Subject to the approval of the Seller, this Credit Agreement (the “Agreement”) by and between TRANSLINE INDUSTRIES, INC. and one or more of its affiliates, CENTERLINE SUPPLY, INC., TRANTEX TRANSPORTATION PRODUCTS OF TEXAS, INC., and TRANSCOR SUPPLY, INC.
(each an “AFFILIATE” and hereinafter collectively referred to as “SELLER”), and the individual or entity identified below and in the attached Credit Application “CUSTOMER”, is entered into effective as of the date first written below, to establish the terms and conditions of an open account (the “Account”) being established by SELLER in the name and on behalf of the CUSTOMER for the sale of goods and materials.
1. PAYMENT TERMS. Payments of all sums due for goods or materials sold to CUSTOMER pursuant to this Agreement are due and payable to SELLER at the address on each respective invoice, thirty (30) days from the date of receipt of goods or materials. Late payments will accrue interest at a rate of 1.5% per month or the maximum rate allowed by law, whichever is less. SELLER may also decline to offer CUSTOMER additional credit in SELLER’S sole discretion.
2. DISCLAIMER, WARRANTY AND LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE FOR FAILURE OR DELAY IN DELIVERY OF GOODS SOLD OCCASIONED BY LABOR DISPUTES, FORCE MAJEURE, OR OTHER CAUSES BEYOND SELLER’S CONTROL. FURTHER, BY
PURCHASING FROM SELLER, CUSTOMER WAIVES ALL CLAIMS TO INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM ANY BREACH OF CONTRACT AS DEFINED BY THE UNIFORM COMMERCIAL CODE RELATIVE TO SALE OF GOODS HEREUNDER. THE GOODS SOLD ARE WARRANTED TO BE FIT FOR THE PURPOSE SOLD, BUT THE SOLE LIABILITY OF THE SELLER IS TO EITHER REFUND THE PURCHASE PRICE OR REPLACE WITH SIMILAR GOODS. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED AND ALL CLAIMS, DISPUTES OR OBJECTIONS ARE WAIVED UNLESS MADE IN WRITING TO THE SELLER WITHIN TEN (10) DAYS OF DELIVERY OR OCCURRENCE OF DEFAULT. THERE IS NO WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF MERCHANTABILITY.
3. MODIFICATION. This Agreement may not be modified except in writing, signed by both parties. To the extent that any purchase order or quotation received from CUSTOMER contains terms that conflict with this Agreement, CUSTOMER’S acceptance of the goods shall be deemed to be CUSTOMER’S agreement that the terms contained herein shall control and supersede any conflicting provisions provided by CUSTOMER at the time of the order.
4. NOTICE. All notices required herein to SELLER must be in writing with proof of delivery by registered, or certified mail, return receipt requested, or facsimile, and shall not take effect until received by SELLER. The rights provided for herein to SELLER are cumulative to all other rights.
5. RISK OF LOSS. CUSTOMER assumes all responsibility for and the risk of loss or damages to goods furnished hereunder upon delivery F.O.B. destination or shipping, whichever is specified in the quotation for goods. To the extent CUSTOMER specifies or otherwise alters standard shipping arrangement, CUSTOMER shall bear the risk of loss while goods are in transit.
6. COSTS OF COLLECTION; CHOICE OF LAW; FORUM SELECTION; JURY WAIVER; SEVERABILITY. A) In the event CUSTOMER’S account becomes thirty (30) days or more past due, it may be referred to an attorney for collection. CUSTOMER shall be liable to pay all costs of collection including attorney’sfees, costs of court, expert witness fees, travel expenses and pre and post‐judgment interest at the maximum rate allowed by law. B) The internal laws of the State of Texas shall apply and govern any dispute hereunder. C) Any claim or dispute arising out of or in any way attributable to this Agreement shall be brought in the State or Federal Courts lying in the County where selling AFFILIATE invoiced the goods or materials (the “Specified Courts”). CUSTOMER and SELLER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING IN THE SPECIFIED COURTS AND IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. D) The parties hereto warrant that they are sophisticated in the business transactions contemplated by this Agreement and as such EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN. E) In the event any provision or part of this Agreement is found to be invalid or unenforceable, that particular provision or sub‐provision so found, and not the remainder of the Agreement, will be inoperative.
7. CONDITION OF GOODS RECEIVED. All goods sold and delivered are conclusively deemed to be the goods ordered by the CUSTOMER forthe price specified in the purchase order or invoice and delivered in good order unless written notice to the contrary is received by the SELLER from the CUSTOMER within ten (10) days of the date goods are delivered according to the notice provisions herein.
8. COMPLETE AGREEMENT. There are no side agreements or verbal understandings which would vary the terms of this Agreement which can only be changed by writing signed by the SELLER and CUSTOMER.