TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE OF ORDER. Payment in part, or full, constitutes full Buyers, or third parties representing Buyer, acceptance of order and terms & conditions, particularly when Goods are in transit or have been delivered to Buyer. Such acceptance may be indicated by the delivery to the Buyer any of the items ordered (the "Goods"). Buyer acknowledges and agrees that this Agreement is limited solely to its terms, whether or not Buyer's form of acceptance or purchase order contains additional or other terms.
2. LIMITATIONS. This Agreement and the price for the Goods set forth therein (the "Purchase Price") do not include: electrical wiring, plumbing, air lines or alterations to the Buyer's premises, any other work or materials or the obtaining of building and installation permits.
3. LIMITED WARRANTY. The Goods are being sold "new" or "used" as indicated herein. Seller warrants the Goods subject to the following limitations and conditions (collectively, the "Warranty"):
Failure to pay any or all charges in full voids all warranties.
a. If the Goods are sold "new", then Seller warrants that the Goods, when shipped, are free from defects in materials and in workmanship. Except as stated below, the Seller, at its sole option, shall replace and/or repair any defect for a period of twelve (12) months after shipment.
b. If the Goods are "used", then all sales are in "as is" condition with no warranty, unless specifically granted in writing by Seller. No other warranties expressed or implied are valid. If the Goods are "used", then Seller, at its sole option, shall replace and/or repair any defective parts or components with rebuilt or used parts not to exceed cost of original price of parts. Labor shall be at Buyer's expense. The Seller shall have no obligation or liability under this Warranty unless it shall have received written notice specifying any such defect within the Warranty Period.
c. Notwithstanding anything in paragraph 3A and 3B to the contrary, the Warranty does not cover, and the Seller makes no warranty as to, cutters, scraper blades, conveyor belts, V-belts and light bulbs. The Warranty is not transferable or assignable by Buyer and shall become null and void upon the transfer of the Goods to a different location or to a different party.
d. Since, after shipment, the Goods are under the sole control of the Buyer, the Warranty is subject to, and shall be applicable only if, all of the following conditions are met:
i. the Seller's instructions as to storage, handling, erection, installation, operation and maintenance have been followed;
ii. The Goods have been used under normal operating
iii. The Goods have not been affected by misuse, neglect or accident;
iv. The Buyer has not itself or through a third party performed or attempted to perform corrective work without the Seller's prior written consent;
v. the Seller shall have received written notice of any defect no later than ten (10) days after the Buyer first has knowledge thereof;
vi. The Seller is given a reasonable opportunity
to inspect and concur with respect to such defects;
vii. The Seller has received payment of the
Purchase Price or any installment(s) due thereon
e. The Warranty provided hereby shall terminate and be of no further force and effect if the Buyer fails to notify Seller at 713-748-5441 prior to initiating any Warranty repair work of any nature whatsoever.
THIS WARRANTY IS IN SUBSTITUTION FOR AND IN LIEU
OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. REMEDIAL
ACTION, IN THE MANNER AND WITHIN THE PERIOD OF
TIME SPECIFIED ABOVE, SHALL CONSTITUTE FULFILLMENT
OF ALL LIABILITIES FROM THE SELLER TO THE BUYER
AND SHALL CONSTITUTE THE BUYER'S SOLE AND EXCLUSIVE
REMEDY HEREUNDER. THE SELLER'S OBLIGATIONS AND
LIABILITIES UNDER THIS AGREEMENT FOR ALLEGED BREACH
OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT
OR OTHERWISE, SHALL NOT EXTEND TO INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES
THE BUYER MAY SUFFER OR INCUR IN CONNECTION THEREWITH,
INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE
OR PROFITS, COST OF CAPITAL, DAMAGES OR LOSSES
AS A RESULT OF THE BUYER'S INABILITY TO OPERATE
OR THE SHUTTING DOWN OF ITS PLACE OF OPERATION,
LOSS OF USE OF THE GOODS OR ASSOCIATED GOODS OR
COSTS OF SUBSTITUTE GOODS, FACILITIES OR SERVICES,
INABILITY TO FULFILL CONTRACTS WITH THIRD PARTIES,
CLAIMS OF CUSTOMERS AND THE LIKE EVEN IF THE SELLER
HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH
DAMAGES AND EVEN IF ANY REMEDY CONTAINED HEREIN
SHALL FAIL OF ITS ESSENTIAL PURPOSE.
ALL EQUIPMENT MANUFACTURED BY OTHERS AND SOLD
UNDER THE BAKER'S BEST NAME, BUT INCLUDED AS PART
OF THIS AGREEMENT, WILL BE COVERED SOLELY BY THE
WARRANTY ISSUED BY THE MANUFACTURER THEREOF, IF
ANY, AND THE SELLER MAKES NO WARRANTIES WITH RESPECT
THERETO, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
4. DELIVERY. Delivery dates indicated by Seller are approximate. Seller will make reasonable efforts to deliver, FOB the place indicated on the sales order at Buyer's sole expense, on or about the specified delivery date. Each order shall be subject to, and the Seller shall be excused from, any prohibition, failure, interruption or delay in manufacture or delivery which may be occasioned by sabotage, fire, flood, explosion, labor dispute, strike, work stoppage, war, act of or priorities granted by request of or for the benefit, directly or indirectly, of any governmental body, authority or agency, act of GOD, or other cause beyond the Seller's control. In the event of any such prohibition, failure, interruption or delay, the Seller may, at its option, extend the delivery time or cancel the order, in whole or in part. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS RESULTING FROM FAILURE OR DELAY IN DELIVERY EVEN IF THE SELLER HAS BEEN ADVISED AS TO THE POSSIBILITY OF SAME. Buyer is responsible for any and all return freight, redelivery or storage costs. Any costs due to Buyer refusal to accept machines belong solely to Buyer, such costs may be deducted from Buyers deposit/payments at Sellers discretion.
5. TAXES. The Purchase Price is exclusive of all city, state, and federal taxes, including, without limitation, taxes on manufacture, sales, receipts, the Buyer's gross income, occupation, use and other similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Buyer.
6. INSTALLATION AND DEMONSTRATION.
this agreement sets forth that the Purchase
Price includes installation charges, then installation
charges, if any, will be separate from and in
addition to the Purchase Price and will be billed
at Seller's then current rates therefore, which
Buyer agrees to pay promptly upon receipt of
b. If not specified in this Agreement, Seller
shall have no obligation or responsibility whatsoever
hereunder with respect to installation, startup
or training with respect to the Goods.
c. If this Agreement specifies that Seller shall
supervise the installation of the Goods, then
Seller's sole obligation shall be to furnish
a representative to provide supervisory assistance
to the Buyer with respect to the installation
for a period specified in this Agreement (the
Supervisory Period), and Buyer shall supply
all labor and materials at its own expense.
d. Seller shall, during the Supervisory Period,
if any, instruct Buyer's personnel in the proper
operation and maintenance of the Goods; provided,
however, that Buyer shall furnish for training
qualified operating and maintenance personnel
when requested by Seller.
7. BUYER'S DEFAULT. In the event that there shall be a default under this Agreement by the Buyer, then the Buyer, in addition to any damages for which it may be liable, shall be liable for payment of Seller's reasonable attorney's fees and costs incurred in enforcing Seller's rights under this agreement. The Seller shall also have the right, in addition to all other rights it may possess, at any time, for credit reasons or because the Buyer's default, to withhold shipments in whole or in part, and to recall Goods in transit, retake same and repossess all Goods which may be stored with the Seller for the Buyer's account, without the necessity of taking any other proceedings, and the Buyer consents that all the Goods so recalled, retaken or repossessed, shall become the absolute property of the Seller, provided that the Buyer is given full credit therefore.
8. STARTUP DELAY BY BUYER. Buyer agrees to reimburse
Seller for any loss incurred by delays in installing
or commencing the use of the Goods or completing
the work that is not chargeable to Seller; and to
reimburse Seller of all expenses incurred by Seller
for required overtime work due to Buyer's delay.
9. SECURITY INTEREST AND TITLE. If this Agreement provides that any part of the Purchase Price may be paid at any future time or is to be paid in installments, Seller shall retain and Buyer hereby grants a security interest in the property sold to secure payment of the unpaid Purchase Price and Buyer agrees to forthwith execute and deliver to Seller forms of security agreements, financing statements, promissory notes, and/or any other documents and instruments which Seller shall prepare and submit and which shall contain such terms, conditions and finance charges as Seller in its sole discretion shall determine. Upon the failure of Buyer to execute the same upon presentation, the transaction set forth in this Agreement shall be deemed a cash sale and payment in full shall be due and payable immediately prior to delivery. Buyer hereby authorizes Seller to file financing statements at any time with or without the signature of Buyer. Upon any default hereunder Seller shall have the right and remedies of a secured party under the Uniform Commercial Code as enacted in any applicable jurisdiction. Title to the Goods purchased hereunder shall remain in the Seller, and shall not pass to the Buyer until the Purchase Price, together with all taxes and other charges due thereon, has been fully paid to the Seller.
10. LATE PAYMENT CHARGE. All unpaid balances, which are 30 days or more past due shall be subject to a late charge of 1 ½% per month (18% per annum), but in no event shall such late charge exceed the maximum rate permitted by law.
11. INSURANCE. Until the Purchase Price is paid
in full, Buyer shall keep all Goods insured against
loss and damage in an amount not less than the Purchase
Price thereof. Buyer shall furnish satisfactory
proof of such insurance coverage to Seller. Each
insurance policy maintained pursuant to this section
shall contain a provision that it shall not be canceled
or in any way limited in coverage or reduced in
amount unless Seller is notified in writing fifteen
(15) days prior to such cancellation, limitation
or reduction. At least fifteen (15) days prior to
the expiration of any policy, the Buyer shall furnish
evidence satisfactory to the Seller that such policy
has been renewed or replaced or is no longer required
by this Agreement. Any insurance required herein
shall be so written or endorsed as to contain the
standard secured party endorsement and to make losses
payable to the Seller as an additional insured and/or
loss payee as the case may be.
12. CANCELLATION AND/OR DELAY IN ACCEPTANCE. ALL SALES ARE FINAL!! NO REFUNDS/ NO RETURNS, NO EXCHANGES ON NEW OR USED EQUIPMENT. FOR SPECIAL CIRCUMSTANCES AND ONLY AT B.E.S.T. INC’S DISCRETION IN THE EVENT WE ARE AGREEABLE TO A CANCELLATION THE STANDARD CANCELLATION OR RESTOCKING FEE APPLICABLE SHALL BE 50% OF THE INVOICE TOTAL NO LESS. BUYER BY GIVING, MAKING ANY PAYMENT TOWARDS PROPOSALS PRIOR TO BEING CONVERTED TO INVOICES OR ANY FORM OF PAYMENT MADE ON ANY INVOICE CONSTITUTES BUYER’S AGREEMENT TO ALL B.E.S.T. INC’S TERMS AND CONDITIONS.This Agreement shall not be subject to cancellation in whole or in part by the Buyer except upon written notice thereof sent to Seller by certified or registered mail, return receipt requested, and upon the following terms and conditions:
a. It is understood,
stipulated and agreed that the Seller shall, upon
Buyer's acceptance of this Agreement, incur certain
expenses relating to production scheduling, design
and other premanufacturing activities and that
the damages suffered by the Seller in the event
of a premanufacturing cancellation by the Buyer
are not susceptible to precise calculation. Thus,
the Buyer and Seller agree that the Buyer shall
pay to the Seller forty (40%) of the Purchase
Price in the event that the Buyer cancels the
order for the Goods before the commencement of
production thereof, and that such payment is not
a penalty but is in the nature of liquidated damages
to the Seller.
b. If a notice of cancellation is received after Seller commences manufacture, purchasing of component parts, delivery or installation, Buyer shall pay to Seller the actual cost of labor and materials plus overhead and lost profit. If Buyer delays acceptance of delivery, the Goods will be stored by Seller at Buyer's risk and expense. The Seller shall not retain the Goods on its premises.
c. Once Seller has purchased Goods from vendor(s)
order shall not be canceled in full or in part
by Buyer and payment in full shall be due immediately.
In the event that part of this Agreement shall be
declared void or unenforceable the balance of the
Agreement shall remain unaffected thereby and shall
remain enforceable according to its terms.
14. RETURNED GOODS. No Goods may be returned unless
authorized in writing by Seller. If return of Goods
is so authorized, Buyer shall be required to pay
a handling charge of fifty percent (50%) of the
Purchase Price. Goods must be returned in the original
factory crate, freight prepaid, and shall not have
been used and must be in the same condition as originally
15. RISK OF LOSS. The risk of loss, injury or destruction
of the Goods from any cause whatsoever, from the
time that the Goods are loaded onto trucks or other
vehicles for delivery to the Buyer, shall be solely
upon the Buyer. Any such loss, injury or destruction
shall not relieve the Buyer of its obligations hereunder.
16. CODES. Since state and local fire, building
and health codes vary extensively, Seller does not
guarantee compliance therewith. Any costs or delays
incurred to meet such state or local codes will
be at the Buyer's expense.
17. MODIFICATIONS. This Agreement contains the entire
agreement between the parties and all prior dealings
and negotiations are merged herein. This Agreement
may not be canceled, terminated, (except as herein
otherwise provided), modified, altered or amended
except in writing and signed by both parties or
their duly authorized agents.
18. APPLICABLE LAW. This Agreement and the rights
and obligations of the parties hereunder shall be
governed by and construed under the laws of the
State of Texas, Harris County, without regard to
its principles of conflicts of law.
19. JURISDICTION. Any controversy or claim arising
out of or relating to this contract or the breach
thereof shall be brought in any appropriate federal
or state court of the State of Texas, Harris County,
and the parties hereby consent to the exclusive
jurisdiction of such court and waive any claim of
forum non conveniens.