General Terms and Conditions of Sale
1. Shipment. Shipping terms, defined as Incoterm, Named Place and Title Transfer, are noted in our quotation.
2. Certificates of Assurance. Seller’s Certificates of Assurance shall govern concerning compliance of the material with the specifications therefor.
3. Taxes, etc. Any tax, fee or other governmental charge upon the production, sale and/or shipment of the material sold hereunder, now imposed by federal, state, municipal or any other governmental authorities or hereafter becoming effective for or during the period hereof, shall be added to the price herein provided, and shall be paid by Buyer.
4. Force Majeure. Neither Seller nor Buyer shall be liable for any delay or failure by it to make or take any shipments hereunder, if such delay or failure is caused by any event beyond its reasonable control, including, without limitation, Act of God, war, riot, fire, explosion, mechanical breakdown, strikes or other labor trouble, plant shutdown, unavailability of or interference with necessary transportation, any raw material or power, compliance with any law, regulation, order or other requirement of any governmental authority. Unless otherwise mutually agreed, the total quantity to be shipped shall be reduced by the quantity of the shipment or shipments so omitted. If by reason of any such circumstances, Seller’s supply of the material herein specified shall be insufficient to meet all requirements, including its own, Seller shall have the right, at its option and without liability, to apportion its available sales supply among any and all purchasers, including Seller’s affiliated divisions and companies, in such manner as Seller believes equitable. During the time when the demand for material exceeds Seller’s supply, Seller may allocate its available supply of material among Seller’s contract customers and Seller’s and its affiliates’ internal uses in such manner as Seller deems fair and reasonable. Such allocation shall not be deemed a breach of this Contract. It is not Seller’s intent to unreasonably exercise this right of allocation or to give an unfair preference to Seller or its affiliates’ internal uses.
5. Credit. If, in Seller’s judgment, Buyer’s credit shall become impaired at any time, all shipments hereunder shall be on cash-in-advance terms until such time as said credit has been reestablished to Seller’s satisfaction.
6. Cancellation. If Customer cancels an order prior to shipment of the material, Customer shall pay a cancellation charge equal to the percentage of completion at the time of cancellation.
7. Past Due. Any amount not paid when due hereunder shall bear interest at the maximum lawful rate until paid.
8. Warranty. SELLER WARRANTS ONLY THAT THE MATERIAL SOLD HEREUNDER WILL CONFORM TO THE WRITTEN PRODUCT SPECIFICATIONS FOR THE MATERIAL PROVIDED BY SELLER FROM TIME TO TIME. SELLER IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MATERIAL, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE EXPRESSLY DISCLAIMED.
9. Indemnity. Buyer agrees to indemnify Seller from liability for damage to persons or property resulting from the use of said material in manufacturing processes, or in combination with other substances, or otherwise. Buyer represents to Seller that it has used its own independent skill and expertise in connection with the selection and use of the material purchased pursuant to this Contract, and that it possesses skill and expertise in handling, storage, transportation, treatment, use and disposal of this material.
10. Limitation of Actions. Claims on account of weight, loss of or damage to said material are waived by Buyer unless made in writing within ten (10) days after arrival thereof at destination, and any action for breach of this Contract, other than for nonpayment hereunder, must be commenced within one (1) year of the date of shipment, or due date of delivery in the event of nondelivery, of the particular shipment upon which such claim is based.
11. Limitation on Buyer’s Remedies. In the event material sold hereunder does not conform to the specifications therefor, Buyer’s remedy shall be limited to either a refund of the purchase price of the non-conforming material or, at Seller’s option, the replacement of the non-conforming material with conforming material. In no event shall Seller be liable for special, incidental, indirect, consequential or punitive damages, all of which are expressly waived by Buyer.
12. No Disclosure. Except as may be compelled by a court or governmental agency of competent jurisdiction, or when written approval is given by the other party, neither party hereto will disclose the terms of sale to any third party except to the extent necessary to carry out the purpose of the transaction.
13. Severability. If any provision these General Terms and Conditions is held to be void, voidable or unenforceable by any court or governmental agency of competent jurisdiction, such holding shall not affect other provisions or the application or enforcement which can be given effect without the invalid provision. If such invalidity becomes known or apparent to Seller and to Buyer, they agree to negotiate promptly and in good faith to make appropriate changes to achieve the intent and spirit of the provision held to be invalid, consistent with applicable law.
14. Governing Law. This Contract shall be governed by the laws of the State of Arizona, including without limitation the Arizona Business and Commerce Code (Uniform Commercial Code).
15. Entire Agreement. These General Terms and Conditions, together with any contract or purchase order signed or accepted by Seller and Buyer to which these General Terms and Conditions are attached, shall constitute the entire agreement of Seller and Buyer with respect to the subject matter hereof and shall supersede all previous understandings, oral or written, between the parties with regard to this subject matter. No modification of the foregoing shall be effected by any purchase orders, acknowledgments, shipping document or any other documents containing terms and conditions inconsistent with or in addition to those set forth herein, unless both Seller and Buyer specifically agree otherwise in writing.
16. Assignability. This Contract, and all rights incident thereto are for the benefit of Buyer and shall not be assignable to any third party, or to any successor or assignee of Buyer (by merger, consolidation, liquidation, operation of law, or otherwise), without the prior written consent of Seller. Seller shall have the right to terminate this Contract upon thirty (30) days written notice to Buyer in the event there is a change in ownership or managerial control of Buyer.