ADDITIONAL CONTRACTUAL CONDITIONS
PURCHASER, BY ORDERING ANY OF THE MERCHANDISE OR SERVICES SPECIFIED ON THIS DOCUMENT HEREOF AGREES TO THE FOLLOWING CONDITIONS OF SALE.
1. Warranty and indemnity and Hold Harmless Agreement.
- It is the policy of McKinney Petroleum Equipment (hereinafter also called “Seller”) NOT toextend warranties to purchasers of materials and equipment. Accordingly, the products or parts sold by Seller are NOT guaranteed or warranted by Seller, but are warranted against defective workmanship and/or materials only by the manufacturer of the product and to the extent of terms of such warranty, if any, as offered by the manufacturer of the product. In no case does the manufacturer’s warranty exceed the value of the defective item F.O.B. shipping point. Purchaser shall make all claims for breach of warranty to the manufacturer offering such warranty claim and in the manner specified by the manufacturer of the product with a copy of the claim(s) to sell. The manufacturer or seller have NO liability whatsoever for INDIRECT, SPECIAL, INCIDENTAL or CONSEQUENTIAL damages whether liquidated or unliquidated, including but not limited to, lost profits, down time, loss of material or product, clean-up costs associated with loss of product, damage or other equipment, or any type of economic loss. Moreover, no warranty is extended where equipment is improperly installed by Purchaser, his employees or a contractor hired or used by Purchaser. Seller does represent that it will convey to its purchaser a good title to the items purchased. Beyond such warranty of title, and except as modified in the next paragraph. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, AND ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SELLER. Purchaser will protect and indemnify seller against any claims for damages or profits arising from infringements of patents, designs, copyrights, and/or trade names with respect to all goods manufactured, either in whole or in part, to purchaser’s specifications. Seller assumes no liability for sales, engineering or application information extended by its personnel, but purchaser agrees to hold seller and/or its representative(s) harmless from and indemnify said parties against any and all claims, losses, suits, damages, judgments, expenses, costs and charges of every kind and nature, whether direct or indirect, on account of or by reason of any actual or alleged reliance upon said representation(s) concerning sales, engineering or application information provided by seller and/or its representative(s).
- Seller does extend to Purchaser a warranty for Seller’s service, repair, start-up and installation of equipment for a limited time period of 90 days beginning at the time of completion thereof, “HOWEVER, IF DURING SAID PERIOD, THERE IS A MALFUNCTION DUE TO SELLER’S IMPROPER OR SUBSTANDARD PERFORMANCE, SELLER’S LIABILITY HEREUNDER IS LIMITED TO THE COSTS OF REPAIR OR REPLACEMENT OF SUCH EQUIPMENT WHICH BECOMES DAMAGED AS A RESULT OF SUCH IMPROPER OR SUBSTANDARD PERFORMANCE, FURTHERMORE, UNDER NO CIRCUMSTANCES IS SELLER LIABLE OR WILL IT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER LIQUIDATED OR UNLIQUIDATED, INCLUDING BUT NOT LIMITED TO LOST PROFITS, DOWN TIME, LOSS OF MATERIAL OR PRODUCT, CLEAN-UP COSTS ASSOCIATED WITH LOSS OF PRODUCT, OR ANY DAMAGE TO EQUIPMENT NOT SERVICED, REPAIRED OR INSTALLED FOR SELLER. In any event, seller shall have NO liability under the warranty contained in this paragraph if equipment malfunctions result, directly or indirectly, from an accident (not caused by seller), improper operation of equipment, inadequate maintenance, and/or failure to protect properly the equipment from environmental hazards. Seller shall not be held responsible for any damage that may be caused to any equipment by electrolysis in the earth at any time.
c. NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO CHANGE THIS WARRANTY IN ANY WAY OR GRANT ANY OTHER WARRANTY.
- Prices. All prices indicated herein are made in good faith; however, from time to time, manufacturers change prices without notice to us prior to shipment and/or we mistakenly quote a wrong price to a customer. In the event of any such price differential, any increase will automatically be added to purchaser’s price and is said to be paid by purchaser and any decrease is to be subtracted from purchaser’s price. Also, if seller’s labor costs increase in connection with installation of equipment after acceptance by purchaser, any such increase will automatically be charged and paid by purchaser.
- Terms of Sale. All payments are to be made to McKinney Petroleum Equipment at P. O. Box 9099, Mobile, Alabama, 36691-0099. All credits and terms of sale must be approved by Seller’s Mobile office at the time of the entry of the order and are subject to review and approval during the life of any contract. Terms are 30 days unless otherwise stated. A service charge of 1-1/2% per month will be charged on the unpaid balance remaining at the end of every 30 day period. If payment is not made promptly when due, purchaser also agrees to pay all costs and related expenses of collection, including a reasonable attorney’s fees. A time payment plan can be arranged only with advance approval by Seller’s Mobile office.
- Shipping Dates for Material Purchased and Disposition of Merchandise after 90 Days. Shipping dates given for material purchased are approximate and are estimated from date of receipt of order. Seller will exert the utmost effort all times and under all conditions to perform satisfactorily its shipping obligations, but seller shall not be liable for delay for any reason or for damage in transit of any materials furnished. Storage of equipment ordered by a customer F.O.B. company warehouse will be at purchaser’s expense and risk. Any merchandise ordered by purchaser or seller or repaired by seller and remaining at seller’s place of business more than 90 days after written notice sent by seller to purchaser at purchaser’s address as shown on this document is subject to immediate disposition by seller with no liability whatsoever to seller for such disposition. Purchaser agrees to hold seller harmless from and indemnify seller against any claims or losses in connection therewith.
- Installment Delivery of Material Purchased: Progress Billing of Services. Seller reserves the right to make delivery of goods, materials and equipment in installments, unless otherwise expressly stipulated herein. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve purchaser of its obligation to accept remaining deliveries. Seller also reserves the right of progress billing a job where seller’s services are involved. Delay of purchaser in payment for progress billing when due shall, at the option of seller, relieve seller from further liability to perform hereunder.
- Revocation of Credit. Seller reserves the right at any time to revoke any credit extended to purchaser because of purchaser’s failure to pay when due or for any other reason deemed good and sufficient by seller, and, in such event, all subsequent shipments shall be paid for on delivery.
- Cancellation and Return of Goods Policy: Purchaser may cancel an order only upon advance written approval of seller and provided purchaser pays sellers reasonable and proper cancellation charges, based in part on cancellation charges of the manufacturer whose equipment is involved. No merchandise is returnable without advance written consent of authorized personnel of seller, with shipping instructions furnished, and no merchandise will be accepted for credit unless such written authorization is received from authorized personnel of seller. At the option of seller, return of material prior to receiving seller’s approval will result in material remaining the property of purchaser. If such material remains the property of purchaser, the material will be stored at purchaser’s risk and expense
- – Non-stock or special ordered items can be returned only if the manufacturer agrees to accept items back for credit plus applicable restocking charges and freight to and from the factory;
- – We will not accept any flexible or fiberglass pipe for return credit;
- – No item under $10 can be returned for credit;
- – Credit can only be issued on material after our inspection;
- – All material must be in new, unused and in original condition;
- – No item will be accepted for credit after 60 days from date of invoice;
- Claims, Manner of Shipment, Risk of Loss, Security Agreement, Notice of Damage to Goods, Additional Limitation of Warranty and Hold Harmless and Indemnification Agreement. Seller sells and purchaser orders merchandise from seller only by one of the following methods: (1) F.O.B. – Origin, freight collect and (2) F.O.B. – Origin, freight prepaid and added. (Purchaser must specify either (1) or (2) above, or else seller will elect one for purchaser). Whenever merchandise is delivered by a common carrier method (1) or (2) above by manufacturer or seller or whenever merchandise is received by purchaser, whichever event is earlier, seller’s responsibility for materials furnished ceases. Full risk of loss (including transportation delays and losses) shall pass to purchaser upon delivery of products/equipment to the F.O.B. point after which time purchaser shall be liable to seller for the full price of said material. However, seller retains a purchase money security interest in said product/equipment, including the proceeds therefrom and/or any attachments or additions thereto, for the purpose of securing purchaser’s obligation to make payment in full, until purchaser actually pays for said product/equipment in full, cash or collected funds at which time the security interest shall cease; and seller may, at seller’s option, repossess the same upon purchaser’s default in payment hereunder, and charge purchaser with any deficiently. Purchaser also agrees to execute upon demand appropriate financing statements for the purpose of perfecting this security interest, and to pay or reimburse seller for the cost of filing same. If any damage is evident upon delivery purchaser must make a notation on the freight bill of lading and have the carrier’s agent sign upon delivery of claim record. Purchaser should immediately notify seller and file a claim with the carrier, as seller assumes no responsibility for goods damaged in shipment. Also, shortages and hidden damages or defects to goods must be reported to seller and to carrier within 30 days of receipt of shipment. The prices quoted for merchandise do not include cost of unloading. It is the responsibility of purchaser and not the responsibility of seller to offload all products at the job site. Ordinarily, such products will be delivered for offloading as close to the job site as is reasonably possible due to the surface conditions. However, purchaser is responsible for providing the driver with instructions as to where the goods are to be offloaded by purchaser. Whenever purchaser is unavailable to give such instructions, the truck driver may refuse to have such goods offloaded and may return such products to the point of origination. Where such goods are returned, purchaser shall be responsible for any freight or other expenses in connection therewith and shall indemnify seller of any costs it incurs in connection therewith. See also Paragraph 7 above. In addition, if the purchaser directs the driver delivering the merchandise onto the job site and the driver hasproblems as a result of surface conditions in connection with the ingress and/or egress to and/or from the job site, purchaser is responsible for all damages and additional expenses caused thereby and shall indemnify seller of any costs it incurs in connection therewith.
- Changes and Change Orders. This order may be amended at the request of either party from time to time by Written Change Order signed by both parties, setting forth the particular changes to be made and the effect of such changes on the price and on the time of completion. A charge will be made for changes in drawings and/or specifications after purchaser and seller have previously agreed upon same. The total charge will include order processing costs, additional material and labor costs, etc. The total charge for these changes will be agreed to after receipt of written purchaser authorization or direction of these changes.
- Network Security. Seller maintains commercially reasonable technical and organization controls and security methods to prevent unauthorized use, disclosure of, or access to proprietary information. This includes updated antivirus software, network and remote access for end users restricted by a firewall. Any access, connection or transfer will be limited to the purposes intended and will hold all passwords, credentials and login information in strict confidence and will not share this information with any other persons or entities for any reason with the able procedures in place McKinney Petroleum Equipment will not be responsible for any breeches, cyber-attacks, malware etc. as it will be customers responsibility to maintain the security of their firewalls, routers, etc.
- Contingencies. The fulfillment of this invoice is subject to strikes, fire, action of government agencies, acts of God, labor disputes, accidents and all other contingencies beyond the reasonable control of seller.
- Acceptance. Delivery of the materials and equipment herewith, installation of equipment herein specified, OR purchaser’s acceptance hereof either in writing or orally, in person or over the telephone, or seller’s receipt of purchaser’s purchase order and/or the issuance of an invoice or “C”, “D”, “T”, “S”, or “I” ticket (which is a hard copy of the transaction as well as a shipping ticket), constitutes a binding acceptance by purchaser of all matters contained herein.
- Governing Law. The parties agree that this Agreement shall be construed under and governed by the Laws of the State of Alabama. Any legal proceedings commenced by either party under this Agreement shall be brought in an applicable court having jurisdiction over the matter and located in the State of Alabama.
- Taxes, Permits, Licenses and Additional Hold Harmless and Indemnification Agreement. Purchaser shall be responsible for and shall pay all sales, use, excise, governmental surcharge and other taxes (including penalties and interest thereon) levied or based on the prices quoted or charged herein, this document or other merchandise itself. The prices actually quoted or charged herein may or may not already include applicable taxes. If the prices do not include such taxes (including penalties and interest thereon), seller reserves the right to charge for same by a subsequent or supplement invoice, and purchaser shall be responsible thereof. Seller shall not assume any responsibility for any special type permits or licenses, such as city permits, work permits, privilege permits, EPA permits, governmental permits of any governmental body and/or licenses which may be imposed by any state or municipality for any work not covered by a normal city or state license. Moreover, where a penalty, fine or claim for pollution damage or cleanup is made against seller as a result of or in connection with installation of materials or equipment, including but not limited to hoses, piping, pumps and underground tanks, purchaser agrees to hold seller harmless from and indemnify seller against any of seller’s or purchaser’s losses in connection therewith.
- Additional Hold Harmless and Indemnification Agreement, Property Damage Miscellaneous Damage, Personal Injury, Death, Pollution and Environmental. Where property damage, personal injury, or death to any person, animal or thing or any other damage or injuries is claimed or results from or in connection with the sale, installation or repair of materials or equipment, by seller, including but not limited to new or used hoses, piping, pumps and underground tanks, purchaser agrees to hold seller harmless from and indemnify seller against any of seller’s or said purchaser’s losses in connection therewith, whether same relates to any claim, penalty or fine by governmental agency for pollution, environmental damage, cleanup or otherwise, or whether any claim is made by any third party against seller and/or purchaser or said damage, personal injury or death to any person, animal, or thing is claimed or sustained by purchaser or made against purchaser or seller in connection therewith, including but not limited to said damages, costs, expenses, and attorney’s fees associated therewith.
- Seller Not to Engage in Certain Activities. Seller is not licensed as a Mechanical or Electrical Contractor or Engineer and, therefore, is prohibited by state, municipal and/or county law from engaging in certain Design or Engineering activities.
- Final Inspection and Additional Hold Harmless and Indemnification Agreement. If as part of the merchandise furnished in connection herewith, it is necessary for seller to conduct some final inspection, and if purchaser has failed to pay for the goods quoted or invoices, seller may refuse to make such final inspection until seller has been paid in full. If seller refuses to conduct same as a result of his having demanded payment in full and purchaser’s having failed to make such payment, purchaser agrees to hold seller harmless from and indemnify seller against any of said purchaser’s losses in connection with such failure and if a claim is made therefore against seller, specifically to indemnify seller against losses claimed or sustained by third parties in connection therewith.
- Enforceability, Severability and Non-Waiver Agreement. If any of the provisions and conditions hereof or portions thereof shall be deemed unenforceable by reason of law or ruling of court, then the other shall be deemed enforceable. Any waiver of any breach of this contract shall not be construed as a waiver of any other breach.
- Waiver of Jury Trial. The undersigned purchaser waives its right to a jury trial in any legal proceeding arising, directly or indirectly, out of any credit relationship of purchaser with seller.
- Arbitration. McKinney Petroleum Equipment does not agree or consent to arbitrate or mediate any matters relating to this contractual agreement and McKinney Petroleum Equipment shall not be bound by any arbitration provision of the purchaser’s contractual documents unless McKinney and the purchaser have both signed an express written agreement to arbitrate or mediate such matters.