TERMS OF SALE

For a printable version fo the Bautex Terms and Conditions of Sale and Acceptance, click here.

TERMS AND CONDITIONS OF SALE AND ACCEPTANCE

  1. Offer and Acceptance; Entire Agreement. These Terms and Con­di­tions (“Terms”), Bautex’s sales order form (“Sales Order”), and Bautex’s Cred­it Appli­ca­tion and Agree­ment (“Credit Application”) (col­lec­tive­ly, the Agreement”) con­sti­tute the entire agree­ment between the Par­ties, and super­sede all pri­or or con­tem­po­ra­ne­ous under­stand­ings, agree­ments, nego­ti­a­tions, rep­re­sen­ta­tions and war­ranties, and com­mu­ni­ca­tions, both writ­ten and oral. Any per­son or enti­ty order­ing, pur­chas­ing or accept­ing deliv­ery of goods or ser­vices, a Buy­er (“Buyer”) from Bau­tex Sys­tems, LLC (“Bautex”) irrev­o­ca­bly accepts the Agree­ment upon the ear­li­est of: (i) Buy­er plac­ing an order for any goods or ser­vices of Bau­tex; (ii) accept­ing the deliv­ery of any goods or per­for­mance of any ser­vices by Bau­tex; or (iii) pay­ing any amount due to Bau­tex for goods or ser­vices. Bau­tex objects to and rejects any addi­tion­al or dif­fer­ent terms or con­di­tions con­tained in Buy­er’s pro­pos­al, order, or oth­er doc­u­men­ta­tion, and such addi­tion­al or dif­fer­ent terms shall not become part of the con­tract between Bau­tex and Buy­er unless express­ly accept­ed in writ­ing by an autho­rized rep­re­sen­ta­tive of Bau­tex. To the extent these Terms con­tra­dict the Sales Order, or Cred­it Appli­ca­tion, these Terms will pre­vail. Notwith­stand­ing the fore­go­ing, how­ev­er, if Bau­tex and Buy­er (“Parties”) have a writ­ten con­tract in effect between them, exe­cut­ed by hand, by autho­rized rep­re­sen­ta­tives of each of them, that express­ly gov­erns Bautex’s sale and Buyer’s pur­chase of such goods or ser­vices, then that writ­ten con­tract shall take prece­dence over any con­flict­ing pro­vi­sion in this Agree­ment.
  2. Changes to or Termination of a Sales Order. Each Sales Order signed by Buy­er and returned to Bau­tex, may (a) be changed by the writ­ten agree­ment of the Par­ties, (b) unless stat­ed to be non-can­cellable on the face of the Sales Order, be ter­mi­nat­ed in whole or in part by Bau­tex at any time pri­or to Bautex’s deliv­ery of the goods or per­for­mance of the ser­vices, and © not be revoked by Buy­er unless Bau­tex agrees in writ­ing to can­cel that Sales Order.
  3. Delivery; Performance; Title Transfer; Risk of Loss. All sales of goods are F.O.B. man­u­fac­tur­ing facil­i­ty (“Delivery Point”). Unless oth­er­wise agreed, Bau­tex will select the freight car­ri­er and arrange for ship­ping. Title and risk of loss shall pass to Buy­er as soon as the goods are in the pos­ses­sion of the freight car­ri­er. Bau­tex shall act on Buyer’s behalf in putting the goods in the pos­ses­sion of the freight car­ri­er, but with­out respon­si­bil­i­ty on Bautex’s part for ship­ment or deliv­ery. Use of a deliv­ered price” does not change these terms. Unless the pur­chase price is express­ly stat­ed on Sales Order to be a deliv­ered price,” the pur­chase price of the goods does not include any fees or costs relat­ed to han­dling, pack­ag­ing, crat­ing, label­ing, stor­age, export, and oth­er deliv­ery expens­es, and Buy­er shall be sep­a­rate­ly liable for all such fees and costs. If the pur­chase price is stat­ed to be a deliv­ered price,” then Buy­er acknowl­edges that the stat­ed pur­chase price was deter­mined by Bau­tex based on the quan­ti­ty of the goods ordered, the deliv­ery loca­tion, the deliv­ery date, and oth­er fac­tors; that any extra­or­di­nary increase in fuel cost may be added as a sur­charge; and that any agreed-upon change to Buyer’s order will result in a new deter­mi­na­tion of the deliv­ered price” by Bau­tex. How­ev­er, Buy­er may review Bautex’s new deliv­ered price before com­mit­ting to any change in Buyer’s order.
  4. Inspection and Rejection of Nonconforming goods. Upon deliv­ery of the goods, Buy­er shall inspect the goods with­in five (5) busi­ness days of receipt of the goods (“Inspection Period”). Buy­er will be deemed to have accept­ed the goods after expi­ra­tion of the Inspec­tion Peri­od unless it noti­fies Bau­tex dur­ing the Inspec­tion Peri­od in writ­ing of any Non­con­form­ing Goods and fur­nish­es such writ­ten evi­dence or oth­er doc­u­men­ta­tion as required by Bau­tex. Nonconforming Goods” means only the fol­low­ing: (i) prod­uct shipped is dif­fer­ent than iden­ti­fied in the Sales Order; or (ii) pro­duc­t’s label or pack­ag­ing incor­rect­ly iden­ti­fies its con­tents. If Buy­er noti­fies Bau­tex of any Non­con­form­ing Goods with­in the Inspec­tion Peri­od, Bau­tex shall, in its sole dis­cre­tion, (i) replace such Non­con­form­ing Goods with con­form­ing goods, or (ii) cred­it or refund the price for such Non­con­form­ing Goods, togeth­er with any rea­son­able ship­ping and han­dling expens­es incurred by Buy­er in con­nec­tion there­with. If Bau­tex exer­cis­es its option to replace the Non­con­form­ing Goods, Bau­tex shall ship to Buy­er the con­form­ing goods. Buy­er acknowl­edges and agrees that the reme­dies set forth in this Sec­tion 4 are Buy­er’s exclu­sive reme­dies for the deliv­ery of Non­con­form­ing Goods. Except as pro­vid­ed under this Sec­tion 4, all sales of con­form­ing goods to Buy­er are final and Buy­er has no right to return con­form­ing goods to Bau­tex pur­chased under this Agree­ment.
  5. Non-Delivery of goods. The quan­ti­ty of goods record­ed by Bau­tex on dis­patch from Bautex’s Deliv­ery Point is con­clu­sive evi­dence of the quan­ti­ty received by Buy­er upon deliv­ery, unless Buy­er can pro­vide con­clu­sive evi­dence prov­ing the con­trary with­in the des­ig­nat­ed Inspec­tion Peri­od. Bau­tex shall not be liable for non-deliv­ery of goods, delay in deliv­ery of goods, or any loss or dam­age that occurs to goods dur­ing tran­sit. Buyer’s sole rem­e­dy for claims or prob­lems relat­ed to ship­ment or deliv­ery shall be against the freight car­ri­er. Any delay, dam­age, loss, or non-deliv­ery shall not be grounds for Buy­er to ter­mi­nate its order. Bau­tex shall not be liable for any non-deliv­ery of goods unless Buy­er pro­vides writ­ten notice to Bau­tex of the non-deliv­ery with­in five (5) busi­ness days of the date when the goods would have been received in the ordi­nary course of busi­ness. Any lia­bil­i­ty of Bau­tex for non-deliv­ery of goods shall be lim­it­ed to, at Buyer’s dis­cre­tion, (i) deliv­er­ing the goods with­in a rea­son­able time, or (ii) adjust­ing the invoice respect­ing such goods to reflect the actu­al quan­ti­ty deliv­ered.
  6. Invoices; Payment Terms; Taxes. Pay­ment for goods or ser­vices will be due pri­or to deliv­ery of the goods or per­for­mance of the ser­vices, unless Bau­tex has agreed to extend cred­it to Buy­er. To secure Buyer’s pay­ment of the pur­chase price and all oth­er amounts due to Bau­tex in con­nec­tion with such goods, Buy­er grants Bau­tex a secu­ri­ty inter­est in all goods deliv­ered to Buy­er and in any pro­ceeds from such goods. Bau­tex may at its option file financ­ing state­ments and oth­er instru­ments to per­fect this secu­ri­ty inter­est. Bau­tex may in its sole dis­cre­tion reeval­u­ate whether to extend cred­it to any buy­er, and may require pay­ment in advance for any order at any time. If Bau­tex has agreed with respect to a par­tic­u­lar order to extend cred­it, pay­ment will be due from Buy­er with­in the num­ber of days spec­i­fied on the face of the Sales Order (or if no num­ber of days is spec­i­fied, then with­in 30 days) after the ear­li­er of (a) deliv­ery of the goods or per­for­mance of the ser­vices, and (b) receipt of Bautex’s invoice. Buy­er shall report and pay all tax­es and assess­ments imposed on Bau­tex or Buy­er as a result of Bautex’s sale or Buyer’s pur­chase of goods or ser­vices, includ­ing but not lim­it­ed to any applic­a­ble fed­er­al, state or local sales, use, val­ue-added, or excise tax­es or cus­toms duties (col­lect­ed­ly, Taxes”), but exclud­ing the Texas fran­chise tax and the fed­er­al income tax. Bau­tex may but is not required by this Agree­ment to col­lect such Tax­es from Buy­er. If Buy­er or a sale is exempt from any Tax­es, Buy­er must pro­vide Bau­tex a valid exemp­tion cer­tifi­cate at the time the order is placed. Any amount due to Bau­tex from the sale of goods or ser­vices that is not paid when due shall accrue inter­est at the high­est rate allowed by applic­a­ble law, or 18% per year, whichev­er is low­er, and Buy­er shall be liable for Bautex’s rea­son­able costs incurred to col­lect any past-due amount, includ­ing but not lim­it­ed to rea­son­able attorney’s fees and costs of arbi­tra­tion.
  7. Return and Restock. If Buy­er asks to return pre­vi­ous­ly ordered goods and Bau­tex agrees to accept them, Buy­er shall pay the freight charge to deliv­er the returned goods to Bautex’s facil­i­ty, and shall pay Bau­tex 35% of the pur­chase price of those goods as a restock­ing fee. All returned goods must be in new con­di­tion when they arrive at Bautex’s dock. If any returned goods are not in new con­di­tion when they arrive, Buy­er shall remain liable for the full pur­chase price, as well as the return freight charge.
  8. LIMITED WARRANTIES.
    1. All goods and ser­vices are sold pur­suant to the sep­a­rate Bau­tex Lim­it­ed War­ran­ty State­ment that express­ly applies to the goods or ser­vices pur­chased by Buy­er. The exclu­sive war­ran­ty applic­a­ble to Bautex’s goods and ser­vices are those that are express­ly stat­ed in a valid war­ran­ty state­ment duly issued by Bau­tex or a valid war­ran­ty state­ment includ­ed in the pack­ag­ing of the goods, as applic­a­ble to the war­ran­ty for each type of goods. Bau­tex does not war­rant fail­ure due to work­man­ship, improp­er use dur­ing instal­la­tion, abuse of the goods, or chem­i­cal incom­pat­i­bil­i­ty with oth­er mate­ri­als. Buy­er rep­re­sents to Bau­tex that Buy­er is rely­ing sole­ly upon its own judg­ment, and/​or upon the advice of Buyer’s reg­is­tered engi­neers and oth­er com­pe­tent pro­fes­sion­als, in select­ing Bautex’s goods or ser­vices and in installing or using those goods or ser­vices.
    2. Prod­ucts man­u­fac­tured by a third par­ty (“Third Party Product”) may con­sti­tute, con­tain, be con­tained in, incor­po­rat­ed into, attached to or pack­aged togeth­er with, the goods. Third Par­ty Prod­ucts are not cov­ered by the lim­it­ed war­ran­ty in Sec­tion 8a. For the avoid­ance of doubt, the Third Par­ty Prod­ucts are sold “AS IS”.
    3. EXCEPT FOR THE LIMITED WARRANTY FOR GOODS SET FORTH IN SECTION 8a, BAUTEX MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR THIRD PARTY PRODUCT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
    4. Bau­tex shall not be liable for a breach of the lim­it­ed war­ran­ty set forth in Sec­tion 8a unless: (i) Buy­er gives writ­ten notice of the defect, rea­son­ably described, to Bau­tex with­in ten (10) days of the time when Buy­er dis­cov­ers or ought to have dis­cov­ered the defect; (ii) Bau­tex is giv­en a rea­son­able oppor­tu­ni­ty after receiv­ing the notice to exam­ine such goods or ser­vices, if applic­a­ble, and Buy­er (at the writ­ten request of Bau­tex) returns such goods to Bau­tex’s place of busi­ness for the exam­i­na­tion to take place there; and (iii) Bau­tex rea­son­ably ver­i­fies Buy­er’s claim that the goods are defec­tive.
    5. Bau­tex shall not be liable for a breach of the lim­it­ed war­ran­ty set forth in Sec­tion 8a if: (i) Buy­er makes any fur­ther use of such goods after giv­ing notice set forth in Sec­tion 8d; (ii) the defect aris­es because Buy­er failed to fol­low Bau­tex’s oral or writ­ten instruc­tions as to the stor­age, instal­la­tion, com­mis­sion­ing, use or main­te­nance of the goods; or (iii) or Buy­er alters or repairs such goods or ser­vices with­out the pri­or writ­ten con­sent of Bau­tex.
    6. Sub­ject to Sec­tion 8, Bau­tex shall, in its sole dis­cre­tion, either: (i) repair or replace such goods (or the defec­tive part) or (ii) cred­it or refund the price of such goods at the pro rata con­tract rate pro­vid­ed that, if Bau­tex so requests, Buy­er shall return such goods to Bau­tex at Bautex’s expense. The lim­it­ed war­ran­ty set forth in Sec­tion 8a does not cov­er any costs or expens­es asso­ci­at­ed with 1) the removal of the Bau­tex prod­uct, if already installed; 2) the removal or replace­ment of any mate­r­i­al, includ­ing the exte­ri­or or inte­ri­or façade in con­nec­tion with the test­ing, repair, removal or replace­ment of the Bau­tex prod­uct; 3) the cost to ship the replace­ment Bau­tex prod­uct; or 4) dam­ages or repairs of any kind or nature to the sub­ject build­ing, whether caused by removal or replace­ment of the Bau­tex prod­uct or oth­er mate­r­i­al, or oth­er­wise.
    7. THE REMEDIES SET FORTH IN SECTION 8f SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY AND BAUTEX'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8a.
    8. Buy­er may only trans­fer and assign a valid war­ran­ty state­ment issued as set forth in Sec­tion 8a to an End User. End User” means a final pur­chas­er that (i) has acquired a good for its own inter­nal use and ben­e­fit; (ii) has not acquired the goods for resale, remar­ket­ing, dis­tri­b­u­tion, or oth­er use; and (iii) is the own­er of one or a series of build­ings, con­struc­tions or oth­er struc­tures where goods are, have been, or will be used, incor­po­rat­ed or installed.
  9. LIMITATION ON LIABILITY. IN NO EVENT SHALL BAUTEX BE LIABLE TO BUYER, UNDER ANY EQUITABLE, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STATUTORY, STRICT LIABILITY, OR OTHER THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR CONTINGENT DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF SALE, BUSINESS, PROFITS, DATA, OPPORTUNITY, OR GOOD WILL, EVEN IF THE REMEDIES PROVIDED TO BUYER UNDER THIS ORDER FAIL OF THEIR ESSENTIAL PURPOSE, AND EVEN IF BAUTEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER AND BAUTEX HAVE SPECIFICALLY AGREED TO ALLOCATE THE RISKS ASSOCIATED WITH THIS CONTRACT SO THAT BAUTEX SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY EXCEPT AS SET FORTH IN THE SEPARATE WARRANTY STATEMENT, AS DESCRIBED IN SECTION 8 OF THESE TERMS. BUYER HEREBY WAIVES AND RELEASES ANY OTHER CLAIM AGAINST BAUTEX FOR ANY LOSS OR DAMAGE ARISING IN CONNECTION WITH ANY ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP OF SELLER AND BUYER, REGARDLESS OF WHETHER THE CLAIM IS ASSERTED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN ADDITION, BAUTEX’S LIABILITY FOR DAMAGES OF ANY KIND (WHETHER FOR GOODS DELIVERED, SERVICES PERFORMED, NON-DELIVERY OF GOODS, OR NON-PERFORMANCE OF SERVICES) SHALL IN NO EVENT EXCEED THE PRICE ACTUALLY PAID BY BUYER, IF ANY, FOR SUCH GOODS OR SERVICES.
  10. INDEMNIFICATION. BUYER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS BAUTEX AND ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AFFILIATES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES (WHETHER ACTUAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE), LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTERESTS, AWARDS, PENALTIES, FINES, COSTS OR EXPENSES OF WHATEVER KIND, (INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES, EXPERT WITNESS CHARGES, AND OTHER OUT-OF-POCKET COSTS OF INVESTIGATION OR DEFENSE), THAT ARE INCURRED BY BAUTEX RELATING TO: (A) BUYER’S BREACH OF CONTRACT WITH BAUTEX OR ANY THIRD PARTY, OR (B) BUYER’S USE, INSTALLATION, HANDLING, SHIPPING, TRANSPORTATION, OR DISPOSAL OF THE GOODS, OR (C) ANY ACTUAL OR ALLEGED FAILURE OF BUYER, OR ANY CONTRACTOR OF BUYER (OTHER THAN BAUTEX), TO COMPLY WITH ALL APPLICABLE LAWS, RULES, OR REGULATIONS.
  11. Waiver; Reformation; Severability; Assignment. Fail­ures to exer­cise any right, pow­er or rem­e­dy under this Agree­ment, or fail­ures to insist on the oth­er Party’s com­pli­ance with this Agree­ment, or cus­toms, prac­tices, or cours­es of deal­ing incon­sis­tent with this Agree­ment, will not waive or oth­er­wise prej­u­dice either Party’s rights under this Agree­ment. In case any pro­vi­sion in this Agree­ment shall be deter­mined invalid, ille­gal or unen­force­able, then such pro­vi­sion shall be reformed to be made legal or valid. If the pro­vi­sion can­not be made legal with­out best ful­fill­ing the intend­ed agree­ment, then the pro­vi­sion shall be delet­ed and the valid­i­ty, legal­i­ty and enforce­abil­i­ty of the remain­ing pro­vi­sion shall not in any way be affect­ed or impaired there­by. Buy­er may not assign its rights or oblig­a­tions under this con­tract, unless Buy­er first obtains Bautex’s writ­ten con­sent.
  12. Force Majeure: Bau­tex shall not be liable or respon­si­ble to Buy­er, nor deemed to have breached or default­ed this Agree­ment, for any fail­ure or delay in ful­fill­ing or per­form­ing any term of this Agree­ment when and to the extent that such fail­ure or delay is caused by or results from acts or sit­u­a­tions beyond the con­trol of the par­ties includ­ing, but not lim­it­ed to, acts of God, strikes, lock­outs, labor trou­bles, war, ter­ror­ism, inabil­i­ty to pro­cure mate­ri­als, restric­tive gov­ern­men­tal laws or reg­u­la­tions or oth­er cause with­out fault and beyond the con­trol of the par­ty oblig­at­ed, and such fail­ure or delay makes it imprac­ti­ca­ble or com­mer­cial­ly unrea­son­able for either par­ty to per­form under the Agree­ment; pro­vid­ed no force majeure shall apply to Buyer’s oblig­a­tion to pay in a time­ly man­ner for goods. If par­tial ful­fill­ment of the Sales Order is pos­si­ble or the Sales Order has already been par­tial­ly ful­filled at the time of the event, Bau­tex may elect to ter­mi­nate the remain­der of the Sales Order or ful­fill as much of the Sales Order as pos­si­ble at pro rata cost, at Bautex’s sole dis­cre­tion.
  13. Modification; Governing Law; Cumulative Remedies.No mod­i­fi­ca­tion, amend­ment, revi­sion, waiv­er or oth­er change to this Agree­ment shall be bind­ing on either Bau­tex or Buy­er unless agreed upon in writ­ing by both par­ties. Any oral or writ­ten rep­re­sen­ta­tion, war­ran­ty, course of deal­ing, or trade usage not spec­i­fied here­in shall not be bind­ing on either Bau­tex or Buy­er. The Laws of the State of Texas (exclud­ing any appli­ca­tion of its con­flicts of law prin­ci­ples), and any applic­a­ble Unit­ed States fed­er­al law, gov­ern the inter­pre­ta­tion and enforce­ment of this con­tract, and any dis­pute aris­ing from or relat­ing to this Agree­ment, or the rela­tion­ship between Bau­tex and Buy­er. Venue for all suits or arbi­tra­tion shall be in Bexar Coun­ty, Texas. All reme­dies set forth in this Agree­ment are cumu­la­tive, not exclu­sive, unless they are express­ly stat­ed to be exclu­sive reme­dies.

Last updat­ed March 31, 2017