1.1 All references in this document (“Terms”) to “Seller” shall include FloWorks International, LLC and/or any division or affiliate of FloWorks International, LLC, whether or not performing any or all of the scope hereunder or specifically identified herein. All references to “Buyer” shall include all parent(s), subsidiaries, and affiliates of the entity placing the order. Buyer and Seller may be referred to individually as a “Party” and collectively as “Parties.” “Goods” includes any material, machinery, equipment, articles, or parts provided or supplied hereunder by Seller to Buyer, including Resold Goods and Seller Goods, as defined in Section 6. “Services” includes any work specifically listed in Seller’s quotation or purchase order, including assembly, modification, installation, engineering, or design services which is provided by Seller in connection with such Goods.
1.2. These Terms, together with any purchase order expressly referencing these Terms, constitute the entire and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede all prior or contemporaneous communications, representations, negotiations, or agreements, whether written or oral. No additional or different terms proposed by Buyer, including those appearing on Buyer’s purchase order, acknowledgment, invoice, or other document, shall be binding on Seller unless expressly agreed to in writing by Seller’s authorized representative.
1.3. All sales to Buyer are subject to these Terms, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. Each shipment of Goods and rendering of Services received by Buyer from Seller shall be deemed to be only upon these Terms notwithstanding any terms and conditions that may be contained in any invoice, acknowledgment, or other form of Buyer. Buyer’s act of accepting or paying for Goods constitutes express acceptance of these Terms. Additional terms and conditions in any way altering or modifying these Terms are expressly objected to and shall not be binding upon Seller unless specifically accepted in writing by Seller’s authorized representative. No modification or alteration of these Terms shall result from Seller’s shipment of Goods following receipt of Buyer’s purchase order or other documents containing additional, conflicting, or inconsistent terms. There are no terms, conditions, understandings, or agreements other than those stated herein, and all prior proposals and negotiations are merged herein. These Terms are binding on the Parties, their successors, and permitted assigns.
2.1 Catalog and Website Prices.
Prices listed on Seller’s website, in catalogs, or in quotes are for reference only, subject to change without notice, and expire ten (10) calendar days from issuance unless otherwise stated in writing. Any price extensions are for Buyer’s convenience only and are not binding. Seller is not responsible for typographical, clerical, or mathematical errors.
2.2 Taxes, Tariffs, and Additional Costs.
All prices are for materials only and exclude any taxes, duties, tariffs, or other charges assessed on the importation of raw materials, goods, or arising from Buyer’s purchase (collectively, “Additional Costs”). Buyer shall pay all Additional Costs imposed on Seller at any time by federal, state, municipal, or other authorities, including fees for permits, licenses, or other governmental charges. Seller may include Additional Costs in invoices, and upon Buyer request, provide reasonable documentation. Amounts reflect current charges only and are subject to change.
2.3 Quotes and Proposals.
Prices in Seller quotes or proposals may be adjusted to reflect changes in tariffs, surcharges, freight, currency, or raw-material costs imposed after quotation or order acceptance. Seller will provide notice to Buyer of such adjustments, and Buyer shall promptly pay the invoiced amount.
2.4 Services Pricing.
For engineering, design, installation, or other Services, pricing may be based on hourly rates, fixed fees, or milestone schedules as set forth in Seller’s proposal or quotation. Any change in scope, specifications, or schedule may result in adjustments to price, delivery dates, or other terms.
3.1 Ownership of Intellectual Property.
Except for any Custom Development specifically commissioned by Buyer, all intellectual property in the Goods, including designs, specifications, software, drawings, or other materials, remains the property of the original manufacturer. Any engineering, modifications, or other work performed by Seller on the Goods (“Seller Work”) does not transfer ownership of underlying manufacturer intellectual property to Buyer. Buyer may use Seller Work only in connection with the purchased Goods or Services.
All intellectual property or confidential information provided by Buyer remains Buyer’s property. Seller will use such information solely to perform the work requested and will not claim ownership.
3.2 Custom Development, Design, and Drawings.
If Buyer engages Seller to perform Custom Development, engineering, or design services (excluding informal quotations, proposals, bills of material, or suggestions), upon full payment of all amounts due, Seller grants Buyer a non-exclusive, worldwide, royalty-free license to use and exploit the Work Product solely in connection with the purchased Goods or Services. Seller retains all ownership rights in the Work Product and any underlying intellectual property.
3.3 General Engineering/Design Work.
Unless otherwise agreed in writing, all drawings, engineering designs, calculations, and other deliverables created by Seller in connection with the Services remain the property of Seller. Buyer is granted a non-exclusive license to use such materials solely for implementing or operating the Goods and Services purchased from Seller.
4.1 Delivery Terms.
All Goods shall be delivered EXWORKS (Incoterms 2020) from Seller’s facility unless otherwise agreed in writing. Buyer bears all shipping and delivery costs beyond the EXWORKS point. Title and risk of loss pass to Buyer at the EXWORKS shipping point specified in the purchase order. Buyer must inspect shipments promptly and report any shortages or damage within three calendar days of receipt. Partial shipments are allowed at Seller’s discretion.
4.2 Force Majeure.
Seller shall not be liable for delays or failures in performance caused by events beyond its reasonable control, including but not limited to acts of God, government actions, labor disputes, fire, flood, war, terrorism, epidemics or pandemics, cyberattacks, supplier or manufacturer delays, or shortages of materials or transportation (each a “Force Majeure Event”).
If a Force Majeure Event occurs:
(a) Seller’s performance time is reasonably extended;
(b) pricing may be adjusted to reflect increased costs; and
(c) Buyer has no claim for damages, termination, or other remedies.
5.1 Quotations, recommendations, and specifications provided by Seller, including materials of construction, equipment sizing, design parameters, and system or process compatibility, are based on information supplied by Buyer. Buyer is solely responsible for confirming the suitability, compatibility, and safety of all Goods and Services, including any engineering work, with its mechanical, electrical, and operational systems, site conditions, and processes. By placing an order, Buyer acknowledges and agrees that it has verified such suitability and compatibility, and Seller shall have no liability for any failure, deficiency, or nonconformance resulting from inaccurate or incomplete Buyer information, site conditions, or Buyer modifications.
6.1 Definitions
For purposes of this Section: “Resold Goods” means items supplied by Seller that are manufactured by a third party and resold without material modification and “Seller Goods” mean items manufactured, assembled, or materially modified by Seller
6.2 Resold Goods.
Resold Goods are provided as is and without warranty from Seller. Seller shall, however, pass through to Buyer any transferable manufacturer warranties applicable to Resold Goods. Buyer and any persons claiming through Buyer shall seek recourse exclusively from the manufacturer in connection with any defect or failure of Resold Goods, whether arising in contract, tort, statute, or otherwise.
6.3 Seller Goods.
Seller warrants that Seller Goods will be free from defects in materials and workmanship and will materially conform to Seller’s written specifications for a period of twelve (12) months from installation or eighteen (18) months from delivery to Buyer, whichever occurs first. Buyer must return any allegedly defective Seller Goods to Seller or its designated facility, freight prepaid, within thirty (30) days after discovery of the defect.
6.4 Assembly and Installation Services.
Where Seller provides assembly, modification, or installation services for Goods, Seller warrants that such services will be performed in a good and workmanlike manner and will conform to Seller’s written specifications for twelve (12) months from installation or eighteen (18) months from delivery of the applicable Goods to Buyer, whichever occurs first.
6.5 Engineering and Design Work.
For engineering or design work performed by Seller, including drawings, calculations, and specifications, Seller warrants that such work will materially conform to the agreed-upon specifications and professional standards, and will be free from defects caused by Seller’s negligence for twelve (12) months from completion. Buyer retains responsibility for final verification and integration of such designs into its system.
6.6 Other Services.
For services performed by Seller other than those described in Sections 6.4 and 6.5, Seller warrants that such services will conform to Seller’s written specifications for twelve (12) months from completion of the services.
6.7 Exclusive Remedy.
As Buyer’s sole and exclusive remedy for breach of any warranty in Sections 6.3–6.6, Seller shall, at its option, reperform the affected Services or repair or replace the defective Seller Goods, provided that Seller’s total liability shall not exceed the amount paid by Buyer for the affected Seller Goods or Services. Buyer must notify Seller in writing of any alleged defect in Goods or Services within ten (10) days after discovery. Defective Goods must be returned to Seller’s designated facility, freight prepaid, unless otherwise agreed.
6.8 Disclaimer
Except for the express warranties in this Section, Seller disclaims all other warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose, or non-infringement. Except as otherwise stated herein, the warranties in this Section apply to Seller Goods and to Services performed by Seller in connection with either Resold or Seller Goods.
6.9 Exclusions
Seller shall have no liability under any warranty to the extent a defect or failure results from:
(a) Force Majeure;
(b) misuse, neglect, or improper handling;
(c) operation under improper environmental conditions;
(d) unauthorized modifications or repairs; or
(e) use with hardware, software, or materials not approved by Seller
7.1 Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and their respective officers, directors, employees, agents, successors, and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions, causes of action, losses, damages, liabilities, costs, or expenses, including reasonable attorneys’ and accountants’ fees (collectively, “Losses”), arising out of or related to:
(a )Buyer’s use, handling, storage, or resale of any Goods or Services;
(b) any breach of these Terms by Buyer, including any misrepresentation or failure to provide accurate information;
(c) any negligent, reckless, or intentional act or omission by Buyer or its employees, contractors, or agents; and
(d) any claim by a third party, including Buyer’s customers or employees, relating to the matters in (a)–(c) above.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(a) SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, BUSINESS INTERRUPTION, OR ATTORNEYS’ FEES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) SELLER’S TOTAL LIABILITY FOR ANY AND ALL CLAIMs, REGARDLESS OF THE FORM OF ACTION OR THEORY, SHALL NOT EXCEED THE AMOUNT PAID BY BUYER FOR THE SPECIFIC GOODS OR SERVICES THAT GAVE RISE TO THE CLAIM.
(c) ALL CLAIMS MUST BE BROUGHT BY BUYER WITHIN ONE (1) YEAR FROM THE DATE OF DELIVERY OF THE GOODS OR COMPLETION OF THE SERVICES GIVING RISE TO THE CLAIM, AND SELLER SHALL HAVE NO LIABILITY UNLESS WRITTEN NOTICE OF SUCH CLAIM IS RECEIVED WITHIN SUCH ONE-YEAR PERIOD.
(d) THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED HEREIN FAILS ITS ESSENTIAL PURPOSE.
7.3 Nothing in this Section shall limit or exclude Seller’s liability arising from its gross negligence or willful misconduct.
8.1 Buyer represents, warrants, and covenants that it maintains insurance as is customary in the industry at limits of no less than statutory limits for workers’ compensation and employer’s liability; Commercial General Liability: $2,000,000/occurrence. $4,000,000 annual aggregate; automobile liability: bodily injury and property damage, combined single limit $1,000,000; and umbrella liability of $4,000,000 occurrence/aggregate. Buyer shall name Seller as an additional insured with a waiver of subrogation against all insured parties.
9.1 Any change to product specifications, quantities, delivery schedules, or scope of Goods or Services must be approved in writing by Seller. Changes to Services may result in adjustments to price, milestones, or delivery dates.
10.1 Unless otherwise agreed in writing, payment is due net thirty (30) days from the date of shipment of Goods or completion of Services, payable in United States dollars. All orders are subject to Seller’s continuing approval of Buyer’s credit, and Seller may, in its sole discretion, suspend or cancel performance or require alternative payment terms, including payment in advance or cash on delivery. For specially manufactured goods, Seller may require an advance deposit of up to 100 percent of the selling price. If a milestone payment schedule is agreed, payments are due upon completion of each milestone.
10.2 Past-due amounts shall bear interest at the lesser of 1.5 percent per month or the maximum rate permitted by law, continuing after judgment. Seller may apply any payments received to any open charges at its discretion, and Buyer waives any right of setoff. Buyer shall reimburse Seller for all costs and expenses incurred by Seller in collecting any past-due amounts, including actual attorney and paralegal fees, court costs, and collection agency fees, whether pre-suit, during litigation, on appeal, or in any administrative or bankruptcy proceedings.
10.3 Any return of Goods requires Seller’s prior written authorization. Authorized returns may be subject to a restocking fee, which may be higher if imposed by the manufacturer. Seller may refuse any return at its sole discretion.
11.1 Buyer shall comply with all applicable U.S. export control, import, and anti-corruption laws, including the Export Administration Regulations and the Foreign Corrupt Practices Act. Buyer shall not export, re-export, transfer, or provide access to any Goods, technology, or related materials obtained from Seller except in full compliance with such laws. Buyer represents and warrants that it has not, and will not, offer or provide any payment, gift, or other advantage, directly or indirectly, to improperly obtain or retain business. Buyer shall provide documentation reasonably requested by Seller to demonstrate compliance.
12.1 Each Party shall maintain in confidence and not disclose to any third party, except as required by law, any non-public information received from the other Party in connection with these Terms (“Confidential Information”). Confidential Information includes, without limitation, technical, commercial, financial, and business information, specifications, pricing, and trade secrets. Each Party shall use Confidential Information solely for the purposes of performing under these Terms and shall protect it with at least the same standard of care as it uses for its own confidential information. Confidentiality obligations shall survive termination or expiration of these Terms for a period of five years.
13.1 The relationship of Buyer and Seller is that of independent contractors. Nothing in these Terms shall be interpreted or construed as creating or establishing the relationship of employer and employee between Buyer and Seller, nor do these Terms constitute a partnership, joint venture, or agency relationship.
13.2 Unless expressly agreed in writing by an authorized representative of Seller, Seller rejects any order containing penalty or backcharge provisions for late, non-compliant delivery, or warranty claims, whether arising directly or indirectly from Seller or its suppliers.
13.3 Seller may assign any cause of action or rights under these Terms without Buyer’s consent, including to FloWorks International, LLC or any of its affiliates, parents, or subsidiaries. Buyer may not assign or transfer its rights or obligations without Seller’s prior written consent.
13.4 This Terms, Buyer’s account, and all transactions between Buyer and Seller shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is expressly excluded and shall not apply to these Terms.
13.5 The Parties agree that any dispute, claim, or legal action arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Harris County, Texas. Buyer irrevocably consents to the personal jurisdiction of such courts and waives any objection based on inconvenient forum or lack of personal jurisdiction.
13.6 In addition to any remedies that may be provided under these Terms, or under applicable law, Seller may terminate or restrict any order immediately upon notice to Buyer if Buyer fails to comply with any of these Terms or becomes insolvent.
13.7 Buyer and Seller are the only intended beneficiaries of these Terms, and there are no third-party beneficiaries.
13.8 The invalidity or unenforceability of all or any portion of these Terms will not affect the validity or enforceability of the other terms. The Parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable.
13.9 The provisions of these Terms that, by their nature, should survive termination or expiration, including, without limitation, Sections 3 (Intellectual Property), 5 (Materials and Compatibility), 6 (Warranty), 7 (Indemnity and Liability), 10 (Payment Terms), 11 (Compliance), and 12 (Confidentiality), shall survive any termination or expiration of these Terms.
