TEXAS TOOL STANDARD TERMS AND CONDITIONS OF SALE
Please read these terms and conditions carefully. They contain important information concerning customer’s (“Customer”) legal rights, warranties, obligations and available dispute resolutions remedies. They also provide that if Texas Tool & Equipment LLC (“Texas Tool”) is unable to resolve any matter to Customer’s satisfaction, Customer will exclusively use arbitration to decide the dispute, and Customer will bring its claim solely on an individual basis and not in a class action or representative proceeding.
Except in those instances where Texas Tool and a business Customer (“Business Customer”) enter into a separate written contract for the purchase of products and/or services providing for separate terms of sale, the following terms and conditions will apply. For clarification, the term “Customer” includes Business Customers as well as individuals, and the term Business Customer includes, but is not limited to, government, institutional and educational customers.
Texas Tool reserves the right to revise these Terms and Conditions of Sale at any time.
A. SALES POLICY FOR PRODUCTS
- Sales Tax.
Customer is responsible for payment of all applicable state and local taxes, or for providing a valid sales tax exemption certificate. When placing an order, Customer shall indicate which products are tax exempt.
- Payment and Credit Terms.
Texas Tool accepts cash, checks, money orders, Visa, MasterCard, Discover and American Express. For Customers with established Texas Tool credit, payment terms are NET 10 EOM from the date of invoice (the “Due Date”). All credit extended by Texas Tool, and the limits of such credit, are at Texas Tool’s sole discretion and may be reduced or revoked by Texas Tool at any time, for any reason or for no reason. As a condition for the continued extension of credit, Customer agrees to provide Texas Tool with current credit information within five (5) business days following request by Texas Tool. Texas Tool reserves the right to charge a convenience fee for late payments. Texas Tool further reserves the right to charge Customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law. Anticipation and cash discounts are not allowed. All payments must be made in U.S. dollars. Texas Tool has the right of set-off and deduction for any sums owed by the Customer to Texas Tool.
If the Customer fails to make payment in full by the Due Date, or fails to comply with Texas Tool’s credit terms, or fails to supply adequate assurance of full performance to Texas Tool within a reasonable time after requested by Texas Tool (such time as specified in Texas Tool’s request), Texas Tool may defer shipments until such payment or compliance is made, require cash in advance for any further shipments, demand immediate payment of all amounts then owed, elect to pursue collection action (including, without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at its option, cancel all or any part of an unshipped order. If Customer fails to comply with these payment terms, Texas Tool may, at its sole discretion, and without notice, immediately terminate any agreements it has with Customer. Upon such termination, all amounts owed by Customer to Texas Tool shall become immediately due and payable.
Texas Tool has the right, at any time and in its sole discretion, to immediately change the terms of any credit extended to Customer if: (i) there is a material change in Customer’s financial capability or creditworthiness; (ii) Business Customer enters into or signs an agreement regarding any Change of Control; or (iii) a trustee, receiver or examiner is appointed for Business Customer or its affiliates or subsidiaries, or Business Customer’s plan of reorganization is confirmed by a U.S. Bankruptcy Court. “Change of Control” means any (x) sale, lease or other disposition of all or substantially all of Business Customer’s assets; (y) transaction or series of related transactions (by stock sale or otherwise) in which any person or entity becomes the beneficial owner, directly or indirectly, of more than 50% of Business Customer’s voting control; or (z) merger or consolidation involving Business Customer.
Additionally, Business Customer, and each of its subsidiaries and affiliates, agrees to provide to Texas Tool proper authorization necessary for Texas Tool to request any financial information from third parties.
Business Customer hereby unconditionally guarantees payment as a primary obligor of, as provided herein, all purchases made by Business Customer, its subsidiaries and affiliates. Each of Business Customer’s subsidiaries and affiliates purchasing from Texas Tool are jointly and severally liable for all purchases made by Business Customer and its subsidiaries, and Customer is also acting as agent for such subsidiaries and affiliates. Business Customer further agrees to defend, indemnify and hold harmless Texas Tool from any and all claims, injuries, damages, losses or suits, including, without limitation, attorneys’ fees and costs, arising out of, or in connection with, any attempt to disgorge or recover payments to Texas Tool made on behalf of Business Customer by a subsidiary and affiliate on the grounds that such payment was improper, unauthorized or constituted a fraudulent transfer.
- Security Interest.
Customer hereby grants to Texas Tool a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to Texas Tool. Customer agrees to file, and it permits and authorizes Texas Tool to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority and enforceability of Texas Tool’s lien or security interest.
- Credit Balance.
Customer agrees that any credit balance(s) issued by Texas Tool must be used within two (2) years from the date the credit was issued and may only be used for purchases of goods. Any unused credit or portion thereof will automatically expire after two (2) years, or be processed pursuant to state law.
B. DISPUTE RESOLUTION – ARBITRATION
Any dispute of any sort that might arise between Texas Tool and Customer, including any matters or disputes relating to or arising from the purchase or use of any product, service or information offered or made available through Texas Tool, or arising from or relating to any communication between Customer and Texas Tool or its agents, will be resolved by binding arbitration, rather than in court, and solely on an individual basis and not in a class, consolidated or representative action, except that Customer may assert claims in small claims court if Customer’s claims qualify.
Customer acknowledges and agrees that it is waiving the right to sue or go to court to secure relief. The Federal Arbitration Act and federal arbitration law apply to all disputes between Texas Tool and Customer, including any disputes relating to or arising from any purchases made by Customer.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages).
To begin an arbitration proceeding, Customer must send a letter requesting arbitration and describing its claim to Texas Tool’s registered agent. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes if applicable. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
Payment for all filing, administration and arbitrator fees will be governed by the AAA’s rules. The proceeding will be conducted in person in Lubbock County, Texas, or at another mutually agreed location.
Under the terms of AAA Rule 7 of the AAA Rules, Customer and Texas Tool each agree that the arbitration panel has the power to rule on any objections to the existence, scope or validity of the arbitration agreement or to the arbitrability of any claim. If for any reason a claim proceeds in court rather than in arbitration, Texas Tool and Customer each waive any right to a jury trial and further agree that any such court proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
If any provision of this Section B, is held to be invalid or unenforceable, then that provision or portion notwithstanding, this Section B will remain in force and effect, and such provision or portion will be deemed omitted, and this Section B will be construed as if such provision had not been contained herein.
Texas Tool and Customer both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
C. FREIGHT POLICY
All website, email and telephone purchases are shipped F.O.B. Origin with all costs imposed by the carrier related to the shipment paid by Texas Tool and charged to Customer on Customer’s invoice. Receipts for freight charges will not be furnished. COD shipments are not permitted. Fuel surcharges and other surcharges may be applied. Title and risk of loss pass to Customer upon tender of shipment to the carrier. If the product is damaged in transit, Customer’s only recourse is to file a claim with the carrier. If Customer chooses freight collect, shipments will be F.O.B. Origin using carrier designated by Customer.
D. PRODUCT WARRANTY POLICY
1. LIMITED WARRANTY.
Goods sold by Texas Tool are not warranted by Texas Tool and carry only the warranty of the manufacturer of such goods. Customer agrees that claims for shortages and/or notice of non-conforming goods must be made within 48 hours of delivery. The sole and exclusive remedy for non-conforming goods shall be replacement or refund of payment at Texas Tool’s option. Customer agrees that Texas Tool’s liability with respect to any warranty, or the manufacture, delivery, installation, repair or use of any goods shall not exceed the stated selling price of the goods upon which any such liability is based. Customer agrees that Texas Tool shall not be liable for any incidental or consequential damages. Customer agrees that the remedies set forth herein are exclusive, and Customer can bring no action more than one (1) year after accrual of the cause of action therefor.
2. WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY.
A. FOR BUSINESS CUSTOMERS: EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY TEXAS TOOL. TEXAS TOOL DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TEXAS TOOL ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. TEXAS TOOL EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE. TEXAS TOOL’S LIABILITY IN ALL EVENTS IS LIMITED TO THE PURCHASE PRICE PAID FOR THE PRODUCT THAT GIVES RISE TO ANY LIABILITY.
B. FOR ALL OTHER CUSTOMERS: EXCEPT AS SET FORTH HEREIN AND WHERE APPLICABLE, NO WARRANTY OR AFFIRMATION OF FACT OR DESCRIPTION, EXPRESS OR IMPLIED, IS MADE OR AUTHORIZED BY TEXAS TOOL. TEXAS TOOL DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TEXAS TOOL ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. TEXAS TOOL EXPRESSLY DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES TO THE EXTENT PERMISSIBLE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE.
- Warranty Product Return.
Before returning any product, Customer may contact Texas Tool by calling (806) 763-1641. Proof of purchase is required in all cases.
- Manufacturer’s Warranty.
For information on a specific manufacturer’s warranty, please contact Texas Tool by calling (806) 763-1641.
- Product Compliance and Suitability.
Jurisdictions have varying laws, codes and regulations governing construction, installation and/or use of products for a particular purpose. Certain products may not be available for sale in all areas. Texas Tool does not guarantee compliance or suitability of the products it sells with any laws, codes or regulations, nor does Texas Tool accept responsibility for construction, installation and/or use of a product. It is Customer’s responsibility to review the product application and all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the construction, installation and/or use involving the products are compliant.
- Cross-Reference Information.
Product cross-reference comparisons or product alternatives that are presented do not imply that products are available or perfectly comparable. CROSS-REFERENCED PRODUCTS OR PRODUCT ALTERNATIVES ARE NOT REPRESENTED OR WARRANTED AS FUNCTIONAL OR PERFORMANCE EQUIVALENTS. Customer shall review all cross-referenced product or product alternative specifications prior to purchase and use to determine suitability of the product for Customer’s intended use.
E. PRODUCT INFORMATION
- Website Information.
Texas Tool is a distributor of products. Information about products on Texas Tool’s website or social media platforms is provided by the manufacturers and/or suppliers. Product depictions on the website or social media platforms are for illustrative purposes only. Possession of, or access to, any Texas Tool literature, website or social media platforms does not constitute the right to purchase products. Texas Tool reserves the right to revise publishing errors in its literature, website or social media platforms. Despite our efforts, occasional pricing errors may occur in Texas Tool’s literature, website or social media platforms, and Texas Tool reserves the right to correct or change such pricing errors without notice. Texas Tool further reserves the right to cancel any and all orders resulting from such pricing errors, even if Customer has received an order confirmation from Texas Tool.
- Product Substitution.
Products and/or country of origin may be substituted and may not be identical to descriptions and/or images published in Texas Tool’s literature, website or social media platforms.
- Safety Data Sheets.
Safety Data Sheets (“SDS”) for OSHA defined hazardous substances are supplied by the manufacturers and/or suppliers. TEXAS TOOL MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS ALL LIABILITY TO ANY CUSTOMER OR USER WITH RESPECT TO THE ACCURACY OF THE INFORMATION OR THE SUITABILITY OF THE INFORMATION IN ANY SDS. CUSTOMER END USER IS SOLELY RESPONSIBLE FOR ANY RELIANCE ON OR USE OF ANY INFORMATION, AND FOR USE OR APPLICATION OF ANY PRODUCT. To request an SDS: email firstname.lastname@example.org or write to Texas Tool, 3102 Avenue A, Lubbock, TX 79404.
- California Proposition 65.
The State of California requires that certain warnings be given concerning products which contain chemicals subject to Proposition 65. A complete list of Proposition 65 regulated chemicals is available at www.oehha.ca.gov.
- Purchasers of Products Used with or for Potable Water .
The Federal Safe Drinking Water Act and regulations in CA, LA, MD and VT prohibit plumbing products (including, but not limited to, pipes, pipe fittings, solder, flux, plumbing fitting, etc.) used to convey water for human consumption that are not “lead free” as defined by the regulations. In order to determine your particular state’s standards applicable to the products you purchase for use in or for potable water applications, direct your inquiries to the appropriate regulatory agency in your state. In order to determine the federal standards applicable to the products you purchase for use in or for potable water applications, visit http://water.epa.gov/drink/info/lead/index.cfm.
F. GENERAL TERMS
- Electronic Data Interchange.
If Texas Tool and Business Customer mutually agree to use an Electronic Data Interchange (“EDI”) system to facilitate purchase and sale transactions, Business Customer agrees that it will not contest: (i) any contract of sale resulting from an EDI transaction under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of EDI records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Texas Tool and Business Customer will negotiate and agree on technical standards and methods to use in making EDI purchases, and will use reasonable security procedures to protect EDI records from improper access. In the event of a conflict, the business records maintained by Texas Tool regarding EDI purchases made by Business Customer shall be deemed to be conclusive.
- Third-Party Payment Provider.
If Business Customer elects to use a third-party payment system provider (“Third-Party Provider”) and Texas Tool is charged fees by the Third-Party Provider, Texas Tool reserves the right to seek reimbursement from Business Customer for any and all costs paid to the Third-Party Provider for the transfer of funds, retrieval of payment detail, or any other purpose from the Third-Party Provider.
- Intellectual Property.
Customer shall have no right, title or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights (“IP”) reserved by Texas Tool, or any IP owned by manufacturers and/or suppliers to Texas Tool. All materials contained in Texas Tool’s literature, website and social media platforms are subject to the ownership rights of Texas Tool and its manufacturers and/or suppliers. Customer shall have no right to copy or use any IP of Texas Tool or its manufacturers and/or suppliers without Texas Tool’s permission.
- Independent Contractors.
Texas Tool and Customer are independent contractors and not principal and agent. Nothing contained in these terms and conditions shall be construed to create a partnership, dealership, reseller, agency, employment or joint venture relationship. Customer does not have the right to bind or otherwise obligate Texas Tool in any manner, nor may Customer represent to anyone that it has the right to do so.
- Sourced Product.
Texas Tool may procure product not available in-store at Texas Tool for a Customer from the manufacturer or other sources (“Sourced Product(s)”). Sourced Product is priced according to current market conditions on a per order basis, and is shipped F.O.B. Origin with all freight and handling fees paid by Texas Tool and charged to Customer. All Sourced Product returns are subject to the manufacturer’s return policy and may not be returnable. Sourced Products consisting of special-order items may not be returned. Please contact Texas Tool to verify Sourced Product return eligibility before returning any Sourced Product. A RGA (Returned Goods Authorization) must be issued by Texas Tool prior to returning Sourced Product. A restocking fee and other charges may apply for any returned Sourced Product. Returned Sourced Product must be in new/unused and in original packaging. Customer is responsible for return shipping costs for Sourced Products. No cancellations, refunds or credits are allowed for Sourced Products sold on a “FINAL SALE” basis. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER OF THE SOURCED PRODUCT WILL BE CUSTOMER’S SOLE REMEDY.
- Custom Product.
Texas Tool may offer products manufactured or assembled to Customers specifications (“Custom Product(s)”). Texas Tool is not responsible for verifying or confirming the accuracy of specifications provided by Customer to Texas Tool for Custom Products. THE PRODUCT WARRANTY PROVIDED BY THE MANUFACTURER AND/OR SUPPLIER OF THE CUSTOM PRODUCT WILL BE CUSTOMER’S SOLE REMEDY, AND ALL OTHER WARRANTIES ARE DISCLAIMED UNDER SECTION D.2 ABOVE. All Custom Products are sold on a “FINAL SALE” basis only, and no cancellations, returns, refunds or credits are allowed.
All product order cancellations, if not prohibited above, must be approved by Texas Tool, and may be denied or subject to restocking fees and other charges.
- Product Returns.
Product returns by Customers must be made within thirty (30) days from date of invoice, unless otherwise indicated. Texas Tool does not take title to returned products until the item is received by Texas Tool at the applicable return location. Proof of purchase is required in all cases. Returned product must be in original packaging, unused, undamaged, unexpired and in saleable condition. Product returns may be denied or made subject to restocking fees and other charges by Texas Tool.
- Materials of Trade.
Business Customer represents that if it is purchasing products as its “materials of trade,” as defined in the Hazardous Materials Regulations in Title 49 of the Code of U.S. Federal Regulations, the products shall be used in direct support of Business Customer’s business, such business does not concern transportation, and such products shall not be resold or transported in a vehicle other than one owned by Business Customer.
- Force Majeure.
Texas Tool shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees, controls or acts of authority, states of emergency, insurrections, epidemics, pandemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other circumstance or cause beyond the reasonable control of Texas Tool in the conduct of its business.
Customer shall not assign any order, or any interest therein, without the prior written consent of Texas Tool. Any actual or attempted assignment without Texas Tool’s prior written consent shall entitle Texas Tool to cancel such order upon notice to Customer.
- No Third-Party Benefit.
The provisions stated herein are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
- Waiver, Choice of Law and Venue.
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent non-performance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of Texas, excluding its conflict of law rules, and to the extent allowed under these terms and conditions, both Texas Tool and Customer agree that venue shall be proper either in the state courts in Lubbock County, Texas or the federal courts for the Northern District of Texas.
If any portion of these terms and conditions is found to be invalid or unenforceable, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.
- Modification of Terms.
Texas Tool’s acceptance of any order is subject to Customer’s assent to all of the terms and conditions set forth herein. Customer’s assent to these terms and conditions shall be presumed from Customer’s receipt of Texas Tool’s acknowledgment, or from Customer’s acceptance of all or any part of the products ordered. No additions or modifications of Texas Tool’s terms and conditions by Customer shall be binding upon Texas Tool, unless agreed to in writing by an authorized representative of Texas Tool. If a purchase order or other correspondence submitted by Customer contains terms or conditions contrary or in addition to the terms and conditions contained herein or in Texas Tool’s acknowledgment, Texas Tool’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Customer, and will not constitute a waiver by Texas Tool of any of the terms and conditions contained herein or in Texas Tool’s acknowledgment. Texas Tool reserves the right to accept or reject any order. Texas Tool reserves the right to limit the total quantity of items purchased per order and the number of individual orders placed per Customer per day.
- Complete Agreement.
The terms and conditions in: (i) Texas Tool’s forms; (ii) acknowledgments; (iii) quotations; (iv) invoices; (v) website; (vi) social media platforms; and (vii) extension of credit are incorporated herein by reference, and constitute the entire and exclusive agreement between Customer and Texas Tool.
Business Customers represent that any person accepting these Terms and Conditions of Sale on behalf of the Business Customer is authorized to do so and that all employees and representatives of the Business Customer who access texas-tool.com or any other Texas Tool website or application on behalf of the Business Customer or otherwise purchase products from Texas Tool on behalf of Business Customer have the legal right, and are duly authorized, to make such purchases and further authorized to enter into agreements relating to the purchase of products or services or to obtain pricing or discounts from Texas Tool on behalf of Business Customer. Business Customers hereby agree to indemnify and hold Texas Tool harmless against any breach of this representation.