GUIDON HOLDINGS, LLC TERMS AND CONDITIONS
All sales of any products (the “Products”) sold by Guidon Holdings, LLC (“Guidon Holdings”) or any of its subsidiaries, PAS Aggregates, LLC, Placement Area Solutions, LLC, or PAS Mining Solutions, LLC (collectively “Subsidiaries”), are all Texas limited liability companies, doing business as Guidon Holdings, LLC and/or by each Subsidiary name (the “Seller”), shall be subject to these terms and conditions (the “Terms and Conditions”). As used herein, “Buyer” shall mean any individual or entity that purchases any Products from Seller. Each shipment of Products received by Buyer will be subject only to these Terms and Conditions. In the event of a conflict between these Terms and Conditions and the provisions of any of Buyer's printed or other prepared form of purchase orders, work or service orders, job or delivery tickets, or other similar forms, the provisions of these Terms and Conditions shall govern and control. Any conflict between these Terms and Conditions and the provisions of any of Buyer’s orders, job or delivery tickets, or any other similar forms, shall not constitute an objection in writing by Buyer. No waiver, alteration or modification of these Terms and Conditions shall be valid unless the waiver, alteration or modification is specifically accepted in writing and signed by an authorized representative of Seller.
- PRICE; CHARGES; TAXES. Seller’s quotation relating to the sales terms for the Products (the “Sales Price”) shall remain valid for thirty (30) days unless otherwise stated. Unless otherwise specified in writing, the Sales Price does not include customs, duties, charges or surcharges, consular fees, state or local sales, transportation, use, value added, ad valorem taxes, duties, excise or any other taxes (collectively, “Surcharges”). Any Surcharges now or hereafter levied on or in respect to the sale, use, storage or shipment of Products sold or delivered hereunder shall be charged to and paid by Buyer. Buyer shall promptly reimburse Seller for any Surcharges paid by Seller, which reimbursement shall be independent of and in addition to the Sale Price. If Buyer intends to claim an exemption from any tax, it must supply Seller with a tax exemption certificate from its home state at the inception of the order. Any orders for Products may not be changed by Buyer without Seller’s written consent.
- ORDER CONFIRMATIONS. Neither the Seller nor the Buyer shall have any obligation to purchase or sell any Products until such time as Seller receives a purchase order or other form of order confirmation from Buyer (an “Order Confirmation”). Any conflicting terms and conditions in any response from Buyer are expressly rejected. The Order Confirmation shall include the Sales Price for the Products as well as all applicable Surcharges.
- PAYMENT. Unless otherwise agreed to by Seller in writing, payment for Products is due and payable thirty (30) days after the Products are delivered to Buyer. The Seller reserves the right in its sole and absolute discretion to set forth such other terms relating to the payment for Products which additional terms shall be set forth in the Order Confirmation. Without limiting the foregoing, Seller reserves the right to: (a) decline Buyer's request for credit; or (b) require payment for Products in advance, i.e., at the time the Order Confirmation is submitted for approval and execution by Seller. All payments shall be in U.S. dollars unless otherwise set forth in the Order Confirmation. In the event Seller extends credit to Buyer, Buyer hereby authorizes Seller to file any financing statements, financing change statements or similar documents necessary to preserve or reflect Seller's security interest in the Products sold to Buyer. Acceptance and endorsement by Seller of a payment for less than the full amount shall not be deemed to be an admission of payment in full and any conditions to the contrary which may be noted on such payment shall not be binding on Seller. All past due amounts shall accrue interest at a rate of eighteen percent (18%) per annum, or at the Maximum Lawful Rate, whichever is lower. As used herein, "Maximum Lawful Rate" shall mean the maximum lawful non-usurious contract rate of interest allowed by the applicable law of the State of Texas.
- DELIVERY. Seller will, unless otherwise agreed in writing, select the shipping method, carrier, and applicable freight charges, which shall be added to the Sales Price. Dates or periods for performance or delivery of goods are approximate and are given for information only and shall not under any circumstances be essential terms. Any statement by Seller regarding date of shipment is an estimate only. Seller shall not be liable for any and all delays in shipment, including those arising in transit. Any delay in performance, with the express exception of payment or delivery of Products, shall not constitute a breach of contract and shall not entitle Buyer to avoid this contract or to any other remedy, including without limitation, rescission. Seller is not liable for any delay in delivery, or failure to deliver Products against any order, or any other failure to perform hereunder when such delay or failure is directly or indirectly the result of causes or events beyond Seller’s control (whether or not foreseeable), including, without limitation, an act of God, accident (in manufacture or otherwise), fire, flood, riot, war, terrorist attack, embargo, labor shortages, equipment breakdowns, or any similar cause or event beyond Seller’s control (whether or not foreseeable).
- WARRANTY. -
- LIMITATION OF LIABILITY. Seller only agrees to provide the Products subject to these Terms and Conditions. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR REVENUE, LOSS OF PROPERTY OR EQUIPMENT, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT PRODUCT OR CLAIMS OF BUYERS FOR SERVICE INTERRUPTIONS) ARISING FROM ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, ANY DELAY, ACT, ERROR OR OMISSION OF SELLER), WHETHER THE THEORY BE BREACH OF THIS OR ANY OTHER WARRANTY, NEGLIGENCE OR TORT, EVEN IF SELLER WAS ADVISED OR AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OR LOSSES OCCURRING. SELLER’S WARRANTY OBLIGATIONS AND BUYER’S REMEDIES HEREUNDER ARE SOLELY AND EXCLUSIVELY AS STATED IN THESE TERMS AND CONDITIONS, AND THE AGGREGATE LIABILITY OF SELLER WITH RESPECT TO THIS TRANSACTION (AND ANY CONTRACT, OR ANYTHING DONE IN CONNECTION THEREWITH, OR WITH RESPECT TO THE SALE, DELIVERY, RESALE, OR USE OF ANY PRODUCT COVERED BY THIS TRANSACTION WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT TORT, OR UNDER ANY WARRANTY OR OTHERWISE) SHALL NOT EXCEED THE SALES PRICE OF THE PRODUCTS PROVIDED BY SELLER UPON WHICH SUCH LIABILITY IS BASED. BUYER ACKNOWLEDGES AND AGREES THAT THE SALES PRICE FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING SELLER’S LIABILITY.
- INDEMNITY. -
- RETURNS. The Products may not be returned by Buyer and an Order Confirmation cannot be amended or modified except with Seller’s prior written consent, which consent may be withheld in Seller’s sole and absolute discretion. Unless otherwise authorized in writing by Seller, prior to Buyer's return of any Products that may be authorized by Seller pursuant to this paragraph, Buyer shall prepay to Seller the shipment charges associated with the return of such Product. Without limiting the foregoing, in addition to all other amounts, a twenty percent (20%) charge shall be applied to any modification or returned Product, which Buyer acknowledges is a good faith estimate to cover Seller's additional costs and expenses.
- LICENSES AND PERMITS. Buyer shall be solely responsible for obtaining all licenses or permits necessary to use the Products.
- RISK OF LOSS AND TITLE. -
- CHOICE OF LAW. Buyer acknowledges that notwithstanding any State's conflicts of laws provisions, the laws of the State of Texas shall exclusively apply to claims arising between Buyer and Seller. Venue for any proceeding under the Agreement shall lie exclusively in the state or federal courts located in Harris County, Texas.
- NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. -