Terms & Conditions of Sale

 

The rights and duties of Seller (BRC International LLC) and Buyer (indicated on the face of the invoice) are governed exclusively by these Terms and Conditions, which may not be altered except in writing, signed by an authorized representative of Seller.

The sale of the goods described herein is conditioned upon Buyer’s agreement with these Terms and Conditions, notwithstanding prior negotiations between the parties, or previously exchanged documents, including but not limited to Master Service Agreements or Buyer’s terms and conditions, and Seller expressly rejects any terms or conditions inconsistent with these Terms and Conditions.

Limitation of Liability. The liability of Seller to Buyer for claims arising out of any order placed by Buyer to which these Terms and Conditions apply, whether arising in contract, tort, strict liability, or otherwise, shall be limited to the amount of the Purchase Order Price for the applicable order that has actually been paid by Buyer, regardless of the value of any insurance carried by Seller. In no event, however, shall Seller be liable to Buyer for indirect, special, consequential, contingent or incidental damages arising out of any such order placed by Buyer, including but not limited to damage to any wellbore, lost reserves (whether proved or not), lost profits, environmental damage or clean up requirements, and costs incurred due to project delay.

Force Majeure. BRC International shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and if such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of BRC International including, without limitation, acts of God, epidemics, pandemics, disease outbreak, or public health crisis, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

Shipment Dates. Unless otherwise agreed in writing, all shipment dates quoted are approximate and estimated from the date of order. Buyer acknowledges that alteration of an order may affect the delivery date. Seller will never be liable for special, indirect, punitive, consequential, or incidental damages resulting from delay or failure in delivery regardless of the cause thereof, and receipt of goods specified herein shall constitute acceptance of delivery and waiver of such claims.

Warranties. There are no warranties which extend beyond the description of material contained herein. Seller makes no warranty, express or implied, of merchantability or fitness for a particular purpose. Seller expressly disclaims any warranty, express or implied, of merchantability or fitness for a particular purpose. All transferable and assignable manufacturer’s warranties, if any, shall apply to the product. Processors / Coaters warranties shall apply if applicable.

Claims. Claims relating to defects or damaged goods must be received by Seller, in writing, within ten (10) days after delivery to Buyer. After such period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products or to revoke acceptance. Buyer agrees that Buyer’s payment of all invoiced charges (including tax and shipping charges) constitutes a condition precedent to the Buyer’s right to assert a claim against either Seller or the manufacturer (mill) that produced the product. In the event of an issue that may involve material purchased from Seller, Buyer should immediately quarantine all material, and contact Seller at 281 837 5371.

Order Acceptance: A signed copy of order acceptance by Buyer is MANDATORY. Until Seller receives an order acceptance signed by Buyer, Seller reserves the right to modify or cancel the order in its sole discretion, regardless of the status of the order.

Order quantity. BRC International LLC holds the right of part or full cancellation of any purchase order at its own discretion.

Cancellation or Suspension. Seller may, in its sole discretion, cancel or suspend any order prior to delivery. In the event Seller cancels or suspends an order, Buyer will be refunded those amounts Buyer paid toward the cancelled or suspended order, if any. In no event shall Seller be liable to Buyer for any amounts in excess of those amounts previously paid by Buyer and that are due to be refunded. Buyer may not cancel or suspend any order unless it has received Seller’s prior written approval, and on terms that will indemnify Seller against costs actually incurred by Seller in connection with the cancelled/suspended order.

Returned Goods. No product may be returned to Seller without prior written authorization from Seller, and only on those terms stated by Seller. Typically, Seller will only accept a return if the goods Buyer seeks to return are: (i) those which Seller stocks; (ii) are in new condition, suitable for resale, and undamaged and (iii) have not been used, installed, modified, rebuilt, reconditioned, repaired, altered or damaged. Returns are typically also contingent on Buyer paying Seller a restocking fee.

Adequate Assurance

BRC International reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Customer without liability to BRC International in the event of: (i) Customer’s insolvency, (ii) Customer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Customer or (iv) the execution by Customer of an assignment to benefit creditors. BRC International reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Customer’s credit at any time for any reason.

Assignment

Customer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of BRC International. Any purported assignment or delegation in violation of this Section is void. No assignment or delegation relieves Customer of any of its obligations under this Contract.

Jury Waiver

CUSTOMER AND BRC INTERNATIONAL ACKNOWLEDGE AND AGREE THAT ANY ACTION THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO SUCH ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

General Legal Provisions. Seller will invoice Buyer at time of shipment, unless otherwise agreed by the parties. Buyer agrees to the price and payment terms as invoiced. Buyer agrees to pay interest on overdue balances at the rate of 1.5% per month. Buyer agrees to pay all costs and expenses (including but not limited to court costs, reasonable attorney’s fees, and litigation expenses) incurred by Seller in connection with the enforcement of these Terms and Conditions or defense of Seller’s rights herein.

The parties agree to exclusive jurisdiction in the Federal Courts of the Southern District of Texas located in Houston, Texas. The parties agree that the laws of the State of Texas, specifically the Texas Business and Commerce Code, shall govern the construction, interpretation, operation, performance, and enforcement of this agreement.

All taxes imposed on Buyer’s possession or use of material are for Buyer’s account, including any ad valorem taxes assessed against Seller for material held in Seller’s name on behalf of Buyer. Buyer will provide Seller with valid supporting documentation for any tax exemptions or direct pay authorizations claimed by Buyer. Buyer shall indemnify and hold harmless Seller in the event a taxing authority rejects any certificates provided by Buyer, including but not limited to all late fees, attorney’s fees, collection costs, or interest penalties assessed with Buyer’s non-payment of applicable taxes.

 

Limitation of Liability

  1. IN NO EVENT SHALL BRC INTERNATIONAL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BRC INTERNATIONAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  2. IN NO EVENT SHALL BRC INTERNATIONAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BRC INTERNATIONAL FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO BRC INTERNATIONAL FOR SERVICES PERFORMED HEREUNDER.
  3. This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between BRC International and Customer, without which BRC International would not have agreed to provide the Products or services at the price charged.

Complete Agreement

These Terms and Conditions, together with any purchase or sales orders, constitute the entire agreement between Customer and BRC International relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof. There are no unwritten oral agreements between Customer and BRC International. In entering this Contract, the Parties have relied solely on the statements, representations, or warranties expressly set forth or referenced in these Terms and Conditions, together with any purchase or sales orders, their own independent judgment, the advice of their counsel, and nothing more. Buyer agrees that these terms and conditions are final and supersede all other terms and conditions, including their own and are legally binding.