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Terms & Conditions

All purchases at the foregoing price quote are made through Sergeant Enterprises, Inc. dba Sergeant Oil & Gas ('Seller') and are subject to the following general terms and conditions:

  1.  SELLER'S REPRESENTATIONS AND WARRANTIES: Seller represents, warrants and agrees that: (a) The product(s) sold herein shall be of merchantable quality; (b) The product(s) sold herein shall be delivered free from any lawful security interest or lien or encumbrance; and (c) Seller will convey good title thereto. ALL OTHER EXPRESSED AND IMPLIED WARRANTIES ARE DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO ßWARRANTIES THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. Further, Seller warns Buyer that the product(s) sold is flammable, inherently dangerous, and inherently dangerous to store, transport and use. Seller does not warrant that the product(s) is safe for use by any engine, machinery and/or equipment.
     
  2. BUYER SPECIFIED MATERIALS AND GOODS: Seller makes NO EXPRESSED OR IMPLIED WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE with respect to any materials or goods made pursuant to Buyer's specifications; including but not limited to, Isotainers, drums, pallets totes or other containers. Buyer specified materials or goods are sold 'AS IS' and 'WITH ALL FAULTS.'
     
  3. BUYER'S REPRESENTATIONS AND WARRANTIES: In order to induce Seller to sell the product(s) to Buyer, Buyer represents, warrants, and agrees that: (a) Buyer is aware that the product(s) sold herein is inherently dangerous, flammable, and highly explosive; (b) Buyer is aware of the inherent dangers, hazards and risks associated with the use, transportation and storage of the product(s) and agrees to assume all risks associated with the use, transportation and storage of such product(s); (c) Buyer is aware of all applicable laws, rules, regulations and ordinances governing the safe use, transportation and storage of the product(s) sold herein and agrees to comply with all such laws, rules, regulations and ordinances; and (d) Buyer is experienced purchaser and safe handler of the product(s) sold herein.
     
  4. RELEASE AND INDEMNITY: IN FURTHER CONSIDERATION FOR THE PRODUCT(S) SOLD HEREIN, BUYER AGREES TO RELEASE, INDEMNIFY AND HOLD HARMLESS SELLER, ITS AGENTS AND REPRESENTATIVES, OFFICERS, EMPLOYEES, PARTNERS, SUCCESSORS AND ASSIGNS FROM ALL CLAIMS, LIABILITIES, SUITS, DAMAGES, COSTS OR EXPENSES WHICH SELLER MAY HEREINAFTER BECOME LIABLE FOR AS A RESULT OF ANY PERSONAL INJURIES, PROPERTY DAMAGES, OR DEATH SUSTAINED BY BUYER, ITS  AGENTS AND REPRESENTATIVES, OFFICERS, EMPLOYEES, PARTNERS, SUCCESSORS AND ASSIGNS, OR OTHERS WHILE USING, TRANSPORTING, OR STORING THE PRODUCT(S) SOLD HEREIN, INCLUDING, BUT NOT LIMITED TO ALL INJURIES, DEATH, OR DAMAGES SUSTAINED BY BUYER OR OTHERS AS A RESULT OF SELLER'S NEGLIGENCE, STRICT LIABILITY IN TORT, LACK OF CARE, OR PRODUCT(S) CONDITIONS. 
     
  5. DELIVERY/RISK OF LOSS: All product(s) shall be delivered to Buyer upon loading Buyer's containers (Isotainers, drums, totes, etc.) in Houston, Harris County, Texas. The risk of loss for all product(s) purchased herein passes to Buyer upon delivery of the product(s) to Buyer in Houston, Harris County, Texas.
     
  6. FORCE MAJEURE: Neither Party shall be liable to the other for failure or delay in making or accepting deliveries hereunder to the extent that such failure or delay is due to war, fire, flood, strike, labor trouble, total or partial shortage of purchased product(s), material(s) and/or good(s), accident, riot, act of governmental authority, act of God, or other contingencies beyond the control of the affected Party.  Quantities so affected shall be eliminated from the Agreement without liability, but the Agreement shall otherwise remain unaffected.  Seller may during any period of shortage due to any of said clauses, prorate its supply of such product(s) among its customers.
     
  7. NOTICE OF CLAIMS/WAIVER: Failure of Buyer to give written notice by certified mail, return receipt requested or facsimile transmission to Seller of any claim or claims for errors, deficiencies, or imperfections within thirty (30) days after delivery of the product(s) shall constitute unqualified acceptance of the product(s) ordered by Buyer, and further shall constitute a full waiver of any or all claims with respect thereto.  Notice of claims shall be addressed to Seller at 2401 Fountain View Dr., Suite 450, Houston, Texas 77057 with a copy to: J. Brantley Durrett, III, Attorney at Law, Sterling Bank Building, 2401 Fountain View Dr. Suite 450, Houston, Texas 77057. 
     
  8. LIMITATION OF LIABILITY: Seller's liability, if any, for any claim or cause or action arising out of this Agreement is strictly limited to an amount equal to, but not to exceed, Seller's selling price, after calculation of any agreed adjustments and exclusive of any interest which might accrue thereon, on each product upon which claim might be made.  Seller shall not be liable for any incidental or consequential damages.
     
  9. ATTORNEY'S FEES: If any legal action is brought by any Party hereto, it is expressly agreed that the prevailing Party in such legal action shall be entitled to recover from the other Party reasonable and necessary attorneys fees and costs in addition to any other relief that may be awarded. For the purposes hereof, recoverable costs shall include, but not be limited to, mediation fees and costs, arbitration fees and costs, two (2) expert witness fees and costs, court reporting fees and court costs.
     
  10. PENALTY AND INTEREST ON PAST DUE ACCOUNTS: Full payment for all product(s), material(s) and/or good(s) is due prior to delivery. In the unlikely event that payment is not made prior to delivery, Buyer agrees to pay interest to Seller on the unpaid balance from the date of delivery until paid in full at eighteen percent (18%) per annum or the maximum allowable interest rate permitted under law, whichever is higher, computed on a 365 day year basis, or a 366 day year, if it is a leap year.
     
  11. DISPUTE RESOLUTION: If any dispute arises out of or relates to this Agreement or the performance thereof, and if the dispute cannot be settled through negotiation, the Parties agree to first try in good faith to settle the dispute by non-binding, confidential mediation, pursuant to Section 154.001 et. seq. of the Texas Civil Practice and Remedies Code and the Rules for Mediation as promulgated by the Association of Attorney-Mediators, Inc., and before a mutually acceptable mediator. The mediator's costs shall be equally split between the Parties. If the dispute can not be settled through negotiation or mediation, then any unresolved controversy, dispute or claim arising out of or relating to this Agreement, or performance thereof, shall be resolved by arbitration administered by the American Arbitration Association ('AAA') in accordance with its Commercial Arbitration Rules (located at www.adr.org), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof pursuant to applicable law.  The arbitration shall take place in Houston, Texas before mutually acceptable arbitrator(s) or failing to reach agreement on the arbitrator(s) before an arbitrator(s) appointed by any federal or state district court sitting in Houston, Harris County, Texas. The arbitrator(s) fees shall be equally split between the Parties.
     
  12. APPLICABLE LAW/JURISDICTION/VENUE: This Agreement shall be governed by, and construed in accordance with, the laws of the state of Texas, except to the extent such laws are preempted by federal laws, in which case, this Agreement shall be governed by such federal laws, as applied in the state of Texas. If any Party to this Agreement shall bring any judicial proceedings, it is agreed that such judicial proceeding shall be exclusively brought in any federal or state court with jurisdiction sitting in Houston, Harris County, Texas. For the purposes of this Agreement, Buyer acknowledges and agrees that the subject matter of this Agreement involves interstate commerce, in that the purchase of the product(s), material(s) and/or good(s) involves the use, purchase, sale or lease of product(s), material(s) and/or good(s) involving commerce among the states.
     
  13. UN-ENFORCEABILITY: In case one or more of the provisions in this Agreement shall for any reason be held to be invalid, illegal or unenforceable, in any respect, such invalidity, illegality or un-enforceability shall not affect other provisions, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
     
  14. ENTIRE AGREEMENT/MODIFICATION/ASSIGNMENT: The price quote and the terms and conditions set forth herein embodies the entire agreement and understanding between the Parties with respect to any purchase and supersede all prior negotiations, agreements and understandings between the Parties, all of which are merged herein (the 'Agreement'). No provision of this Agreement may be modified, waived or discharged except by an instrument in writing signed by the Party against which enforcement of such modification, waiver or discharge is sought.  If the Buyer accepts this Agreement with a purchase order or other instrument containing terms and conditions at a variance with this Agreement, the Parties stipulate that the terms and conditions of this Agreement shall prevail over any additional or inconsistent terms and conditions contained in Buyer's purchase order or instrument.  The rights and duties of this Agreement are neither assignable, nor transferable by either Party without the other Party's express written consent.

This article was published on Monday 01 November, 2010.

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