Terms and Conditions
DEFINITIONS. The following capitalized terms, as used in these terms and conditions, shall have the meanings defined for them as follows: “Agreement” shall mean the sales order (“Order”) to which these Terms and Conditions are attached and shall include these Terms and Conditions. “Terms and Conditions” shall mean these terms and conditions. “OneHydraulics” shall include OneHydraulics, Inc., and any and all parents, subsidiaries and affiliates thereto. “Products” means any one or more of the items identified as such on the first page of the Agreement, and shall include any accessories, components, or other similar items delivered to Customer, “Customer” means the person or entity identified as such on the first page of the Agreement, including any owner, representative, agent, officer or employee thereof. “Parties” shall mean both OneHydraulics and Customer. “Party” shall mean either OneHydraulics or Customer.
PRICING; PAYMENT. OneHydraulics reserves the right to increase or decrease the price of the Products and all matter related thereto at any time with prior notice to Customer, which shall apply to any portion of unshipped Projects at the time of such notice. All sums due by Customer to OneHydraulics shall be paid within Thirty (30) days from the date of initial shipment of the Products, unless otherwise agreed to in writing by the Parties and shall be payable to OneHydraulics’ office address set forth in the Order. Payments may be in advance, on a pro rata basis or in some other manner at the sole and exclusive discretion of OneHydraulics, which shall be set forth in the Order. In the event any sales are not payable in advance, any shipments shall be subject to Customer obtaining and maintaining satisfactory credit with OneHydraulics, at OneHydraulics’ sole and exclusive discretion. Failure to pay any and all sums when due shall be deemed an event of default in accordance with Section 8 hereinbelow.
TAXES, ET AL. Prices for any Products do not include any sales, excise, transfer, use, occupation taxes or any other international, federal, state or local taxes, which shall be borne solely by Customer. Customer shall also be responsible for any licenses, permits or certifications that may be required for the installation and operation of the Products.
DELIVERY; ACCEPTANCE; CANCELLATION; RETURNS. Delivery of any Products shall be on a best efforts basis and shipped F.O.B. to the address set forth in the PO and all associated costs shall be the responsibility of Customer. OneHydraulics may, at its discretion, arrange for shipping on Customer’s behalf and shall be entitled to increase the purchase price by the associated costs therefrom. Once OneHydraulics begins the process of procuring the Products for Customer, such process shall constitute an irrevocable acceptance of such Products. In the event Customer cancels or attempts to cancel any Order without the prior written consent of OneHydraulics, such cancellation or attempt thereto shall be deemed a default and subject to Section 9 hereinbelow. In the event of any returns of the Products, which shall be at the sole and exclusive discretion of OneHydraulics, Customer must send written notice of such request and shall be solely responsible for all costs and expenses, to include, without limitation, shipping costs and restocking costs (determined by OneHydraulics) relating to any such return.
MUTUAL INDEMNITY. THE CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS THE ONEHYDRAULICS (WHICH SHALL INCLUDE, WITHOUT LIMITATION, ITS OWNERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATES) FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, COSTS, EXPENSES, AND/OR DAMAGES TO PERSON OR PROPERTY ASSERTED AGAINST, IMPOSED UPON OR INCURRED BY ONEHYDRAULICS ARISING FROM, IN CONNECTION WITH OR ON ACCOUNT OF ANY ACT OR OMISSION (IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY) OF THE CUSTOMER (TO INCLUDE, WITHOUT LIMITATION, ITS OWNERS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, AFFILIATES OR ANY OTHER PARTY UNDER ITS REASONABLY CONTROL) IN RELATION TO THE PRODUCTS OR ANY MATTER RELATED THERETO. THE CUSTOMER FURTHER AGREES TO PAY ONEHYDRAULICS’ COURT COSTS, REASONABLE ATTORNEYS’ FEES INCURRED AND ALL OTHER ASSOCIATED COSTS ARISING FROM ANY SUCH CLAIMS, INCLUDING, BUT NOT LIMITED TO, ALL COSTS INCURRED IN ESTABLISHING THE APPLICABILITY OF THIS PARAGRAPH. THIS INDEMNITY SHALL APPLY WITHOUT REGARD TO WHETHER THE CLAIM, DEMAND, ACTION, LIABILITY, COST, EXPENSE, OR DAMAGE IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT. THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THE AGREEMENT.
LIMITATION OF LIABILITY AND REMEDY. Customer acknowledges and agrees that under no circumstances shall OneHydraulics be liable for deficiency in any performance on any matter caused in whole or in part by acts or omissions of third parties, delays, failures to perform, damages, losses, destruction, malfunction of the Products, or any consequence thereof, caused or occasioned by, or due to, fire, flood, water, the elements, labor disputes, shortages of labor or material, explosions, civil disturbances, governmental actions, shortages of Products or supplies, unavailability of transportation, or any other cause beyond OneHydraulics’ reasonable control. CUSTOMER ACKNOWLEDGES AND AGREES THAT ONEHYDRAULICS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR ANY MATTER RELATED THERETO. CUSTOMER AGREES TO ASSUME ALL RESPONSIBILITY AND RISK FOR THE DELIVERY, USE AND MAINTENANCE OF THE PRODUCTS. CUSTOMER AGREES TO LOOK EXCLUSIVELY TO THE MANUFACTURER AND/OR CUSTOMER’S INSURER TO RECOVER FOR INJURIES, LOSS AND/OR DAMAGES DIRECTLY OR INDIRECTLY CAUSED BY CUSTOMER’S USE OF THE PRODUCTS, ANY OTHER PARTIES’ USE OF THE PRODUCTS OR ANY MATTER RELATED THERETO. BECAUSE IT IS EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT FROM FAILURE ON THE PART OF ONEHYDRAULICS TO PERFORM ANY OF THEIR OBLIGATIONS HEREUNDER AND BECAUSE CUSTOMER DOES NOT DESIRE THE AGREEMENT OR THESE TERMS AND CONDITIONS TO PROVIDE FOR FULL LIABILITY OF ONEHYDRAULICS, CUSTOMER AGREES THAT ONEHYDRAULICS SHALL BE EXEMPT FROM ANY AND ALL LIABILITY FOR LOSS, DAMAGE AND/OR INJURY DUE TO A FAILURE OF THE PRODUCTS IN ANY RESPECT THAT IS NOT WITHIN THE REASONABLE CONTROL OF ONEHYDRAULICS. CUSTOMER FURTHER AGREES THAT SHOULD ONEHYDRAULICS BE FOUND LIABLE FOR LOSS, DAMAGE, AND/OR INJURY DUE TO A FAILURE OF THE PRODUCTS IN ANY RESPECT, ONEHYDRAULICS’ LIABILITY SHALL BE NO GREATER THAN A SUM EQUAL TO THE FAIR MARKET VALUE OF THE PRODUCTS, AS THE AGREED UPON DAMAGES, NOT AS A PENALTY, BUT AS THE EXCLUSIVE REMEDY, AND THAT THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY REGARDLESS OF WHETHER SUCH DAMAGE, INJURY AND/OR LOSS WAS DUE DIRECTLY OR INDIRECTLY FROM THE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ONEHYDRAULICS OR ARISING OUT OF STRICT LIABILITY IN TORT OR OTHERWISE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE INCLUSION OF THIS PARAGRAPH WAS A MATERIAL CONSIDERATION FOR ONEHYDRAULICS TO ENTER INTO THE AGREEMENT. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH ARE INDEPENDENT OF EACH OTHER AND BOTH THE LIMITATION OF DAMAGES AND LIMITATION OF REMEDY SET FORTH HEREINABOVE SHALL SURVIVE ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OR ALL PARTS OF THE LIMITED REMEDY. THIS SECTION SHALL SURVIVE THE COMPLETION, EXPIRATION OR TERMINATION OF THE AGREEMENT.
USE OF PRODUCTS; PRODUCTS MALFUNCTIONS. Customer will not use or allow anyone to use the Products for an illegal purpose or in an illegal manner, without a license, if required under any applicable law, or who is not qualified to operate. Customer, at Customer’s sole expense, shall comply with all applicable municipal, state, and federal laws, ordinances and regulations that may apply to the use of the Products. Customer agrees to check filters, oil, fluids levels, clean and visually inspect the Products. It is Customers’ responsibility to maintain proper fluid levels and conditions in all equipment. Customer acknowledges the OneHydraulics has no responsibility to inspect the Products while it is in Customer’s possession, unless otherwise expressly agreed to in writing by and between the Parties. Customer is responsible for any environmental risks associated with the use and maintenance of the Products. Should the Products become unsafe, malfunction or require repair, Customer shall immediately cease using such Products and immediately notify OneHydraulics and or an authorized dealer. OneHydraulics has no obligation to replace Products rendered inoperable by any act or omission out of the reasonable control of OneHydraulics.
REASONABLE WEAR AND TEAR. Reasonable wear and tear of the Products shall mean only the normal deterioration of the Products caused by ordinary and reasonable use on a normal basis. The following (without limitation) shall “not” be deemed reasonable wear and tear: (a) damage resulting from lack of lubrication or maintenance of necessary oil and/or water; (ii) Damage resulting from any collision, overturning, or operation, including overloading or exceeding the rated capacity of the Products; or (iii) the failure of Customer to service and perform maintenance on the Products according to the manufacturer’s or OneHydraulics’ instructions.
DEFAULT. Should Customer (i) fail to perform, observe or keep any of its obligations under this Agreement; (ii) fail to pay when due the full amount of any sums owed to OneHydraulics; (iii) become insolvent, have a petition in bankruptcy filed by or against it prior to full payment to OneHydraulics; (iv) assign any of the Products to any third party prior to full payment to OneHydraulics; (v) convey, sell or transfer, or attempt to convey, sell or transfer any of the Products to any third party in any manner prior to full payment to OneHydraulics; (vi) lose, substantially destroy or damage any of the Products prior to full payment to OneHydraulics; (v) cancel or attempt to cancel any Order without the prior written consent of OneHydraulics, OneHydraulics may at its option do any one or more of the following, as applicable: (a) terminate this agreement and retain all sums paid to OneHydraulics, not as a penalty, but as the agreed upon liquidated damages for such default; (b) declare all unpaid amounts owed immediately due and payable without further notice or demand and will thereafter bear interest at the highest rate allowed by law until paid; (c) purse any other remedies available at law or equity; (d) take possession of the Products on demand by either having Customer deliver the Products to a place designated by OneHydraulics or allowing OneHydraulics to enter the premises where the Products is located and, in a peaceful manner, take possession thereof, without any notice, demand or legal proceedings. Customer hereby expressly authorizes and consents to granting OneHydraulics the absolute right to break the locks, chains, etc. of any premises where the Products is located if, in the sole discretion of OneHydraulics, such action is reasonably necessary to gain entry to accomplish the foregoing purpose, provided OneHydraulics takes reasonably prudent steps to safeguard the premises upon the completion of such removal or (e) utilize any rights or remedies as a security party in accordance with Section 10 hereinbelow. CUSTOMER HEREBY WAIVES ANY CLAIMS AND/OR DAMAGES OF ANY MANNER ARISING OUT OF ONEHYDRAULICS’ TAKING POSSESSION OF THE PRODUCTS. Customer hereby expressly agrees that a fifteen (15) day period for notification of a proposed sale or disposition of the Products is reasonable, that any notice or communication sent to Customer may be sent to Customer’s address as listed in this Agreement, and that Customer shall be responsible for all costs incurred or sums advanced (including, without limitation, reasonable attorney’s fees and associated costs) in relation to any remedy utilized.
SECURITY INTEREST. In the event any payment is not made in advance, the Customer, by the acceptance of the Products, grants to OneHydraulics a security interest in the Products in accordance with the Texas Uniform Commercial Code and hereby authorizes OneHydraulics to file one or more financing statements with the Texas secretary of state or any other secretary of state, at OneHydraulics’ sole and exclusive discretion. The Customer agrees to do all things and take all actions as may be required to perfect OneHydraulics’ security interest in the Products upon demand by OneHydraulics, the failure of which shall be deemed a default in accordance with Section 9 hereinabove.
INSURANCE. The Customer shall carry general liability insurance insuring both OneHydraulics and the Customer against all claims, demands or actions arising out of or in connection with the Products, the minimums of such policy to be in an amount not less than One Million Dollars ($1,000,000.00) with respect to bodily injury or property damage per occurrence or in such amounts and upon such terms as may be determined by OneHydraulics, in its sole and exclusive discretion.
WARRANTIES. THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS. ONEHYDRAULICS MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCTS PROVIDED AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF QUALITY AND/OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. ONEHYDRAULICS DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND CUSTOMER MAY NOT RELY ON ANY STATEMENT OF WARRANTY. ONEHYDRAULICS IS NOT THE MANUFACTURER OF THE PRODUCTS AND THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS IS THAT PROVIDED BY THE PRODUCT MANUFACTURERS, WHICH ONEHYDRAULICS SHALL PASS ALONG TO CUSTOMER, AS AVAILABLE. CUSTOMER HEREBY EXPRESSLY ACKNOWLEDGES THAT CUSTOMER IS NOT RELYING ON THE STATEMENTS, REPRESENTATIONS OR ACTIONS OF ANY EMPLOYEE, REPRESENTATIVE, AGENT OR CONTRACTOR OF ONEHYDRAULICS IN ANY WAY. THIS SECTION SHALL SURVIVE THE COMPLETION, EXPIRATION OR TERMINATION OF THIS AGREEMENT.
NO WAIVER; NO ACCORD AND SATISFACTION. The failure of either Party to this Agreement to enforce any of its terms, provisions or covenants shall not be construed as a waiver of the same or of the right of such Party to enforce the same. Waiver by either Party hereto of any breach or default by any other party of any term or provision of this Agreement shall not operate as a waiver of any other breach or default. The Parties hereto expressly agree that no payment made by Customer or on behalf of Customer of a lesser amount than the required amount shall be deemed an accord and satisfaction, regardless of any statement on any check or accompanying letter to the contrary, and OneHydraulics is hereby authorized to accept such payment(s) without prejudice to its rights to recover any balance due.
SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision (or any section of any provision) of the Agreement or these Terms and Conditions is held to be prohibited by or invalid under applicable law, such provision(or any section of any provision) shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of the Agreement or these Terms and Conditions.
INURNMENT; CONTRACT NEGOTIATION; ASSIGNMENT. The provisions of the Agreement and these Terms and Conditions shall inure to the benefit of and shall be binding on the heirs, successors and permitted assigns of each of the parties hereto. Customer shall bear all OneHydraulics’ costs and expenses (including legal costs) in the event Customer wishes to negotiate the Agreement or these Terms and Conditions. OneHydraulics shall be entitled to assign this Agreement to any third party at any time without notice to or the consent of Customer. Customer shall not be entitled to assign this Agreement without the prior written consent of OneHydraulics.
GOVERNING LAW; ARBITRATION. The Agreement (which shall include these Terms and Conditions) has been executed in and shall be governed by the laws of the State of Texas, without giving effect to the conflicts of law principles of any state. The parties hereby irrevocably consent to be subject to the personal jurisdiction of any United States, state, local court, or other administrative body sitting in Harris County, Houston, Texas in connection with any action to determine any dispute arising under this Agreement or to enforce the provisions hereof. The Parties agree that any dispute, claim or controversy arising out of or relating to any interpretation, construction, performance or breach of the Agreement or any agreement executed in connection herewith, shall be settled by arbitration to be held in Harris County, Texas in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the Parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Parties shall split the costs and expenses of such arbitration, and each Party shall separately pay its counsel fees and expenses.