Terms and Conditions

Entire Agreement:

This document, together with any additional writings signed by Cordyne Industrial Controls (“CORDYNE, INC.”) pertaining to the goods (“Goods”) described on the face hereof, constitutes the entire agreement (“Agreement”) between CORDYNE, INC. and the customer named on the face hereof (“Buyer”) with respect to the Goods and supersedes all prior written or oral understandings relating to the sale of the Goods by CORDYNE, INC. to Buyer. The Agreement formed hereby may not be modified, supplemented, waived, canceled, or changed in any way (whether by oral testimony, Buyer’s purchase order or course of dealing) except by a written instrument signed by Buyer and a corporate officer of CORDYNE, INC. CORDYNE, INC.’s agreement to sell the Goods to Buyer covered by this Agreement is expressly made conditional on Buyer’s assent to all of the terms and conditions in this Agreement and Buyer’s assent is conclusively established by Buyer’s execution of this Agreement or by acceptance of any goods provided under this Agreement. In the event Buyer offers to purchase from CORDYNE, INC. the Goods covered by this Agreement and CORDYNE, INC.’s acceptance, through this document, states terms additional to or different from those offered by Buyer, CORDYNE, INC.’s acceptance is expressly made conditional on Buyer’s assent to the additional and different terms contained in this document. 

Applicable Law:

The Agreement formed hereby is made under and shall be construed and interpreted in accordance with the laws of the State of Texas. Any cause of action arising under or related to the Agreement in any way shall be brought in Harris County, Texas. Buyer hereby submits to the jurisdiction of the State and Federal courts in the State of Texas and hereby designates the Secretary of State for the State of Texas as authorized agent to accept service of any and all process on behalf of Buyer in the State of Texas and in connection with this Agreement. 

Quotations and Prices:

All quotations, offers and prices are merely estimates. THE PRICE FOR THE GOODS COVERED BY THIS AGREEMENT SHALL BE CORDYNE, INC.’s PRICE IN EFFECT AT THE DATE OF DELIVERY. All quotations, offers and prices are F.O.B. CORDYNE, INC.’s plant unless otherwise noted. Buyer shall be responsible for all federal, state and local taxes (except income taxes of CORDYNE, INC.) applicable to the sale of Goods whether in effect on the date of this Agreement or subsequently increased, enacted, or levied, irrespective of whether such taxes are quoted on the face hereof. In the even the law specifically provides that such payment must be made by CORDYNE, INC., Buyer agrees to promptly reimburse CORDYNE, INC. for the amount of such tax. Transportation charges, custom duties, insurance charges, consular fees and other similar charges are not included in quotations or selling prices and shall be borne by Buyer.

Delivery:

ALL DELIVERY DATES GIVEN ARE APPROXIMATE. It is recognized & agreed that delivery dates may vary, depending on differences with workmen, local labor shortages, fire, flood, or other casualty, government regulations or requirements, shortages of raw materials, supplies, fuel, power or transportation, breakdown of equipment, quality control checks, & numerous other causes. Moreover, it is agreed that CORDYNE, INC. shall have the right to apportion or allocate its production among its customers, or to assign priorities to accepted orders, in such a manner as CORDYNE, INC. may consider to be equitable. As a result, it is agreed that IN NO EVENT SHALL CORDYNE, INC. BE RESPONSIBLE FOR OR LIABLE TO BUYER OR TO ANY THIRD PARTY FOR DAMAGES OR LOSSES OF ANY KIND WHATSOEVER, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, SUSTAINED ON ACCOUNT OF CORDYNE, INC.’s FAILURE TO MEET DELIVERY DATES FOR ANY REASON. CORDYNE, INC. reserves the right to invoice & Buyer agrees to pay for any or all finished material or Goods ready for delivery when delivery is held up pursuant to Buyer’s instructions or for reason beyond CORDYNE, INC.’s control. All sales are F.O.B. CORDYNE, INC.’s plant unless otherwise noted. In the event Buyer wishes for CORDYNE, INC. to ship the Goods to Buyer and CORDYNE, INC. so agrees, CORDYNE, INC. shall ship the Goods to Buyer (at Buyer’s expense) at the agreed shipping address by any commercially reasonable means. CORDYNE, INC. shall have the option of selecting the particular route and carrier for the shipment of Goods to Buyer.

Risk of Loss:

The risk of loss with respect to the Goods (including transportation delays and losses) shall pass to Buyer upon delivery of the Goods by CORDYNE, INC. to the Buyer or to a carrier for transportation to Buyer. After delivering the Goods or providing the services to Buyer, CORDYNE, INC. shall not be liable for and Buyer assumes all liability & responsibility for all death or injury to persons or injury or damage to property resulting from the handling, possession or use of the Goods. No loss, injury or destruction of the Goods subsequent to their delivery to Buyer shall release Buyer from any obligation with respect to the Goods, including without limitation, the obligation to pay for the Goods. No Goods may be returned for credit or adjustment without written permission from CORDYNE, INC.’s home office. No shipments are insured by CORDYNE, INC. against damage or loss in transit.

Inspection:

Buyer shall, as its sole expense, inspect the Goods prior to taking delivery FOB CORDYNE, INC.’s plant, or, in the case that CORDYNE, INC. and Buyer have agreed that CORDYNE, INC. shall ship the Goods to Buyer, prior to CORDYNE, INC.’s delivery of the Goods to the Carrier. If Buyer refuses or fails to actually inspect the Goods as required in the preceding sentence, Buyer will nevertheless be deemed to have inspected the Goods upon delivery of the Goods by CORDYNE, INC. to Buyer or to Carrier for delivery to Buyer. Within fifteen (15) days after Buyer inspects the Goods or is deemed to have inspected the Goods, Buyer shall determine if Buyer will accept or reject the goods. Buyer agrees that rejection of the Goods may be affected ONLY for defects or non-conformities (including shortages) substantially impairing the value of the Goods, and Buyer’s sole remedy for lesser defects or non-conformities shall be that specified in the Limited Express Warranty of Quality provided below.

Payment Terms:

Unless otherwise provided on the face hereof or on the invoice as submitted by CORDYNE, INC. to Buyer, Buyer shall pay for the Goods in cash in United States dollars thirty (30) days net from date of invoice. However, if otherwise provided on the face hereof or on the invoices submitted by CORDYNE, INC. to Buyer, then Buyer agrees to pay for the Goods as specified on the face hereof or in such invoices. All past due accounts shall bear interest at the rate of one and one-half (1½%) percent per month from due date until paid. CORDYNE, INC.’s right to charge interest under this provision is in addition to its rights and remedies under this Agreement and under the laws to terminate and recover damages. Buyer shall also pay all collection costs, including attorney’s fees, incurred by CORDYNE, INC. in collecting past due accounts. 

Security Interest:

Buyer grants to CORDYNE, INC. as security for the payment of all sums owing and to be owing by Buyer to CORDYNE, INC., including without limitation, the sums owing and to be owing under this Agreement, a security interest in all Goods and in all equipment with respect to which the services are rendered under this Agreement and the proceeds and products thereof pursuant to the Texas Business and Commerce Code. Buyer agrees that in the event of any default in the payment of any such sums owing or to be owing by Buyer to CORDYNE, INC., CORDYNE, INC. shall have and is hereby granted (without limitation of other rights and remedies to which CORDYNE, INC. may be entitled under the applicable law and under the Agreement) all the rights and remedies of a secured party under the Texas Business and Commerce Code. Buyer agrees to execute and deliver to CORDYNE, INC. such financing statements as CORDYNE, INC. deems necessary or appropriate and to take such additional actions as CORDYNE, INC. may request to effect, maintain or realize upon such security interest. In this connection, Buyer appoints CORDYNE, INC. as its agent to execute any financial statements, drafts or other documents on behalf of Buyer which CORDYNE, INC. believes to be necessary or appropriate to perfect, maintain or realize upon such security interest. This agency shall be considered as coupled with an interest and irrevocable. CORDYNE, INC. shall retain wherever the Goods may be found, with or without judicial process, and charge Buyer with any deficiencies sustained by CORDYNE, INC. 

Insurance:

In the event the Buyer does not pay for the Goods in cash at the time the Goods are delivered to Buyer, Buyer shall obtain, at its own expense, insurance in the amount of the outstanding indebtedness owed by Buyer to CORDYNE, INC. for the Goods, insuring the Goods against all risks of loss or damage. Proof of such insurance shall be provided in writing to CORDYNE, INC. CORDYNE, INC. shall be named as the loss payee on such policy for the amounts as its interests may appear. The policy shall provide that it may not be canceled without the insurer providing CORDYNE, INC. then (10) days written notice of intent to cancel.

Limited Warranty for Manufactured Goods:

CORDYNE, INC. warrants that on the date of delivery and for one (1) year thereafter, the Goods shall be free of defects in CORDYNE, INC.’s materials and workmanship and shall meet the additional express written statement of quality, if any, made by CORDYNE, INC. in connection with the sale of Goods and signed by an officer of CORDYNE, INC. This Limited Express Warranty of Quality shall apply only in favor of Buyer and is not transferable and shall be subject to the following limitations: (a) The Limited Express Warranty of Quality shall not apply (1) to Goods which have been used or rebuilt (whether by CORDYNE, INC. or by any other entity), or (2) to Goods not manufactured entirely by CORDYNE, INC. (however, CORDYNE, INC. shall assign to Buyer, to the extent the same is assignable, whatever warranty CORDYNE, INC. has received from the manufacturer of such Goods), or (3) to Goods which have been altered by any person or entity other than CORDYNE, INC. in any way so as in CORDYNE, INC.’s judgment to affect the stability, reliability, or performance of the Goods, or (4) to Goods which have been used other than in the service and within the pressure range for which they were manufactured, or (5) to Goods which have been misused or which have been damaged due to the unreasonable use, negligence or accident of Buyer or any other entity or (6) to Goods which have been unreasonably used by Buyer or any other entity after Buyer or such entity knew or should have known of the defect in the Goods. Any advisory services and/or recommendations provided by CORDYNE, INC. with respect to the Goods and their uses are not warranted. Any reference by CORDYNE, INC. to Buyer’s specifications and similar requirements are made only to describe the Goods in general, and no warranties or other terms therein shall have any force or effect.

Limited Warranty for Resale Goods:

CORDYNE, INC. warrants that on the date of delivery and for one (1) year thereafter, the Goods shall be free of defects in CORDYNE, INC.’s materials and workmanship and shall meet the additional express written statement of quality, if any, made by CORDYNE, INC. in connection with the sale of Goods and signed by an officer of CORDYNE, INC. This Limited Express Warranty of Quality shall apply only in favor of Buyer and is not transferable and shall be subject to the following limitations: (a) The Limited Express Warranty of Quality shall not apply (1) to Goods which have been used or rebuilt (whether by CORDYNE, INC. or by any other entity), or (2) to Goods not manufactured entirely by CORDYNE, INC. (however, CORDYNE, INC. shall assign to Buyer, to the extent the same is assignable, whatever warranty CORDYNE, INC. has received from the manufacturer of such Goods), or (3) to Goods which have been altered by any person or entity other than CORDYNE, INC. in any way so as in CORDYNE, INC.’s judgment to affect the stability, reliability, or performance of the Goods, or (4) to Goods which have been used other than in the service and within the pressure range for which they were manufactured, or (5) to Goods which have been misused or which have been damaged due to the unreasonable use, negligence or accident of Buyer or any other entity or (6) to Goods which have been unreasonably used by Buyer or any other entity after Buyer or such entity knew or should have known of the defect in the Goods. Any advisory services and/or recommendations provided by CORDYNE, INC. with respect to the Goods and their uses are not warranted. Any reference by CORDYNE, INC. to Buyer’s specifications and similar requirements are made only to describe the Goods in general, and no warranties or other terms therein shall have any force or effect.

Catalogs, circulars, or similar pamphlets of CORDYNE, INC. are for general information purposes only and shall not be deemed to constitute express written statements of quality. (b) CORDYNE, INC. warrants that is has title to the Goods sold hereunder; however, CORDYNE, INC. expressly disclaims any express or implied warranty that the Goods shall be free from infringement of any United States or foreign Letters Patent or other industrial rights except as follows: CORDYNE, INC. warrants that the use or sale of the Goods sold to Buyer hereunder will not infringe the existing and valid claims of any United States Letters Patent of others covering such Goods. CORDYNE, INC. does not warrant that such Goods will be free from infringement of any United States or foreign Letters Patent when the Goods were not manufactured by or for CORDYNE, INC., or were specially made in whole or in part, to the Buyer’s design specifications and such infringement arises from the inclusion of such specified design. CORDYNE, INC. does not warrant that the Goods, if used for sale or in combination with other material or apparatus, or if used in the practice or the process will not, as a result of such combination or use, will be free from infringement from any United States or foreign Letters Patent or industrial right covering such combination or process. This limited express warranty of title shall apply ONLY in favor of Buyer. 

Express Written:

OTHER THAN THE EXPRESS WRITTEN STATEMENTS OF QUALITY AND TITLE MADE IN PARAGRAPH 10 ABOVE, ALL EXPRESS WARRANTIES THAT MIGHT ARISE FROM REPRESENTATIVES BY CORDYNE, INC. WITH RESPECT TO THE SALE OF GOODS OR FROM ENGINEERING DRAWINGS, SAMPLES, MODELS, OR ACTIONS OF CORDYNE, INC. ARE EXPRESSLY DISCLAIMED AND NEGATE.

Implied Warranties:

ALL IMPLIED WARRANTIES EXISTING UNDER THE LAW WITH RESPECT TO THE SALE OF GOODS HEREUNDER ARE HEREBY EXPRESSLY DISCLAIMED AND NEGATED PARTICULARY, CORDYNE, INC. HEREBY NEGATES AND DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE.

Liability:

IN ADDITION, ALL OTHER LIABILITY THAT MAY ARISE WITH RESPECT TO THE SALE OF GOODS EITHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION, STRICT LIABILITY AND LIABILITY BASED UPON THE NEGLIGENCE OR CORDYNE, INC. ARE EXPRESSLY DISCLAIMED AND DEGATED.

Buyer's Remedy for Failure of Goods to Comply with Warranty:

After acceptance of the Goods, Buyer’s sole remedy & CORDYNE, INC.’s sole liability for any failure of the Goods to conform with Limited Express Warranty of quality or for any breach by CORDYNE, INC. for any obligation pertaining to the quality of the Goods (even if such non-conformity results from the negligence of CORDYNE, INC.), shall be limited to the following, provided the Goods or equipment have been installed and operated under proper conditions connected to its rated load & written notice is given to CORDYNE, INC. by Buyer immediately when the Goods or equipment are found to be non-conforming so that an CORDYNE, INC. representative may be present to inspect the equipment or Goods when they are dismantled: (a) Repair or replacement of the Goods at CORDYNE, INC.’s plant (whichever CORDYNE, INC. shall elect & F.O.B. CORDYNE, INC.’s plant) whereby the Goods comply with the Limited Express Warranty of Quality. Any goods or parts thereof that are repaired or replaced by CORDYNE, INC. pursuant to this paragraph shall be warranted as their date of delivery in accordance with the terms and conditions of this Agreement.

Remedies:

THE REMEDIES PROVIDED HEREIN SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR CORDYNE, INC.’s BREACH OF WARRANTIES OR FOR ANY BREACH OF ANY CONTRACTUAL OR LEGAL DUTY OR OBLIGATION ARISING OUT OF THE SALE OF THE GOODS BY CORDYNE, INC. TO BUYER. CORDYNE, INC. SHALL NOT UNDER ANY CIRCUMSTANCES BE RESPONSIBLE OR LIABLE TO BUYER OR TO ANY USER OR TO ANY THIRD PARTY FOR ANY ECONOMIC LOSS, PHYSICAL HARM, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME, LOSS OF PROFITS AND/OR LOSS OF BUSINESS OPPORTUNITIES) ARISING FROM ANY DEFECT IN THE GOODS OR SERVICES OR ANY FAILURE OF THE GOODS OR SERVICES TO CONFORM WITH THE WARRANTIES MADE HEREIN OR ANY FAILURE OF CORDYNE, INC. TO MEET ANY OBLIGATION OR DUTY EXISTING AND APPLICABLE UNDER THE LAW WITH RESPECT TO THE SALE OF THE GOODS TO BUYER, WHETHER SUCH DEFECT IN GOODS OR FAILURE OF THE GOODS TO CONFORM WITH THE WARRANTY OR FAILURE OF CORDYNE, INC. TO MEET ITS OBLIGATIONS OR DUTIES RESULT IN DAMAGE OR HARM ONLY TO THE GOODS OR TO OTHER PROPERTY.

Officers:

No employee or representative of CORDYNE, INC., other than its officers, is authorized to change the warranties or the remedies in any way or to grant any other warranty or any other remedies.

Indemnification:

Except to the extent such obligation is inconsistent with CORDYNE, INC.’s obligation to Buyer under the terms of the Limited Express Warranties stated above, Buyer agrees to DEFEND, INDEMNIFY AND HOLD CORDYNE, INC. HARMLESS from and against any and all claims, liabilities, loss, cost (including without limitation, the cost of litigation and attorney’s fees) and expense made against or incurred by CORDYNE, INC. on account of death or bodily injury to persons or injury to property or loss, damage or expense, which relates to or results from, or is in any way attributable to the use or operation of the Goods or any device, material or thing which the Goods are made a part or to which the Goods are attached or within which the Goods are enclosed (while in Buyer’s possession or subsequent to any transfer of possession to any other entity) or which related to or results from, or is in any way attributable to, the services provided by CORDYNE, INC. to Buyer hereunder. Buyer’s obligation to defend and indemnify and hold CORDYNE, INC. harmless shall apply and be fully enforceable, IRRESPECTIVE OF WHETHER SUCH DEATH OR BODILY INJURY TO PERSONS OR INJURY TO PROPERTY OR LOSS, DAMAGE OR EXPENSES IS CAUSED BY OR RESULTS FROM THE SOLE OR CONCURRENT NEGLIGENCE OR OTHER FAULT OF CORDYNE, INC. OR ANY AGENT OR EMPLOYEE OF CORDYNE, INC. OR ANY INDEPENDENT CONTRACTOR WHO IS DIRECTLY RESPONSIBLE TO CORDYNE, INC.

Claims:

Buyer agrees that CORDYNE, INC. shall have the sole and exclusive right to any claims for drawback filed with the U.S. Customs Office with regard to Buyer’s order. To that end, Buyer agrees to assist CORDYNE, INC. in any way in collecting on any such claim.

Invalidity/Validity:

All terms contained herein are separable and the invalidity of any part hereof shall not affect the validity of any other part.

Performance:

The rights and remedies herein reserved to CORDYNE, INC. shall be cumulative and in addition to other rights and remedies provided by law. The failure of CORDYNE, INC. to insist upon strict performance hereof in any one instance shall not constitute a release of its right to require such performance in the future with respect to such incidence or with respect to any later breach of Agreement by Buyer. 

Buyer's Rights:

Buyer’s rights and obligations under the Agreement may not be assigned or transferred without the express written consent of CORDYNE, INC. 

Waiver of Consumer Rights (DTPA Waiver):

BUYER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE BUYER TO EVALUATE THE MERIT AND RISKS OF THE TRANSACTION CONTEMPLATED HEREBY. BUYER IS NOT IN A DESPARATE BARGAINING POSITION VIS-À-VIS CORDYNE, INC., AND BUYER HEREBY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS, BENEFITS AND REMEDIES UNDER THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT SET FORTH IN SAID CHAPTER E OF CHAPTER 17 OF THE TEXAS BUSINESS AND COMMERCE CODE A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS, WITH RESPECT TO ANY MATTERS PERTAINING TO THIS CONTRACT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AFTER CONSULTATION WITH AN ATTORNEY AT BUYER’S OWN SELECTION, BUYER VOLUNTARILY CONSENTS TO THIS WAIVER.

Rental Equipment:

All above terms and conditions apply to rental equipment with the additional terms: (a) Buyer shall carry adequate insurance against all hazards on the equipment; (b) Buyer shall maintain equipment properly and furnish all fuel and expendable items; and (c) Buyer shall return the equipment in good operating condition at the end of the rental contract. 

Return Policy:

CORDYNE, INC. requires customers to obtain an RMA (Returned Material Authorization) number prior to returning a product. All returns must be made within 30 days of the invoice date. All returns must be in the original packaging, unused and in like-new condition. Should the condition of the return not meet the stipulated requirements, CORDYNE, INC., subject to the companies discretion, shall advise if the returned product qualifies for the return policy. Should the product not qualify for the return policy, the client may elect to have the product shipped back at the clients expense or disposed of. If the product does qualify per the return policy, it may be subject to a maximum of 25% restocking fee. 

Non-Cancelable/Non-Returnable Products:

At the time of quoting, CORDYNE, INC. will notify if a product is "NC/NR", (Non-Cancelable/Non-Returnable). The Customer understands and agrees that "NC/NR" products sold by CORDYNE, INC., irrespective of circumstances, may not be cancelled, returned, or rescheduled by the Customer without the agreement of CORDYNE, INC.

 

 

 

PURCHASE ORDER TERMS AND CONDITIONS

Definitions:

“Seller” means the entity furnishing the Goods, materials, equipment or other services as described in the Purchase Order. "Seller Group" is used as a reference individually and collectively for Seller and its parent, subsidiary and affiliated companies, and all other parties with whom Seller has a contractual relationship relating to this Purchase Order (with the exception of Buyer) and all of their respective officers, directors, employees, agents, assigns, co-venture’s, representatives, invitees, contractors and subcontractors, and the subrogees of said parties. “Buyer” means CORDYNE, Inc. "Buyer Group" is used as a reference individually and collectively for Buyer and its parent, subsidiary and affiliated companies, and all other parties with whom Buyer has a contractual relationship relating to this Purchase Order (with the exception of Seller but including Buyer’s client) and all of their respective officers, directors, employees, agents, assigns, co-venture’s, representatives, invitees, contractors and subcontractors, and the subrogees of said parties. Collectively Buyer and Seller are referred to as the “Parties” and individually as “Party.” “Purchase Order” means all documents designated by Buyer including Special Terms and Conditions, if any. Should any ambiguity or inconsistency exist in any portion of this Purchase Order, including any special terms and conditions or other documents attached hereto, the following precedence of documents shall apply to eliminate any such ambiguity or inconsistency: (i) Face of the Purchase Order and Purchase Order instructions; (ii) Special Terms and Conditions; (iii) these Purchase Order Terms & Conditions – Standard Form; and (iv) specifications. “Delivery” shall mean Seller’s delivery of the Goods as set forth on the face of the Purchase Order. "Goods" shall mean any and all tangible property, which are to be delivered by Seller under the Purchase Order including, but not limited to, uncompleted Goods, consumables, materials, machinery, equipment and spare parts. "Work" shall mean providing all services, Goods, power, transportation, labor, supervision, payments, permits and other performance of any sort required of Seller by the Purchase Order Documents. Unless the context clearly indicates otherwise, the term "Work" herein includes any agreed changes to the Work.

Entire Agreement:

This Purchase Order embodies the entire agreement between Buyer and Seller. Nothing contained in proposals, correspondence, discussions or negotiations prior to the date of this Purchase Order has any effect on this Purchase Order unless specifically incorporated herein. No changes, amendments, substitutions or modifications of any of the terms and conditions hereof shall be valid unless reduced to writing and signed by both Parties in accordance with Article 3 - Changes of this Purchase Order.

Changes:

Buyer reserves the right at any time to change by written notification any of the following: (i) Specifications, drawings and data incorporated in this Purchase Order where the items to be furnished are to be specially manufactured for Buyer; (ii) quantity; (iii) methods of shipment or packaging; (iv) place of Delivery; (v) time of Delivery; or (vi) any other matters affecting this Purchase Order. If any change by Buyer causes an increase or decrease in the cost of the Goods or the delivery schedule for this Purchase Order, Buyer shall make in writing an equitable adjustment in the Purchase Order price or delivery schedule, or both. Any claim by Seller for adjustment under this Article 3 shall be asserted in writing within ten (10) days from Seller's receipt of the change notice.

Prices:

Seller agrees to furnish for the Purchase Order price all labor, services, materials and equipment necessary for the construction, transportation and Delivery of the Goods and the performance of all other Seller’s obligations in accordance with the Purchase Order. The prices herein specified are firm and not subject to escalation, and unless otherwise expressly stated, shall include all taxes and duties of any kind which are required to be paid with respect to the Goods, as well as all charges and expenses in connection with the packing of the Goods and their carriage to the place of Delivery unless specifically excluded.

Delivery:

Time is a material provision of this Purchase Order and Buyer relies upon Seller’s timely performance in accordance with the Delivery date. Seller shall furnish sufficient labor and management forces, plant and equipment and shall work such hours (including night shift, overtime, weekend and holiday work) without a premium as may be required to assure timely Delivery. 

Force Majeure:

Any delays in or failures of performance by either Party shall not constitute default hereunder or give rise to any claims for damages, if and to the extent such delays or failures of performance are caused by occurrences of Force Majeure. Force Majeure includes, but is not limited to, Acts of God, acts of the public enemy, Laws and Regulations, wars or warlike action (whether actual or impending), arrests and other restraints of government (civil or military), blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, sabotage, tropical storms and hurricanes, civil disturbances, tidal waves, explosions, confiscation or seizure by any government or other public authority and any other causes, whether of the kind herein enumerated or otherwise, that are not reasonably within the control of the Party claiming a suspension and that could not have been overcome by the exercise of ordinary diligence. The Party experiencing Force Majeure shall notify the other Party within seven (7) calendar days of the existence of any such Force Majeure and the probable duration thereof, and shall provide the other Party from time to time with updated information concerning same. The Party experiencing Force Majeure shall take all reasonable actions to remove the cause of Force Majeure. 

Title and Risk of Loss:

Title to all Goods shall transfer to Buyer upon delivery of portions of such Goods, whether or not incorporated into the Goods, to Seller’s facility. Notwithstanding the foregoing, Seller shall be responsible for and shall bear any and all risk of loss or damage to any Goods until Delivery. Upon Delivery, risk of loss or damage shall pass to Buyer, provided however, that any loss or damage, whenever occurring, which results from Seller's nonconforming packaging or crating shall be borne by Seller. 

Expediting:

All Work and Delivery of the Goods, including any warranty work, shall be subject to expediting by Buyer. Buyer's representatives shall be afforded free access during working hours to Seller's plants, and Seller agrees to obtain a similar right for Buyer with respect to Seller's subcontractors and vendors. As required by Buyer, Seller shall supply schedules, progress reports and unpriced copies of Seller's purchase orders and subcontracts for Buyer's use in expediting. Seller shall notify Buyer in writing of any actual or anticipated delays immediately upon discovery. Such notice shall include an estimated period of delay, the cause of the delay and corrective actions being taken. Slippage in Seller's schedule may be deemed to be reasonable grounds for insecurity, in which event Buyer may demand in writing that Seller provide adequate assurances that Seller will perform on time. 

Warranty:

Seller warrants that it has examined the information provided by Buyer and that it is satisfied as to the nature and scope of the Goods to be delivered and the Work to be performed. Seller warrants that the Work performed and the Goods furnished shall be fit for the use intended and shall be free from liens and defects in design, material, workmanship and title, and shall conform in all respects to the terms of this Purchase Order and to the applicable drawings issued for manufacture, and shall be new and of the best quality, if no quality is specified. 

In the event of any breach of this warranty Seller shall promptly remedy any defective Work or repair/replace any defective Goods, failing which Buyer may perform such remedy or repair/replacement and Seller will be liable to Buyer for any costs incurred by Buyer. Seller’s warranty obligations shall extend to the later of eighteen (18) months from Delivery or twelve (12) months from installation. In the event that any such defective Work is remedied or defective Goods are repaired or replaced, then Seller’s warranty obligations shall be extended for a period of time equal to the remainder of the original warranty period or twelve (12) months, whichever is greater. Buyer expressly reserves the right to assign any and/or all of the above warranties to any third party, including but not limited to its client, whereupon the assignee shall be deemed to have all of the rights of Buyer under this Purchase Order. THE WARRANTIES CONTAINED IN THIS PURCHASE ORDER SHALL BE EXCLUSIVE OF ANY OTHER WARRANTIES INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES. 

Infringement:

Seller shall, at its own expense, protect, defend, indemnify and hold harmless Buyer against any claim, suit or proceeding brought against Buyer which is based upon a claim, whether rightful or otherwise, that any Goods or any part thereof furnished by Seller, constitutes an infringement of any patent and Seller shall pay all damages and costs awarded against Buyer, resulting therefrom. 

Non-Disclosure:

The technical and commercial information exchanged between the Parties (“Confidential Information”) in respect to this Purchase Order shall be handled as confidential in a manner substantially similar to the manner that a Party handles and protects its own confidential information. Each of the Parties (a “receiving Party”) shall make use of the other Party's Confidential Information exclusively for the purpose of the execution of the Purchase Order and/or the performance of the Work. This confidentiality shall remain for a period of five years, following termination and/or expiration of this Purchase Order. The foregoing will not apply with respect to information of the other Party that the receiving Party can establish (i) is in the public domain and is available at the time of disclosure or which thereafter enters the public domain and is available, through no improper action or inaction by the receiving Party or any affiliate, agent or employee, or (ii) was in the receiving Party's possession or known by the receiving Party prior to receipt from the other Party, or (iii) was rightfully disclosed to the receiving Party by another person without restriction, or (iv) is independently developed by the receiving Party without access to such confidential information of the other 6410 Langfield Road, Bldg. X Houston, TX 77092 https://www.cordyne.com Main: 713-460-5151 Toll Free: 800-324-1484 Fax: 713-460-5186 Party, or (v) is required to be disclosed pursuant to any statutory or regulatory authority, provided the other Party is given prompt notice of such requirement and the scope of such disclosure is limited to the maximum extent possible, or (vi) is required to be disclosed by a court order, provided the other Party is given prompt notice of such order and provided the opportunity to contest it. Each Party agrees to limit disclosure of the Confidential Information only to those among its employees and/or agents and/or subcontractors, who need to use it and to advise each of those employees and/or agents and/or subcontractors of their confidentiality obligations hereunder and shall be consequently responsible for the compliance with such confidentiality obligations by its employees and/or agents and/or subcontractors. Buyer also retains the right to disclose Seller information to Buyer’s Client as necessary.

Compliance with Laws: 

It is agreed by Seller that in the performance of this Purchase Order, all operations shall be conducted in full compliance with any and all valid and applicable laws, rules and regulations adopted by any governmental agency, whether local, state or federal and in accordance with generally accepted industry standards.

Assignment:

Seller shall not assign this Purchase Order without the prior written consent of Buyer. Seller expressly agrees to obtain Buyer’s written approval prior to subcontracting any work required to perform the Work. Upon prior written notice to Seller, Buyer may assign this Purchase Order and all rights hereunder to any third party.

Suspension:

Notwithstanding any other provisions of this Purchase Order, Buyer may suspend or extend the time for Seller’s performance at any time and from time to time upon ten (10) calendar days' prior written notice. Thereafter, Seller shall resume performance as directed by Buyer. In the event of such suspension or extension, Seller shall be entitled to an extension of time, provided that such extension is claimed within thirty (30) calendar days after resumption of performance and any reasonable direct costs actually incurred as a result of such suspension. Buyer shall have no liability to Seller for any other damages, claims, losses or expenses associated with any such suspension or extension.

Termination for Convenience:

Buyer may terminate this Purchase Order, in whole or in part, at any time with written notice to Seller. Upon receipt of any such notice, Seller shall, unless the notice requires otherwise: (i) immediately discontinue work on the date and to the extent specified in the notice; (ii) place no further orders for materials other than as may be necessarily required for completion of such portion of the work that is not terminated; (iii) promptly make every reasonable effort to either obtain cancellation on terms satisfactory to Buyer of all orders to subcontractors and vendors or assign those orders to Buyer. In the event of termination under this clause, Buyer will pay to Seller an equitable adjustment for work in progress, provided that Seller shall not be entitled to any loss of anticipated profits on the terminated work, all claims for which Seller agrees to waive.

Termination for Default:

Buyer may terminate the whole or any part of Seller's performance under this Purchase Order in any one of the following circumstances: (i) if Seller fails to make Delivery of the Goods or to perform the Work within the time specified herein or any extension thereof; or (ii) if Seller delivers nonconforming Goods; or (iii) if Seller fails to provide adequate assurances of its abilities to meet the quality standards or the Delivery date; or (iv) if Seller breaches any provision of this Purchase Order. In the event of any such failure, Buyer will provide Seller with written notice of the nature of the failure and Buyer's intention to terminate for default. In the event Seller does not cure such failure within ten (10) calendar days of such notice, Buyer will provide Seller with a written Notice of Default. In the event Buyer terminates this Purchase Order in whole or in part as provided in this Article 16, Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, supplies or services similar to those so terminated and Seller shall be liable to Buyer for any excess costs for such similar supplies or services provided in accordance with Buyer’s delivery requirements; provided, that Seller shall continue the performance of this Purchase Order to the extent not terminated under the provisions of this Article 16.

Non-Waiver:

Failure by Buyer to require strict performance of any of the terms and conditions hereof shall not release Seller from any of the warranties or obligations of this Purchase Order.

Audit:

Buyer or its client shall have the right, at any time until three (3) years after the end of the Warranty Period, to have its representative inspect and audit all records of Seller, its subcontractors and its vendors which relate to the Purchase Order.

Indemnities: 

Notwithstanding anything to the contrary contained elsewhere herein, Seller shall release, defend, protect, indemnify and hold harmless all members of Buyer Group from and against any loss, cost, claim, any obligation to indemnify another arising under this Purchase Order, suit, judgment, award or damage (including reasonable attorney's fees) in any case of illness, injury or death suffered by any member of Seller Group's personnel and in any case of loss or damage to any member of Seller Group's property and equipment arising out of or relating to the performance of this Purchase Order and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY ANY MEMBER OF BUYER GROUP'S NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE), OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, UNSEAWORTHINESS OR UNAIRWORTHINESS AND INCLUDING PRE-EXISTING CONDITIONS. 

Notwithstanding anything to the contrary contained elsewhere herein, Buyer shall release, defend, protect, indemnify and hold harmless all members of Seller Group from and against any loss, cost, claim, any obligation to indemnify another arising under this Purchase Order, suit, judgment, award or damage (including reasonable attorney's fees) in any case of illness, injury or death suffered by any member of Buyer Group's personnel and in any case of loss or damage to any member of Buyer Group's property arising out of or relating to the performance of this Purchase Order and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY ANY MEMBER OF SELLER GROUP'S NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE) OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, UNSEAWORTHINESS OR UNAIRWORTHINESS AND INCLUDING PRE-EXISTING CONDITIONS.

The indemnity obligations voluntarily assumed by Seller and Buyer under this Article shall be supported by liability insurance and shall have coverage of no less than $5,000,000 per occurrence and which shall be primary to any other insurances provided by the indemnity. The limits and coverages of the said insurances shall in no way limit the liabilities or obligations assumed by the Parties under this Article. If it is judicially determined that the monetary limits of the insurance required hereunder or the indemnities assumed under this Article exceed the maximum monetary limits or scope permitted under applicable law, it is agreed that said insurance requirements or indemnities shall automatically be amended to conform to the maximum monetary limits or scope permitted under such law.

Insurances:

Seller, at its sole expense shall maintain the insurance coverages or their substantial equivalents and endorsements set forth in this Article and with insurance underwriters and upon terms reasonably satisfactory to Buyer. Where applicable, each insurance policy described below shall be endorsed to the extent of the indemnification obligations and risks assumed by Seller under this Purchase Order as follows: (i) underwriters shall waive their rights of subrogation against Buyer Group and their respective insurers; (ii) to provide thirty (30) calendar days' prior written notice of cancellation, material change or reduction of coverage to Buyer and any assignees of Buyer; (iii) to provide adequate territorial and navigational limits; and (iv) except for the Workmen's Compensation policy, Buyer and its client shall be named as additional assureds under such policies. Seller shall maintain a Workmen's Compensation policy complying with all of the statutory benefits required by the Workmen's Compensation and Occupational Disease laws of the location where operations are being conducted. The policy shall be endorsed to provide Employers Liability coverage for the following: (i) endorsements to cover all states in which the Work is performed; and (ii) "Alternate Employer" endorsement, stating that a claim brought against Buyer as a "alternate employer" by an employee of Seller shall be treated as a claim against Seller. Seller shall maintain a Commercial General Liability insurance policy covering all operations of Seller. This policy shall include the following: (i) Premises and Operations; (ii) Contractual Liability, insuring the indemnity agreements contained in the Purchase Order; and (iii) Seller's Protective Liability, covering work let or sublet. Seller shall also maintain a Comprehensive Automobile Liability insurance policy providing coverage for all owned, hired and non-owned automobiles. Seller shall provide certificates of all of the above insurances if so requested by Buyer.

Quality and Inspection:

Seller shall comply with the standards of quality specified in this Purchase Order in addition to those customary in the industry if no requirement is specified. Buyer shall be afforded free access during working hours to plants of Seller and Seller's subcontractors and vendors in order to monitor compliance with quality requirements. Buyer's right to inspect, examine and test any Goods shall extend through the manufacturing process, the time of shipment and for a reasonable time after arrival at the final destination. Seller's failure to adhere to the standards of quality required under this Purchase Order shall be deemed to be reasonable grounds for insecurity. Buyer may demand, in writing, that Seller provide adequate assurances of Seller's ability to meet said standards. Any Goods shall not be deemed accepted until finally inspected by Buyer at the final destination. Buyer’s inspection, examination or testing, or failure thereof, or acceptance of any Goods shall in no way relieve Seller from its obligations under the Purchase Order and shall in no way impair Buyer's right to reject or revoke acceptance of nonconforming Goods or to avail itself of any other remedies to which Buyer may be entitled. If the Goods are found to be defective, Seller shall promptly repair or replace at its sole cost and expense. Classification Society (“CS”) inspections for this Purchase Order shall be as required to ensure the Work is suitable for inclusion in a classed system. Unless otherwise specified by the Purchase Order, Seller is responsible for interfacing with the CS and for coordinating the inspection and test activities to comply with the latest CS requirements. Buyer reserves the right to witness any and all tests or inspections. If Seller fails to provide Buyer timely access to test or inspect any part of the Work, then Buyer may require Seller, at its expense, to uncover or open such part of the Work for purposes of inspection or testing and to reinstate such uncovered or opened part following such inspections or testing. Upon Buyer’s request, Seller shall perform additional tests or inspections not included in the Purchase Order at Buyer’s expense.

Arbitration:

If, at any time, any question, dispute or difference shall arise between any other person or entity and Buyer, which Buyer alleges involves Seller, then, at Buyer's sole and exclusive option, Buyer shall join Seller as a party and Seller agrees to be joined as a party in any proceeding which has resulted from such question, dispute or difference. Any award or judgment rendered by such a proceeding shall be final and binding on Buyer and Seller. In any case not covered by the above, all claims, disputes or controversies arising out of or in relation to the interpretation, application or enforcement of this Purchase Order, including any claims of arbitrability, shall be decided by resort of either Seller or Buyer to arbitration utilizing a single arbitrator in accordance with the Construction Industry Rules of the American Arbitration Association. Except for the exchange of relevant, material and non-privileged documents between the Parties, there shall be no interrogatories, depositions or other discovery in any arbitration hereunder. The arbitration shall be held in Houston, Texas. The arbitrator shall only apply the choice of law as set forth in Article 23 and shall disregard and shall not consider any other law for any portion or aspect of the award nor for any of the deliberations associated with the award. The decision of the arbitrator shall be final, binding and enforceable in any court of competent jurisdiction and Seller and Buyer agree that there shall be no appeal from the arbitrator's decision. All statutes of limitation that would otherwise be applicable shall apply to any arbitration proceeding. The right to arbitrate shall survive the termination of the Purchase Order. Seller shall continue to perform all obligations under this Purchase Order, including, but not limited to, Delivery of the Goods notwithstanding any dispute and during the pendency of any arbitration proceeding hereunder.

Choice of Law:

The laws of the State of Texas shall control the validity, construction and interpretation of this Purchase Order excluding any conflicts of laws principles which would direct the substantive law of another jurisdiction to apply. The Parties agree to waive any right or redress under any statute, law or regulation that would invalidate, in whole or in part, the dispute resolution forum and/or the choice of law provisions under this Purchase Order.

Independent Contractor:

In the performance of this Purchase Order, Seller's status shall be that of an independent contractor and the relationship of Buyer and Seller shall in no event be construed or interpreted as being that of principal and agent, master and servant or employer and employee, and the employees of each party hereto shall not be deemed to be employees of the other party hereto for any purpose.

Taxes and Permits:

The prices shown in the Purchase Order are deemed to include all taxes which are not expressly imposed on Buyer by law, and Seller shall indemnify and hold Buyer and its Client harmless from any liability and expense by reason of Seller's failure to pay such taxes. For purposes of this Purchase Order, taxes include, but are not limited to: withholding taxes, branch profits taxes, surtaxes, employee taxes, taxes on dividends, taxes on capital, withholding taxes on dividends, goods and services taxes (such as GST and HGS), whether assessed on income, interest or otherwise, income taxes, interest, fines and penalties thereon), VAT taxes, import/export taxes, duties, levies, charges, contributions and social contributions (and any and all interest or penalties thereon).

Payment of Claims/Liens:

Whenever Buyer requests, Seller shall furnish proof satisfactory to Buyer that all charges for material and/or labor have been fully paid. Seller agrees to protect, defend, indemnify and hold harmless Buyer and its client from and against any and all liens, claims or encumbrances for labor and/or material arising out of or related to this Purchase Order. In the event of any such claim, Buyer reserves the right to pay directly to any claimant the amount of such claim and any payments will be credited against any amount owed by Buyer to Seller. To the maximum extent permitted by applicable law, Seller agrees that, in consideration of Buyer awarding this Purchase Order to Seller, Seller shall waive any and all rights to lien or encumber the Goods, Buyer’s property or vessels, and any hydrocarbon product associated therewith. Seller acknowledges that in entering into this Purchase Order, Seller shall look solely and exclusively to Buyer for payment and shall not rely on any statutory, common law or other right to lien or encumber any property of Buyer or its client or any hydrocarbons associated therewith.

Consequential Damages:

Notwithstanding anything to the contrary contained elsewhere herein, neither Seller nor Buyer shall be liable to the other for any consequential, incidental, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of efficiency, loss of productivity, loss of product, acceleration, loss of revenue whenever arising under this Purchase Order or as a result of, relating to or in connection with the Work performed or Goods furnished hereunder, and no claim shall be made by either Seller or Buyer against the other or their subcontractors of any tier, other contractors or insurers REGARDLESS OF WHETHER SUCH CLAIM IS BASED OR CLAIMED TO BE BASED ON NEGLIGENCE (INCLUDING SOLE, JOINT, ACTIVE, PASSIVE, CONCURRENT OR GROSS NEGLIGENCE), UNSEAWORTHINESS, UNAIRWORTHINESS, FAULT, BREACH OF WARRANTY, BREACH OF CONTRACT, STATUTE, STRICT LIABILITY OR OTHERWISE.

Seller's Obligations:

Seller shall do everything necessary to ensure that no person, property, right, right-of-way or privilege shall be injured, damaged or unreasonably infringed by reason of Seller's activities under the Purchase Order. Fire hazards shall be eliminated and the health of all persons employed in connection with the Purchase Order shall not be endangered. Seller shall maintain adequate medical supervision of all persons employed in connection with the Purchase Order and adequate sanitation measures in respect of the Work. Seller shall observe and comply with all fire, safety security and other rules and regulations relating to the safe execution of the Work and shall be responsible for the observance thereof by its employees, workmen, agents and subcontractors.

Rights of Technology:

If Seller's performance of this Purchase Order includes experimental design, development or research work, and such work is paid for in whole or in part by Buyer, Seller shall: (i) promptly disclose and assign to Buyer all technical data and computer software resulting, in whole or in part, from such work, including but not limited to all confidential designs, processes, know-how, trade secrets and inventions, whether or not patentable, resulting from such work (collectively the “Developed Technology”); (ii) use the Developed Technology only in the performance of this Purchase Order; (iii) maintain the Developed Technology in strict confidence using the same care as Seller uses to protect its own proprietary information; (iv) not disclose the Developed Technology to any third party; and (v) execute such documents and take such actions as Buyer may consider appropriate to vest in Buyer exclusive title to the Developed Technology.

Prohibition of Corrupt Practices: 

As a condition to Buyer issuing this Purchase Order to Seller, Seller hereby represents, warrants and agrees that Seller shall be bound and abide by and strictly comply with both the letter and the spirit of the applicable anti-bribery, anti-corruption and anti-money laundering laws, rules, regulations, decrees and/or official governmental orders of the United States, including, without limitation, the US Foreign Corrupt Practices Act (the “FCPA”) and successor legislation, the UK Bribery Act 2011, as well as any other applicable legislation implementing either the United Nations Convention Against Corruption or the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (collectively referred to as “Anti-Corrupt Practices Laws”).In the event that Seller violates this provision, Buyer shall have the right to terminate this Purchase Order with immediate effect. Seller shall be liable for and indemnify Buyer from all claims resulting from Seller’s breach of this Article.

Export Controls:

In the event that the Goods or any portion thereof are being exported from the United States then Seller shall be responsible for determining all export licensing requirements and obtaining all necessary export licenses and authorizations as required by the laws of the United States of America. Seller shall release, defend, protect, indemnify and hold harmless Buyer Group from and against any loss, cost, claim, liability, suit, judgment, award or damage (including reasonable attorney's fees) on account of failing to properly obtain all such export licenses and authorizations for all Goods.

Miscellaneous:

(a) Severability. If, in any legal proceeding, it is determined that any provision of this Purchase Order is unenforceable under applicable law, the unenforceable provision shall automatically be amended to conform to that which is enforceable under applicable law. In any event, the validity or enforceability of any provision shall not affect any other provision of this Purchase Order and the Purchase Order shall be construed and enforced as if such provision had not been included. (b) CISG Waiver. The Parties acknowledge and agree that the application of all or any of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (also known as the “Vienna Convention”) to the Purchase Order, or incorporation of such provisions into this Purchase Order is expressly excluded in all respects. (c) Survival. Notwithstanding anything to the contrary contained in this Purchase Order, the provisions of Articles 7, 9, 10, 11, 12, 18, 19, 20, 22, 23, 25, 26, 27, 29, 30, 31 and 32(a) shall survive the completion or termination of this Purchase Order. (d) Notices. All notices under this Purchase Order shall be in writing and shall be effectively served when delivered by hand, by registered mail or courier, or facsimile transmission (effective upon receipt by sender of transmission confirmation)

 

 

 

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