Agreement between customer and HTH Communications
For purposes of these Terms and Conditions of Sale, HTH Communications, LLC shall be referred to as “Seller,” and any person or entity that purchases products from Seller shall be referred to as “Customer.” The following Terms and Conditions of Sale, along with the invoice rendered to Customer by Seller (the “Invoice”), shall constitute the entire agreement between the parties regarding the subject matter hereof (this “Agreement”). All previous negotiations, proposals and representations, including but not limited to any purchase order submitted by Customer (whether or not accepted by Seller), are superseded hereby, and this Agreement shall constitute a complete and exclusive statement of the terms of the agreement between Customer and Seller.
Terms And Conditions:
All descriptions, quotations, proposals, offers, acknowledgments, acceptances, and sales of products by Seller are subject to and shall be governed exclusively by the terms and conditions stated herein. Seller’s acceptance of any offer to purchase by Customer is expressly conditioned upon Customer’s assent to all the terms and conditions stated herein. Any conduct by Customer that recognizes the existence of a contract pertaining to any products offered for sale or sold by Seller (including, without limitation, ordering, accepting, or paying for products) shall constitute acceptance by Customer of this Agreement and all its terms and conditions. All orders received from Customer are subject to acceptance by Seller. In no event shall Seller be bound by any terms or conditions proposed by Customer that are in addition to, or inconsistent with, those stated herein. No such additional, different, or inconsistent terms or conditions shall become part of this Agreement unless expressly accepted in writing by Seller.
For all sales, unless otherwise agreed in writing by Seller, payment of all invoiced amounts is due upon delivery of the products and shall be payable at Seller’s principal office in Houston, Texas. If Seller agrees in writing to sell products on credit, then all amounts invoiced will be due and payable net 30 days. Any invoiced amounts not paid within 30 days after the Invoice date will be delinquent (a “Delinquency"). Interest shall accrue on the amount of any Delinquency at the lesser of 1.5% per month (18% annually) or the maximum rate allowed by state law. Waiver of any existing interest charges shall not be deemed a waiver of future charges. All payments received may be applied against open charges in the sole discretion of Seller. Seller shall have a right of setoff, in the amount of all Delinquencies, against any amounts that Seller may owe Customer. Customer shall be responsible for all internal and external collection costs and attorney’s fees, relating to any Delinquency placed for collection by Seller. Seller shall have a purchase money security interest in all products to the extent of any portion of any Invoice or other amount that has not been paid but remains due and owing, and Seller shall retain its security interest until Customer has paid the full Invoice amount and all other amounts due and owing.
Unless otherwise indicated on the face of the Invoice, all prices and charges are exclusive of excise, sales, use, property, occupational or like taxes. If any such taxes must be paid by Seller or if Seller is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the products sold. Customer agrees to pay all such taxes or to reimburse Seller therefore upon receipt of the Invoice. If Customer claims exemption from any sales, use or other tax, Customer shall indemnify and hold harmless Seller from and against any such tax, together with any interest or penalties thereon which may be assessed if the products are held to be taxable.
Transportation Charges; Title; Risk Of Loss:
Unless otherwise agreed to in writing by Seller, all sales of products will be F.O.B. Seller’s facility, and Customer shall bear all shipping costs to Customer’s location, the location of Customer’s customer, or any other location designated by Customer. Customer shall pay all transportation charges and bear all risk of loss during transit.
At Seller’s sole discretion, products sold or supplied by Seller may be manufactured or re-furbished, in whole or in part, by Seller or by third parties sub-contracted by Seller, or may be purchased from third party suppliers.
Limited Warranty; Exclusion Of Other Warranties; And Limitation Of Seller Liability:
Seller warrants to Customer that all products shall be free from defects in material and workmanship under normal use and conditions for a period of thirty (30) days after the date of sale (“Warranty Period”). Any failure caused by Customer or Customer’s end-user shall not be covered by this warranty. This warranty is not assignable by Customer. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT, AND IS LIMITED TO THE REPAIR OR REPLACEMENT BY SELLER AT ITS FACTORY IN HOUSTON, TEXAS, AT SELLER’S OPTION, OF ANY PART OR COMPONENT WHICH BECOMES DEFECTIVE WITHIN THE WARRANTY PERIOD. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE COST OF THE PRODUCT. THE FOREGOING RIGHTS AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ANY OTHER RIGHTS OR REMEDIES OF CUSTOMER, WHETHER BASED ON A STATUTE, CONTRACT, TORT OR OTHERWISE, AND IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION APPLY EVEN IF SELLER’S LIABILITY IS CAUSED IN WHOLE OR IN PART BY SELLER’S OWN NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, STRICT LIABILITY, OR STATUTORY STRICT LIABILITY.
Right Of Inspection And Claims:
Customer shall promptly inspect all products upon receipt. All claims arising in connection with such inspection for any alleged shortage, damage or defect, or for alleged failure of the products to meet any agreed specification, must be received by Seller in writing, particularizing the claim, within seven (7) days after receipt of such products by Customer. Upon written notification of any such claim, as its sole remedy, Customer may return any such non-conforming products to Seller for replacement. All returns under this section are subject to Seller’s approval and will be processed according to Seller’s standard return policy.
No products will be accepted by Seller for return without Seller’s prior written approval and are subject to a restocking charge. Except as otherwise provided in this Agreement, Seller reserves the right, at its sole discretion, to refuse the return of any product for credit. All returned products must be in the original packaging when received by Seller. Authorized returns must be shipped prepaid to Seller’s facility and must be insured at the expense of Customer. Seller disclaims all responsibility for products damaged or lost in-transit during the course of any return.
Risk Of Operation:
The products supplied hereunder are furnished and operated at Customer’s risk, and Customer’s remedies and damages are limited as per this Agreement.
CUSTOMER HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, FINES, PENALTIES, EXPENSES, CONSEQUENTIAL DAMAGES AND LOSSES ON ACCOUNT OF PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE WHETHER BASED UPON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION OF WARRANTY ARISING OUT OF, INCIDENT TO, IN CONNECTION WITH, OR DIRECTLY OR INDIRECTLY RESULTING FROM THE DESIGN, MANUFACTURE, SALE, DELIVERY, REPAIR, OR USE OF THE PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH INJURIES, DEATH, OR PROPERTY DAMAGE IS CAUSED BY SELLER’S SOLE OR CONCURRENT NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, STATUTORY STRICT LIABILITY, OR OTHER BASIS OF LIABILITY.
Sales Literature, Illustrations And Descriptions:
Seller has made a diligent effort to accurately illustrate and describe the products in its sales materials and on Seller’s website (https://www.hthcomm.com). However, the illustrations and descriptions are for the sole purpose of identification and do not express or imply any additional warranty or that the products will conform to the exact illustrations or descriptions represented. Seller shall not be responsible for the content of sales brochures or other literature of third parties.
Customer agrees not to use the trademarks, trade names, designs or other patented or registered intellectual property of Seller without the written consent of Seller.
Jurisdiction, Choice Of Law; And Waiver Of Jury Trial:
All terms and conditions hereof shall be construed and enforced in accordance with the laws of the State of Texas without reference to Texas conflict of laws principles. The mandatory and exclusive venue and jurisdiction for any dispute arising between Seller and Customer shall be in Harris County, Texas. Customer irrevocably consents to the jurisdiction of the state and federal courts sitting in or having jurisdiction over Harris County, Texas for any dispute that may arise between the parties. CUSTOMER HEREBY KNOWINGLY AND INTENTIONALLY WAIVES THE RIGHT TO A JURY TRIAL ON ANY ISSUE OR DISPUTE THAT MAY ARISE BETWEEN THE PARTIES. No actions arising out of or relating to this Agreement or the sale of products hereunder may be brought by either party more than two (2) years after the cause of action accrues. In any action by Seller to enforce any terms of this Agreement, Seller shall be entitled to recover its reasonable and necessary attorneys’ fees, costs, and other expenses, including expert witness fees and expenses.
Nonwaiver By Seller:
Neither the failure of Seller to exercise any power given to it hereunder nor to insist upon strict compliance by Customer with its obligations hereunder, nor any custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of Seller’s right to demand exact compliance by Customer with the terms hereof.
The section headings in this Agreement are for convenience only and should not be used to interpret the meaning of this Agreement.