GENERAL TERMS AND CONDITIONS
All transactions with MUSTANG EXTREME ENVIRONMENTAL SERVICES, LLC (“Mustang”) are subject to the following General Terms and Conditions. The General Terms and Conditions herein stated are a part of the consideration hereof and it is expressly understood that if such General Terms and Conditions were not accepted and agreed to by Customer a greater cash consideration would be charged by Mustang for the products and services listed on the reverse side hereof. No agreement or modification hereof shall be effective unless in writing and executed by an officer or otherwise authorized representative of each party. Products are furnished and services are rendered upon the following General Terms and Conditions and these General Terms and Conditions (regardless of any terms and conditions in Customer’s purchase order, invoice, work order, or any other document) shall supersede all prior or subsequent oral or written agreements or understandings with respect to products and services. No acceptance which varies these General Terms and Conditions or proposes additional terms is effective. Acceptance is limited to these General Terms and Conditions. Each shipment of products and rendering of services received by Customer from Mustang shall be deemed to be only upon these General Terms and Conditions notwithstanding any terms and conditions that may be contained in any invoice, acknowledgment or other form of Customer. Customer’s act of accepting products and services or paying for products and services shall constitute an acceptance of these General Terms and Conditions.
1. All prices are expressed in United States dollars and are subject to change without notice and are not guaranteed. Prices for an order that have been accepted by Mustang and Customer are not subject to change. Prices stated do not include any sales, use or excise tax or any other tax, duty or charge which is now in effect or may be hereafter imposed by any governmental body. All such taxes, duties or other charges shall be paid by Customer, unless Customer provides Mustang with a tax exemption certificate acceptable to the appropriate tax authorities.
2. Mustang reserves the right to refuse orders submitted by Customer and Mustang is not obligated to fill any order, unless or until such order has been accepted by Mustang. Mustang’s acceptance of any order by Customer creates an irrevocable obligation for Customer to pay. These General Terms and Conditions shall govern the rights and obligations of the parties. In the event of any conflict between these General Terms and Conditions and any sales, purchase or work order or any other writing or agreement between the parties, the General Terms and Conditions will govern. They are not subject to change by reason of any written or oral statements by Customer or by any terms stated in Customer’s purchase order or confirmation of its order. No waiver or modification of any of the terms and conditions contained herein shall be effective, unless the waiver or modification is in writing and signed by an authorized representative of Mustang and Customer.
3. Any requested changes to an existing order by Customer, may result in a new scheduled ship date and/or installation date for that order. If, pursuant to Customer’s written direction or request, Customer makes additions to the products to be furnished or any work to be performed, the agreed price will be equitably adjusted to reflect such change. Mustang will issue a new purchase order for the additional materials, products, and labor, and the time for completion of work will be extended to compensate for the aforementioned requested changes. No changes or additions to the order are binding on the parties unless mutually agreed in writing by the parties. Notwithstanding the foregoing, no decreases in order size will be accepted by Mustang. Mustang is not a manufacturer of products ordered by Customer. Shipping schedules are estimates only. Mustang shall not be responsible for failure to meet shipping schedules or for any delayed shipping. Unless different terms are provided on the face of this order, all items are sold FOB Mustang’s yard, and Customer will deliver and Customer shall bear the cost of transportation to any other named destination. Upon notification of Company of delivery, Customer shall become liable and shall bear all risk of loss associated with the goods at issue regardless of whether the goods are at a location controlled by Mustang. In the case of Customer pick-up, the truck furnished by Customer is the destination and Mustang’s obligations regarding shipments are fulfilled when the goods are loaded on the truck. Excess packing, marking, shipping, and transportation charges resulting from compliance with Customer’s request shall be for Customer’s account. Unless otherwise agreed in writing, delivery time is not of the essence.
4. Payment terms are net 30 days from the date of Mustang’s invoice. Amounts unpaid after such thirty (30) day period shall bear interest at the lesser of (i) one and one-half percent (1½%) per month or (ii) the maximum rate allowed by law. Mustang reserves the right, among other remedies, either to terminate this agreement or to suspend further deliveries upon failure of Customer to make any payment as provided herein. Mustang’s invoices which are not paid within the foregoing terms, Mustang shall have the right to pursue damages, in addition to all other rights and remedies, including reasonable and necessary attorneys’ fees and collection costs incurred by Mustang in collecting any payments due hereunder.
5. Once an order has been accepted by Mustang, cancellations of said order by the Customer will not be permitted.
6. As an installer of products manufactured by others, Mustang extends to Customer any and all assignable warranties from the manufacturer of the product. Mustang makes no warranties beyond those extended by the respective manufacturers. Mustang warrants the workmanship of its installation of the products for a period of twelve (12) months from the completion of installation. This warranty does not cover any damage or defect which arises in whole or in part from any act or omission by Customer or by any other person or entity after delivery of the products to the worksite or completion of installation, or by any defect in products manufactured by others. No claim against Mustang for defective installation will be allowed unless asserted in writing within twelve (12) months from the completion of installation of the products alleged to be defective. Notwithstanding anything to the contrary, Customer’s exclusive remedy for Mustang’s breach of the warranty set forth in this Section 8 shall be limited to repair or re-performance of non-conforming installation. In no event shall Mustang’s liability under this Agreement exceed the cost of labor to install the allegedly non-conforming products. Notwithstanding the foregoing, Mustang shall not be responsible, nor liable, for any repairs or replacements for products or installation that fall within the accepted leak rate established by the Environmental Protection Agency. Cosmetic blemishes which do not affect performance shall not be considered a defect.
7. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 6 ABOVE, MUSTANG MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS AND INSTALLATION.
8. MUSTANG SHALL NOT BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION LOSSES) AS A RESULT OF THIS AGREEMENT (OR THE BREACH HEREOF) OR SUCH DAMAGES SUFFERED BY ANY PURCHASER, INTERMEDIATE OR END USER OF ANY PRODUCTS, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE.
9. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS MUSTANG FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, CLAIMS, ACTIONS OR PENALTIES OF EVERY KIND AND CHARACTER ARISING OUT OF CUSTOMER’S USE OF THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF FAULT, INCLUDING THE SOLE, JOINT, CONCURRENT, OR GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL FAULT OF MUSTANG.
10. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS MUSTANG FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, CLAIMS, ACTIONS OR PENALTIES OF EVERY KIND AND CHARACTER SUFFERED WITH RESPECT TO MANAGEMENT, CONTROL, REMOVAL, TRANSPORTATION, STORAGE, TREATMENT, PROCESSING, CLEAN UP, RECYCLING, DISPOSAL, SPILL, DISCHARGE, RELEASE AND LOSS OF ANY HAZARDOUS MATERIALS INTRODUCED BY CUSTOMER OR DUE TO BUYER’S USE OF THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF FAULT, INCLUDING THE SOLE, JOINT, CONCURRENT, OR GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL FAULT OF MUSTANG. “Hazardous Materials” shall mean polychlorinated biphenyls, flammable explosives, radioactive materials, chemicals known to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions, or related materials, and any items included in the definition of hazardous or toxic waste, materials, or substances under any law relating to environmental conditions and industrial hygiene.
11. If Customer becomes overdue on its account, defaults in any payment to Mustang, or if at any time, Mustang views Customer’s financial condition to be otherwise inadequate to warrant further shipment on an open account basis, Mustang shall have the right, without liability, to refuse to accept any or all orders, to cancel any and all orders, to delay shipments to Customer, or to require advance payment before accepting or shipping any orders.
12. Customer shall not assign its orders nor any of its rights or obligations thereunder without Mustang’s prior written consent.
13. These General Terms and Conditions and any subsequent agreement of any nature between Mustang and Customer shall be governed by the laws of the State of Texas, without regard to its conflicts of law principles. Each party irrevocably consents to the jurisdiction of the courts of the State of Texas and agrees that the exclusive venue for any suit arising from or relating to these General Terms and Conditions is Tarrant County, Texas. This Agreement is performable in Tarrant County, Texas. EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION BROUGHT IN CONNECTION WITH THESE GENERAL TERMS AND CONDITIONS. The United Nations Convention on Contracts for the International Sale of Goods expressly does not apply to these General Terms and Conditions.
14. Strikes, fires, accidents or other causes beyond the reasonable control of Mustang, which affect Mustang’s ability to perform the work, shall entitle Mustang to suspend its obligation to perform the work to the extent affected (“Force Majeure”).
15. Mustang will not be liable for any delay in the performance of orders or contracts, or in the delivery or shipment of products, or for any damages suffered by Customer by reason of such delay, when such delay is, directly or indirectly, caused by, or in any manner arises from any Act of God, or the public enemy, war, compliance with law, governmental act or regulation, fire, flood, quarantine, embargo, epidemic, unusually severe weather, strike, work stoppage, acts or omissions of carriers or other cause (whether or not similar in nature to any of these herein before specified) beyond the control of Mustang. In the event of such delay, there will be no termination and the date of delivery or of performance shall be extended for a period equal to the time loss by reason of the delay.
16. Notwithstanding anything in this agreement to the contrary, but excluding claims resulting from willful misconduct and gross negligence, Mustang’s aggregate liability under this agreement shall be limited on a per occurrence basis to the greater of 150% of the total compensation paid and/or payable for the work and services giving rise to the claim, or the minimum limits of insurance applicable to claims giving rise to such liability.
17. Customer acknowledges the application of Section 17.45(4) of the Texas Deceptive Trade Practices Act (Texas Business Commission Code §17.41 et. seq.) (the “Act”) to any transaction contemplated hereby and represents that it is not a “consumer” for the purposes of the Act. As such, Customer and Mustang’s rights and remedies with respect to this transaction, and with respect to all acts or practices of the other, past, present or future, in connection with this transaction, shall be governed by legal principles other than the Act. Accordingly, Customer acknowledges and agrees as follows: CUSTOMER HEREBY IRREVOCABLY WAIVES, TO THE FULL EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT AND CLAIMS THAT CUSTOMER MAY NOW HAVE, OR TO WHICH IT MAY OTHERWISE IN THE FUTURE HAVE BEEN ENTITLED, UNDER THE TEXAS DECEPTIVE TRADE PRACTICES – CONSUMER PROTECTION ACT, TEX. BUS. AND COM. CODE &17.41 ET SEO., ARISING OUT OF ANY ACT, CONDUCT, REPRESENTATION OR OMISSION OF Mustang’s, ITS EMPLOYEES OR AGENTS, HERETOFORE OR HEREAFTER TAKEN, DONE OR OMITTED TO BE DONE IN CONNECTION WITH THIS TRANSACTION OR SUBSEQUENT RELATED TRANSACTIONS.
This agreement allocates the risk of product shipment and product failure between Mustang and the Customer. This allocation is recognized by both parties and is reflected in the price of the goods. The purchaser acknowledges that it has read this agreement, understands it and is bound by its terms. Customer expressly represents and warrants that the individual signing this document as the authority to bind Customer to the obligations undertaken herein.