Terms & Conditions

These Terms and Conditions are incorporated into, and made part of, the sales order or sales order acknowledgement (the “Sales Order”) issued by Axxiom Manufacturing, Inc. dba “Schmidt” and any of its subsidiaries or affiliates, including, but not limited to Schmidt Abrasive Blasting, Inc. (“Axxiom”) upon receipt of a purchase order. The Sales Order is an offer to sell certain product (“Products”) and/or services (“Services”) as set forth therein subject solely to these Terms and Conditions (these “Terms and Conditions”). The Sales Order, any Sales Order Acknowledgment, together with these Terms and Conditions shall be collectively referred to herein as the “Agreement.” 

 

1. Entire Agreement; Amendments. The parties agree that the Sales Order, together with these Terms and Conditions, including all specifications, drawings, data, and other documents attached thereto and incorporated therein by reference, constitutes the entire and complete agreement between Axxiom and Buyer, and supersedes any prior or contemporaneous communications, representations, promises, or negotiations of the same subject No modification of the Agreement shall be binding upon Axxiom unless in writing and signed by Axxiom’s authorized representatives. The Agreement will remain in effect until terminated by Axxiom (“Term“). Axxiom may update these Terms and Conditions from time to time.

 

2. Acceptance of Agreement; Price.

• 2.1 Axxiom shall not be bound to proceed with a Sales Order until Axxiom has agreed to the Sales Order (after any corrections) and issues Buyer the Sales Order A Buyer shall be bound by and accepts the terms of this Agreement upon receipt of a Sales Order or receives the Sales Order Acknowledgement, or Axxiom begins to acquire materials, design, or produce any of the Products or renders any of the Services. This Agreement expressly limits acceptance to the terms and conditions stated herein. Any additional or different terms proposed by the Buyer are rejected unless expressly agreed to in writing by an authorized representative of Axxiom. Any reference to a quotation, bid or proposal or any similar document or instrument will not be deemed acceptance of any term, condition, or instruction contained in such documents. No agreement shall exist except as provided herein.
• 2.2 Axxiom will furnish the Products and Services at the prices stated in the Sales Order and or Sales Order Acknowledgement. All prices are in U.S. dollars. Prices and design of Products are subject to change without notice.
• 2.3 In the event of any conflict between these Terms and Conditions and the Sales Order or the Sales Order Acknowledgment, these Terms and Conditions shall These Terms and Conditions shall also otherwise control over any conflicting terms in any other contract documents forming part of the Agreement. The Agreement may not be modified except in a writing signed by an authorized procurement representative of Axxiom.
• 2.4 Unless otherwise specified in the Sales Order, Sales Order Acknowledgement or invoice, the prices set forth in the Sales Order, Sales Order Acknowledgement or invoice do not include federal, state, and local taxes, customs, or duties.
• 2.5
• 2.5A     Buyer acknowledges and agrees that Axxiom incurs substantial time and expense once a Sales Order has been agreed as set forth herein. Buyer has no right to modify, cancel, terminate, or delay a Sales Order without Axxiom’s express prior written consent, which may be withheld in Axxiom’s sole discretion. For standard or stock (non special-order) Products, any returns are governed by the Merchandise Return Policy set forth in Section 8.5.
• 2.5B     For custom orders and other special-order Products (including Products requiring custom design, engineering, fabrication, or other non-standard work), Buyer acknowledges and agrees that such custom/special-order work is undertaken specifically for Buyer and has no alternative use to Axxiom. Axxiom shall have an enforceable right to payment for performance completed to date, including a reasonable profit margin, at all times during performance, regardless of whether Buyer cancels, terminates, repudiates, or otherwise breaches the Sales Order. Buyer may not cancel or terminate a Sales Order for custom/special-order Products, or otherwise delay or prevent Axxiom from completing performance, without Axxiom’s express prior written consent. If Buyer cancels , or otherwise prevents Axxiom from completing performance (for any reason other than Axxiom’s uncured material breach), whether or not Axxiom consents, Buyer shall pay Axxiom for all performance completed to date, including without limitation all engineering and design work, labor, overhead, work in process, raw materials, supplies, and other commitments made by Axxiom in connection with the Sales Order, plus a reasonable profit margin. Any amounts recoverable through commercially reasonable mitigation (including standard components reuse or scrap value), shall reduce such payment, and the net amount be immediately due and payable upon invoice.
• 2.6 Buyer’s acceptance of any part of the Products or Services covered hereunder shall be deemed to constitute acceptance of these Terms and Conditions.

3. Changes Buyer may request changes to any of the following: (a) specifications, drawings, and data for items manufactured to specifications provided by Buyer or which are otherwise specially designed for Buyer; (b) methods of shipment or packing; (c) place, time or manner of delivery; and (d) quantities (“Change Order Request”). If such changes in the Change Order Request are agreeable to Axxiom, in its sole and absolute discretion, then Axxiom shall notify Buyer of any anticipated increase or decrease in the cost of or the time required for performance, and required adjustment to the Sales Order, including any costs for time or materials incurred prior to the changes (the “Change Order Adjustment”). Axxiom shall deliver the Change Order Adjustment in writing to Buyer within a reasonable time, as determined by Axxiom, in its sole and absolute discretion. Buyer shall have three (3) business days to accept or reject the Change Order Adjustments in writing.  The Change Order Adjustment must be approved in writing by Buyer prior to Axxiom proceeding with such change; otherwise, the pricing, delivery schedule (reasonably extended in Axxiom’s sole and absolute discretion for any delays caused by the Change Order Request) and other details in the Sales Order shall remain the same.  Axxiom shall not be required to perform under the Sales Order pending resolution of a Change Order Request.

 

4. Delivery, Shipment and Packaging.

• 4.1 Axxiom shall make reasonable efforts to deliver Products to the carrier by the anticipated shipping date(s) specified on the Sales Order, if applicable. All orders are accepted with Buyer’s express understanding that Axxiom shall not be liable for any loss or damages resulting from any delays in shipment or delivery. Buyer shall be liable for excess transportation charges, delays or claims resulting from Buyer’s shipping
• 4.2 All items will be packaged in accordance with good commercial practice in a manner sufficient to ensure receipt in an undamaged condition. Axxiom shall not be liable for any discharge, spill, or other environmental incident (including clean-up costs) involving any Products shipped under the Sales Order

5. Shipping Terms, Title and Risk of Loss.

• 5.1 Unless otherwise specified on the face of the Sales Order or in a separate written agreement, all Products are shipped F.O.B. Axxiom’s facility, Fresno, Texas, title and risk of loss passes to Buyer upon delivery of the Products to the carrier.
• 5.2 Buyer assumes all responsibility and liability for any shipments covered by the Sales Order requiring any government import clearance. Buyer is responsible for the payment of any and all amounts related to government duties or tariffs on the Products imported under the Sales Order.

6.  Invoicing and Payment. Axxiom will submit to Buyer an invoice listing a description of the Products and Services provided and the applicable Sales Order(s).  Buyer shall pay Axxiom the purchase price set forth in the invoice. For custom orders and other special-order (non-standard) Products and related Services, Axxiom may invoice for work performed and/or costs incurred prior to shipment, including progress or milestone billings.  Unless otherwise specified in the Sales Order Acknowledgement, payment terms are net 30 days from date of shipment. Buyer has no right of set off or similar rights.  Past due accounts (invoices unpaid over agreed upon terms) to being placed in cash in advance terms for all future orders. 

 

7. Force Majeure. Neither party shall be liable for delays or defaults due to causes solely beyond its control (or its subcontractor’s control) and without its fault or negligence (or its subcontractor’s control), including but not limited to fires, floods, and Acts of God, provided however, that as soon as Axxiom has reason to believe that Products or Services will not be delivered when scheduled, written notice setting forth the cause of the anticipated delay must be given reasonably promptly to Buyer. The party affected by an excusable delay will use its commercially reasonable efforts to remedy the delay if it is capable of being remedied. If Buyer’s delivery is delayed, Axxiom may, at Axxiom’s sole option, cancel deliveries that had been scheduled during the excusable delay period or elect to extend the period of performance commensurate with the period of delay caused by the excusable delay. If an excusable delay occurs that affects delivery of Products, Axxiom may allocate its available supply of Products in a manner that assures reasonable allocation of total output of Products prior to the excusable delay event. If delivery of any Products is delayed for more than 90 days due to such force majeure event of Axxiom (or its subcontractor), either party may, without liability, cancel all or any part of the Agreement or Sales Order.

 

8. Warranties; Inspection; Merchandise Return Policy.

• 8.1 Axxiom hereby warrants to Buyer, that at the time of shipment: all Products furnished hereunder (including all replacement or corrected Products or components which Buyer furnishes pursuant to this warranty) shall be free of defects in materials or workmanship for a period of 90 days of the date sold (the “Warranty Period”). AXXIOM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR PARTICULAR PURPOSE.  AXXIOM FURTHER DISCLAIMS ALL WARRANTIES OF ANY PRODUCTS WHICH ARE MODIFIED, MAINTAINED OR USED IMPROPERLY, OPERATED OUTSIDE OF DESIGN SPECIFICATION OR REPAIRED BY ANYONE OTHER THAN AXXIOM.  ALL PRODUCTS ARE MANUFACTURED IN COMPLIANCE WITH ASME AND OSHA STANDARDS. AXXIOM MAKES NO REPRESENTATION AS TO PRODUCT COMPLIANCE WITH ANY OTHER STANDARDS, REGULATIONS, LAWS OR OTHERWISE. IT IS THE RESPONSIBILITY OF THE OWNER/OPERATOR TO ENSURE COMPLIANCE WITH ALL LOCAL REGULATIONS THAT MAY APPLY. IF APPLICABLE, IT IS THE RESPONSIBILITY OF THE OWNER/OPERATOR TO ENSURE THAT A PRESSURE RELIEF VALVE THAT IS COMPLIANT WITH ALL APPLICABLE FEDERAL, STATE, AND LOCAL REGULATIONS IS INSTALLED ON ALL AXXIOM OR SCHMIDT PRESSURE EQUIPMENT PLACED IN SERVICE. EQUIPMENT COMPLIANT WITH EUROPEAN CE AND AUSTRALIAN AS1210 STANDARD IS AVAILABLE ON REQUEST.
• 8.2 Subject to compliance with the Merchandise Return Policy set forth below, Axxiom will replace any Products or component parts thereof which prove defective under proper use during the Warranty Period.
• 8.3 IT IS THE RESPONSIBILITY OF THE BUYER TO EXAMINE THE PRODUCTS UPON RECEIPT. Buyer shall inspect all Products promptly upon delivery, but no later than two (2) business days of delivery, and immediately notify Axxiom in writing of any defective Products or shortages.  Failure to notify Axxiom of any defective or shortages of Products shall be deemed accepted. Claims for lost shipments, damages or tracking of shipments are the responsibility of the Buyer.  Shipments by common carrier should be completely examined for damages or loss prior to signing receipt documents.  The Buyer should contact the common carrier within twenty-four (24) hours of receipt for claims on damages and keep all cartons and documents for claim service.  
• 8.4 Except for latent defects, the warranties set forth in this Section, and all other warranties, express or implied, shall not survive inspection and acceptance.
• 8.5 Standard or stock Products may be returned to Axxiom for credit, subject to the following conditions (the “Merchandise Return Policy”): (a)  in no case are Products to be returned to Axxiom without prior authorization.  Buyer must contact an Axxiom representative for authorization and issuance of a Returned Merchandise Authorization (“RMA”) number. The RMA number must be included on all packages, equipment, vessels and correspondence.  Products returned without an RMA number will not be accepted.  (b) Any Products returned without prior authorization shall remain the property of the sender and Axxiom shall not accept or be responsible for such Products.  (c) Electrical components and special order (non-stock) items are not returnable. (d) no Products may be returned for credit after one (1) year from the date of invoice. (e)  All returns must be shipped freight prepaid.  All returns may be credited on a new equipment or parts order with a value equal to or greater than the dollar value of the original order.  If Products are not exchanged, they are subject to a twenty percent (20%) restocking charge.  Products must be new and in re-sellable condition.  Any costs incurred by Axxiom to restore such Products like-new, first class condition will be charged to the Buyer. 

9.  Confidential Information.  All information, including without limitation, all technical information in the nature of designs, drawings, specifications, engineering data for production or product know-how, and other technical, business or financial information (a) which is supplied to the Buyer by Axxiom to facilitate or assist in the performance of this Agreement or (b) that Axxiom will design, develop or create in connection with the Sales Order; both as to individual items and/or a combination of components and whether or not completed and all derivatives of (a) and (b) are deemed to be “Confidential Information” of Axxiom and will remain or vest with Axxiom. Buyer will use and cause its employees and agents to use extreme caution not to disclose any such Confidential Information, either directly or by incorporation of such information in, or its use in, manufacturing products for others. 

 

10. Intellectual Proprietary; Reverse Engineering; Rebranding. Buyer acknowledges that any Products provided to Buyer by Axxiom may include proprietary know-how and inventions, copyrights, trademarks, tradenames and patents of Axxiom. Solely for the purpose of utilizing the Products for their intended purpose, Axxiom grants Buyer a non-exclusive, non-transferable, revocable right to use the Products and use the Confidential Information internally in connection with Buyer’s use of the Products. Buyer shall not have the right to license, manufacture, or otherwise make the Product or Confidential Information available to third parties. In the event Buyer does lease, sell, distribute or otherwise make Products available to a third party, such third party shall be subject to the terms of this Agreement and Buyer shall (1) ensure that the applicable third party has acknowledged in writing its agreement to comply with the terms of this Agreement, and (2) provide Axxiom with a copy of such written acknowledgment. Buyer agrees that it shall not copy, duplicate, reverse engineer, rebrand or otherwise make available or disclose to other parties or persons any information related to the Products or the Confidential Information, or otherwise have any party other than Axxiom manufacture or service the Products or any facsimile of the Products.  In addition to all remedies at law or equity, if the Buyer breaches this Section 10 or Section 9 above, then Axxiom may, in Axxiom’s sole and absolute discretion, revoke any license granted herein to use the Products and the Confidential Information.

 

11. Indemnification Procedure.

• 11.1 Buyer agrees to indemnify, defend and hold  harmless Axxiom from any and all losses, liabilities, damages, injuries, claims, demands, suits, actions, proceedings and expenses, including court costs, reasonable attorneys’ fees, expert witness fees, and costs of investigation and litigation related to or arising from Buyer’s or Buyer’s end user customer’s (1) use, operation, maintenance, repair or modification of the Products that is inconsistent with (a) instructions (written or otherwise), operating manuals, safety guidelines, warnings, maintenance procedures, or design specifications, or (b) any OSHA, ASTM, or other governing authority’s rules or standards;  (2) failure to properly maintain, inspect, or service the Products in accordance with Axxiom’s maintenance schedules and procedures; (3) failure to provide adequate warnings, instructions, training or personal protective equipment to any person who operates or works in proximity to the Product; (4) negligent act or omission or willful misconduct in connection with the possession, use or operation of the Products; (5) misuse or improper operation of the Products (a “Claim”) which are claimed or made by any person, firm, association, corporation or other legal entity, including, but not limited to, employees, workmen, servants or agents of the Buyer, Buyer’s end user customers and their subcontractors.
• 11.2 Indemnification Procedure. Axxiom will notify Buyer of any Claim for indemnification sought under this section. Notice shall be timely except to the extent Buyer is materially prejudiced by any unnecessary delay by Axxiom. Upon receipt of such notice Buyer shall have the right, at its sole expense, to assume the defense of any Claim with counsel reasonably acceptable to Axxiom provided that (a) Buyer acknowledges in writing its obligation to indemnify Axxiom with respect to the Claim, (b) Axxiom may participate in the defense at its own expense with counsel of its own choosing, and (c) Buyer shall not consent to any settlement, compromise or admission of liability without the prior written consent of Axxiom, which consent shall not be unreasonably withheld, conditioned or delayed. If Buyer fails to assume the defense of a Claim within thirty days after receipt of notice, then Axxiom may defend such Claim at Buyer’s expense, and Buyer shall remain responsible for any losses Axxiom may suffer resulting from such Claim.
• 11.3 Buyer further agrees, upon receipt of notification by Axxiom, to promptly assume full responsibility at Buyer’s expense for the defense of any and all such suits, actions, or proceedings which may be brought against Axxiom. If Axxiom’s machinery or equipment is used by Buyer to perform any work under this Agreement, such machinery or equipment shall be considered as being under the sole custody and control of Buyer during the period of such use by Buyer. Prior to service or filing of any significant pleading, motion, brief, discovery response or other document on behalf of Axxiom, Buyer will provide such documents to Axxiom for review and approval, which approval will not be unreasonably withheld. In no event will Buyer enter into any settlement or other dispositive agreements without Axxiom’s prior written consent. Axxiom (including all other Axxiom indemnified parties) may participate in such defense or negotiations to protect its interests.

12. Termination for Buyer’s Default. Axxiom shall have the right to terminate the Agreement, in whole or in part, for cause upon written notice if (a) Buyer does not make payment of the purchase price when and as specified in the invoice, (b) Buyer breaches any of the terms of this Agreement, or (c) Buyer becomes insolvent or if voluntary or involuntary bankruptcy proceedings are initiated by or against Buyer. In the event of termination for cause, and in addition to any other remedies provided by law, Buyer shall pay to Axxiom any portion of the sales price or cost and expenses incurred by Axxiom for the undelivered portion of the Sales Order. The rights provided in this Section are in addition to and not in lieu of any other remedies which Axxiom may have hereunder and in law or equity.

 

13. Termination for Convenience. Axxiom may terminate the Agreement in whole or in part or from time to time upon written notice whereupon Axxiom will stop work on the date and to the extent specified in the notice and terminate all orders and subcontracts (if any) to the extent they relate to the Products and/or Services terminated hereunder. Notwithstanding the above, Axxiom shall invoice and Buyer shall pay all amounts for outstanding completed Sales Orders. Except as otherwise provided in the Sales Order, the provisions of this Section will not apply to any cancellation by Axxiom for cause or for any other reason allowed by law or under the Sales Order.

 

14. Limitation of Liability. Notwithstanding anything to the contrary in this Agreement, Axxiom’s total liability (including all costs, expenses and fees relating thereto,) in tort, contract or otherwise, to Buyer, under or relating in any way to this Agreement or to any Products or Services provided hereunder shall in no event exceed a single aggregate limit equal to the purchase price of the applicable Sales Order.  All liability of Axxiom under this Agreement shall terminate upon expiration of the Warranty Period.

 

15. No Consequential Damages. Notwithstanding anything to the contrary in this Agreement, in no event shall either party hereto be liable for any, special, incidental, indirect, exemplary, punitive, speculative, contingent, or consequential damages of any type, including without limitation liability arising out of the failure of any Products to perform properly. In no event, whether as a result of breach of contract, warranty, tort (including negligence), at law or in equity, strict liability, indemnity, or otherwise, shall Axxiom or any of its affiliates or suppliers be liable for loss of profit or revenues, loss of use of the Products, cost of capital, overhead, labor, cost of substitute equipment, services or software, cost of substitute facilities or replacement power, damage to associated equipment or facilities, downtime costs, claims for damages or costs related to the cleanup, removal, release or threatened release, remediation or disposal of or any response to any hazardous material, or claims of Buyer’s customers for any of the foregoing.

 

16. Waiver. The failure of Axxiom to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation of Buyer with respect to such future performance shall continue in full force and effect.

 

17. Assignment and Subcontracting. may not assign any of its rights or obligations under the Sales Order or this Agreement of Axxiom. Any assignment without Axxiom’s written approval will be voidable at the option of Axxiom. Axxiom may assign any of its rights or obligations under this Agreement and may subcontract all or any of the work related to the Products or Services without the prior written consent of Buyer.

 

18. Materials. Axxiom shall provide its resellers with catalogs, price lists (subject to change without notice), promotional literature and other printed materials.  Axxiom reserves the right to charge for such materials when reseller’s request has exceeded reasonable levels, as determined by Axxiom.

 

19. Venue; Law Governing. For purposes of determining venue in the event that legal action is brought by either party for this Agreement, this Agreement shall be deemed performable in Houston, Harris County, Texas, in all respects, and the parties specifically agree to bring any and all legal action(s) regarding interpretation, enforcement, and/or any other aspect of this Agreement in the state courts of Houston, Harris County, Texas. This Agreement, including all matters relating to the validity, construction, performance, and enforcement thereof, shall be governed by the laws of the United States of America and the State of Texas, without giving effect to any conflict of laws principles of either body of law.   Each party submits to the personal jurisdiction and venue of said courts, and waives, to the maximum extent allowed by law, all defenses of lack of personal jurisdiction, improper venue, or inconvenience of the forum.

 

20. Remedies. Axxiom remedies set forth in the Agreement are in addition to, and will in no way limit, any other rights and remedies that may be available to Axxiom at law or in equity.

 

21. Relationship of Parties/Independent Contractor. Nothing in the Agreement will be construed to place Buyer and Axxiom in an agency, employment, franchise, joint venture or partnership Neither party has the authority to obligate or bind the other in any manner, and nothing contained in the Agreement will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary.

 

22. Notices. All notices relating to this Agreement (“Notices”) must be in writing. Notices to the parties will be sent to their respective addresses appearing on the Sales Order. Any Notice will be deemed given on the date delivered if delivered personally; the next business day if sent by recognized overnight courier; three business days after being mailed certified first-class mail, postage prepaid; or on the date of transmission if transmitted by email.

 

23. Publicity. Any news release, public announcement, advertisement, publicity or any other disclosure concerning the Agreement to any third party (except as may be necessary to comply with other obligations stated in the Sales Order) requires prior written approval of Axxiom.

 

24. Headings and Captions. are for convenience of reference only and do not alter the meaning or interpretation of these Terms and Conditions.

 

25. Severability. If any provision of the Agreement is held to be illegal, invalid, or unenforceable by applicable law, that provision will be severed from the Agreement; the remaining provisions will remain in full force and effect; and a similar legal, valid and enforceable provision will be substituted in lieu of the severed provision.

 

26. Authorization to Perform. Each party represents that it is duly organized and authorized to enter into the Agreement and to perform its obligations; and that it is not a party to any agreement with a third party which would restrict its ability to perform its obligations under the Agreement. Buyer will promptly notify Axxiom of any action taken by or against it that could result in a breach of Buyer’s obligations or representations under the Agreement. Buyer represents and warrants that there is nothing that will directly, indirectly, actually or potentially restrict or prevent Buyer in any way from fulfilling all its obligations, duties, and services under the Agreement, including without limitation any exclusivity or non-compete arrangement.

 

27. Survival. All provisions of the Agreement, which by their nature should apply beyond the Term will remain in force after any termination or expiration of the Agreement, including, but not limited to, those addressing the following subjects: Indemnification, Confidential Information, Intellectual Proprietary; Reverse Engineering; Rebranding, Venue, Law Governing, Notices, Publicity, and Survival.

 

28. Non-Exclusivity. Nothing in the Agreement will restrict Axxiom’s right to provide or perform on its own behalf, or to contract with any third party to provide products or perform services similar or related to Products and/or Services provided by Axxiom pursuant to the Sales Order.

 

29. BUYER ACKNOWLEDGMENT. BUYER HAS READ AND UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BUYER HAS HAD THE OPPORTUNITY TO ASK ANY QUESTIONS CONCERNING THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE AGREEING TO THEM. BUYER FURTHER STATES THAT IT HAS BEEN ADVISED BY AN ATTORNEY OF ITS CHOICE AND SELECTION OR HAS HAD THE OPPORTUNITY TO CONSULT WITH SUCH ATTORNEY REGARDING THE BENEFITS AND DETRIMENTS OF AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. BUYER HAS BEEN ADVISED TO KEEP A COPY OF THIS AGREEMENT.