may not assign any of its rights under these Terms & Conditions or delegate any performance under these Terms & Conditions, except with the prior written consent of the Seller. Any purported assignment of rights or delegation of performance in violation of this section is void.
12. Recovery of Expenses: In any adversarial proceedings between the parties arising out of these Terms & Conditions or the transactions it contemplates, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs, including legal fees and expenses.
13. BUYER PARTIES: For the purposes of these Terms & Conditions, the term “Buyer” shall mean the Buyer party set forth on the quotation or other sales agreement to which these Terms & Conditions are attached or in which they are incorporated by reference.
14. SELLER PARTIES: For the purposes of these Terms & Conditions, the term “Seller” shall mean Ritter Solutions LLC, a Texas Limited Liability Company.
15. CONFLICTING TERMS: Notwithstanding anything herein to the contrary, in the event of any conflict between these Terms & Conditions and the quotation or other sales agreement, these Terms & Conditions shall control unless Seller and Buyer have entered into a Business Services Agreement; whereby in such case, the terms of the Business Services Agreement shall control.