1. GENERAL CONDITIONS/PARTIES/CONTRACT ACCEPTANCE:
As used herein Buyer shall be defined to be the Purchaser described on the first page of this Agreement/Invoice. Seller shall be defined to mean MEYER. Any written or oral purchase order received by Seller from Buyer shall be construed as a written acceptance of Seller’s offer to sell and shall be billed in accordance with the terms and conditions of Sale set forth herein. Seller’s acceptance of this order is expressly conditioned on Buyer’s consent to the terms and conditions of Sale contained herein. The terms and conditions of Sale contained herein shall prevail over any conflicting or different terms in Buyer’s oral or written purchase order unless Buyer notifies Seller in writing of its objections within ten (10) days of receipt of Seller’s acknowledgment. Buyer’s standard terms of purchase will not be considered a counter offer to Seller’s terms and conditions of Sale. The failure of Seller to object to any provisions and conflict herewith, further contained on Buyer’s purchase order or otherwise, shall not be construed as a waiver of the provisions hereof nor an acceptance thereof.
All goods of Seller’s manufacture, remanufacture or repair are warranted against defects of material and workmanship for a period of six (6) months from date of invoice only so long as Buyer’s use of the goods is in the manner in which originally specified by Buyer and in the environmental conditions originally specified by Buyer. Parts not manufactured by MEYER shall be limited to the warranty from the manufacturer of such products or parts. Parts subject to regular replacement due to operational wear are not covered by this warranty. All goods not manufactured, remanufactured or repaired by Seller are sold “as is” without warranty. If Seller receives a notice from Buyer for any alleged defect in or nonconformance of any product or repair within six (6) months from date of invoice and if in Seller’s sole judgment the product or repair does not conform or is found to be defective in material or workmanship, then Buyer shall, at Seller’s request, return the defective part or product FOB to Seller’s facilities whereupon Seller at its option and expense shall repair or replace the defective good. Seller’s warranty liability, including defects caused by Seller’s negligence, shall be limited to such repair or replacement and shall not include claims for labor or expenses incurred by Buyer resulting from such defects, recovery under any tort or strict liability law or for damages resulting from delay, loss of use, or other direct, indirect, incidental or consequential damages of any kind. Seller will not be responsible for failure of any good which has been modified, altered or repaired by anyone other than Seller or for failures due to Buyer’s failure to comply with recommended maintenance procedures. THERE ARE NO OTHER GUARANTEES OR WARRANTIES PROVIDED HEREUNDER, EXPRESSED OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANIBILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT.
3. QUOTATIONS/PRICES/TERMS OF PAYMENT: All quotations are made for prompt acceptance and any terms quoted are subject to change without notice after thirty (30) days from the quotation unless otherwise noted on the quotation. Any quotation for any product or services is made subject to prior Sale. All prices quoted, shown or invoiced are in U.S. Dollars and are FOB Seller’s point of shipment. Any cost for banking charges resulting from electronic funds transfers or similar such charges as a result of Buyer’s choice of method of payment shall be borne and paid for by Buyer. All amounts due to Seller from Buyer are payable in Corpus Christi, Nueces County, Texas and shall be due net thirty (30) days from date of invoice, unless otherwise stated. Buyer agrees that any past due amount shall bear interest from due date until paid at the lesser amount of 18% per annum or the maximum non-usurious rate of interest permitted by applicable laws in effect, from time to time.
4. CANCELLATION AND RETURNS: Purchase Orders once placed and accepted by Seller can be canceled only with Seller’s written consent, and upon terms, which will save Seller from loss. No goods may be returned for credit or adjustment without written permission from an authorized officer of Seller.
Buyer shall pay the cost of all taxes or charges imposed by law on the sale or production of the goods or services being purchased, unless the law specifically provides that Seller shall pay such charges, in the event of which, Buyer shall be obligated to reimburse Seller for such payment as part of the purchase price. Buyer shall pay the cost of all customs duties, insurance charges, consigners fees, and other comparable charges imposed as a result of the Sale. Any consular fees required for legalizing invoices, stamping bills of lading or other documents required by the laws of any country or destination are not included in any quotation or selling price. All of such charges shall be borne and paid by Buyer. Seller assumes no liability whatsoever for making any arrangements on behalf of Buyer relating to such consular documents or declarations, nor assumes any liability for any fines or charges imposed due to errors or incorrect declarations, all of which costs and obligations are expressly assumed by, and are the obligation of, Buyer.
Seller shall use every effort, as conditions permit, to make shipment as scheduled. However, Seller shall not be responsible for any loss or damage to Buyer resulting from deviations in the shipping schedule, whether due to Acts of God, orders bearing priority ratings established pursuant to law, differences with workmen, local labor shortages, shortages of product sources or failure of raw materials, supplies, fuel, power or transportation, breakdown of equipment or any other causes beyond Seller’s reasonable control or any such other cause not expressly enumerated herein, which is out of Seller’s reasonable control. Seller shall have such additional time as required to perform as may be reasonably necessary under the circumstances and shall have the right to apportion products among its customers in such a manner as Seller, in its sole discretion, may consider to be equitable. In no event shall Seller be liable for any consequential damages or labor costs resulting from failure or delay in shipment. If the product being provided to Buyer requires drawings, procedures, standards or other material for approval, shipping schedules will be calculated from the time such approvals are received by Seller. Any inspections or testing required may affect product production and/or delay shipment accordingly.
7. DELIVERY/ACCEPTANCE OF GOODS:
Delivery shall be in accordance with the requirements of the purchase order provided, and in the event that Buyer is unable to accept delivery upon completion of the goods being purchased, Buyer agrees that title shall pass to Buyer on the date of Seller’s invoice and Buyer will make payments to Seller in accordance with the terms of payment herein. Seller shall retain custodial risk of loss until delivery is made in accordance with such requirements.
8. PATENT INFRINGEMENT:
Seller warrants that the use or sale of material or apparatus sold to Buyer hereunder will not infringe United States’ patents of others covering such material or apparatus by itself, and hereby agrees to indemnify Buyer against judgment for damages for such infringement of any such patent, provided, that Buyer, shall upon receipt of any claim for infringement of any such patent or threat of suit for such infringement or upon the filing of any suit for infringement, whichever comes first, promptly notify Seller in writing and afford Seller full opportunity, at Seller’s option and expense, to answer such claim or threat of suit, assume control of the defense of said suit, and settle or compromise same in any way Seller sees fit. Other than court awarded judgments as aforesaid, Seller shall not be liable for any delays, loss of use or for other direct, indirect, incidental or consequential damages incurred by reason of any such judgment. Seller does not warrant that such material or apparatus (a) will not infringe any such patent when not manufactured by or for Seller or when specially made in whole or in part to the Buyer’s design specification and such infringement arises from the inclusion of such specified design or, (b) if used or sold in combination with other material or apparatus, or if used in the practice of a process. Seller shall not be liable for and does not indemnify Buyer for damages or losses of any nature whatsoever resulting from actual or alleged patent infringement arising pursuant to (a) or (b) above.
9. SELLER’S RIGHT TO MANUFACTURE:
Seller in its sole discretion shall have the right to manufacture the products provided hereunder as far in advance of its estimated shipping schedule as it deems appropriate. Seller expressly reserves the right to change or modify the design and construction of any product in due course of Seller’s manufacturing procedure without incurring any obligation or liability to furnish or install such changes, modifications or improvements to products previously or subsequently sold.
10. ENGINEERING AND SERVICE:
Upon request Seller will provide engineering and/or technical information regarding its products and their uses and, if feasible, will provide personnel to assist Buyer in effecting field installation and/or field service. Any such information, service or assistance so provided, whether with or without charge, shall be advisory only. In that regard, neither Seller nor Buyer assumes any liability for the acts or omissions of the other party except as may be provided herein.
Unless otherwise agreed in writing, any final inspection or acceptance of any product being purchased must be made at Seller’s location or point of shipment and shall be conclusive. Any such inspections shall be conducted during Seller’s normal posted hours of operation and in such a manner as to not interfere with Seller’s operations.
12. LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS OF USE OF EQUIPMENT OR OF ANY INSTALLATION, SYSTEM, OR FACILITY INTO WHICH THE GOODS PURCHASED BY BUYER HEREUNDER MAY BE LOCATED. SELLER’S TOTAL RESPONSIBILITY FOR ANY CLAIMS, DAMAGES, LOSSES OR LIABILITIES ARISING OUT OF OR RELATED TO SELLER’S PERFORMANCE OF THIS CONTRACT OR THE GOODS SOLD HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF SUCH GOODS.
In consideration of the purchase of the goods hereunder, Buyer assumes all risks inherent in the operation and use of such goods or equipment and releases Seller from any claim for bodily injury (including death) resulting therefrom or damage to Buyer’s property resulting from or arising in connection with Buyer’s use or possession of the goods purchased. Buyer further agrees to assume the entire liability for, defense of and to pay, indemnify and hold Seller harmless from any and all claims for damage to property or bodily injury (including death) resulting from the use, operation of or possession of such goods or equipment, whether or not it be held or claimed that such damage or injury resulted, in whole or in part, from Seller’s negligence, from the defective conditions of such goods being purchased, strict liability or otherwise.
14. WAIVER OF JURY TRIAL:
Buyer and Seller both waive a trial by jury of any and all issues arising in any action or proceeding between the parties hereto or their successors, under or connected with this sale, this agreement, or the goods being purchased under this agreement.
Any action for breach of contract, or enforcement hereof, must be brought in the courts of the State of Texas in Nueces County, Texas.
MEYER reserves the right to make changes to terms and conditions without notice.
I. RENT OF EQUIPMENT
Owner hereby rents to Renter and Renter hereby rents from Owner (the “Equipment”) subject to the terms and conditions set forth herein. DELIVERY AND ACCEPTANCE OF EQUIPMENT Upon delivery of the Equipment to the location identified above, Renter will inspect the Equipment and if no written objection is provided to Owner within one (1) day, the Equipment will be deemed accepted as of that delivery date (the “Commencement Date”). Commencement date is date of pick-up of equipment by Renter on portal-portal terms.
This Agreement shall become effective on the Commencement Date and shall, unless terminated hereunder, continue in full force and effect, as provided herein, for an initial term of 1 year from Commencement Date (the “Initial Term”), and thereafter shall automatically renew for successive terms of 1 year (each a “Renewal Term” and collectively with the Initial Term, the “Rental Term”) unless and until the Renter gives Owner written notice of termination at least ninety (90) days prior to expiration of the then current Rental Term. Any provision of this Agreement, which expressly provides that it shall survive the termination of this Agreement or which must survive termination in order to be fully operative, shall survive the termination of this Agreement.
III. RETURN OF THE EQUIPMENT –
Rental billing for the equipment stops once the equipment has been returned to a Meyer facility RENTAL FEE. Prior to delivery of the Equipment Renter agrees to pay Owner an amount equal to second and last months’ Rental Fee for each item of the Equipment at Owner’s address listed above or such other place as Owner may direct which shall be deemed non-refundable. Rental fees as quoted and invoiced. The ongoing Rental Fee and any other amount due under this Agreement is payable within ten (10) days of the date of an invoice from Owner. If Renter fails to timely pay any amounts due under this Agreement: (a) interest shall accrue on the outstanding amount at the lesser of the rate of eighteen percent (18%) per annum or the maximum lawful rate for so long as such amount remains unpaid; and (b) Renter shall pay to Owner an administrative fee of $250 for each payment not paid timely
IV. LOCATION OF EQUIPMENT AND USE OF THE EQUIPMENT
Renter will use the Equipment for business purposes and keep it in good working condition. Some local governments require permits for or restrict certain promotional items. The Owner will assist in complying with these requirements, but gaining clearance and obtaining required permits is the responsibility of the Renter.
V. CARE AND OPERATION OF EQUIPMENT.
Renter agrees that use of the Equipment will comply with all laws, ordinances and regulations relating to the possession of and use of the Equipment, including registration and/or licensing requirements, if applicable. Renter promises and agrees to indemnify, defend and hold Owner harmless from and against all fines, forfeitures, seizures, confiscations or penalties arising out of any violations of such laws, ordinances or regulations in accordance with Article XIV.
VI. TITLE; PERSONAL PROPEPRTY
The Equipment is and at all times shall remain the sole property of Owner. No right, title or interest in the Equipment shall pass to renter other than the right to maintain possession and use of the Equipment for the full Rental Term, conditioned upon Renter’s compliance with the terms and conditions of this Agreement. Renter agrees to keep the Equipment free and clear of all liens, claims and encumbrances.
Renter shall make no alterations or modifications to the Equipment without prior written consent of the Owner, which may be given or withheld in its sole discretion.
VIII. MAINTENANCE AND REPAIR
The renter is responsible for all repair, maintenance, transportation, delivery and service costs during the rental period. The Owner shall maintain the Equipment at Renter’s expense or approve the maintenance work being performed by a third party. The Renter shall be responsible for any and all damage to the Equipment caused by Renter’s or it representative’s acts or omissions or any damage to any vehicle on or around the Equipment.
IX. BREACH OR DEFAULT.
If Renter breaches or defaults on any obligation of this Agreement, Owner may, without notice or demand, do one or more of the following: (a) take peaceful possession of the Equipment; (b) terminate this Agreement; (c) require Renter to deliver the Equipment to Owner; and (d) exercise any other right or remedy available at law or in equity. Each right and remedy shall be cumulative and may be exercised singly or in combination.
X. INSURANCE; RISK OF LOSS OR DAMAGE
During the Rental Term, Renter, at its own expense, shall keep insurance against all risks of loss, theft, damage, or destruction of the Equipment for the full replacement value thereof and general liability insurance on an occurrence basis, with minimum limits of $1,000,000 in any one occurrence and $2,000,000 general aggregate, with contractual liability coverage. Renter assumes all risks of loss or damage to the Equipment or any other property from any cause, and agrees to return Equipment to the Owner in the condition received from the Owner, with the exception of normal wear and tear.
XI. NOTICE PROVISION.
All notices or other written communications hereunder shall be deemed to have been properly given: (a) upon delivery, if delivery in person or by facsimile transmission with receipt acknowledged by the recipient thereof, (b) one business day after having been deposited for overnight delivery with any reputable overnight courier service, or (c) three business days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage pre- paid, return receipt requested to the addresses set forth above.
RENTER AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER AND ITS LENDERS, OFFICERS, MANAGERS AGENTS AND EMPLOYEES (COLLECTIVELY;OWNER INDEMNITEES), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITIES OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS FEES, FOR INJURY TO OR DEATH OF ANY PERSON OR PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE OPERATION, USE, MAINTENANCE, REPAIR OR CONDITION OF THE EQUIPMENT. THE FOREGOING DEFENSE AND INDEMNITY SHALL APPLY: (A) WHERE THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION SUITS OR LIABILITIES ARISE IN WHOLE OR IN PART FROM THE ACT OR OMISSION OR NEGLIGENCE OF OWNER INDEMNITEES; AND (B) WHETHER SUCH DEFECT AND THE INJURY OR DEATH RESULT IN WHOLE OR IN PART FROM THE DESIGN, MANUFACTURE, MAINTENANCE, REPAIR MARKETING OR DISTRIBUTION OF THE EQUIPMENT OR FROM THE FAILURE BY OWNER INDEMNITEES TO WARN ANY PERSON OF SUCH DEFECT.
XIII. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties and supercedes all previous negotiations, understandings, or written or oral agreements with respect to its subject matter. Modifications or amendments to this Agreement are valid only when made in a writing that is signed by all contracting parties.
Renter may not assign, sublet, lend transfer or pledge this Agreement or the Equipment without the prior written consent of Owner. Owner may assign, transfer, pledge or sell Owner’s interest in the Equipment and this Agreement.
XV. GOVERNING LAW AND VENUE.
The laws of the State of Texas shall govern the validity, construction, interpretation, and enforcement of the Agreement. Venue for any suit or proceedings arising under this Agreement shall be in Nueces County, Texas. Renter agrees to pay, on demand, all costs and reasonable attorney fees that Owner may incur in the enforcement of this Agreement.
Owner’s failure to require performance by renter of any provision of this Agreement shall not be a wavier thereof or of any subsequent similar non-performance.
In the event that any provision of this Agreement shall be deemed invalid, illegal, or unenforceable, the remaining provisions of the Agreement shall remain valid, binding and in full force and effect as if the invalid, illegal or unenforceable provisions had never been contained in this Agreement.
XVIII. WAIVER OF WARRANTIES
OWNER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.