TERMS & CONDITIONS FOR THE SALE OF GOODS
1. APPLICABILITY
1a. These terms and conditions of sale (these “Terms”) are the exclusive terms governing the sale of goods, products, and/or goods-related services (collectively, “Goods”) by ESTES PERFORMANCE CONCAVES (“Seller”) to the buyer identified in the Sales Quotation and/or Acknowledgment (as each is defined below) to which these Terms are attached or incorporated by reference (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by authorized representatives of both parties is in effect and governs the sale of the Goods covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms.
1b. The accompanying quotation of sale (the “Sales Quotation”) and/or invoice or sales order acknowledgment (the “Acknowledgment”), provided to the Buyer, together with these Terms (collectively, the “Agreement”), constitute the entire agreement between the parties. This Agreement supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. For clarity, once the Acknowledgment is received by Buyer, the order for Goods is binding and may not be canceled by Buyer for any reason. The full purchase price specified in the Acknowledgment shall be due and payable by Buyer to Seller according to the payment schedule set forth therein, unless otherwise agreed to in writing by Seller. All terms and conditions contained in any prior or contemporaneous oral or written communication that differ from, or are additional to, the terms and conditions of this Agreement are hereby rejected and shall not be binding on Seller, whether or not they would materially alter this Agreement. These Terms take precedence over any of Buyer’s terms and conditions of purchase, regardless of when or how Buyer submits its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Notwithstanding anything to the contrary, all orders for Goods must meet a minimum purchase price of $100, or such orders will be rejected by Seller.
2. DELIVERY
2a. The Goods will be delivered within a reasonable time after Seller provides Buyer the Acknowledgment, subject to availability of finished Goods. Seller will endeavor to meet delivery schedules requested by Buyer, but in no event shall Seller incur any liability, consequential or otherwise, for any delays or failure to deliver as a result of ceasing to manufacture any product or any Force Majeure Event. Delivery schedules set forth in the Acknowledgment are Seller’s good faith estimate on the basis of current schedules. In no event shall Seller be liable for special or consequential damages resulting from failure to meet requested delivery schedules.
2b. Unless otherwise agreed in writing by the parties in the Acknowledgement, Seller shall deliver the Goods to ESTES PERFORMANCE CONCAVES in Texas, USA (the “Shipping Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within three (3) days of Seller’s written notice that the Goods have been delivered to the Shipping Point. Buyer shall be responsible for all loading costs (including freight and insurance costs) and provide equipment and labor reasonably suited for receipt of the Goods at the Shipping Point. Seller shall not be liable for any delays, loss or damage in transit.
2c. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer, if applicable. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
2d. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Shipping Point, or if Seller is unable to deliver the Goods at the Shipping Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. NON-DELIVERY
3a. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
3b. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within three (3) days of the date when the Goods would in the ordinary course of events have been received.
3c. Any liability of Seller for non-delivery of the Goods shall be limited to (in Seller’s sole discretion) replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. SHIPPING TERMS
Unless indicated otherwise in the Acknowledgment, Delivery shall be made EXW (Incoterms 2010), Shipping Point, including without limitation, freight and insurance costs. If no delivery terms are specified on the Acknowledgement, the method of shipping will be in the sole discretion of Seller. Unless directed in writing otherwise by Buyer, full invoice value will be declared for all shipments.
5. TITLE AND RISK OF LOSS
Title and risk of loss passes to Buyer upon delivery of the Goods at the Shipping Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Texas Commercial Code.
6. AMENDMENT AND MODIFICATION
Seller may, in its sole discretion, modify or revise these Terms and policies at any time, and Buyer agrees to be bound by such modifications or revisions. Seller may, but is not obligated to, notify Buyer of non-material changes. Buyer should periodically review the most up-to-date version at www.estesperformanceconcaves.com/tos. Nothing in these Terms shall be deemed to confer any third-party rights or benefits.
Seller will notify you of any material changes to these Terms by email or through a notice on the website at least 30 days before such changes take effect. Buyer’s continued use of the Goods and/or Services after the effective date of any modifications will constitute Buyers acceptance of the modified Terms.
7. INSPECTION AND REJECTION OF NONCONFORMING GOODS
7a. Buyer shall inspect the Goods within three (3) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s Acknowledgement; or (ii) product’s label or packaging incorrectly identifies its contents. Notwithstanding the foregoing, for shipped Goods that require field installation, the “re-verification” terms in the Acknowledgement shall apply and for custom installations, the inspection and verification shall take place at Buyer’s site immediately after the installation is completed.
7b. Seller will only accept Nonconforming Goods that are returned under Seller’s Return Material Authorization procedures then in effect (“RMA”). Buyer shall obtain a RMA number from Seller prior to returning any Nonconforming Goods and return the Nonconforming Goods prepaid and insured to Seller at 124 Rose Lane Ste 602, Frisco, TX 75036 or to such other location as designated in writing by Seller for the examination to take place there. If Seller reasonably verifies Buyer’s claim that the Goods are Nonconforming Goods and that the nonconformance did not developed by use from Buyer, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods pursuant to the terms set forth herein. Notwithstanding the foregoing, the only remedy for Nonconforming Goods that are custom systems is repair (not refund or replacement). No returns for Nonconforming Goods are allowed after thirty (30) days from the original shipping date.
7c. Buyer acknowledges and agrees that the remedies set forth in Section 7(a) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7(a) and Section 14, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
8. PRICE
8a. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth by Seller as of the date of the Sales Quotation. However, the Prices are subject to change without notice post date of the Sales Quotation. Unless specifically stated to the contrary in the Sales Quotation, quoted Prices and discounts are firm for thirty (30) days from the date of the Sales Quotation. Unless otherwise stated, prices are quoted EXW (Incoterms 2010), Shipping Point. Unless otherwise stated in the Acknowledgement, if the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be invoiced by Seller on the basis of such increased prices.
8b. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes (present or future); provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
9. PAYMENT TERMS
9a. Unless otherwise provided in the Acknowledgement, if Buyer has approved credit with Seller, Buyer shall pay all invoiced amounts due to Seller are Due on Receipt or within thirty (30) days from the date of Seller’s invoice, whichever comes first. If Seller does not have Buyer’s financial information and has not provided pre-approved credit terms for Buyer, the payment must be made in cash with order or C.O.D. in US dollars. If Buyer has approved credit terms, the payment may be made by cash with order, wire transfer of immediately available funds, or check in US dollars. Certain Goods require a down payment. Any payment terms other than set forth above will be identified in the Acknowledgement. Notwithstanding anything herein to the contrary, all prepaid deposits and down payments are non-refundable. If a deposit is not received when due, Seller reserves the right to postpone manufacturing of Goods until payment is received. Seller will not be responsible for shipment delays due to deposit payment delays.
9b. In Seller’s sole discretion, Seller may access Buyer interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
9c. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
10. INTELLECTUAL PROPERTY; COPYRIGHT
10a. Prohibition on Copying and Reverse Engineering: Buyer shall not copy, duplicate, reproduce, modify, or disassemble the Goods, in whole or in part, by any means, including but not limited to 3D scanning, molding, casting, or any other method. Buyer may not modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive designs, schematics, components, subassemblies, or any proprietary elements from the Goods, nor permit others to do so. Buyer expressly agrees not to attempt, cause others to attempt, or contract any third party to reverse engineer, disassemble, analyze, deconstruct, or otherwise derive the design, composition, structure, or manufacturing process of the Goods. This includes, but is not limited to, chemical analysis, material composition testing, and functional dissection. All technical, schematic, and design information relating to the Goods is considered confidential information as defined in Section 18 of this Agreement, and Buyer shall treat such information accordingly.
10b. Restriction on Modification and Deconstruction: Buyer shall not copy, modify, disassemble, or permit others to copy, modify, or disassemble the Goods. Buyer shall not modify, adapt, translate, reverse assemble, decompile, or otherwise attempt to derive components, subassemblies, pieces, and/or parts from the Goods. Any such modification or attempt is strictly prohibited.
10c. Restrictions on Transfer: Buyer shall not transfer possession of the Goods or any associated Goods, including by sale, lease, loan, or any other method of transfer, except as part of a lawful resale of the Goods. Such transfer shall not include any rights to modify, reverse engineer, or deconstruct the Goods or associated intellectual property. Buyer may not sublicense, rent, loan, assign, or otherwise transfer the Goods or related documentation without the express written consent of Seller. Each transfer shall be subject to the same restrictions contained herein.
10d. Copyright and Proprietary Notices: All patents, trademarks, copyrights, or other intellectual property rights embodied in the Goods, including without limitation the Goods, are owned by Seller and its licensors. Seller and its licensors retain all right, title, and interest in such intellectual property rights. Buyer shall retain all copyright and proprietary notices or legends that appear on or in any copies of the Goods or related documentation and shall not remove, alter, or obscure any such notices. Except as expressly set forth herein, no license rights or ownership in or to any of the foregoing is granted or transferred hereunder, either directly or by implication. ALL RIGHTS RESERVED.
10e. Notification of Reverse Engineering: Buyer shall not accept, utilize, distribute, or retain any form of reverse-engineered documents, drawings, schematics, or models related to the Goods offered by any third party. In the event Buyer receives such reverse-engineered materials, Buyer must immediately cease any use or dissemination of those materials and notify Seller via email with the subject line: “IMPORTANT IP NOTIFICATION” to legal @ estesperformanceconcaves.com within twenty-four (24) hours of receipt.
10f. Prohibition on Third-Party Access: Buyer shall not provide access to the Goods, their components, or associated intellectual property to any third party for any reason, including but not limited to servicing, repair, or inspection, without the express prior written consent of Seller. This prohibition applies regardless of the third party’s intention, including whether for reverse engineering or other legitimate purposes.
10g. Termination for Breach: Seller may terminate this Agreement immediately upon written notice in the event Buyer breaches any of the terms in this Section 10. Upon termination, Buyer shall immediately discontinue any use of the Goods and return or destroy any unauthorized copies, derivatives, or associated documentation. Buyer shall be liable for any damages incurred by Seller as a result of the breach, and all rights granted to Buyer under this Agreement shall immediately cease.
10h. No License or Conveyance of Assets: This Agreement does not constitute an offer by either party to license its Goods, trade secrets, know-how, inventions, patent applications, issued patents, designs, or technology, nor does it convey any ownership or transfer of assets from one party to the other. Nothing in this Agreement, nor the act of making disclosures hereunder, shall be deemed to grant either party any right, interest, or license under the information, intellectual property, or patents of the other party, unless expressly agreed upon in writing.
10i. Injunctive Relief and Specific Performance: The parties each acknowledge and agree that any breach or threatened breach of this Agreement would cause irreparable harm, and that money damages may be inadequate to fully remedy such a breach. As such, the parties agree that the non-breaching party shall be entitled to seek specific performance, injunctive relief, or other equitable remedies, without the necessity of proving actual damages or posting bond. These remedies shall not be exclusive and shall be in addition to any other remedies available under law or equity.
11. INSTALLATION AND OTHER SERVICES
11a. Buyer is solely and exclusively responsible for the installation of the Goods, whether performed by Buyer, Buyer’s employees, or any third parties hired by Buyer. Buyer expressly acknowledges and agrees that they assume all risks, liabilities, and responsibilities associated with the installation process, including any work performed by third-party installers. Buyer further acknowledges that Seller has no involvement in, responsibility for, or control over the installation of the Goods, unless expressly agreed in writing by Seller as part of the Acknowledgment.
Buyer is responsible for installing any necessary additional systems, cables, equipment, or hardware not provided by Seller. For Goods operated on or in connection with Buyer-supplied hardware, goods, or Goods, Buyer is fully responsible for ensuring that its hardware, goods, and Goods strictly conform to Seller’s minimum hardware and product requirements or installation instructions provided by Seller.
Seller is responsible only for inspecting the Goods before shipment, as outlined in Section 7 herein. Any failure by Buyer to adhere to Seller’s requirements or instructions shall void any applicable warranties and absolve Seller of all liability.
Seller makes no warranties or representations regarding the competence, suitability, or qualifications of any individuals or entities performing the installation, including any third-party installers hired by Buyer. Seller shall not, under any circumstances, be liable for any damages, malfunctions, or performance deficiencies resulting from improper installation, errors during installation, or the use of unqualified or unauthorized personnel, as Seller has no means to verify, inspect, or ensure proper installation.
In the event that Seller reasonably suspects improper installation, Seller reserves the right to deny any warranty claims or other remedies under this Agreement, pending further investigation by Seller or a third-party inspector. Any costs associated with such inspection shall be borne by Buyer.
Buyer agrees to fully indemnify, defend, and hold harmless Seller from and against any and all claims, damages, losses, liabilities, costs, and expenses (including, but not limited to, attorneys’ fees and legal costs) arising directly or indirectly from improper installation or errors in the installation process, regardless of whether performed by Buyer, its employees, or any third parties. This includes, but is not limited to, claims for personal injury, property damage, or malfunction of the Goods. This indemnification obligation is in addition to, and not in limitation of, the indemnification provided in Section 15, which is hereby incorporated by reference and shall survive the installation and use of the Goods.
12. LIMITED WARRANTY
12a. Subject to the exceptions, exclusions, and conditions set forth herein, Seller warrants to Buyer that, for a period of one (1) year from the date of shipment (“Warranty Period”), the Goods will be free from material defects in materials and workmanship under normal use and service conditions. This warranty applies only to Goods that have been properly installed, maintained, and used in accordance with Seller’s written specifications, guidelines, and industry standards. The Warranty Period shall begin upon the earlier of either the Goods’ first use or installation.
This warranty does not cover normal wear and tear or damage caused by improper installation, misuse, neglect, ingestion of foreign objects such as rocks, metal, or debris, collisions with external objects, improper operation, unauthorized repairs or modifications, exposure to extreme environmental conditions, or acts of nature and other unforeseen events such as flooding, fire, or other environmental hazards. Damage excluded under this warranty will be determined based on inspection as reasonably assessed by Seller. In cases of dispute, the parties may agree to involve a mutually agreed-upon third party for inspection. The costs of such inspection shall be borne by Buyer unless the inspection confirms the defect, in which case Seller shall cover reasonable inspection costs. The inspection process shall not unduly delay any actions by Seller to remedy the issue.
If Seller determines, in its sole discretion, acting reasonably and in good faith, that the Goods are defective, Seller’s sole obligation and Buyer’s exclusive remedy shall be the repair or replacement of the defective Goods. This warranty is non-transferable and applies only to the original Buyer.
12b. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS (INCLUDING ANY Goods OR COMPONENTS) OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
12c. Goods manufactured by a third party and third-party goods, Goods, software, or services (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Goods are not covered by the warranty in Section 12(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Notwithstanding the foregoing, in the event of the failure of any Third Party Product, Seller will assist Buyer, within reason, by providing the necessary contact information and facilitating communication with the third-party manufacturer (at Buyer’s sole expense) in obtaining, from the respective third party, any adjustment that may be available under such third party’s warranty. Buyer shall first exhaust any applicable third-party warranties before requesting such assistance from Seller.
12d. Seller shall not be liable for a breach of the warranty set forth in Section 12(a) unless: (i) Buyer gives written notice of the defect, reasonably described (including but not limited to the nature of the defect, date of discovery, and any relevant documentation or photographs), to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect, and such notice is received by Seller during the Warranty Period; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods; (iii) Buyer (if requested to do so by Seller) returns such Goods (prepaid and insured to Seller at 124 Rose Lane Ste 602, Frisco, TX 75036, or to such other location as designated in writing by Seller) to Seller pursuant to Seller’s RMA procedures, and Buyer obtains an RMA number from Seller prior to returning such Goods for the examination to take place; and (iv) Seller reasonably verifies Buyer’s claim that the Goods are defective and that the defect developed under normal and proper use. In the event that returning the Goods is impractical due to their size or nature, Seller will arrange an in-field inspection at Buyer’s expense. However, if Seller determines that the Goods are defective, Seller will reimburse Buyer for reasonable return shipping or inspection costs.
12e. Seller shall not be liable for a breach of the warranty set forth in Section 12(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; or (iv) repairs or modifications are made by persons other than Seller’s own service personnel or an authorized representative’s personnel, unless such repairs are made with the written consent of Seller in accordance with procedures outlined by Seller.
12f. All expendables such as concaves are warranted only for defects in material and workmanship which are apparent upon receipt by Buyer. The foregoing warranty is negated after the initial use, defined as the first installation, operation, or engagement of the Goods for their intended purpose.
12g. Subject to Section 12(e) and Section 12(f) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate, provided that, if Seller so requests, Buyer shall, at Buyer’s expense, return such Goods to Seller.
12h. THE REMEDIES SET FORTH IN SECTION 12(g) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(a). This limitation of liability shall not apply in cases of Seller’s gross negligence or willful misconduct. Representations and warranties made by any person, including representatives of Seller, which are inconsistent or in conflict with the terms of this warranty, as set forth above, shall not be binding upon Seller.
12i. Acceptance Tests shall include mechanical and operational performance deliverable under the terms of the Acknowledgement. Terms and conditions for Additional Acceptance Tests either at Seller’s or Buyer’s facility shall be mutually agreed in writing prior to the issuance or acceptance of the Acknowledgement.
12j. Seller further warrants that all Services performed by Seller’s employees will be performed in a good and workmanlike manner. Seller’s sole liability under the foregoing warranty is limited to the obligation to re-perform, at Seller’s cost, any such Services not so performed, within a reasonable amount of time, but no later than thirty (30) days following receipt of written notice from Buyer of such breach, provided that Buyer must inform Seller of any such breach within ten (10) days of the date of performance of such Services.
12k. Seller shall not be liable for a breach of the warranty set forth here unless: (i) Buyer gives written notice of the defect or non-compliance covered by the warranty, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect or non-compliance, and such notice is received by Seller during the Warranty Period; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods, and (a) Buyer returns such Goods to Seller’s place of business at Buyer’s cost (prepaid and insured); or (b) in the case of custom systems, Seller dispatches a field service provider to Buyer’s location at Buyer’s expense for the examination to take place there. However, if Seller reasonably verifies that the Goods are defective or non-compliant, Seller shall cover the reasonable costs of the field service inspection.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, LOSS OF INFORMATION OR DATA, OR PERSONAL INJURY OR DEATH ARISING IN ANY WAY OUT OF THE MANUFACTURE, SALE, USE, OR INABILITY TO USE ANY GOODS, Goods, SOFTWARE OR SERVICE, OR ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
ALL WARRANTIES SET FORTH HEREIN, DIRECT OR IMPLIED, ARE VOIDED IF THE INITIAL INSTALLATION AND START-UP OF THE SUBJECT GOOD IS NOT SUPERVISED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. AFTER INSTALLATION, ANY RE-ALIGNMENT, RE-CLEANING, OR RE-CALIBRATION, PROVIDED THEY ARE NOT RELATED TO A PROVEN DEFECT IN MATERIALS OR WORKMANSHIP, SHALL BE PERFORMED BY AN AUTHORIZED REPRESENTATIVE OF SELLER AT THE CURRENT SERVICE RATES.
WHERE GOODS ARE SUBJECT TO A MOVE TO ANOTHER LOCATION AFTER THE ORIGINAL INSTALLATION HAS BEEN MADE, THE WARRANTY MAY BE MAINTAINED ONLY IF SUPERVISED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. SELLER, FOR A SERVICE CHARGE, WILL ARRANGE FOR AND SUPERVISE THE DISCONNECTION, TRANSPORTATION, REINSTALLATION AND START-UP OF THE EQUIPMENT. CLAIMS FOR DAMAGE IN SHIPMENT ARE THE RESPONSIBILITY OF BUYER AND SHALL BE FILED PROMPTLY WITH THE TRANSPORTATION COMPANY.
14. RETURN GOODS POLICY
14a. Seller’s Goods may be returned to Seller for credit within thirty (30) days of shipment subject to the following conditions.
14b. In order to return Goods for credit, Buyer must obtain a RMA number from Seller. Upon receipt, it must be executed by an authorized person and then returned with the Goods. Goods returned to Seller without a RMA will be returned at Buyer’s expense.
14c. Goods are to be returned to Seller at 124 Rose Lane Ste 602, Frisco, TX 75036 with Freight Prepaid. Seller will not accept collect shipments.
14d. Restocking fees will be assessed in accordance with the following schedules: (i) Goods returned within the first fifteen (15) days from shipment date will be restocked less twenty percent (20%) of the amount billed on the original invoice. (ii) Goods returned over fifteen (15) days of shipment but less than thirty (30) days will be restocked less thirty percent (30%) of the amount billed on the original invoice. (iii) No returns are allowed after thirty (30) days from the original shipping date.
14e. The restocking fees set forth above are the minimum fees. If a returned Good requires rework to restore it to a saleable condition, further charges will be assessed. Seller’s quality assurance department will document the condition of the Goods when received by Seller and report their findings to Buyer.(e) Notwithstanding the foregoing provisions of this Section 14, the following Goods cannot be returned, are not eligible for any credit and cannot be restocked: (i) custom or modified Goods and (ii) any expendable product(s) that have been used.
15. COMPLIANCE WITH LAW AND INDEMNIFICATION
15a. Compliance with Laws: Buyer shall fully comply with all applicable federal, state, local, and international laws, regulations, and ordinances, including but not limited to those governing the purchase, possession, use, resale, distribution, modification, import, export, transportation, installation, and disposal of the Goods and Services under this Agreement. Buyer shall maintain all required licenses, permits, approvals, authorizations, and consents, and shall provide Seller with evidence of such compliance upon request. Buyer shall strictly comply with all applicable export and import laws, economic sanctions, trade regulations, and environmental restrictions, including but not limited to the U.S. Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), Office of Foreign Assets Control (OFAC), and any analogous foreign laws. Buyer represents and warrants that neither it, nor any of its affiliates, agents, representatives, customers, end-users, or distributors appear on any government-sanctioned denied parties or restricted entity lists, including but not limited to the U.S. Department of Commerce Entity List, OFAC Specially Designated Nationals (SDN) List, or any other embargoed party list. Buyer shall indemnify, defend, and hold Seller harmless against any and all liabilities, penalties, fines, regulatory actions, legal proceedings, enforcement actions, and claims arising from Buyer’s noncompliance with such laws, including all associated legal fees, damages, settlements, and costs incurred by Seller.
If any governmental authority imposes trade restrictions, export bans, sanctions, antidumping duties, or any penalties on the Goods, Seller reserves the immediate right to terminate this Agreement without notice or liability, and Buyer shall bear all resulting costs, including but not limited to cancellation fees, restocking fees, regulatory compliance expenses, and Seller’s damages from nonperformance. Buyer shall ensure that all third-party resellers, distributors, or end-users comply with these same regulatory obligations, and shall remain fully responsible for any violations by its affiliates, employees, agents, or subcontractors.
15b. Indemnification and Defense: Buyer shall fully indemnify, defend, and hold harmless Seller, its affiliates, officers, directors, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AND ANY THIRD PARTIES ACTING ON SELLER’S BEHALF (COLLECTIVELY, THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LAWSUITS, LIABILITIES, DAMAGES, SETTLEMENTS, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES, EXPERT WITNESS FEES, INVESTIGATION COSTS, AND COURT COSTS) (“LOSSES”) ARISING OUT OF OR RELATING TO BUYER’S PURCHASE, OWNERSHIP, POSSESSION, HANDLING, USE, MISUSE, INSTALLATION, TESTING, OPERATION, MAINTENANCE, TRANSPORTATION, STORAGE, RESALE, DISTRIBUTION, LEASING, RENTAL, SERVICING, MODIFICATION, DISASSEMBLY, REASSEMBLY, ALTERATION, DISPOSAL, OR ANY OTHER INTERACTION WITH THE GOODS, REGARDLESS OF WHETHER SUCH CLAIMS ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, FRAUD, MISREPRESENTATION, CONSUMER PROTECTION VIOLATIONS, REGULATORY ENFORCEMENT, ENVIRONMENTAL VIOLATIONS, PRODUCT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
BUYER’S INDEMNIFICATION OBLIGATIONS SHALL EXTEND TO BUT ARE NOT LIMITED TO CLAIMS INVOLVING BODILY INJURY, DEATH, PROPERTY DAMAGE, PRODUCT LIABILITY, ECONOMIC LOSS, REPUTATIONAL HARM, LOST PROFITS, BUSINESS INTERRUPTION, CONSEQUENTIAL DAMAGES, ENVIRONMENTAL CONTAMINATION, REGULATORY PENALTIES, AND TRADE SANCTIONS ALLEGEDLY CAUSED BY THE GOODS, WHETHER DIRECTLY, INDIRECTLY, FORESEEABLY, OR UNFORESEEABLY. BUYER SHALL ALSO INDEMNIFY SELLER FOR ANY FAILURE TO PROVIDE ADEQUATE SAFETY WARNINGS, INSTRUCTIONS, MANUALS, TRAINING MATERIALS, OR REGULATORY DISCLOSURES IN CONNECTION WITH THE GOODS, AS WELL AS ANY CLAIM ARISING FROM BUYER’S FAILURE TO COMPLY WITH FEDERAL, STATE, LOCAL, OR INTERNATIONAL LAWS, INDUSTRY STANDARDS, HAZARDOUS MATERIAL RESTRICTIONS, CONSUMER SAFETY MANDATES, OR REGULATORY PROTECTIONS.
BUYER SHALL INDEMNIFY SELLER AGAINST ANY CLAIMS ARISING FROM UNAUTHORIZED MODIFICATIONS, INTEGRATIONS, COMBINATIONS, OR USE OF THE GOODS WITH ANY THIRD-PARTY PRODUCTS, SYSTEMS, SOFTWARE, OR COMPONENTS NOT EXPRESSLY APPROVED IN WRITING BY SELLER. ADDITIONALLY, BUYER SHALL INDEMNIFY SELLER AGAINST ANY AND ALL INTELLECTUAL PROPERTY CLAIMS, INCLUDING BUT NOT LIMITED TO PATENT, TRADEMARK, COPYRIGHT, TRADE SECRET INFRINGEMENT, OR MISAPPROPRIATION CLAIMS ARISING FROM BUYER’S REVERSE ENGINEERING, DECONSTRUCTION, REPLICATION, UNAUTHORIZED REPRODUCTION, OR MISAPPROPRIATION OF SELLER’S PROPRIETARY TECHNOLOGY, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY.
THIS INDEMNIFICATION OBLIGATION SHALL APPLY WITHOUT REGARD TO FAULT, NEGLIGENCE, STRICT LIABILITY, COMPARATIVE NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, ASSUMPTION OF RISK, OR ANY OTHER LEGAL DEFENSE BUYER MAY ASSERT. BUYER WAIVES ANY RIGHT TO SEEK CONTRIBUTION, INDEMNIFICATION, SUBROGATION, REIMBURSEMENT, OR ANY LIMITATION OF LIABILITY IN CONNECTION WITH ANY CLAIM COVERED UNDER THIS PROVISION.
15c. Duty to Defend and No Settlement Without Seller’s Consent: Upon written notice from Seller, Buyer shall immediately assume full responsibility for defending any claim, lawsuit, or legal action under this indemnification clause using experienced and qualified legal counsel approved by Seller. Buyer shall be fully responsible for all litigation costs, defense expenses, settlements, judgments, and related damages, and Buyer shall not enter into any settlement, consent judgment, or agreement that imposes any obligation, liability, admission of wrongdoing, or injunctive relief on Seller without Seller’s express written approval, which may be withheld in Seller’s sole discretion.
If Buyer fails to assume the defense within seven (7) days of written notice, Seller shall have the right to undertake its own defense at Buyer’s sole expense, and Buyer shall fully reimburse Seller for all attorneys’ fees, litigation costs, and any settlements or judgments paid. This indemnification shall survive termination, transfer, disposal, bankruptcy, or dissolution and shall remain fully enforceable against Buyer and its successors, assigns, or legal representatives.
15d. Liquidated Damaged: Buyer acknowledges that any breach of its indemnification, compliance, or defense obligations will result in immediate, irreparable harm to Seller for which monetary damages alone are inadequate. Therefore, in addition to Seller’s full indemnification rights, Buyer agrees to pay liquidated damages in an amount equal to two times the total value of the Goods at issue, or $100,000 per occurrence, whichever is greater. Buyer expressly waives any argument that such damages are a penalty, and agrees that they represent a reasonable estimate of anticipated losses. Seller’s right to liquidated damages is cumulative and does not limit its ability to seek actual damages, injunctive relief, specific performance, or any other available remedy under law or equity.
15e. Specific Performance & Equitable Relief: Buyer expressly acknowledges that any breach of this Agreement, including but not limited to unauthorized use, modification, resale, failure to indemnify, or failure to defend, will result in immediate and irreparable harm to Seller, for which monetary damages alone are inadequate. Therefore, in addition to all other available remedies, Seller shall be entitled to seek and obtain injunctive relief, specific performance, temporary restraining orders, preliminary injunctions, and permanent injunctions without the necessity of proving actual damages or posting bond. Buyer waives any defense that monetary damages would be sufficient and agrees that specific performance is an appropriate and necessary remedy. Seller shall have the right to enforce this provision in any jurisdiction, without regard to conflict-of-law principles.
16. TERMINATION
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
17. WAIVER
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 18. This Section 18 does not apply to information that is: (a) in the public domain through no fault of Buyer; (b) known to Buyer at the time of disclosure without restriction as evidenced by its records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
19. FORCE MAJEURE
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, 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, lock-outs, 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 (each a “Force Majeure Event”), provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
20. ASSIGNMENT AND DELEGATION
Buyer shall not assign, transfer, or delegate any of its rights, duties, or obligations under this Agreement, whether voluntarily, involuntarily, by operation of law, merger, change of control, or otherwise, without the prior written consent of Seller, which may be withheld at Seller’s sole and absolute discretion. Any attempted assignment, transfer, or delegation without such consent, or in violation of this Section 20, shall be deemed null, void, and of no legal effect, and will constitute a material breach of this Agreement. Seller reserves the right to terminate this Agreement immediately upon such a breach.
Further, no assignment or delegation, regardless of Seller’s consent, shall relieve Buyer of any obligations, duties, or liabilities under this Agreement, and Buyer shall remain fully liable for all performance and compliance hereunder. Any assignment or delegation, even if consented to by Seller, shall not create any rights or benefits in any third party without Seller’s explicit written agreement.
21. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. NO THIRD-PARTY BENEFICIARIES
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
23. GOVERNING LAW
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas.
24. DISPUTE RESOLUTION
24a. Definitions & Scope
FOR PURPOSES OF THIS SECTION 24 (DISPUTE RESOLUTION), “ESTES PERFORMANCE CONCAVES” SHALL INCLUDE ITS SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES, PREDECESSORS IN INTEREST, SUCCESSORS, AND ASSIGNS. THIS SECTION APPLIES TO ANY AND ALL DISPUTES, CLAIMS, CONTROVERSIES, AND CAUSES OF ACTION (COLLECTIVELY, “DISPUTE”) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS REGARDING THE GOODS, WARRANTIES, PERFORMANCE, REPRESENTATIONS, CONTRACTS, ADVERTISING, TRANSACTIONS, OR ANY RELATIONSHIP BETWEEN BUYER AND SELLER, WHETHER BASED IN CONTRACT, TORT, STATUTE, MISREPRESENTATION, FRAUD, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THIS PROVISION APPLIES TO ALL PAST, PRESENT, AND FUTURE CLAIMS, WHETHER KNOWN OR UNKNOWN, INCLUDING THOSE ARISING FROM PRIOR AGREEMENTS BETWEEN THE PARTIES, INTERACTIONS WITH THIRD-PARTY DISTRIBUTORS, AND REGULATORY OR ADMINISTRATIVE COMPLAINTS.
TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT TO MAINTAIN A LAWSUIT IN COURT, DEMAND A JURY TRIAL, PARTICIPATE IN CLASS OR COLLECTIVE ACTIONS, ENGAGE IN FULL DISCOVERY EXCEPT AS PERMITTED UNDER ARBITRATION RULES, SEEK INJUNCTIVE OR DECLARATORY RELIEF OUTSIDE OF ARBITRATION, OR ASSERT PUBLIC INJUNCTIVE RELIEF. BUYER FURTHER WAIVES ANY RIGHT TO APPEAL OR CONTEST THE ENFORCEABILITY OF THIS ARBITRATION PROVISION EXCEPT AS REQUIRED BY LAW. ANY ATTEMPT TO CIRCUMVENT THESE WAIVERS SHALL RESULT IN IMMEDIATE DISMISSAL OF THE CLAIM AND FULL REIMBURSEMENT OF ESTES PERFORMANCE CONCAVES’ LEGAL COSTS.
24b. Mandatory Informal Resolution & Mediation Requirement
Before initiating arbitration, the parties must first attempt to resolve the Dispute through informal negotiations. The complaining party must provide the other party with a written notice that includes the name and contact information of the initiating party, sufficient details to identify the transaction at issue, a description of the Dispute, and a clear calculation of the relief sought. The notice must be sent to legal@estesperformanceconcaves.com or by mail to Estes Performance Concaves, Attn: General Counsel, 11816 Inwood Rd #1024, Dallas, TX 75244.
Within 60 days of receiving the notice, the parties must attempt to resolve the dispute through informal discussions. If informal discussions do not resolve the Dispute, the parties must engage in mediation before proceeding to arbitration. Mediation shall be conducted through the American Arbitration Association (AAA) or another mutually agreed mediator, in good faith. Each party shall bear its own costs of mediation, and the complaining party must pay a non-refundable mediation fee of $500 to initiate proceedings. Mediation shall be limited to a single session lasting no more than one day unless both parties agree otherwise. If mediation fails to resolve the Dispute within 30 days, either party may proceed to arbitration as described below. The statute of limitations and any filing fee deadlines shall be tolled during the mediation process. Failure to complete mediation bars any subsequent arbitration or litigation unless the parties waive the requirement in writing.
24c. Mandatory Arbitration Agreement & Waiver of Jury Trial
If mediation fails, all Disputes shall be resolved exclusively through final, binding arbitration, rather than in court, subject to the limited exceptions below. This arbitration requirement is governed by the Federal Arbitration Act (FAA) and shall apply to all past, present, and future Disputes, regardless of when the underlying facts arose.
The sole exceptions to mandatory arbitration are Small Claims Court, where either party may bring an individual claim if it qualifies and remains on an individual basis, and Injunctive Relief for Contract Breach or Intellectual Property Misuse. Estes Performance Concaves may seek injunctive relief in court to prevent unauthorized use or infringement of intellectual property rights, enforce confidentiality agreements or non-disparagement clauses, prevent material breaches of this Agreement that would cause irreparable harm, or stop unauthorized modifications, reproductions, or resale of proprietary Goods. Except for these exceptions, the parties expressly waive their right to sue in court, pursue class or collective claims, and demand a jury trial. If a claim proceeds in court rather than arbitration for any reason, both parties waive the right to a jury trial.
Buyer waives any and all rights to challenge, contest, or appeal the enforceability of this arbitration provision on any grounds, including but not limited to procedural fairness, unconscionability, contract of adhesion, or public policy concerns. Any attempt to circumvent this Agreement, including filing or joining any action seeking declaratory relief, shall result in immediate dismissal of the claim, full reimbursement of Seller’s legal costs, and liquidated damages as specified in Section 24h.
24d. Arbitration Rules & Procedures
Arbitration shall take place in Dallas, Texas, unless both parties agree otherwise. Estes Performance Concaves may elect whether arbitration occurs in person or remotely. The arbitrator must be a retired judge or an attorney with at least 10 years of experience handling commercial disputes. Depositions and document requests are strictly limited unless the arbitrator finds them necessary. The arbitrator must issue a written decision explaining their findings. The award is final, binding, and enforceable in any court of competent jurisdiction. All arbitration proceedings must remain confidential unless required by law.
The arbitrator shall have no authority to grant declaratory or injunctive relief that affects Estes Performance Concaves’ business operations, product offerings, or policies. Relief is limited strictly to monetary damages.
Discovery in arbitration shall be strictly limited. No depositions, interrogatories, requests for admission, document production, or other discovery procedures shall be permitted, except upon a showing of extraordinary necessity as determined solely by the arbitrator. The arbitrator shall have no authority to compel disclosure beyond the scope of what is necessary to resolve the individual dispute.
The arbitrator’s decision shall be final, binding, and non-appealable. Buyer waives any right to seek judicial review, reconsideration, modification, or delay of enforcement of the arbitration award. If Buyer fails to comply with the arbitrator’s award within thirty (30) days, Seller shall be entitled to immediate court enforcement, including all attorneys’ fees and costs incurred in securing compliance.
24e. Prohibition on Class Actions & Public Injunctive Relief
All Disputes must be arbitrated on an individual basis. No arbitration may be consolidated with another claim, and class, collective, or representative actions are strictly prohibited. The arbitrator may only adjudicate individual disputes and lacks authority to issue relief that affects non-parties. Any attempt to seek public injunctive relief must be pursued in arbitration—not in court. If a court finds this class action waiver unenforceable, the Dispute must be litigated in court and not arbitrated.
24f. Compliance with Laws & Indemnification
BUYER SHALL FULLY COMPLY WITH ALL APPLICABLE FEDERAL, STATE, LOCAL, AND INTERNATIONAL LAWS, REGULATIONS, AND TRADE RESTRICTIONS RELATED TO THE PURCHASE, POSSESSION, USE, RESALE, DISTRIBUTION, MODIFICATION, INSTALLATION, TRANSPORTATION, AND DISPOSAL OF THE GOODS. BUYER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER AND ITS AFFILIATES FROM ANY CLAIMS, PENALTIES, LIABILITIES, OR ENFORCEMENT ACTIONS ARISING FROM BUYER’S NONCOMPLIANCE WITH SUCH LAWS, INCLUDING BUT NOT LIMITED TO REGULATORY FINES, HAZARDOUS MATERIAL VIOLATIONS, TRADE SANCTIONS, AND THIRD-PARTY CLAIMS.
BUYER SHALL ALSO FULLY INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER, INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, INSURERS, AND THIRD-PARTY SERVICE PROVIDERS (COLLECTIVELY, “INDEMNIFIED PARTIES”), AGAINST ANY AND ALL CLAIMS, DEMANDS, LAWSUITS, DAMAGES, SETTLEMENTS, FINES, PENALTIES, COSTS, AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES, ARISING FROM: (I) BUYER’S PURCHASE, OWNERSHIP, POSSESSION, USE, RESALE, DISTRIBUTION, LEASING, MODIFICATION, INSTALLATION, SERVICING, OR DISPOSAL OF THE GOODS; (II) BUYER’S FAILURE TO COMPLY WITH ANY APPLICABLE LAWS, INCLUDING THOSE GOVERNING HAZARDOUS MATERIALS, TRADE SANCTIONS, EXPORT CONTROLS, CONSUMER SAFETY, AND ENVIRONMENTAL REGULATIONS; (III) BUYER’S BREACH OF CONTRACT, FRAUD, MISREPRESENTATION, OR WARRANTY CLAIMS RELATED TO THE GOODS; (IV) BUYER’S UNAUTHORIZED REVERSE ENGINEERING, REPRODUCTION, REPLICATION, OR MISAPPROPRIATION OF SELLER’S PROPRIETARY TECHNOLOGY OR INTELLECTUAL PROPERTY; OR (V) ANY ACT OR OMISSION BY BUYER THAT RESULTS IN REPUTATIONAL HARM, BUSINESS INTERRUPTION, OR LOSS OF PROFITS FOR SELLER. BUYER EXPRESSLY WAIVES ANY RIGHT TO SEEK INDEMNIFICATION, CONTRIBUTION, SUBROGATION, OR REIMBURSEMENT FROM SELLER FOR ANY CLAIMS, DAMAGES, OR LEGAL LIABILITIES ARISING UNDER THIS PROVISION. BUYER ACKNOWLEDGES THAT THIS INDEMNIFICATION OBLIGATION IS ABSOLUTE, UNCONDITIONAL, AND NOT SUBJECT TO ANY LIMITATION OF LIABILITY DEFENSES.
PROHIBITION ON COUNTERCLAIMS, THIRD-PARTY ACTIONS & DEFENSE WAIVERS
BUYER SHALL NOT ASSERT, FILE, OR JOIN ANY COUNTERCLAIMS, CROSS-CLAIMS, THIRD-PARTY CLAIMS, IMPLEADER ACTIONS, OR CLAIMS FOR CONTRIBUTION, INDEMNITY, OR SETOFF AGAINST SELLER IN ANY LITIGATION INITIATED BY A THIRD PARTY. ANY ATTEMPT TO DO SO SHALL CONSTITUTE AN INDEPENDENT AND MATERIAL BREACH OF THIS AGREEMENT, ENTITLING SELLER TO: (I) IMMEDIATE DISMISSAL OF SUCH CLAIMS WITH PREJUDICE; (II) LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO THREE TIMES THE TOTAL CONTRACT VALUE OR $250,000 PER OCCURRENCE, WHICHEVER IS GREATER; AND (III) FULL REIMBURSEMENT OF ALL ATTORNEYS’ FEES, LITIGATION COSTS, AND RELATED EXPENSES INCURRED BY SELLER.
BUYER EXPRESSLY WAIVES ALL DEFENSES, INCLUDING BUT NOT LIMITED TO: NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, COMPARATIVE FAULT, OR ANY SIMILAR ARGUMENT; ASSUMPTION OF RISK; FAILURE TO MITIGATE DAMAGES; FAILURE OF CONSIDERATION; UNCONSCIONABILITY, CONTRACT OF ADHESION, OR PUBLIC POLICY CHALLENGES; AND ANY ARGUMENT THAT INDEMNIFICATION OR LIABILITY SHOULD BE REDUCED, APPORTIONED, OR DEEMED UNENFORCEABLE.
SELLER’S EXCLUSIVE RIGHT TO INDEMNIFICATION ENFORCEMENT
SELLER RESERVES SOLE DISCRETION IN DETERMINING WHETHER, WHEN, AND HOW TO ENFORCE ANY INDEMNIFICATION RIGHTS UNDER THIS AGREEMENT. BUYER SHALL NOT CHALLENGE, DELAY, CONTEST, OR INTERFERE WITH SELLER’S RIGHT TO ENFORCE INDEMNIFICATION UNDER ANY CIRCUMSTANCES. SELLER MAY PURSUE ANY LEGAL OR EQUITABLE REMEDY NECESSARY TO ENFORCE ITS INDEMNIFICATION RIGHTS, INCLUDING BUT NOT LIMITED TO INJUNCTIVE RELIEF, ATTACHMENT OF ASSETS, OR IMMEDIATE REIMBURSEMENT OF INCURRED LEGAL COSTS.
THESE INDEMNIFICATION AND DEFENSE OBLIGATIONS SHALL SURVIVE TERMINATION, EXPIRATION, DISSOLUTION, BANKRUPTCY, INSOLVENCY, ASSIGNMENT, OR TRANSFER OF THIS AGREEMENT AND SHALL REMAIN BINDING UPON BUYER’S SUCCESSORS, ASSIGNS, AND LEGAL REPRESENTATIVES. BUYER EXPRESSLY WAIVES ANY RIGHT TO SEEK APPORTIONMENT, REDUCTION, OR OFFSET OF LIABILITY IN ANY FORM. SELLER HAS SOLE DISCRETION TO ENFORCE INDEMNIFICATION, AND BUYER SHALL NOT CHALLENGE, DELAY, OR CONTEST SUCH ENFORCEMENT UNDER ANY CIRCUMSTANCES.
24g. Special Procedures for Mass Arbitration
If 25 or more similar claims are filed against Estes Performance Concaves by the same or coordinated counsel, claims shall be batched in groups of 10 for arbitration. No additional arbitrations may be filed until 75% of prior cases have been fully resolved and all arbitration awards satisfied. No more than 10 arbitrations may proceed simultaneously in any calendar year. Seller may, at its sole discretion, delay, suspend, or bar further arbitrations if mass claims are deemed abusive, duplicative, financially coercive, or filed in bad faith.
Any attempt to circumvent these limitations shall result in immediate dismissal of excess claims, with Buyer responsible for all attorneys’ fees and arbitration costs incurred by Seller in enforcing this provision. If Seller determines that a coordinated mass arbitration attempt is abusive or financially coercive, it reserves the right to seek injunctive relief barring further arbitrations or requiring court intervention to enforce these limitations.
24h. Liquidated Damages & Specific Performance
Buyer acknowledges that any breach of this Agreement, including but not limited to unauthorized use, resale, modification, failure to indemnify, or disclosure of confidential arbitration proceedings, will cause irreparable harm to Seller.Accordingly, Seller shall be entitled to liquidated damages in an amount equal to three times the total contract value or $250,000 per occurrence, whichever is greater. These liquidated damages serve as a minimum agreed-upon recovery and shall not preclude Seller from pursuing additional remedies if actual damages exceed the liquidated amount. Buyer expressly waives any argument that such damages constitute a penalty, acknowledging that they represent a reasonable estimate of Seller’s anticipated losses.
In addition to liquidated damages, Seller may seek immediate equitable relief, including but not limited to temporary restraining orders, preliminary injunctions, and permanent injunctions, without the necessity of proving actual damages or posting bond. Buyer waives any defense that monetary damages alone would be sufficient and acknowledges that Seller shall have the right to enforce this provision in any jurisdiction, regardless of conflict-of-law principles.
24i. Governing Law & Venue
All disputes, including those filed in court due to an exception to arbitration, shall be governed exclusively by Texas law. Buyer waives any objection to jurisdiction, forum, or venue outside of Dallas, Texas. Buyer expressly waives any right to challenge venue, seek transfer of venue, or assert any forum non conveniens argument. Under no circumstances shall Seller be liable for any indirect, consequential, special, incidental, punitive, or exemplary damages, including but not limited to lost profits, reputational harm, business interruption, regulatory fines, legal expenses, or claims from third parties. Buyer expressly waives any claim for such damages, whether based in contract, tort, strict liability, or any other legal or equitable theory.
This limitation shall survive termination, assignment, or expiration of this Agreement. Buyer’s obligations under Sections 24c (Mandatory Arbitration), 24f (Indemnification & Compliance), and 24h (Liquidated Damages & Specific Performance) shall survive termination, expiration, dissolution, bankruptcy, insolvency, or assignment of this Agreement. Buyer’s obligations shall remain binding upon Buyer’s successors, assigns, or legal representatives.
24j. Confidentiality of Arbitration
All arbitration proceedings, filings, awards, and outcomes shall remain strictly confidential. Buyer shall not disclose the existence, nature, claims, filings, proceedings, settlements, or results of any arbitration. Any unauthorized disclosure, including but not limited to statements made to the press, industry competitors, trade associations, regulatory bodies, online forums, social media, customers, or affiliates, shall constitute an independent and material breach of this Agreement.
In the event of unauthorized disclosure, Seller shall be entitled to immediate injunctive relief, liquidated damages in an amount equal to three times the total contract value or $250,000 per occurrence, whichever is greater, and full reimbursement of all attorneys’ fees and legal costs. Buyer expressly waives any defense that public disclosure was legally required, accidental, or made in good faith.
24k. Reimbursement of Legal Fees
If Seller is required to defend or enforce any provision of this Agreement in arbitration, litigation, or other proceedings, Buyer shall reimburse Seller for all attorneys’ fees, arbitration costs, expert witness fees, and other legal expenses incurred. Buyer expressly waives any argument that attorneys’ fees should be apportioned, reduced, or limited based on the outcome of the dispute.
24l. Future Changes to Dispute Resolution Section: Notwithstanding any provision to the contrary, we agree that if Estes Performance Concaves makes any future changes to this Dispute Resolution section (other than a change to the mailing or email address), you may reject any such change by sending us written notice personally signed by you within thirty (30) days of the change to the address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Dispute Resolution section.
25. NOTICES
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Acknowledgement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, upon confirmation of delivery by nationally recognized overnight courier or upon forty-eight (48) hours after being sent by certified or registered mail (as applicable), and (b) if the party giving the Notice has complied with the requirements of this Section 25.
26. SEVERABILITY
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. SURVIVAL
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Dispute Resolution, Survival, and the restrictions in Section 10.
28. DEFINITIONS
For the purposes of this Agreement, the following definitions shall apply:
“Agreement” means these Terms, together with the Sales Quotation and/or Acknowledgment, and any exhibits, schedules, addenda, or other agreements incorporated by reference.
“Acknowledgment” means Seller’s written confirmation of Buyer’s order, including an invoice or sales order acknowledgment.
“Buyer” means the person or entity purchasing Goods from Seller as identified in the Sales Quotation and/or Acknowledgment.
“Confidential Information” means all non-public, proprietary, or sensitive information disclosed by Seller to Buyer, including but not limited to specifications, pricing, business operations, technical data, and trade secrets.
“Force Majeure Event” means any event beyond the reasonable control of Seller, including but not limited to acts of God, war, terrorism, riots, labor strikes, government orders, supply shortages, and natural disasters.
“Goods” means any and all products, parts, components, accessories, and any related services sold by Seller to Buyer under this Agreement.
“Incoterms” refers to the International Commercial Terms published by the International Chamber of Commerce (ICC), which define responsibilities of buyers and sellers for delivery of goods.
“Intellectual Property” means all patents, trademarks, copyrights, trade secrets, inventions, designs, know-how, and proprietary information owned or licensed by Seller related to the Goods.
“Nonconforming Goods” means Goods that do not materially conform to the description in the Acknowledgment or that contain a defect in materials or workmanship as determined by Seller.
“Price” means the purchase price set forth by Seller for the Goods at the time of sale.
“Sales Quotation” means Seller’s written offer to sell Goods to Buyer, which may include pricing, specifications, and applicable terms.
“Seller” means ESTES PERFORMANCE CONCAVES, including its subsidiaries, affiliates, officers, employees, agents, and representatives.
“Shipping Point” means Seller’s designated facility in Texas, USA, or another specified location where Goods are made available for Buyer’s pickup or shipment.
“Terms” means these Terms & Conditions for the Sale of Goods, including any updates or amendments made by Seller.
“Third Party Product” means any product, software, or service not manufactured by Seller that may be included with or used in conjunction with the Goods.
“Warranty Period” means the period during which Seller warrants that Goods will be free from material defects in materials and workmanship under normal use, as specified in Section 12.