General Conditions of Sale
Seller warrants that the product delivered will conform to the specifications indicated on the face of this sales contract, and that the production or sale of product delivered under this sales contract will not infringe any United States patent claims covering the product itself, but Seller does not warrant against any infringement by reason of the use of the product in combination with other materials or in the operation of any process.
There are no further warranties of any kind, express or implied, including any warranty of merchantability or fitness for a particular purpose, neither Seller nor Buyer shall be liable, and each such party relinquishes and releases all claims against the other, for prospective profits or special, indirect or consequential damages, whether or not based upon negligence, breach of warranty, strict liability in tort or any other cause of action based upon defect in the product or Seller’s title thereto, in no event shall damages or any other recovery of any kind against Seller or Buyer based on defect in the product or Seller’s title thereto exceed the price at which such party sold such portion of the product to which such recovery relates that the time such damages are incurred.
In the event of any claim (not covered by insurance nor within the responsibility of the carrier), such claim shall be transmitted to Seller by telex or facsimile transmission within ten (10) days after such defects are discovered, reasonably substantiated. Any claim not meeting the foregoing requirements shall be deemed to have been waived and in no case will Seller retain any claim made more than thirty (30) days after the date of delivery. In case of legitimate claims against Seller, Seller will, in lieu of all other remedies, settle the matter wither by replacing the defective or nonconforming material at no cost to Buyer or by agreeing to a reasonable reduction of the purchase consideration, provided the product is deemed usable by Buyer, such election to be made by Seller in its sole discretion.
Buyer shall inspect the product immediately upon delivery and shall advise Seller in writing of any alleged deviation from the quality of product indicated on the face of this sales contract within ten (10) days of delivery. Buyer shall give Seller a reasonable opportunity to inspect the product and shall provide to Seller such information available to Buyer with respect to the quality of the product as Seller may require. If Buyer advises Seller in writing of any alleged deviation from the quality of product within ten (10) days of delivery and such alleged deviation proves to be accurate. Buyer’s sole and exclusive remedy and Seller’s liability shall be limited, at Seller’s option, to either: (a) the delivery by Seller to Buyer, within a reasonable period of time of a replacement quantity of product, such delivery to be made upon the same terms and conditions as are provided in this sales contract; or (b) a credit to the amount payable by Buyer to Seller under this sales contract. If Buyer fails to advise Seller in writing of any alleged deviation from the quality of product within ten (10) days of delivery, Buyer shall be deemed to have irrevocably waived any claim against Seller, and Seller shall not be liable to Buyer, for any deviation from the quality of the product.
Neither party shall be liable for failure or delay in making or taking any delivery or deliveries hereunder (or any portion thereof) if such failure or delay is occasioned by compliance with Governmental regulations, request, or order or by circumstances beyond the reasonable control of the party so failing or delaying, including, but not limited to, Act of God, war, fire, flood, accident, labor trouble or shortage, interruption of or delay in transportation, or inability to obtain any material used in or equipment needed for the production, consumption, or transportation of the product specified in this contract, whether in any case such circumstance exists on the date of this contract or thereafter arises, and the quantities so affected may be eliminated from this contract.
All invoices paid after due date will be assessed a late payment service charge of 18% per annum or the maximum allowed by applicable law, whichever is lower. If, in the Sellers judgment, the financial condition of the purchaser at the time product is ready for shipment does not justify the terms specified, the Seller reserves the right to change these terms or to require full or partial payment in advance. Seller may, at any time, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial condition of Buyer or other grounds for insecurity warrant such action. All sales are subject to the approval of Seller’s credit department.
Delivery shall occur and risk of loss shall pass to the Buyer upon delivery of the material to the carrier at the point of shipment. Transportation shall be at Buyer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only.
The promised delivery date is the best estimate possible based upon current and anticipated manufacturing capabilities of when the product will be shipped. Seller assumes no liability for loss, damage or consequential damages due to delays. Any quantities which Buyer fails to order for delivery at the times agreed upon shall be deliverable later only at Seller’s option.
Buyer shall defend, indemnify and hold Seller harmless from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury to or death of Buyer’s employees) arising from or connected with the possession, handling, processing or use of the product by Buyer or others, except those losses resulting solely from the use of product not conforming to the contracted specifications. Seller may participate in the defense of any such claim for the further protection of its own interests.
Buyer represents that product purchased under this contract is for Buyer’s use and consumption. Unless agreed upon in writing by Seller, the Buyer may not sell or offer for sale the product. Should Buyer violate this clause, Seller may suspend deliveries or terminate this contract.
Seller’s weights and/or measurements shall govern unless proven to be in error.
Any cause of action arising from this agreement, or breach of it, must be commenced within three (3) years after the cause of action occurs. Seller has the right to correct any stenographical or clerical errors in any of the writings issued by it. The terms and conditions of sale and any description on the face of the Seller’s order acknowledgement form constitute a complete and exclusive statement of the terms and conditions of the sale of the goods by Seller to Buyer. There are no other promises, conditions, understandings, representations or warranties. This agreement may be modified only in a writing signed by the Seller. No waiver of any right will be effective against Seller unless supported by consideration and expressly stated in the writing signed by the Seller. The failure of Seller to enforce any right will not be construed as a waiver of Seller’s right to performance in the future. This agreement shall supersede the Seller’s obligation to sell or deliver products under any prior agreements.
This contract shall be construed according to the laws of the Commonwealth of Pennsylvania.