All sales of DUALCO are subject to the terms & conditions shown below, and in all customer sales invoices (the “Terms”).
1. OFFER AND ACCEPTANCE
All orders, whether written or verbal, between DUALCO (“Seller”) and the party to whom the merchandise is sold (“Buyer”) are subject to final acceptance by Seller in Seller’s sole discretion. The words Seller and Buyer shall be used continually in the following Terms and Conditions of Sale.
The Terms, any additional “Supplement to Terms and Conditions of Sale” provided to Buyer by Seller, and any terms and conditions of sale stated in writing to Buyer from Seller, shall govern Buyer’s purchase from Seller of the merchandise shown in an order and shall constitute the only agreement between Seller and Buyer with respect thereto. Any terms and conditions of sale originating with the Buyer, which are in addition to or are different or contrary to these Terms, are hereby expressly rejected and shall not be or become a part of the contract between Seller and Buyer, unless specifically accepted in writing by a duly authorized officer or agent of Seller. Seller’s quotations are valid for thirty (30) days from the date of the offer, after which they are void.
Seller reserves the right to hold shipment of telephone or oral orders until written confirmation has been received from Buyer. Buyer assumes complete and full responsibility for inaccurate or incomplete information given to Seller concerning merchandise ordered, whether standard, custom, or special items. If shipment of the merchandise ordered by Buyer is made before Seller has received Buyer’s written confirmation, such orders shall be deemed accurate. To avoid duplication of verbal orders, Buyer should mark confirming orders prominently and clearly as “Confirmation.” Otherwise, duplication will result and the charges involved will be at the Buyer’s expense. Acceptance of all verbal orders is expressly limited to these Terms.
The price for the merchandise shown in an order is the price in effect on the date the merchandise is shipped and is subject to change without notice to the Buyer at the time of shipment. Buyer will be billed at the Seller’s price in effect at the time of shipment. Prices do not include incidental costs and fees, including but not limited to export crating, special packaging, special handling, legalization, third party inspection or third party certification. Such costs and fees may be charged to Buyer.
All prices are based in part on Buyer’s agreement to the Terms set forth herein. Any changes to the Terms at Buyer’s request, if accepted in writing by a duly authorized officer or agent of Seller, may result in a price adjustment.
Prices are F.O.B. shipping point (SP) unless otherwise noted herein. All prices are subject to adjustment to reflect changes at the time of shipment including but not limited to packing, crating, shipping, export, or special handling or storage charges. If the Buyer should delay shipment beyond the original contract date, the prices charged will be those in effect at the time shipment is made.
Cash discounts, if any, are allowed from the date the shipment has been made and apply only to the selling price F.O.B. shipping point, exclusive of all packing, storage, shipping charges, insurance or taxes. Buyer is not entitled to any cash discount if any past due balances are owed to Seller.
Seller reserves the right to cancel or amend Buyer’s order in the event that (a) any government price regulation, schedule or ceiling prescribes a price lower than Seller’s price, as established in the order acknowledgement (whether written or verbal) or in any way prevents Seller from purchasing or otherwise acquiring any commodity or service necessary to the performance of the order, or in any way prevents Seller from adjusting its prices when the cost of any such commodity or service is increased, and (b) in the event any major change in economic conditions renders Seller’s performance unprofitable.
Clerical errors or other errors made by the Seller in fulfilling an order or issuing an invoice are subject to correction and rebilling if necessary, without time limitation. Prices do not include documentation pertaining to traceability for raw materials or products or for other special processes.
Prices do not include sales, excise, property, use, value added or special taxes that may be levied by federal, state, local, foreign or other governmental entities. If any such tax is applicable then it will be added to the sale as required by law for the Seller to collect from the Buyer. If Buyer claims exemption from all or a portion of taxes, the proper exemption certificate shall be furnished to the Seller.
4. TERMS OF PAYMENT –-
Unless otherwise specified by Seller in writing, the terms of payment will be net cash to be received by Seller within thirty (30) days from date of the invoice, subject to credit approval by Seller’s credit department. The invoice date will be the date the merchandise is ready, completed, and/or shipped. In cases where shipment of an order is delayed at request of Buyer, Seller reserves the right to issue an invoice for the order as of the date it becomes ready for shipment. All invoices, whether domestic or foreign, are due and payable in Houston, Harris County, Texas, U.S.A. and must be remitted to Seller at the address shown on the reverse side.
The invoice amount must be paid and received by Seller on or before the due date. On any amount not paid within one day of the date it is due, liquidated damages will accrue and be payable to Seller. Liquidated damages shall include, but not be limited to, interest on the amount due at the maximum rate allowed by state law, or the laws of the United States of America, whichever is greater. Interest will accrue at a daily rate. Payment of all funds due to the Seller shall be paid by legal tender of the United States of America unless otherwise specified and agreed to in writing by Seller and Buyer. Payment by credit card may be accepted upon prior approval in Seller’s sole discretion. If Buyer breaches any Terms herein, Seller has the right to make all future sales C.O.D. or initiate other payment terms without notice to Buyer.
If Buyer is unable to pay for merchandise conveyed by Seller hereunder, Seller’s rights to such merchandise shall not be waived. If Seller is unable to collect all sums due hereunder after commercially reasonable efforts to do so, Seller shall retain title to such merchandise and shall have a first priority interest above all others who may try to assert a security interest to said merchandise.
If Buyer fails to pay any sums due to the Seller hereunder, and collection is made or attempted to be made through an agent or attorney, Buyer agrees to pay all reasonable and necessary attorney’s fees, expenses, court costs, and collection fees. Buyer also agrees to pay all reasonable and necessary fees associated with a payment default resulting from a returned, stop payment, or otherwise insufficient check that has been submitted to Seller for payment.
Unless otherwise specified in writing by Seller or agreed between Seller and Buyer with respect to an accepted order, the terms of payment for foreign sales transactions shall be through an irrevocable Letter of Credit at Seller origination with all payments to be made in legal tender (dollars) of the United States of America. Letter of Credit to be established through and confirmed by a United States of America Bank and shall provide for payment against Seller’s Sight Draft accompanied by a commercial invoice and Buyer’s forwarding agent’s receipt acknowledging delivery of order to a United States of America port or established port of embarkation and by such other documents, if any, as may be required by the Governments involved.
All foreign sales transactions will be paid via advance wire transfer with an added $50.00 fee. A company check drawn on a U.S. bank or a credit card may be accepted upon prior approval in Seller’s sole discretion. The foregoing fees and amounts are due and payable in accordance with these Terms, without requirement of any further notice or invoice from Seller.
The sale of merchandise hereunder, unless for cash in advance or C.O.D., is subject to approval by the Credit Department of Seller. If the credit worthiness of the Buyer becomes unsatisfactory in the opinion of the Credit Department of Seller prior to delivery of the merchandise shown an order, the order may be cancelled by the Seller. If the Buyer fails to comply with any of these Terms in connection with an order, Seller may defer delivery until compliance therewith is made, or at its option, may cancel the order.
The quoted delivery dates are approximate and a more specific date will be established upon the acceptance of Buyer’s order. Delivery dates are subject to revision at any time due to causes beyond the Seller’s control. The causes include, but are not limited to, delay in receipt of Buyer’s signed order or complete specifications; fire; war; riots; labor disputes; labor or material shortages; accidents; failure of suppliers or subcontractors to meet delivery schedules; transportation delays; and by any action or prior system imposed by authority of any governmental agency. Any delay or non-delivery caused by the foregoing shall not result in liability to the Seller. Delays so caused shall not release the Buyer from its obligation to accept and pay for the merchandise shown in the order.
Delivery to a common carrier or licensed trucker shall constitute tender of delivery to the Buyer and all risk of loss or damage in transit shall be borne by the Buyer. In no event shall the Seller be held liable for damages or contingent expenses caused by delays in delivery. The Seller’s responsibility for the merchandise shown in an order ceases upon delivery of the merchandise to the transport carrier. Notification from Buyer of lack of receipt of delivery should be made to Seller and transport carrier within thirty (30) days from receipt of the invoice.
Acceptance of merchandise by Buyer is demonstrated by signature(s) of Buyer, Buyer’s Agent, or Transportation Agent on delivery receipts, bill(s) of lading, or other commercially accepted documents relating to merchandise transfer between Seller and Buyer. Notwithstanding the foregoing, merchandise shall be deemed accepted by Buyer on the date that is five (5) days after the date of delivery to the Buyer, unless Buyer submits a claim, as described in the following paragraph, by such date. Seller reserves the right to stoppage in transit and to repossess merchandise shown in an order, notwithstanding delivery to the transport carrier, until payment has been made to Seller. Buyer, by acceptance of the merchandise, grants a security interest to Seller in such merchandise until paid in full together, with all of the rights and remedies of a secured party under the Uniform Commercial Code.
No claim by the Buyer relating to quality, quantity, condition, loss, or damage to merchandise, or discrepancies relating to correctness of specific ordered products, parts or services will be accepted by Seller after five (5) days after date of delivery to the Buyer. All claims must be made in writing and must be received by the Seller five (5) days after date of delivery to the Buyer, and in any event shall be limited to the selling price of the merchandise, not including shipping charges.
8. PACKING AND SHIPPING
Unless the Buyer has furnished shipping instructions prior to the time Seller has completed packaging or tagging the merchandise, all orders will be shipped by either common carrier, Seller’s trucks, or other commercially accepted methods. Merchandise shown in an order will be packaged in the usual and normal manner which is customary in the industry. If, in the Seller’s discretion, special protection is necessary in packaging beyond the normal procedure conducted by Seller or as required by tariff regulations, the extra cost incurred, if any, will be passed to the Buyer.
No merchandise shall be accepted for return without the prior written authorization of Seller. Merchandise which has been processed, altered, used, repaired without authorization from Seller, neglected, abused, overloaded, or otherwise in less than new condition may not be returned to Seller. No returns will be accepted after thirty (30) days from delivery and without Buyer’s receipt of merchandise from Seller. If, after receiving merchandise from Seller, Buyer cannot fulfill these Terms, Buyer shall immediately return merchandise at Buyer’s expense to Seller and Buyer will be subject to a restocking charge.
Buyer may request, by written change order to Seller, changes in the drawings, designs, specifications, quantity, material, or services ordered hereunder and/or delivery dates. Seller may accept or reject a change order in its sole discretion. If Seller accepts such change order, and the cost of fulfilling the order is thereby increased, Buyer will be billed for such increased costs.
Buyer may not cancel work, services, merchandise ordered hereunder in whole or part without the prior written consent of the Seller. Upon written request from Buyer to cancel all or part of an order, Seller will stop all work as promptly as possible. Any and all work that is complete on date of Seller’s receipt of notification in writing to stop work or cancel an order shall be invoiced and paid for in full by Buyer. For work that is not completed, a cancellation charge will be rendered on the basis of the Seller’s full cost plus twenty (20%) percent (for all engineering work, if performed, all work in progress, raw materials, all supplies and commitments made by Seller in connection with such order), less such allowances as the Seller may be in a position to make for any standard components and for the balance of material as scrap. Buyer shall promptly instruct Seller as to the disposition of the completed merchandise and the Seller, if instructed, shall hold such merchandise for Buyer’s account. All costs of storage, insurance, handling, boxing, or other costs in connection therewith shall be borne by the Buyer.
12. RIGHT OF RESALE
If the Buyer breaches or repudiates a provision of these Terms, or fails to comply with these Terms, Seller may resell the merchandise that has not already been delivered to Buyer, together with any merchandise reclaimed by Seller or to which Seller may agree to accept. The sale may be public or private, wholesale or retail, and Seller may hold more than one (1) sale. In addition, the Buyer shall pay Seller the amount by which the order price exceeds the amount received from the public or private sale, together with all incidental damages which may be incurred by Buyer’s default. Buyer and Seller agree that five (5) days’ written notice of any such resale is reasonable. Merchandise for the Buyer that is held in storage by Seller at the Buyer’s request may be returned to stock or resold if the original agreed time limit has been exceeded.
13. PRODUCTION ESTIMATES
Any projected production figures and performance data are estimates based on Seller’s understanding of material machinability, amount of material to be removed, accuracy desired, available facilities, operator skill, and other specified factors affecting production, and do not constitute a guarantee of production.
14. SPECIAL TOOLS
Costs for special tools and dies billed to Buyer does not convey title or the right to remove such tools and dies from Seller’s possession. Maintenance of such tools and dies will be at Buyer’s expense. In the event that Buyer does not reorder merchandise from Seller for twenty-four (24) consecutive months, Seller has the right to scrap such tools and dies without further notice to Buyer.
Unless otherwise specified herewith, Seller will furnish merchandise in conformity with industry and commercially accepted standards, specifications and tolerances where applicable. In some cases a ten (10%) percent variance, whether over or under shipment of merchandise quantity ordered by Buyer, will be permissible.
Each shipped order has a certification statement on the invoice that the items described in the invoice are in conformance with applicable specifications and/or order requirements. Any other certification, third party certification or additional paperwork is charged for separately and invoiced additionally.
16. PROPERTY RIGHTS
Seller retains and is the exclusive owner of any and all property rights, including but not limited to all intellectual property rights in all jurisdictions, in and to all designs, engineering details and other data pertaining to any equipment sold hereunder or designed in connection herewith and to all rights of discovery, invention or patent rights arising out of work done for Buyer. Buyer shall not, and shall not permit others to, duplicate, reverse assemble, reverse compile, reverse engineer any of the foregoing. Buyer expressly agrees that it will not assert any property rights therein, except the rights for itself and subsequent owners to use the equipment in the normal course of business. Any prints, brochures, drawings or other information furnished to the Buyer by the Seller are intended solely for the confidential use by the Buyer and shall remain the property of the Seller, and shall not be disclosed to third parties or used to the detriment of the Seller’s competitive market place position.
Merchandise conveyed to Buyer by Seller shall remain the property of Seller until paid for in full by Buyer. If Buyer fails to pay for merchandise as provided hereunder, Seller shall have exclusive rights to reclaim the merchandise wherever it may be located, without time limitation.
17. RESERVATION OF RIGHTS
Seller reserves the right to make subsequent improvements and changes in design in its products without imposing any obligation to make such changes or improvements upon products sold to the Buyer. Seller reserves the right to make changes in the terms and conditions of sale at any time for any reason without notification to Buyer.
18. INSTALLATION COSTS
All costs incidental to installation or erection or both of any products sold by Seller shall be borne solely by the Buyer. This includes any instruction for the use of such products that Seller deems as excessive.
19. LIMITED WARRANTY
Seller guarantees all lubrication guns, couplers, fittings, accessories, related and other equipment manufactured by Seller to be free of defects which are not commercially acceptable in material and workmanship. This warranty is good for a period of one year (12 months) from the date of delivery to original retail purchaser (end user). Should problems occur with any item manufactured by Seller, at Seller’s discretion, such items will be repaired or replaced free of charge. Transportation of defective items would be F.O.B. Seller.
This warranty does not apply to items damaged due to misuse, neglect, accident, abuse, faulty installation, corrosion, or overload. Action taken by Buyer or Buyer’s customers regarding any of the foregoing items or use of merchandise sold by Seller that is adverse or contrary for purposes intended, shall be a breach of contract and the warranty will not apply. Seals, “O” Rings, Gaskets, Packing, Filters, items subjected to normal wear are not included in this warranty. Boxes, packing, wrapping, and other product protection is not included in this warranty.
Seller will not be liable for original equipment alteration or repairs other than those authorized by Seller. Seller will not be liable for any incidental or consequential damages of Buyer or Buyer’s customers. Any claim settlement shall, in no event, exceed the purchase price of Seller’s original equipment. The cost of repairing or servicing any equipment not covered by the foregoing may be charged for by the Seller at a per diem rate per man per work day, plus transportation and living expenses, as applicable.
Seller will in no way be responsible for incorrect usage of any equipment, product, merchandise, material, or components which are manufactured and/or resold by Seller.
The terms of this warranty do not in any way extend to any product or part thereof which has a life under normal usage inherently shorter than the one year period indicated herein or which was not manufactured by the Seller. Seller’s obligation and liability with respect to components not manufactured by the Seller shall be limited to the extent of express warranties received by Seller from such component manufacturers.
WITH RESPECT TO THE PRODUCTS DESCRIBED HEREIN, THERE IS NO EXPRESSION OR IMPLICATION OF WARRANTY REGARDING MERCHANTABILITY OR FITNESS FOR USE, EACH OF WHICH ARE HEREBY DISCLAIMED.
Written notice of any claimed defect within the warranty period must be presented to Seller immediately upon Buyer’s discovery of the defect. Merchandise that is rebuilt, repaired, or exchanged by Seller is warranted for ninety (90) days from the date of delivery to original retail purchaser (end user). Liability will not be accepted by Seller for any components not manufactured by Seller, and such components are not warranted against failure by Seller. The limited warranty and Terms stated herein do not apply to merchandise sold by the Seller that is in less than new condition, used, altered, scrap, recycled, waste, surplus or damaged.
Buyer shall defend, indemnify and hold harmless Seller, Seller’s affiliates, successors or assigns and such parties’ respective directors, officers, members, shareholders, and employees (“Indemnitees”) from any and all liability, death, injury, loss, damages, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney fees (collectively, “Losses”) which an Indemnitee may suffer as a result of claims or demands arising out of any use whatsoever of the merchandise sold hereunder, which Losses are based upon or result from (a) any alteration or modification of the merchandise by Buyer, Buyer's officers, agents or employees; (b) the failure of Buyer, Buyer’s officers, agents or employees to follow manufacturer’s instructions, warnings or recommendations which are communicated by Seller to Buyer in any form before, during, or after the time of this sale; (c) the failure of Buyer, Buyer’s officers, agents or employees to comply with Federal, State, or local laws or regulations applicable to the use of such merchandise, including but not limited to the 1970 Occupational Safety and Health Act, as amended; (d) the failure of Buyer, Buyer’s officers, agents or employees to properly train and instruct anyone using such merchandise; or (e) the negligence or wilful misconduct of, or the breach of these Terms by, Buyer, Buyer’s officers, agents or employees.
Seller is entitled to indemnity from certain of its suppliers, and the rights and options vested in Seller shall extend to such suppliers and may be exercised by them.
No waiver of any breach or default of Buyer, under these terms and conditions of sale, operates as a waiver of any future default, whether of a like or different character, except as otherwise provided in these Terms.
In the event that any provision or portion of these Terms is held to be illegal, invalid or unenforceable for any reason, in whole or in part, the remaining provisions of these Terms shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable term or provision.
23. APPLICABLE LAW; JURISDICTION; JURY WAIVER
The Equal Employment Opportunity Clause prescribed by Executive Orders No. 11246 of September 24, 1965, and No. 11375 as amended, and regulations issued pursuant thereto by the Office of Contract Compliance, are incorporated herein, unless this transaction is exempt under applicable regulations. Merchandise covered by this contract, order or sale has been produced in compliance with the Federal Wage and Hour Law (Fair Labor Standards Act of 1938, as amended).
These Terms and the relationship and transactions between the parties shall be governed by the procedural and substantive laws of the state of Texas, exclusive of conflict of laws principles which would direct the application of the substantive or procedural law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and the relationships and transactions between the parties.
Buyer (a) irrevocably submits to the jurisdiction and venue of the courts located in the Harris County, Texas for the resolution of any and all disputes arising from or relating to these Terms and the relationships and transactions between the parties, and (b) KNOWINGLY AND VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY LEGAL PROCEEDING RELATING TO THE TERMS AND THE RELATIONSHIP AND TRANSACTIONS BETWEEN THE PARTIES.
24. ENTIRE AGREEMENT
This document is a standard binding contract and, except as provided herein, supersedes all other prior or contemporaneous understandings, agreements, negotiations, representations and communications, both written and oral, with respect to the subject matter of the Terms set forth herein and merchandise sold hereunder.
DUALCO has been producing Professional
lubrication products since 1960. Products
are made and assembled in the USA.
100% repairable and recyclable.