TERMS OF SALE
1. PURCHASE DOCUMENTS. The terms and conditions of this contract shall apply to sales hereunder whether or not expressly referred to in each purchase order, invoice or other document of purchase or delivery issued by Seller or Buyer. Except as otherwise provided in this contract, no condition, understanding or agreement purporting to modify or vary the terms of this contract shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification shall be affected by the acknowledgement or acceptance of purchase orders, invoices or shipping, instruction or other forms containing terms or conditions at variance with or in addition to those set forth herein. Any provisions contained in Buyer’s purchase orders which are not consistent with these Standard Terms and Conditions are not accepted by Seller. Unless Buyer shall notify Seller in writing to the contrary as soon as practicable after receipt of this document by Buyer, the Buyer’s acceptance of the Products or payment therefore shall be equivalent to Buyer’s assent to the terms and conditions hereof.
2. SHIPMENTS. In the event shipments hereunder are to be made over a period of time, Buyer shall allow for adequate lead time and shall specify by purchase order or otherwise in writing to Seller the quantity, packing, and delivery dates desired for deliveries of the product during such period. Seller will endeavor to comply with Buyer’s wishes as so expressed; however, Seller shall not be liable for delay or short shipment caused by reasons beyond Seller’s control and shall not be required to deliver in any month more than the monthly quantity specified, or, if none is specified, more than the pro rata amount of the total quantity specified. Seller reserves the right to pack the Product otherwise than is specified by Buyer as aforesaid. Seller records as to the weights, volumes, and quantities of material shipped shall govern except in case of proven error.
3. LIABILITY. Upon the earlier of acceptance by Buyer’s carrier or upon delivery to Buyer, Buyer assumes all responsibility and liability for loss and damage to the product or resulting from the handling, storage or use of the Product, whether used singly or in combination with other products. Sellers liability with respect to the Product and under this contract shall be limited to the purchase price of the product supplied hereunder in respect of which damages are claimed. OTHERWISE THAN AS SET FORTH IN THIS PARAGRAPH 3, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES FROM ANY SOURCE WHATSOEVER.
4. FORCE MAJEURE. Deliveries or acceptance of the Product may be delayed or suspended by Seller or Buyer by circumstances beyond the control of the party affected, including, but not limited to, Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel, power, raw material, labor, containers or transportation, facilities, governmental laws, regulations, order or action, breakage or failure of machinery or apparatus, national defense requirements or any other event beyond the reasonable control of such party or in the event of labor trouble or shortage, strike, lockout or injunction (whether or not such labor event is within the reasonable control of such party) any of which events prevent the manufacture, shipment, or acceptance of a shipment of the Product or of a material or services upon which the manufacture of the Product is dependent. If, because of any such event, Seller is unable to supply part or total demand for the product, or if Buyer, because of any such event, is unable to accept part or total of quantity contracted for, the affected party shall be exempted to such extent from its obligations hereunder with respect to the particular delivery involved upon giving prompt notice of such event to the other party. The other party shall be likewise exempted from its corresponding obligations, but this contract shall otherwise remain unaffected.
5. ALLOCATION. If, due to any of the events specified in Paragraph 4, Seller is unable to supply Buyer’s total demands of Product specified in the contract, Seller may allocate its available supply among its customers and its own requirements on a pro rata basis if practical, but in any event in its sole discretion.
6. TAXES. Buyer shall reimburse Seller for all taxes, (excluding income taxes) excises or other charges which Seller may be required to pay to any Government (National, State or Local) upon the sale, production or transportation of the Products sold hereunder.
7. BUYER’S CREDIT. Seller reserves the right, among other remedies, either to terminate this contract or to suspend further deliveries under it in the event Buyer fails to pay any one shipment when payment is due. Should Buyer’s credit standing become unsatisfactory to Seller, cash payment or satisfactory security may be required by Seller for future deliveries and for goods therefore delivered.
8. WARRANTY. SELLER MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS OR OTHERWISE, WHETHER EXPRESS OR IMPLIED OTHER THAN THAT THE PRODUCT SHALL BE OF THE SPECIFICATIONS STATED HEREIN. Buyer agrees to inspect the Product supplied
hereunder immediately after delivery and to give notice in writing of any claim within thirty (30) days of delivery. Failure to give notice in writing as aforesaid within the specified time constitutes an unqualified acceptance of the product and a waiver of all claims with respect thereto. No charge or expense incident to any claims will be allowed unless approved by an authorized representative of Seller. Products shall not be returned to Seller without Seller’s prior permission, and then only in the manner prescribed by Seller. The remedy hereby provided shall be the exclusive and sole remedy of Buyer.
9. BINDING EFFECT. This contract shall be binding on the successors and assigns of Buyer and Seller, provided, however, that Buyer shall not assign or transfer this contract in whole or in part without the prior written consent of Seller.
10. ENTIRETY OF CONTRACT/WAIVER. This contract constitutes the full understanding of the parties, and a complete and exclusive statement of the terms of their agreement. No waiver by either Seller or Buyer in respect of any breach or default or of any right or remedy, and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default or any other right or remedy, unless such waiver be expressed in writing signed by the party to be bound. No suit for any breach shall be brought later than one year from the time the cause of action arises.
11. GOVERNING LAW. The validity, interpretation and performance of this contract shall be governed and construed in accordance with the laws of the State of Maryland.