Toyota Lift of South Texas
TERMS OF SALE OF SERVICES
- These Terms of Sale shall govern services, parts and products (hereinafter referred to as "Services") furnished by ToyotaLift of South Texas ("TOSTX") to Customer ("Buyer"). TOSTX's performance and prices are conditioned on these terms and TOSTX objects to any different or additional terms proposed by Buyer. Such proposed terms shall be considered material. This document, and any additional writings signed by TOSTX which expressly provides it constitutes a part of this agreement, shall be the final, complete and exclusive agreement between the parties and may not be modified, supplemented, explained, or waived by parol evidence.Buyer's purchase order or request for Services, a course of dealings, custom or trade usage, prior representations, TOSTX's performance or delivery, TOSTX's catalogs, circulars or promotional material, or in any other way except in writing signed by an officer or authorized representative of TOSTX. TOSTX's reference to Buyer's specifications or similar documents is only to describe the Services covered hereby and conditions of sale therein shall have no force or effect.
- All Services performed at Buyer's location shall (1) be performed by TOSTX's personnel under the supervision, direction and control of Buyer's personnel, or (2) Buyer's personnel under Buyer's sole care, custody and control. Buyer has complete care, custody and control of all facilities, machinery, equipment and adjacent premises of Buyer at all times. For the purpose hereof (1) "repair" shall mean the restoration of Buyer's equipment to operating serviceability, or the manufacture, repair or reconditioning of any individual part of such equipment; (2) "overhaul" shall mean the replacement of some and replacement of any or all parts and components which are, in TOSTX's opinion, of marginal serviceability; (3) "modification" shall mean the making of minor alterations to Buyer's equipment with view to improving its serviceability within original specification.
- For Services performed at TOSTX's shop, all prices and sales are F.O.B. TOSTX's shop, unless otherwise
expressly stipulated. Full risk of loss (including transportation delays and losses) shall pass to Buyer upon delivery of the F.O.B. point and TOSTX's responsibility ceases upon such delivery.
- This contract shall be constituted and enforced under the laws of the State of Texas.
2 WARRANTY, INSPECTION, ACCEPTANCE AND PERFORMANCE
- All Services performed by TOSTX hereunder will be performed in a workmanlike manner commensurate with the standards for such Services prevailing in the Industry. Unless otherwise agreed in writing, the suitability, selection and specification of Services are the sole responsibility of the Buyer.TOSTX makes no warranty regarding the level of performance of the equipment. All Services shall be finally inspected and accepted by Buyer within thirty (30) days after completion thereof or arrival at the point of delivery, whichever is later. Rejection during such period may only be for defects substantially impairing the value of the Services. All claims, except those under Section 3 hereof, must be asserted in writing by Buyer within said days or they are waived. Buyer waives the right to revoke acceptance and accepts the breach of warranty remedies herein in lieu thereof.
- Upon Buyer's submission of a claim and its substantiation, TOSTX shall at its option either (1) promptly furnish labor to repair any defective workmanship (as agreed to by TOSTX) or (2) refund an equitable portion of the contract price. Buyer shall pay all expenses in any removal, transportation and reinstallation required for warranty work.
- Parts, materials, and products provided to Buyer by TOSTX under these Terms of Sale will be of good quality from reputable manufactures and TOSTX shall assist Buyer in securing the benefit of any warranties provided by such manufacturer;TOSTX WILL NOT AND DOES NOT PROVIDE SEPARATE OR ADDITIONAL WARRANTY AS TO ANY SUCH PARTS OR MATERIAL.
- THE FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND THE FITNESS. THE FORGOING IS TOSTX'S ONLY OBLIGATION AND BUYER'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
- TOSTX shall not be responsible for non-performance or delays in performance occasioned by any cause beyond TOSTX's reasonable control, including but not limited to, acts of God, war, riot, civil disobedience or disturbance, impracticality, accident, strike or other labor disputes, embargos, delays of subcontractors, vendors or carriers, fire, flood or casualty, governmental or judicial actions and shortages of material, components, fuel, labor or facilities. Any such delays shall effect a corresponding extension of TOSTX's performance dates which are, in any event, understood to be approximate. If acts or omissions of Buyer delay TOSTX's performance, Buyer shall pay TOSTX for the increased costs resulting therefrom and extend the time of performance. IN NO EVENT SHALL BUYER BE ENTITLED TO INCIDENTAL, RESERVOIR, SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES FOR LATE PERFORMANCE OR FAILURE TO PERFORM.
- If TOSTX's performance is delayed through no fault of TOSTX, TOSTX reserves the right to invoice for the pro rata portion of the Services completed, including profit. Such invoices shall be paid without regard to work remaining.
- Buyer inspection, test documentation or witness of manufacture, test or inspection, in addition to those specified, shall be subject to additional charges.
- TOSTX shall be responsible of the cost of labor and material furnished by TOSTX hereunder. If requested by buyer, TOSTX shall supply a release of lien to demonstrate satisfactory payment for such labor and material after completion of its Services.
3 LIMITATION OF LIABILITY AND INDEMNITIES
- THE REMEDIES SET FORTH IN SECTION 2 AND TOSTX'S INDEMNITY SET FORTH IN THIS SECTION 3 ARE BUYER'S EXCLUSIVE REMEDIES AGAINST TOSTX FOR ALL CLAIMS ARISING HEREUNDER OR RELATING HERETO BASED ON BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHER THEORIES (HEREINAFTER "DESCRIBED CLAIMS"). IN NO EVENT SHALL TOSTX BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM ITS FAILURE TO DISCOVER OR REPAIR LATENT DEFECTS OR EQUIPMENT DESIGN DEFECTS, OR CUASED BY UNITS, EQUIPMENT, PARTS, MATERIAL, OR PRODUCTS INSPECTED BY BUYER AND RETURNED TO USE. IN NO EVENT SHALL BUYER OR CUSTOMERS OF BUYER BE ENTITLED TO, AND THEY SPECIFICALLY WAIVE, INCIDENTAL, RESERVOIR, SPECIAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO MULTIPLE DAMAGES UNDER ANY DECEPTIVE TRADE PRACTICE OR CONSUMER PROTECTION ACT, LOSS OF REVENUE OR PROFITS, LOSS OF PRODUCTION, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUE EQUIPMENT, FACILITIES OR SERVICES, OR DOWNTIME COST. ANY ACTION FOR DESCRIBED CLAIMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR IT SHALL BE BARRED. IN NO EVENT SHALL TOSTX'S LIABILITY FOR DESCRIBED CLAIMS EXCEED THE FOLLOWING AMOUNTS, AS APPLICABLE, RECOVERABLE FROM AND UNDER THE FOLLOWING INSURANCE COVERAGES WHICH TOSTX HAS IN FORCE:
- Worker's Compensation Insurance complying with statutory requirements.
- Commercial General Liability Insurance with maximum limits of $1,000,000 per occurrence (Personal & ADV Injury) with a General Aggregate of $2,000,000.00.
- Automobile Liability Insurance covering owned, non-owned and hired vehicles with Combined Single Limit (each accident) of $1,000,000.
- Excess Liability Insurance Aggregate of $1,000,000 ($1,000,000 each occurrence).
- Subject to the foregoing Limitation of Liability, TOSTX shall indemnify and hold Buyer harmless from damages, actions, proceedings, claims, expenses and demands on account of or resulting from injury, including death, to any person, persons or party and for any damage to any property occasioned by and resulting from TOSTX's negligence in providing any Services hereunder; provided, however.TOSTX shall not indemnify Buyer for any loss or damage occasioned by or attributable to the acts or omissions of Buyer or third parties. This indemnity shall constitute Buyer's sole and exclusive remedy for any injury, death, damage, or loss except as otherwise expressly provided herein. This indemnity shall expire when the equipment is serviced by others, misused, abused or one (1) year from the date TOSTX last provided Services under this agreement, whichever first occurs.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER SHALL INDEMNIFY AND HOLD TOSTX HARMLESS FROM AND AGAINST ALL DAMAGES (INCLUDING MULTIPLE DAMAGES UNDER ANY DECEPTIVE TRADE PRACTICE OR CONSUMER PROTECTION ACT), ACTIONS, PROCEEDINGS, CLAIMS, EXPENSES AND DEMANDS ON ACCOUNT OF OR RESULTING FROM ANY INJURY, INCLUDING DEATH, TO ANY PERSON OR PERSONS AND FOR ANY DAMAGE TO ANY PROPERTY OR LOSS OF USE OF SUCH PROPERTY OR LOSS OF PRODUCTION, OCCASIONED BY OR ATTRIBTABLE TO THE SERVICES, PRODUCTS OR PARTS PROVIDED BY TOSTX HEREUNDER, INCLUDING DEFECTS THEREIN AND/OR TOSTX'S SOLE, JOINT OR CONCURRENT NEGLIGENCE. FURTHER, IT IS ACKNOWLEDGED THAT, FROM TIME TO TIME DURING THE PERFORMANCE BY TOSTX
hereunder,TOSTX's personnel may have their advice and assistance solicited by Buyer's personnel in matters which fall outside the Scope of Work as defined in this agreement. TOSTX DOES NOT HAVE ADEQUATE KNOWLEDGE OF, AND LACKS ADEQUATE CONTROL OVER, SUCH UNPLANNED AND UNANTICIPATED ADVICE AND ASSISTANCE; CONSEQUENTLY, BUYER WILL INDEMNIFY AND HOLD HARMLESS FROM ALL DAMAGES, ACTIONS, PROCEEDINGS, CLAIMS AND DEMANDS BY REASONS OF ANY SUCH ADVICE AND ASSISTANCE WHICH DOES NOT COME WITHIN THE SCOPE OF WORK AS DEFINED IN THIS AGREEMENT.
- If Buyer is furnishing TOSTX's Services to a third party, Buyer shall obtain an agreement from such
party affording TOSTX and its suppliers all of the protection and rights granted TOSTX and its suppliers under the provisions of this contract. IN THE EVENT BUYER FAILS TO OBTAIN SUCH AN ENFORCABLE AGREEMENT, BUYER SHALL INDEMNIFY AND HOLD TOSTX AND ITS SUPPLIERS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY THEREBY INCURRED OR CLAIMED.
4 BUYER'S RESPONSIBILITY
If TOSTX provides Services outside TOSTX's shop, TOSTX's employees shall have free and unobstructed access to the site of the work. In such event Buyer shall furnish safe and proper equipment, parts, tools and general working conditions; safe storage for TOSTX's property related to TOSTX's Services; necessary cranes, tools, parts, material, supplies, steam, electricity, gas, oil, water and other material and supplies required to repair and operate the machinery. TOSTX shall not be responsible for any equipment, material or supplies furnished by Buyer or for workmanship, acts or omissions of the employees, contractors, subcontractors, or agents of Buyer. Buyer agrees that the responsibility of TOSTX employees is limited to furnishing Services and such responsibility does not extend to supervision of Buyer's employees, contractors, subcontractors or agents.
- Unless otherwise agreed, Buyer shall pay for Services in US Dollars at the Service rates in effect at the time of performance, such rates being subject to adjustment without notice. Payment for TOSTX's charges shall be due thirty (30) days after invoice date, without right of selloff or deduction of damages. Interest at the rate of 18% per annum (1.5% per month) or pro rata part thereof, or the maximum rate allowed by law, whichever is less, shall be charged on past due accounts.
- Unless otherwise provided, ifTOSTX provides Services outside TOSTX's shop, time and expense shall be computed from the time TOSTX's employee leaves his basing point until he returns to such point.
- If credit is extended to Buyer, TOSTX reserves the right to revoke such credit if Buyer fails to pay for any Services when payment is due; thereafter TOSTX shall have the right to demand payment before rendering Services. Buyer shall be responsible for and pay reasonable attorney's fees and other collection costs incurred to collect any past due account.
6 TAXES AND PERMITS
- Any sales, use or other similar taxes are not included in the price, and such taxes shall be for the account of and be itemized separately to Buyer. TOSTX will accept a valid exemption certificate from Buyer.if applicable; however, if a previously accepted exemption certificate is not recognized by the governmental authority involved, Buyer agrees to promptly reimburse TOSTX for the taxes, penalty, interest and related charges paid.
- Buyer shall obtain and pay all permits, licenses and official inspections required for the performance of the Services, other than those required to be obtained in the name of TOSTX.
- Buyer shall, in writing, notify TOSTX reasonably in advance of any requested suspension and indicate the anticipated suspension period. TOSTX shall advise Buyer of the price adjustment resulting from the planned suspension of the work.
- This contract may be cancelled upon mutual agreement of the parties and payment to TOSTX of reasonable cancellation charges.
- If at any time Buyer's financial or other condition does not, in the judgment of TOSTX, justify continued performance of Services hereunder on the terms of payment agreed upon, TOSTX may require additional assurance, full or partial payment in advance, or shall be entitled to cancel the contract and shall receive reimbursement for its reasonable and proper charges.
- This contract may be terminated for material breach if the non-breaching party provides written notice of the alleged breach to the breaching party and the breaching party fails to cure each breach within seven (7) days of receipt of such notice.
- TOSTX's rights under this Section are in addition to all other rights available to it at law or in equity.
8 CHANGES AND ADDITIONS TO WORK
The parties may mutually agree to add, alter, or decrease the work. All such work shall be executed under these Terms of Sale and the time for performance (although approximate) shall be adjusted at the time such charge is agreed.
9 SPECIAL CONDITIONS
- TOSTX reserves the right to subcontract any of the work.
- The delegation or assignment by Buyer of any or all of its duties or rights hereunder without TOSTX's prior written consent shall be void.
- Any information, suggestions or ideas transmitted by Buyer to TOSTXin connection with performance hereunder are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by an officer or authorized representative of TOSTX. Any information transmitted to Buyer by TOSTX shall be retained as confidential and not disclosed to any third party without the written consent of TOSTX.
- TOSTX shall comply with all state and federal safety and health laws, including but not limited to the Occupational Safety and Health Act of 1970 (OSHA) and the fair Labor Standards Act of 1938, as amended, however, TOSTX does not warrant such compliance and shall have no obligation or liability to Buyer for non-compliance.
- If any term or provision of these Terms of Sale or the application thereof to any person or circumstances shall be invalid or unenforceable to any extent, the remainder of this agreement, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and provision hereof shall be valid and enforceable to the fullest extent permitted by law.