For the purposes of these terms and conditions “Seller” is AST Parts, Inc. and its subsidiaries named in any purchase, credit or invoice documents. “Customer”, as used in these terms and condition, means the entity approved on acceptance of the applicant’s credit application.
1) DELIVERY: Delivery is completed on the completion of unloading of the Goods at the Delivery Location. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for: (i) any failure to deliver the Goods; (ii) any delay in delivery of the Goods that is caused by a Force Majeure Event; or (iii) the Customer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
2) PRICE AND PAYMENT Except where the Customer holds a credit account with Seller, payment will be made at the time of ordering the Goods. Where the Customer holds a credit account, invoices are due and payable thirty (30) days from the date of invoice. All payment dates shall be indicated on each invoice issued to the Customer. Payment shall be made to the bank account nominated in writing by the Seller. Time for payment is of the essence. Should the account balance exceed any established credit limit, liability for payment additionally extends to the entire balance. Seller has the right to reduce the credit limit and/or withdraw Applicant credit under the Credit Agreement at any time without prior notice, except as otherwise provided by law. Seller reserves the right to revoke credit or demand full payment if Applicant fails to pay when due or, if in the sole discretion of Seller, there has been an adverse change in applicant’s ability to repay credit extended by Seller, whereupon Seller shall have the
right to demand payment or other assurance which it deems adequate. Default by Applicant under this or any other agreement between Applicant and Seller shall be a default under all agreements. Seller does not waive its rights by accepting late payments. Applicant agrees to pay reasonable legal fees and cost of collection.
3) The price of the Goods shall be the price notified to the Customer at the time of acceptance of the order. The Seller may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: (a) any factor beyond Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date(s), or quantities or types of Goods ordered; or (c) any delay caused by any instructions of the Customer or failure of the Customer to give Seller adequate or accurate information or instructions. Any other applicable charges such as transport charges and any costs and charges for packaging and insurance shall also be specified on an invoice. Seller may invoice the Customer for the Goods on or at any time after dispatch of the Goods. Prices are subject to change without notice and supersede all previous quotations. Seller reserves the right to change or modify product design or construction without prior notice and without incurring any obligation to make such changes or modifications to products previously sold.
4) BUYER’S TERMS AND CONDITIONS: Any conflicting statements or terms listed on Buyer’s purchase orders, invoice, confirmations or other Buyer generated documents (“Buyer Documents”) are negated by submission of these Credit Application Terms and Conditions (“Terms and Conditions”) and the issuance of credit by Seller. All different or additional terms and conditions contained in any Buyer Documents are hereby rejected by Seller. Seller’s performance of any contract is expressly made conditional on Buyer’s agreement to Seller’s terms and conditions, unless otherwise specifically agreed to in writing by Seller. Commencement of performance and/or delivery shall be for Buyer’s convenience only and shall not be deemed or construed to be acceptance of Buyer’s terms and conditions, or any of them. If a contract is not earlier formed by mutual agreement in writing, acceptance of any goods or services shall be deemed acceptance of the Terms and Conditions stated herein.
5) LIMITED WARRANTY: Seller shall provide its then-current standard written warranty for the Product purchased which contains the sole remedies for breach of warranty. SUCH WARRANTY IS GIVEN EXPRESSLY AND IS THE ONLY WARRANTY GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, SELLER HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6) Seller warrants that on delivery the Goods shall:
- a) conform in all material respects with their description; and
- b) be free from material defects in design, material and workmanship.
7) Subject to clause 8), if:
- a) the Customer gives notice in writing to Seller within three Business Days that some or all of the Goods do not comply with the warranty set out in clause 6);
- b) Seller is given a reasonable opportunity of examining such Goods;
- c) d the Goods are returned to Seller’s place of business, Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
8) Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6) in any of the following events:
- a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7);
- b) the defect arises because the Customer failed to follow Seller’s instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- c) the defect arises as a result of Seller following any specification supplied by the Customer;
- d) the Customer alters or repairs such Goods without the written consent of Seller;
- e) the Customers uses such Goods out with the ordinary course of good trade practice;
- f) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
- g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9) Except as provided in clause 5 to clause 8,, Seller shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.
10) LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE, IN CONTRACT, TORT, STRICT LIABILITY, OR UNDER ANY OTHER LEGAL THEORY, FOR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER IT WAS INFORMED ABOUT THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL SELLER’S LIABILITY EXCEED AN AMOUNT EQUAL TO THE SALES PRICE OF
THE PRODUCTS. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW. BUYER ASSUMES ALL RESPONSIBILITY FOR THE FINAL SELECTION, TESTING AND VALIDATION OF PRODUCTS PURCHASED FROM SELLER AND THE FITNESS OF SUCH PRODUCTS FOR BUYER’S APPLICATION.
11) TITLE AND RISK: The risk in the Goods shall pass to the Customer on completion of delivery. Title to the Goods shall not pass to the Customer until Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that Seller has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums. Until title to the Goods has passed to the Customer, the Customer shall: (a) if appropriate, store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Seller’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods so far as possible; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify Seller immediately if it is in breach of these terms or is suspending, threatening to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; (e) give Seller such information relating to the Goods as Seller may require from time to time.
12) Subject to clause 13), the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Seller receives payment for the Goods. However, if the Customer resells the Goods before that time, title to the Goods shall pass from Seller to the Customer immediately before the time at which resale by the Customer occurs.
13) If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 14), then, without limiting any other right or remedy, Seller may have: (a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and (b) Seller may at any time: (i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them
14) TERMINATION: Without limiting its other rights or remedies, Seller may terminate this Contract with immediate effect by giving written notice to the Customer if: (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 60 days of that party being notified in writing to do so; (b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the Customer’s financial position deteriorates to such an extent that in Seller’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15) Without limiting its other rights or remedies, Seller may suspend provision of the Goods under the Contract or any other contract between the Customer and Seller if the Customer becomes subject to any of the events listed in Termination clause (a) to clause (d), or Seller reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
16) Without limiting its other rights or remedies, Seller may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
17) On termination of the Contract for any reason the Customer shall immediately pay to Seller all of Seller’s outstanding unpaid invoices and interest together with any costs and expenses reasonably incurred by Seller in connection with the collection of payment of such outstanding sums due by the Customer.
18) Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
19) FORCE MAJEURE: Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract by giving 4 weeks written notice to the affected party.
20) Assignment and other dealings: (a) Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. (b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Seller
21) Confidentiality: (a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 22(b). (b) Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 22; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. (c) No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
22) Entire agreement: (a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. (b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
23) Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
24) Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 1
25) Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
26) Notices: (a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by certified mail or other next working day delivery service, commercial courier, or email. (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 26 (a); if sent by certified mail or other next working day delivery service, at 9.00 am CT on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
27) Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
28) Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the choice of law provisions thereof.