- Terms and Conditions Shall Control – These terms and conditions will apply to all goods, services, and/or labor furnished by A&B Valve & Piping Systems, LLC (“A&B Valve”) to the buyer of such goods, labor and/or services (“Customer”). Customer and A&B Valve will collectively be referred to as the “Parties.” In addition, these terms and conditions will control in the event of a conflict between these terms and conditions and any terms and/or conditions contained in any purchase order, master service agreement, subcontract, or any other agreement or document between Customer and A&B Valve.
- Acceptance and Termination of Order – Acceptance of any order is subject to the credit approval of and acceptance by A&B Valve. If Customer’s credit becomes unsatisfactory to A&B Valve at any time, A&B Valve may terminate an order of Customer or require Customer to pay COD. If Customer terminates an order, Customer will be responsible for the price and cost of all goods ordered and all labor and/or services provided by A&B Valve at the time the order is terminated. All sales of goods under any order these terms are made on a one-way basis, and Customer has no right to return any such goods; provided however, Customer will have a limited right of return for a credit only if and to the extent that A&B Valve is able to recover a credit or cash from its vendor or supplier for the good(s) Customer returns.
- Price and Shipment – Unless otherwise stated, prices shall be those in effect at the time of shipment, which shall be made F.O.B. shipping point, prepaid, and billed to Customer. A&B Valve’s prices are subject to change, without notice to Customer.
- Taxes – Prices shown or listed do not include sales or other taxes imposed on the sale of the goods, labor, and/or services. Taxes now or hereafter imposed upon such sales or shipments will be added to the purchase price, and Customer will be invoiced for such taxes. Customer agrees to reimburse A&B Valve for any such tax or provide A&B Valve with an acceptable tax exemption certificate.
- Delay in Delivery – A&B Valve is not responsible for delays in delivery of goods or performance of services caused by earthquakes, floods, hurricanes, named tropical storms, lightning strikes, ice storms, blizzards, icebergs, pack ice, air and sea disasters, explosions and fire, epidemics, acts of God or public enemy, war, terrorism, national emergency, invasion, insurrection, riot, strike, lockout, blockade, or other industrial disputes, any laws, rules, regulations, orders, directives or requirements of or interference by any government, government agency, failure of its suppliers to ship or deliver on time, or any other circumstance beyond A&B Valve’s reasonable control. In no circumstances shall A&B Valve be liable for any consequential or special damages arising from any delay in shipment, delivery, or performance, including performance of services. In the event of a price increase of material to be ordered or used by A&B Valve for Customer’s order, the price or contract sum contained in the order or other contractual documents shall be increased by a commensurate amount by change order, if required, or otherwise.
- LIMITED WARRANTIES –
GOODS - A&B VALVE DISCLAIMS AND MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING ANY GOODS FURNISHED BY A&B VALVE, AND A&B VALVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SERVICES – A&B VALVE WARRANTS THAT IT WILL PERFORM ALL SERVICES IN A GOOD AND WORKMANLIKE MANNER, IN ACCORDANCE WITH GENERALLY ACCEPTED PROFESSIONAL STANDARDS AND IN COMPLIANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS. SUCH WARRANTY OF PERFORMANCE SHALL EXTEND FOR A PERIOD OF TWENTY FOUR(24) MONTHS FROM THE DATE SUCH WORK WAS PERFORMED.
LIMITATIONS OF LIABILITY - A&B VALVE’S LIABILITY SHALL BE LIMITED TO EITHER REPAIR OR REPLACEMENT OF GOODS, LABOR, AND/OR REPERFORMANCE OF SERVICES FURNISHED OR REFUND OF THE PRICE THEREOF. A&B VALVE SHALL NOT BE LIABLE AND CUSTOMER WAIVES ALL CLAIMS FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. A&B VALVE’S MAXIMUM CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS OR SERIES OF CLAIMS IN THE AGGREGATE ARISING OUT OF OR IN CONNECTION WITH ANY GOODS, LABOR, AND/OR SERVICES FURNISHED BY A&B VALVE SHALL NOT EXCEED 100% OF THE PRICE OF SUCH GOODS, LABOR, AND/OR SERVICES. CUSTOMER’S REMEDIES ARE FURTHER SUBJECT TO ANY LIMITATIONS CONTAINED IN MANUFACTURER’S OR SUPPLIER’S TERMS AND CONDITIONS, IF ANY, TO A&B VALVE, A COPY OF WHICH SHALL BE FURNISHED TO CUSTOMER UPON WRITTEN REQUEST. THE LIMITATIONS OF LIABILITY DESCRIBED HEREIN SHALL APPLY TO ANY AND ALL CLAIMS (WHETHER ARISING IN TORT, CONTRACT, NEGLIGENCE, OR OTHERWISE) REGARDLESS OF NEGLIGENCE OR FAULT ON THE PART OF A&B VALVE.
- INDEMNITY –
Customer shall defend; shall release, discharge, and relinquish; and shall indemnify, protect and hold harmless A&B Valve, its parent, subsidiary and affiliated companies, and their contractors (of whatever tier), and its and their respective members, managers, directors, officers, employees, agents, and representatives (“A&B Group”) from and against any and all claims of every kind or character that are brought by or on behalf of any member of Customer, its parent, subsidiary and affiliated companies, and their contractors (of whatever tier), and its and their respective members, managers, directors, officers, employees, agents, and representatives (“Customer Group”) or their invitees alleging bodily injury, personal injury, illness, or death of any member of Customer Group or their invitees and which arise out of, relate to, or are connected with these Terms & Conditions or the performance by A&B Valve of services or sale of goods hereunder. A&B Valve shall defend, release, discharge and relinquish; and shall indemnify, protect and hold harmless Customer Group from and against any and all claims of every kind or character that are brought by or on behalf of any member of A&B Group or their invitees alleging bodily injury, personal injury, illness, or death of any member of A&B Group or their invitees and which arise out of, relate to, or are connected with these Terms & Conditions, or the performance by A&B Valve of services or sale of goods hereunder.
- Interest and Attorney Fees – Interest shall accrue on amounts past due at a monthly rate of 1.5% or the maximum permitted by law. For any arbitration, lawsuit, claim and/or other dispute arising out of or related to A&B Valve’s goods, labor, and/or services and the Parties’ agreement(s), order(s), and/or relationship, A&B Valve shall be entitled to receive from Customer any and all of A&B Valve’s attorneys’ fees, costs of court, consultant and/or expert fees, and/or other litigation costs in the event A&B Valve prevails.
- Liens – A&B Valve expressly reserves all lien and bond rights. Customer agrees to provide A&B Valve, upon request, information regarding bonding companies, project location, the identities and business addresses of general contractors and other parties, and any other information relevant to A&B Valve’s lien and bond claims or the perfection thereof.
- Authorization for Credit Review – Customer authorizes A&B Valve, at any time, to obtain any and all information, related to Customer’s credit from any and all sources including but not limited to all trade references provided by Customer to A&B Valve and credit agencies.
- Assignment – Customer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of A&B Valve. Any such assignment without such written consent will be void.
- Waiver – The failure of A&B Valve to insist upon the performance of any of these terms or conditions or to exercise any right hereunder shall not be deemed a waiver of such terms, conditions, or rights in the future, nor shall it be deemed to be a waiver of any other term, condition, or right hereunder.
- Severability - If any these terms and conditions is partially or completely unenforceable pursuant to applicable law, then such provision shall be deemed amended to the extent necessary to make it enforceable, if possible. If such an amendment is not possible, then such provision shall be deemed deleted. If any provision is so deleted, then the remaining terms and conditions shall remain in full force and effect.
- Entire Agreement and Amendment - These terms and conditions constitute the entire understanding between the Parties, and replace any previous oral or written agreements, representations, or statements. There have been no representations, warranties, or promises outside of these terms and conditions. No modification or amendment to these terms and conditions will be effective unless it is in writing and signed by an authorized representative of both Parties. Any proposed modifications or additional terms are specifically rejected and deemed a material alteration hereof. If this document shall be deemed an acceptance of a prior offer by Customer, such acceptance is expressly conditional upon Customer’s assent and agreement to any additional or different terms set forth herein.
- Disclaimer of Reliance - Customer acknowledges that it agrees to these terms and conditions by its own free choice, without any inducement offered in any way other than the express terms and conditions contained herein. Customer warrants and represents that no promise, agreement, representation, inducement or condition not set forth in these terms and conditions has been made or relied upon by Customer in agreeing to these terms and conditions. Customer is relying solely upon its own judgment in agreeing to these terms and conditions and Customer acknowledges A&B Valve is relying upon all of Customer’s representations, including this Disclaimer of Reliance, in agreeing to provide labor, services, and/or goods to Customer.
- Intellectual Property - Customer acknowledges that any goods provided to Customer by A&B Valve may be proprietary to A&B Valve. Customer shall not directly or through any third-party decompile, disassemble or otherwise reverse engineer any goods received from A&B Valve or any parts or portions thereof; with respect to any software, determine or attempt to determine any source code, algorithms, methods or techniques used by such software; or, with respect to any materials used in such goods, analyze the chemical composition of those materials.
- CUSTOMER ACKNOWLEDGMENT - CUSTOMER HAS READ ALL OF THESE TERMS AND CONDITIONS. CUSTOMER HAS HAD THE OPPORTUNITY TO ASK ANY QUESTIONS CONCERNING THE TERMS AND CONDITIONS BEFORE AGREEING TO THEM. CUSTOMER FURTHER STATES THAT IT HAS BEEN ADVISED BY AN ATTORNEY OF ITS CHOICE AND SELECTION, OR HAS HAD THE OPPORTUNITY TO CONSULT WITH SUCH ATTORNEY REGARDING THE BENEFITS AND DETRIMENTS OF AGREEING TO THESE TERMS AND CONDITIONS. CUSTOMER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS. CUSTOMER HAS BEEN ADVISED TO KEEP A COPY OF THE TERMS AND CONDITIONS.
- Venue - Any and all claims arising out of or related to goods, labor, and/or services furnished by A&B Valve shall, at A&B Valve’s sole and exclusive option, be arbitrated in Harris County, Texas. In the event of any lawsuit arising from or related to the Parties’ agreement(s), order(s), and/or relationship, then the jurisdiction and venue for the lawsuit will be in a court located in Harris County, Texas. Notwithstanding the foregoing, A&B Valve may foreclose a lien in any court of competent jurisdiction.
- Choice of Law - Any and all claims arising out of or related to goods, labor, and/or services furnished by A&B Valve, shall be governed by Texas law; provided however, any liens perfected, enforced, foreclosed or otherwise asserted by A&B Valve shall be governed by the law of the state in which the project improved by A&B Valve’s goods, labor and/or services is located.
