Terms and Conditions

  1. Terms (with approved credit) are 30 days from the date of the invoice.No other terms and conditions, including warranties, will supersede these “Brawler Industries’ General Terms and Conditions of Sale”.
  1. Before using a Brawler Industries’ product, customers and other users should make their own independent determination that the product is suitable for the intended use.
  1. Unless otherwise agreed in writing by a Brawler Industries’ authorized representative, Brawler Industries’ standard property values, quality control testing procedures, and authorizing documentation apply to the product quoted.
  1. Testing requirements exceeding Brawler Industries’ standard testing frequencies may result, at Brawler Industries’ discretion, in additional charges.
  1. NOTICE: The offer, order acceptance, or sale of any products is conditioned upon the terms contained herein. Any additional or different terms proposed by the Purchaser are objected to and will not be binding upon Brawler Industries, LLC unless specifically assented to in writing by Brawler. In the event of any conflict between the provisions of any purchase order and this quotation (including these terms of sale), the provisions of the quotation/terms of sale shall control, unless an authorized representative of Brawler acknowledges otherwise in writing. Failure of Brawler to object to provisions contained in any order or other communication from the prospective buyer shall neither be construed as a waiver of these terms or an acceptance of any such provision.   Brawler reserves the right to correct clerical, arithmetic, or stenographic errors and omissions in quotations, orders, acknowledgements, invoices or other documents.
  1. TAXES: Unless otherwise stated in Brawler’s proposal, the prices quoted do not include any federal, state, provincial or local taxes or duty of any kind which may be applicable to the sale, use, or any disposition of the material. Consequently, in addition to the prices specified herein, the amount of any present or future taxes or duties mentioned above shall be paid by the Purchaser, or in lieu thereof the Purchaser shall provide Brawler with a tax exemption or resale certificate acceptable to the taxing authorities. Purchaser agrees it will reimburse Brawler for the amount of all governmental taxes, excise and/or other charges (except taxes on or measured by net income) that Brawler may be required to pay with respect to (a) the sale and/or installation of any material delivered hereunder, and (b) the production or transportation of any material delivered hereunder.
  1. SHIPMENTS: Time of delivery shall not be of the essence unless expressly agreed to by the parties in writing. In no event shall Brawler be liable for any consequential or other damages. Any time stated for delivery by Brawler is an estimate only and shall not form part of the contract. No delivery dates are guaranteed. Any failure by Brawler to deliver the Product by such time shall not be a breach or repudiation, and Brawler shall not be liable for any loss or damage suffered by the Purchaser as a result of such failure. Title and Risk of Loss shall pass to Purchaser at the point of loading €”all Product(s) are sold FOB plant, unless otherwise specified in Brawler’s proposal. Freight charges reflected in the quotation are an estimate only.   Purchaser is responsible for all actual freight charges. Where delivery of Product is delayed for any reason outside of the reasonable control of Brawler or under the control of Purchaser, Brawler reserves the right to amend the prices for the Product to those current at the date when delivery is made. Additionally, Brawler shall not be held responsible for loss or damage resulting from the choice of carrier or means of shipment or routing used or for any other losses or damages arising while in transit or related to the material. The Purchaser agrees to make any claim therefore directly against the carrier.
  1. PAYMENT: Any payment not received when due shall bear interest at the rate of 1-1/2% per month, eighteen percent per annum from the original due date, or the highest rate allowed by law, on the unpaid balance until paid in full. Any sale to Purchaser of Brawler’s Products/Services is subject to Brawler’s approval of the credit worthiness of the Purchaser. Additionally, in the event that payment is not made by Purchaser within the agreed upon terms and any legal and/or collection action is used by Brawler to secure payment, Purchaser shall be liable for all legal and/or collection costs incurred by Brawler. This includes, but is not limited to, the costs of notices, liens, claims, foreclosures, suits, and arbitrations.
  1. LIMITED WARRANTY: Brawler warrants that its products shall be free from defects in material and workmanship at the time of sale. In the case of a defect, at Brawler’s option Brawler will repair or replace the Product. However, this remedy is only available if Purchaser notifies Brawler of the defect prior to use of the Product and within thirty (30) days of receipt of shipment. This Limited Warranty applies to factory products only and does not cover damage to the Product sustained after it left Brawler’s facility. Brawler’s liability under this warranty shall in no event exceed the replacement cost of the Product(s) sold to the Purchaser (fabricated or installed). THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY ACCEPTING DELIVERY OF THE PRODUCT(S), PURCHASER WAIVES ALL OTHER POSSIBLE WARRANTIES. IT IS THE RESPONSIBILITY OF BUYER AND OTHER USERS TO MAKE THEIR OWN INDEPENDENT DETERMINATION THAT THE PRODUCT IS SUITABLE FOR THEIR INTENDED USE.
  1. Brawler Industries’ limited warranty does not include; damages or defects in the Brawler product resulting from acts of God, casualty or catastrophe, including but not limited to: earthquakes, floods, piercing hail, tornadoes or force majeure; the exposure of Brawler’s product to harmful chemicals, abuse by machinery, equipment or people; improper installation; improper site preparation or placement of cover materials; damage resulting from erosion, degradation, settlement, or subsidence of subgrade or covering materials; collapse or failure of any supporting structure; excessive pressures or stresses from groundwater or gasses; excessive pressures or stresses from any source.
  1. CONTINGENCIES: Neither Purchaser or Brawler shall be liable for its failure to perform hereunder if performance is made impracticable due to any occurrence beyond its reasonable control, including acts of God, fires, floods, wars, sabotage, accidents, labor disputes, inability to obtain economic materials, governmental laws, ordinances, rules, regulations, standards or decrees, inability to obtain raw material, equipment or transportation, and any other similar or different occurrence.
  1. NON-WAIVER: Failure of Purchaser or Brawler to exercise any right hereunder upon one or more occasions shall not waive the right to exercise the same on another occasion.
  1. INSPECTION AND CONDITION OF THE PRODUCT: The Purchaser shall carefully examine the Products on receipt of same. Claims by Purchaser must be made in writing within no later than two (2) business days from the date Purchaser learns of the nonconformity, but in no event no later than 30 days after the date of receipt of shipment, which Purchaser and Brawler agree is a reasonable time, or Purchaser’s claims shall be barred. Failure of such notice before Brawler has the opportunity to respond, shall be deemed acceptance of goods as received. In addition, Brawler must be given opportunity to investigate the claim before Purchaser disposes of Product or else Purchaser’s claim will be barred. Brawler’s liability to Purchaser shall in no event exceed the difference between the purchase price and the value as delivered. ANY damage to Product sustained during shipment MUST be noted on the Bill of Lading at the time of receipt or claim will be barred.
  1. LIMITATION OF DAMAGE: In no event shall Brawler be liable for any special, indirect, consequential or incidental damages arising from this transaction. Brawler’s total liability is limited to amounts actually paid by Purchaser hereunder with respect to direct damages arising from Purchaser’s lawful rejection of goods from Brawler’s breach of any applicable warranty, or at the option of Brawler, replacement of the nonconforming Product with a conforming Product.
  1. RETURN POLICY: No returns. All sales are final.
  1. MISCELLANEOUS: The laws of the State of Texas shall govern the execution, interpretation, and enforcement of this agreement, without giving effect to the principles of conflicts of laws thereof and Purchaser submits to the jurisdiction of Texas courts. This contract is performable in Harris Co., Texas, and venue of any legal settlement shall be in Harris Co., Texas. These terms and conditions hereof constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous communications, either oral or written, between the parties hereto. There are no understandings or representations of any kind whatsoever, except as expressly set forth herein. This Agreement shall be binding upon and endure to the benefit of the respective successor and assigns of each of the parties hereto, but, any assignment or delegation thereof by either party without the prior written consent of the other party shall be void, except where such assignment or delegation is in connection with the sale of the business to Brawler to which this Agreement relates. No modification or waiver of the terms and conditions hereof shall be binding on Purchaser or Brawler unless approved in writing by an authorized representative, nor shall the terms and conditions hereof be affected by the acknowledgment or acceptance of purchase order forms containing additional or different terms or conditions, whether or not signed by an authorized representative of Purchaser or Brawler. Neither course of performance nor course of dealing nor usage of trade shall be used to interpret, construe, qualify, modify, explain, or supplement any of the terms hereof.
  1. FORCE MAJEURE: In any event and in addition to all other limitations stated herein, Seller shall not be liable for any act, omission, result or consequence, including but not limited to any delay in delivery or performance of any government order, any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law, local labor shortage, fire, flood, or other casualty, governmental regulation or requirement, shortage or failure of raw material, supply, fuel, power or transportation, breakdown of equipment or any cause beyond Seller’s reasonable control whether of similar or dissimilar nature to those above enumerated, or due to any strike, labor dispute, or difference with worker, regardless of whether or not Seller is capable or settling any such labor problem. Seller shall not be liable for any breach of this contract by an act of God, civil insurrection or disobedience, pestilence, war, or acts of third parties not under direct control of Seller.
  1. SEVERABILITY: In case any provision herein shall be declared void, illegal, or otherwise invalid, the remaining provisions shall remain in effect and binding upon the parties.
  1. ARBITRATION: Any dispute, controversy, or claim arising in connection with this Agreement shall be settled by binding arbitration as the sole remedy of the parties hereto, conducted in accordance with the American Arbitration Association arbitration rules for commercial disputes as in effect on the date of the order. The proceedings shall be concluded, and the Arbitrator shall render an award within ninety (90) days following selection. No award shall be made for punitive, special, exemplary, or consequential damages, including loss of profits or loss of business opportunity. The parties agree that any arbitration commenced under this provision shall take place in the State of Texas. The decision of the Arbitrator pursuant hereto shall be final and binding upon the parties.

Brawler Terms and Conditions, September, 2015