STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS AND/OR SERVICES
The Customer (identified above, as “Company Name”) agrees and authorizes Burton Controls, Inc. ("BURTON") to perform service work, consulting, and to provide goods and materials, whether or not described herein (the “Work”) under the following Standard Terms and Conditions, which are expressly made a part of the agreement between Customer and BURTON (the “Agreement”), without liability for interruption of service, or incidental, special, or consequential damages:
1. TERMS OF AGREEMENT -- The Agreement between Customer and BURTON shall consist of these terms and conditions and any specifications, drawings, samples, or other written terms and conditions which are specifically incorporated in the Agreement. Any purchase order, acknowledgment ticket, invoice, supplemental agreement, or other instrument of Customer, or acceptance of the goods and services provided hereunder by Customer, shall be construed as an acceptance of this Agreement. Any attempt by Customer to insert or include any different or additional terms and conditions not in conformity with this Agreement shall be null and void. In the event of conflict between this Agreement and other provisions specifically incorporated in writing in the Agreement by BURTON, this Agreement shall prevail. The Agreement shall not be modified or altered by any subsequent course of performance between Customer and BURTON, and this Agreement shall constitute an express waiver and variance from, amendment to, or modification of, any agreement submitted by Customer to BURTON. In rendering any service or providing any product hereunder, BURTON shall at all times be an independent contractor.
2. PAYMENT -- Payment on all orders shall be and is hereby due within thirty (30) days after date of invoice. Interest at the rate of eighteen percent (18%) per annum will be charged on all past due balances. Customer shall be liable for all costs, including reasonable attorney’s fees, incurred by BURTON in attempting to collect any past due balance.
3. QUOTATIONS -- All quotations, if any, are made for prompt acceptance and any term quoted therein is subject to change without notice, unless specifically stated otherwise in the quotation. Prices quoted by BURTON and accepted by Customer are subject to escalation, if any, as specified in BURTON’s quotation. All prices are exclusive of any federal, state, or special taxes imposed on the sale or use of goods and services sold.
4. CANCELLATION -- Purchase orders once placed can be canceled only with BURTON’s written consent, and then only without loss to BURTON, including compensation to BURTON for all completed work, work in progress, and work-related special materials, fabrication, assembly, engineering, general and administrative expenses, subcontractor cancellation charges, and normal profits. No products may be returned for credit or adjustment without express written permission from BURTON.
5. MODIFICATIONS – BURTON reserves the right to change or modify the design and construction of any products or the procedures and methods for any of its services without incurring any obligation to furnish or install such changes or modifications on products previously or subsequently sold or to use such procedures or methods with respect to services previously or subsequently provided.
6. WARRANTY -- (A) Any manufacturers’ warranties, if any, shall pass through to Customer to the extent permitted by law, and BURTON shall use reasonable efforts to assist Customer in making contact with the manufacturer to assert warranty claims. BURTON shall incur no other or further obligation to Customer, and nothing herein shall be construed as rendering BURTON as an agent of Customer; (B) THE EXPRESS WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY. CUSTOMER’S SOLE REMEDY IS ADDRESSED IN SECTION 12 AND BURTON’S SOLE OBLIGATION ARISING OUT OF OR IN CONNECTION WITH DEFECTS IN MATERIALS OR WORKMANSHIP OR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL BE THOSE STATED IN THIS SECTION.
7. TIME OF PERFORMANCE -- Promises of delivery of products or performance of services are given as accurately as conditions permit and every effort will be made to make deliveries and perform services as scheduled. BURTON assumes no liability for damages arising out of failure to deliver material or perform services as scheduled. If Customer requires additional work, inspection or testing, it shall be charged to Customer’s account and will be considered as extending the performance dates accordingly.
8. FAILURE TO DELIVER – BURTON shall not be liable for failure or delay in delivery services or products due to acts of God, war, civil commotion, labor disputes and strikes, including those involving employees of BURTON, fire, flood or other casualty, governmental action, priorities or regulations, lack of ability to obtain satisfactory raw materials, components, supplies, fuel, power or transportation, breakdown of equipment, supplier or sub-contractor delay or any other events or causes beyond BURTON’S control whether or not foreseeable or of similar or dissimilar nature than those enumerated, BURTON shall have such additional time within which to perform as may be reasonably necessary under the circumstances and shall have the right to apportion its production and services among its customers in such manner as it may consider to be equitable. All claims regarding shortages must be made within thirty (30) days from receipt of shipment, and must be accompanied by the packing list(s) and appropriate documents covering the shipment.
9. TRANSPORTATION COSTS -- Unless otherwise specified in BURTON’S invoice, Customer shall pay all transportation charges for products of or sold by BURTON based on point of shipment or manufacture, insurance charges and charges for stampings, bills of lading, or other documents.
10. RISK OF LOSS -- Unless otherwise expressly agreed by BURTON in writing, title and risk of loss, injury, or destruction shall pass to Customer at point of origin of the statement. Any such loss, injury, or destruction shall not release Customer from its obligation under the Agreement.
11. CUSTOMER INDEMNIFICATION OF BURTON -- Customer agrees to indemnify, defend and hold BURTON harmless from and against all claims, demands, actions whether civil or administrative, liability, fines, penalties and expense, whether based on warranty, contract, negligence, strict liability or otherwise.
12. NONCONFORMING GOODS OR SERVICES -- Customer shall notify BURTON in writing of any alleged nonconformity of goods and/or services tendered by BURTON under this Agreement within ten (10) days after receipt of the goods or services or within five (5) days after the alleged nonconformity could have been reasonably discovered, whichever date shall be the later. Such written notice shall provide a detailed explanation and description of the alleged nonconformity. In the event that BURTON agrees with Customer’s nonconformity assessment(s), BURTON shall have the right, at its sole and exclusive option, to cure the improper tender or delivery by correcting the tender or substituting tender of conforming goods and/or services within a reasonable time after receipt of Customer’s notice of nonconformity. Customer shall grant BURTON’S reasonable requests for extension of time to cure any improper tender. Customer’s failure to provide notice of nonconformity as above-described shall be prima facie evidence of conformity of the goods and services tendered by BURTON under the Agreement.
13. CUSTOMER’S DUTY TO PRESERVE NONCONFORMING GOODS -- Customer shall protect and preserve all allegedly nonconforming goods and shall strictly follow the reasonable instructions of BURTON. Customer shall incur only those expenses that are reasonable and necessary in fulfilling its obligation to protect and preserve all allegedly nonconforming goods.
14. LIMITATION OF LIABILITY -- The liability of BURTON, its agents, employees, subcontractors and suppliers with respect to any and all claims arising out of the performance or non-performance of BURTON’S obligations in connection with the design, manufacture, sale, delivery, storage, installation and/or use of the products sold under the Agreement, or the rendition of services hereunder, whether based on warranty, contract, negligence, strict liability or otherwise, shall not exceed, in the aggregate, the net purchase price (excluding taxes and freight) for such products or services, and shall in no event include damages for loss of profits or revenue; loss by reason of plant shut-down; increased expense of operation of plant or equipment; increased cost of purchasing or providing equipment, materials, supplies or services; cost of replacement power or capital; claims of Customer’s customers; inventory or use charges; or incidental or consequential damages of any nature..
15. CONTROLLING LAW -- The Agreement shall be interpreted and governed in all respects by the laws of the State of Oklahoma.
16. VENUE -- Venue for any civil action relating to or arising out of the Agreement shall be exclusively in Oklahoma County, State of Oklahoma.
17. Attorney’s Fees. -- In the event it becomes necessary for any Party to bring an action for enforcement of this Agreement, the prevailing Party shall be entitled to its reasonable attorney’s fees and costs incurred in such enforcement.
18. SEVERABILITY -- If any provision of this Agreement is deemed illegal, unenforceable, or unconscionable, the remainder of the Agreement shall not be affected thereby.
19. WAIVER -- Any waiver of any right or provision of these Terms and Conditions by BURTON at any time shall not be construed as a waiver or bar of any such right or provision at any future time, unless expressly stated by BURTON in writing.
© 2008, Burton Controls, Inc.