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:

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.

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