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Terms and Conditions of Sale
1. ACCEPTANCE AND AGREEMENT:
Buyer's issuance of its purchase order constitutes its acceptance of these Terms and Conditions of Sale. NEW ERA PUBLISHING, INC's ("NEW ERA") acceptance of Buyer's purchase order is expressly conditioned upon Buyer's acceptance of these Terms and Conditions of Sale. NEW ERA's acceptance of a purchase order from Buyer shall be indicated by NEW ERA's issuance of a written confirmation of purchase order or invoice corresponding to Buyer's purchase order. Buyer agrees that these Terms and Conditions of Sale shall be the only valid and binding Terms and Conditions of Sale, and any new, different or additional terms contained in Buyer's purchase order may only be accepted by NEW ERA in writing. Should Buyer elect to use its own or any other form of acceptance, confirmation or acknowledgement, any terms proposed in Buyer's acceptance which add to, differ from, or conflict with the terms herein are void and of no force or effect, unless agreed to in writing by NEW ERA. The terms herein shall constitute the complete and exclusive statement of the Terms and Conditions of Sale between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties.
The purchase price(s) for the materials sold to Buyer shall be stated on NEW ERA's invoice(s) to Buyer, which shall, if applicable, be as stated on the Buyer's Purchase Order to NEW ERA Buyer shall pay for the materials at the price(s) and subject to the discounts, if any, listed on NEW ERA's invoice. All prices are subject to change without notice, unless otherwise required by written contract between Buyer and NEW ERA Unless otherwise noted on the purchase order or invoice, all prices are exclusive of taxes, customs, duties, insurance, transportation or transportation-related charges. Buyer shall pay all expenses including taxes, insurance, freight, carriage, and warehousing.
Invoices will be issued by NEW ERA as soon as practicable after each shipment of materials under these Terms and Conditions of Sale. Payments due NEW ERA for materials shipped under these Terms and Conditions of Sale and any other money due NEW ERA by Buyer shall be paid in U.S. dollars to NEW ERA at its principal office in Houston, Harris County, Texas. All prepaid orders for materials and all invoices paid within ten (10) days of the date of shipment will be subject to a discount of 0.5% (.005); C.O.D. shipments paid at the time of shipment shall not be subject to discount. All invoices shall be payable thirty (30) days net, unless otherwise agreed in writing by NEW ERA. In the event payment is not made in accordance with this paragraph and/or the applicable invoice(s), any unpaid balance shall be subject to a finance charge in the amount of one and one-half percent (1 1/2 %) of such unpaid balance per month, commencing thirty-one (31) days after the date of shipment. If Buyer fails or refuses to make payment in accordance with this paragraph and/or the applicable invoice(s), NEW ERA reserves the right to delay or discontinue further shipments of materials to Buyer until payment is made or NEW ERA receives adequate assurances from Buyer.
4. U.C.C. and Choice of Law:
This agreement is for a sale/purchase of goods, and to the extent not contradicting these Terms and Conditions of Sales, is governed by Article 2 of the Uniform Commercial Code of the State of Texas (Texas Business and Commerce Code).
The price(s) of the materials sold to Buyer are exclusive of all city, state and federal sales, use, excise, or similar taxes payable with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the material. Any and all such taxes shall be added to the invoice(s) delivered to Buyer for the materials and shall be paid by Buyer as a separate charge, unless Buyer shall provide NEW ERA with a tax exemption certificate satisfactory to the applicable taxing authority.
6. SECURITY INTEREST:
Buyer herby grants to NEW ERA a security interest in all parts and accessories described in and being purchased by Buyer. The security interest herein granted by Buyer is given to secure payment of the full purchase price and all other charges due and owing NEW ERA by Buyer. This security interest constitutes a "purchase money security interest" pursuant to the Uniform Commercial Code. This instrument is a contract and security agreement, and Buyer hereby authorizes and appoints NEW ERA as its attorney-in-fact to sign on Buyer's behalf appropriate financing statements and to file those financing statements with the appropriate agency to perfect the security interest herein granted.
7. BUYER'S CREDIT:
Buyer shall provide NEW ERA with such financial and business information as NEW ERA shall from time to time request for the purpose of establishing and/or monitoring Buyer's creditworthiness. If the credit or financial responsibility of Buyer becomes impaired or otherwise unsatisfactory to NEW ERA, or Buyer shall fail to keep or perform any terms or conditions of this or any other Agreement on its part to be kept or performed, NEW ERA may, at its option, require advance cash payment for the materials, specify other credit terms, or demand satisfactory security to be given by Buyer. Should Buyer fail to make such advance payment, refuse to agree to other credit terms specified by NEW ERA or fail to provide security upon demand therefore, NEW ERA may withhold or cancel further shipment of materials to Buyer.
Buyer shall have ten (10) days following tender of delivery to or receipt by Buyer of the goods to inspect the goods for their substantial conformity to the specifications of its purchase order; provided, however, that the failure of Buyer to exercise its inspection rights within ten (10) days following arrival of the materials, and to advise NEW ERA, in writing, of all defects in or objections to the materials which may be disclosed by such inspection within that same ten (10) days, shall constitute full, final and complete acceptance of the materials, and Buyer shall not thereafter be entitled to reject the materials (or any portion thereof) or to revoke its acceptance thereof with respect to any defects which could have been discovered by such inspection. Buyer's refusal to accept the goods without providing NEW ERA a written statement within ten (10) days detailing the reasons therefor, in specific terms reasonably enabling NEW ERA to correct the alleged defects, shall be deemed unreasonable rejection of the goods.
9. SHIPMENT, PACKAGING AND DELIVERY:
Shipments and delivery of materials to Buyer shall be subject to NEW ERA's production schedule and its ability to obtain raw materials. Accordingly, the shipping dates specified by NEW ERA are approximate only. NEW ERA may, at its option, ship the materials to Buyer in lots of any size that NEW ERA, in its sole judgment, believes are reasonable. If shipment is delayed at Buyer's request, NEW ERA may invoice Buyer immediately for any materials held at NEW ERA's facility and may include in such invoice a reasonable charge for any storage or other costs incurred by NEW ERA as a result of such requested delay. Buyer assumes any damages to the materials caused by deterioration resulting from Buyer's delay. Unless otherwise stated in Buyer's purchase order, all materials are to be shipped F.O.B. NEW ERA's plant of origin, via carrier of NEW ERA's choosing, with all costs and expenses of transportation to be paid by Buyer. Risk of loss or damage to the materials in transit shall be borne by Buyer, whose responsibility it shall be to timely file claims with the carrier.
10. FORCE MAJEURE:
NEW ERA shall not be liable to Buyer or to third parties who purchase materials from Buyer for any direct or consequential loss or damage occasioned by its failure to make delivery or for any delay in making delivery when such failure or delay results from causes or events beyond its reasonable control, including, but not limited to, fires, floods, accidents or other acts of God, strikes, labor disputes or difficulties, acts or requirements of government or civil authority, restrictive import duties, disruption in normal market production or distribution, riot, war, embargo, truck or car shortage or other transportation delay or difficulty or inability to obtain or scarcity of labor or any materials which delays the delivery of materials to NEW ERA or increases the cost of materials to NEW ERA by more than twenty percent (20%) over the projected cost of the materials to NEW ERA at the time that NEW ERA accepted any Purchase Order from Buyer. In the event of any such occurrence or event precluding timely shipment, NEW ERA reserves the right to apportion available supplies of materials among its customers, including Buyer, in any manner that NEW ERA, in its sole judgment, shall deem fair and reasonable. In the event of delay caused by any such occurrence or event, the delivery date(s) shall be postponed for a period of time equal to the time required to remedy, correct or alleviate such cause or event.
11. WARRANTY AND WARRANTY DISCLAIMER - INTERMEDIATE PURCHASERS:
NEW ERA warrants to any Buyer only that the quantities stated were weighed and measured in accordance with NEW ERA standard weights and measures, +/- one percent (1%) actual measured weight, and such quantities will be in substantial conformance with materials specified by Buyer and conditions which like class of manufacturing are found to be within the industry. THIS WARRANTY SUPERSEDES AND IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY DISCLAIMED. NEW ERA will, at its option, repair or replace or, without replacement, render a refund of invoice value for any materials which, if properly handled and stored, prove defective or otherwise fail to conform to the warranty stated above and/or these terms. This shall be the sole and exclusive obligation of NEW ERA under its warranty and Buyer shall be entitled to no other or additional remedies. NEW ERA shall not be liable for and Buyer hereby waives any and all other claims for damages, whether direct or indirect, incidental or consequential; and whether based upon NEW ERA's negligence, breach of warranty, contract or strict liability in tort, including, but not limited to, claims for property damage, personal injury or wrongful death, delay or loss of business or profit. Buyer shall indemnify and hold harmless NEW ERA from and against any and all loss, cost, claim, damage, judgment or expense (including all defense costs, expenses and attorney's fees) arising or to arise as a result of personal injury, dismemberment or death, or commercial loss, resulting from Buyer's selection, designation, design, specification and/or use of the product(s) acquired from NEW ERA, as they are incurred. NEW ERA, in its sole discretion, may request and require a binding arbitration enforcement proceeding regarding the Buyer's claim and shall also be entitled to designate the arbitrator and the time and place of such proceeding. All litigation proceedings with respect to defective or nonconforming materials must be filed by Buyer or any intermediate purchaser or distributor, in writing, within one (1) year of shipment of the materials, or shall be barred notwithstanding statutory limitations to the contrary. Buyer or any intermediate purchaser or distributor shall afford NEW ERA access to and a reasonable opportunity to inspect all allegedly defective materials. Should NEW ERA elect to provide replacement materials for any materials found to be defective or nonconforming, the same shall be shipped F.O.B. NEW ERA's plant of origin.
12. WARRANTY AND WARRANTY DISCLAIMER - RESALE:
In the event of the resale by Buyer of any of the materials sold hereunder, Buyer shall include the following language in a conspicuous place in the document or agreement covering such resale:
The warranties of the manufacturer and seller of the materials sold hereunder are limited to the manufacturer's standard, published warranties in effect at the time of delivery of the materials, which warranties are limited and obligate the manufacturer and/or seller only to repair or replace defective materials or to refund a portion of their purchase price, at manufacturer's or seller's option, within the time limits specified therein. THOSE WARRANTIES SUPERSEDE AND ARE EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY AND THEREBY DISCLAIMED. No representation or warranty, express or implied, made by any sales representative, agent or distributor which is not specifically set forth in the manufacturer's standard, published warranties shall be binding upon the manufacturer or seller.
To the extent that any Buyer who is an intermediate purchaser or distributor shall make or extend to any ultimate purchaser or consumer any warranty or representation with respect to the materials except as stated in NEW ERA's standard, published warranties, or shall fail to include in any agreement covering the resale of the materials the statement specified in paragraph 12, above, Buyer shall indemnify and hold harmless NEW ERA from and against any and all loss, cost, claim, damage, judgment or expense (including all defense costs, expenses and attorney's fees) arising or to arise as a result thereof, as they are incurred.
Once Buyer's Purchase Order has been sent to and accepted by NEW ERA, no order may be cancelled by Buyer without prior written approval of NEW ERA Prior to shipment of any materials, Buyer may cancel an order only upon written notice to NEW ERA and upon the payment of NEW ERA's cancellation charges which shall include, but are not limited to, reasonable profits, a reasonable restocking charge and all costs and expenses incurred by NEW ERA to prepare the materials for and arrange shipping. Buyer may not cancel an order after the materials are loaded for shipment from any NEW ERA plant.
15. APPLICABLE LAW, VENUE, ATTORNEY'S FEES AND EXPENSES:
The rights, duties and obligations of the parties hereunder shall be governed and construed in accordance with the laws of the State of Texas and all disputes hereunder shall be subject to agreed venue in Harris County, Texas. In the event of a dispute between Buyer and NEW ERA, the prevailing party shall be entitled, in addition to all other damages and relief at law or in equity, to recover reasonable and necessary attorney's fees, costs of court and all expenses, of whatever nature, incurred by the prevailing party to the dispute.
16. FORECAST AND COMPLIANCE:
Buyer shall be responsible for all inventory of obsolete materials or parts which NEW ERA has acquired or fabricated for Buyer based upon reasonable forecasts of future orders based on Buyer's order history. NEW ERA may invoice Buyer for any materials or parts that NEW ERA has acquired or fabricated for Buyer based upon Buyer's order history, which have not been fully released or utilized within any one hundred eighty (180) day period. Buyer shall be responsible for any material or parts which NEW ERA elects to invoice to Buyer, within thirty (30) days of invoice for those materials or parts.
NEW ERA's sole responsibility and liability and Buyer's exclusive remedy shall be limited to the repair or replacement of goods (F.O.B. NEW ERA's shipping point) not conforming to the warranty, or, at NEW ERA's option, to the return of the goods and refund of moneys paid thereon, without interest, provided Buyer is not in default hereunder. IN NO EVENT SHALL NEW ERA BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR ATTORNEYS' FEES. NEW ERA's obligation hereunder is subject to receipt of written notice of defect from Buyer within ten (10) days of its receipt of the goods.
18. CLAIMS AND RETURN POLICY:
Buyer's failure to notify NEW ERA of any defect(s) and/or shortage(s), in any respect or combination of respects, within ten (10) days after tender of delivery to or receipt by Buyer of any shipment, and in any case before any part of such goods (except for reasonable test and inspection quantities) has been changed from its original condition, shall conclusively establish that NEW ERA has satisfactorily performed its obligations to Buyer. Goods may not be returned except by permission of NEW ERA To qualify for the right to return materials or parts to NEW ERA, Buyer must, within ten (10) days of tender of delivery to or receipt of goods from NEW ERA, notify NEW ERA, in writing or by electronic communication, including applicable tag numbers, weight and description of possible defect. Any visible damage or moisture in transit must be noted on the Bill of Lading upon receipt by Buyer, or transit claims will be waived by Buyer. All physical defects must be supported by samples, photographs or other physical evidence. NEW ERA may authorize a return of materials or parts and, if so, will designate the manner and means of the return, including the NEW ERA location or designated location for the return. No returns not expressly authorized, IN WRITING, by NEW ERA will be accepted.
All notices and claims to NEW ERA required by these Terms and Conditions of Sale shall be addressed as follows: Joseph L. Garcia, President, New Era Publishing, Inc., 2101 E. St. Elmo Rd., Suite 110, Austin, Texas 78744, and shall be sent by U.S. Certified Mail, Return Receipt Requested.
20. INTERNATIONAL SHIPMENT:
In the event shipment of Buyer's order(s) require(s) international border crossing, Buyer shall procure at its own expense any export or import licenses and/or permits required for the shipment and carriage of its order(s) to the applicable destination(s), including applicable inspections and certificates. All sales are subject to United States export laws that, among other things, may restrict the export or re-export to certain countries. Buyer agrees to abide by such export and re-export requirements of the United States export laws, rules and regulations, and indeminifies and holds NEW ERA harmless for any violation(s) thereof. For purposes of the North American Free Trade Agreement (NAFTA), NEW ERA fabricates its goods in plants located in the United States, but makes no representations or warranties regarding the source and origin of the component materials from which the goods are manufactured. Buyer understands, agrees and accepts that NEW ERA has no duty to issue a NAFTA certificate of origin for preferential treatment at the point of border crossing.
In the event that any provision hereof is held invalid by a tribunal of competent jurisdiction for any reason, the remainder of these Terms and Conditions of Sale shall remain in full force and effect as if the provision(s) so held invalid did not exist.
22. PRODUCTION, SHIPMENT AND DELIVERY TIME DELAYS:
NEW ERA shall, in good faith, work to meet its estimated production, completion, fulfillment, ship and/or delivery dates, if any. Any and all estimates of such dates, unless guaranteed in writing by NEW ERA, are estimates only, for which NEW ERA shall not be liable for any delay or any failure, in whole or in part, to meet such estimate(s) due to fires, strikes, work stoppages, transportation difficulties, fuel shortage, acts of terrorism, accidents, wars, rebellions, civil commotion, public strife, acts of any government, whether legal or otherwise, acts of public enemies, force majeure, or labor shortage, or any other causes beyond NEW ERA's reasonable control; this specifically includes delays or inability to obtain product because of the actions of NEW ERA's suppliers.
Any failure by NEW ERA to enforce or apply a term, condition or provision of these Terms and Conditions of Sale does not constitute a waiver of that term, condition or provision and does not otherwise impair NEW ERA's right to enforce such term, condition or provision.
The section headings used herein are for convenience of reference only and do not form part of these Terms and Conditions of Sale, and no construction or inference shall be drawn therefrom.
Any right that Buyer might have to damages, refunds, credits, recovery of reliance interests, disgorgement, restitution, injunctive relief, declaratory relief or any other legal or equitable relief whatsoever against NEW ERA under any cause of action arising from the product(s) of NEW ERA shall be extinguished unless Buyer first complies with all applicable notice periods and requirements in these Terms and Conditions of Sale, including, but not limited to, the periods and requirements for providing notice under the Billing and Claims sections. Buyer and NEW ERA understand that timely and complete compliance with such notice periods and requirements is a condition precedent to Buyer's right to any relief whatsoever, and Buyer must plead compliance with those conditions precedent on the face of any complaint or petition it may file against NEW ERA, or such claim(s) will fail as a matter of law. Buyer and NEW ERA agree that NEW ERA cannot be considered to have breached any obligation to Buyer unless or until NEW ERA wrongly denies a claim submitted to it pursuant to the notice periods and requirements contained in these Terms and Conditions of Sale. Buyer and NEW ERA agree that Buyer will comply with applicable notice periods and requirements even if Buyer believes that such compliance will not result in relief from NEW ERA or if Buyer lacks knowledge regarding whether such compliance will result in relief from NEW ERA. Buyer shall not sue NEW ERA as a class plaintiff or class representative, join as a class member, or participate as an adverse party in any way in a class-action lawsuit against NEW ERA. Nothing in this paragraph, however, limits Buyer's rights to bring a claim or lawsuit as an individual claimant or plaintiff.
Buyer and NEW ERA enter this agreement at arm's length, and nothing herein, nor the performance of any services by NEW ERA, shall be construed to create an agent-principal relationship between NEW ERA and Buyer, the carrier(s), or any third parties, for any purpose.
27. NO CONSTRUCTIVE BENEFIT OR DETRIMENT FOR DRAFTSMANSHIP
Buyer shall not benefit in any way from any construction hereof by virtue of NEW ERA having drafted these Terms and Conditions of Sale. These Terms and Conditions of Sale are binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, attorneys, personal representatives and assigns.