These Terms of Sale (“Terms”) apply to all purchases from Maintex, Inc. (“Maintex”) by the purchaser of products or goods (“Customer”) hereunder. All orders placed by Customer, be they transmitted via telephone, mail, facsimile, electronic means, through Maintex’s website, or through any other medium jointly agreed to by Maintex and Customer, shall be considered a purchase order (“Purchase Order”).  Maintex and Customer may be referred to individually as a “Party” or collectively as the “Parties”.

Maintex reserves the right to accept or reject any Purchase Order. Maintex’s acceptance of any Purchase Order is subject to Customer’s assent to all the terms and conditions set forth herein. Customer’s assent to these Terms shall be presumed from Customer’s receipt of Maintex’s acknowledgment, or from Customer’s acceptance of all or any part of the products ordered.

These Terms supersede all other prior and contemporaneous understandings of the Parties as to the subject matter herein, except where Maintex and Customer have a signed written contract for Customer’s purchase of products or goods from Maintex.  These Terms constitute the entire understanding of the Parties with respect to the delivery of goods or products from Maintex.  A Purchase Order and these Terms shall be construed as binding upon the Parties.

Pricing and Specifications

All information regarding pricing and services is subject to change. Except as otherwise agreed, Maintex reserves the right to adjust pricing at any time, without notice, and for any reason, including, but not limited to, changing market conditions, discontinuation, unavailability, manufacturer price changes and errors in advertisements. Prices listed are net and do not include shipping charges, packaging, insurance, handling fees, taxes and/or duties, for which Customer shall be responsible and Customer agrees to pay. If Customer claims exemption from taxes or duties, Customer is responsible for providing Maintex with the necessary documentation prior to purchase; if Customer does not provide such documentation, taxes will be added to Customer’s order or separately invoiced to Customer.

Cancellation and Returns

Maintex must approve cancellation of any order prior to shipment. Special items, custom orders, private label chemicals, and direct shipments are not returnable unless so stated at time of purchase. Any returns for shipping errors, discrepancies, damage, or loss must be reported within 10 calendar days of the delivery date. Except as otherwise agreed, products will only be accepted for return within 30 calendar days of the delivery date. Any cancellation or returns accepted after 30 calendar days may be subject to a restocking fee and other charges, for which Customer shall be responsible. Maintex does not take title to the returned products and risk of loss remains with Customer until the returned products are received by Maintex.  All returns must be accompanied by a return merchandise authorization (RM) and must be delivered to a Maintex branch or representative. All returns must be unused and in resalable condition.

Deliveries Outside of Service Area

Unless otherwise stated or agreed, Customer shall be responsible for any third-party freight or shipping costs associated with the delivery of Purchase Order(s) outside of Maintex’s normal service area.  Any such costs, when reasonably anticipated, shall be communicated to Customer by Maintex in advance of accepting a Purchase Order. Additional charges incurred by the carrier, such as fuel surcharges or services rendered in transit or at the destination will be the responsibility of Customer. Title and risk of loss will pass to Customer upon delivery to Customer’s designated location.

Credit and Payment Terms

Customer may submit a credit application to Maintex to demonstrate creditworthiness. All credit extended by Maintex and the limits of such credit is at Maintex’s sole discretion and may be reduced or revoked by Maintex at any time for any reason. As a condition for the continued extension of credit, Customer agrees to provide Maintex with current credit information within 5 business days of any material change in creditworthiness or at the request of Maintex.

All payments must be made in U.S. dollars. If Customer is on C.O.D. terms, payment shall be made in full at the time the order is placed via cash, check, money order, or credit card.  If Customer has been extended credit, Maintex will invoice Customer following delivery. Customer shall pay all invoices via check, money order, or electronic funds transfer within the terms specified on the invoice.

Force Majeure; Impossibility of Performance

Maintex shall not be liable to Customer for any default or delay in the performance of its obligations under these Terms or the applicable Purchase Order(s) if and to the extent such default or delay is the direct result of any cause or occurrence beyond the reasonable control of Maintex. In such an event, Maintex shall be excused from further performance of the obligation(s) so affected for as long as such circumstances prevail, and Maintex continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible.

Intellectual Property

As between the Parties, each Party is and shall remain the owner of any and all inventions, copyrightable materials, trade secrets or other intellectual property that it owns or controls as of the date of the applicable Purchase Order(s) or that it develops or acquires thereafter without the use or employment of the other Party’s confidential information.

Disclaimer of Warranties

EXCEPT FOR EXPRESS WARRANTIES SET FORTH HEREIN, MAINTEX MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND MAINTEX DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.

Indemnification

Each Party and its subsidiaries and affiliates, together with its respective officers, directors, employees, agents and contractors (the “Indemnifying Party”) shall indemnify, hold harmless, and defend the other Party and its subsidiaries and affiliates, together with its respective officers, directors, employees, agents and contractors (collectively, the “Indemnified Party”), from and against any and all losses, expenses, actions, claims, causes of action, demands, suits, judgments, awards, damages, liabilities, costs, and reasonable attorneys’ fees the Indemnified Party may incur or suffer as a result of third-party claims caused by Indemnifying Party’s breach of these Terms or the applicable Purchase Order(s) or the negligence or more culpable acts or omissions of Indemnifying Party. Each Party shall have the right to be represented by counsel of its choice at the expense of the Indemnifying Party.

If either Party believes that indemnification is warranted under this section, it must give prompt notice to the other Party and reasonably cooperate with the Indemnifying Party in the defense of the claims.  The Indemnified Party shall have the reasonable right to approve of any settlement of a claim.

Limitation of Liability

TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, MAINTEX WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF ANY KIND, WHETHER ARISING IN TORT, CONTRACT, IMPOSED BY OPERATION OF LAW, STATUTE OR OTHERWISE, EVEN IF MAINTEX KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MAINTEX’S AGGREGATE LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO MAINTEX UNDER THE PURCHASE ORDER GIVING RISE TO THE APPLICABLE CLAIM.

Waiver, Arbitration and Choice of Law

The failure of either party to assert a right hereunder or to insist upon compliance with these Terms shall not constitute a waiver of that right or excuse any subsequent non-performance of any such term by either party.  The Purchase Order, Terms and the relationship between the parties shall be governed by the laws of the State of California.  All disputes, controversies, claims or differences of any type or nature whatsoever arising between the parties out of or relating to the construction of, meaning, operation or effect of this Purchase Order or the Terms, or the breach thereof, shall be administered and resolved by arbitration through the American Arbitration Association under the then current Commercial Arbitration Rules in Los Angeles County, California.   The prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.  Such arbitration shall be conducted by a sole arbitrator and judgment on the award rendered may be entered in any court having jurisdiction thereof.

Severability

If any portion of these Terms is found to be invalid or unenforceable, the invalid or unenforceable term shall be severed from these Terms, and the remaining Terms shall be valid and fully enforceable as written.

Relationship of the Parties

Nothing in these Terms or any Purchase Order(s) shall be deemed or construed by the Parties or by any third parties as creating a relationship of principal and agent, partnership, or joint venture between the parties, it being understood and agreed that no provision contained herein or act of the parties shall be deemed to create any relationship between the parties other than that of independent contractors.

Modification of Terms

No additions or modifications of these Terms by Customer shall be binding upon Maintex, unless agreed to in writing by an authorized representative of Maintex. If a Purchase Order or other correspondence submitted by Customer contains terms or conditions contrary or in addition to these Terms or in Maintex’s acknowledgment, Maintex’s fulfillment of any such purchase order shall not be construed as assent to any of the terms and conditions proposed by Customer, and will not constitute a waiver by Maintex of any of the terms contained herein or in Maintex’s acknowledgment.

Authorization

Customer represents that any person accepting these Terms on behalf of Customer is authorized to do so and that all employees and representatives of Customer who submit Purchase Orders on behalf of Customer have the legal right, and are duly authorized, to make such purchases and further authorized to enter into agreements relating to the purchase of products or services or to obtain pricing or discounts from Maintex on behalf of Customer. Customer hereby agrees to indemnify and hold Maintex harmless against any breach of this representation.

Updated May 23, 2024