Agreement
Seller’s acceptance of Buyer’s order is made expressly conditional on Buyer’s assent to the terms and conditions set forth herein, notwithstanding the provisions contained in any purchase order, acknowledgement, acceptance, or other document of Buyer. Seller does not accept, and expressively disclaims, all terms and conditions other than those expressly set forth herein or those contained in any written contract signed between the Buyer and Seller covering material(s) delivered hereunder. Acceptance of such material by Buyer shall constitute assent to said Terms and Conditions.
Price and Payment
Buyer will make payment for all shipments hereunder against Seller’s invoice such that the funds are available to Seller within 30 calendar days from the date of invoice. If at any time, in Seller’s opinion, the financial responsibility of Buyer becomes impaired or unsatisfactory to Seller, or inadequate to meet the obligations hereunder, the terms of payment may, at Seller’s option, be revised or withdrawn, and Seller may require cash or other satisfactory security before making further shipments to Buyer. In addition to any other legal remedy, if Buyer fails to fulfill the terms of payment or is in default with respect to any of the other terms and conditions hereunder, Seller may defer further delivery of Products hereunder or may, at its option, cancel all further deliveries of Products to Buyer. Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any sum payable by Buyer to Seller.
Delivery, Title, Risk of Loss
Shipment dates are based upon Seller’s reasonable judgment, are subject to production limitations and factory schedules, and are not guaranteed. If for any reason shortages occur in Seller’s supply of the Material, Seller may allocate the Material, in which case Seller shall prorate the supply in a manner that in Seller’s sole judgment is fair, considering factors Seller determines are relevant. Buyer agrees to take deliveries of the Products in ratable amounts over the life of the contract. All sales are F.O.B. Seller’s shipping point unless otherwise specified by Seller. Title and risk of loss with respect to the Products covered hereby will pass to Buyer, and Buyer will become the sole owner and take possession of the Products, when the same are loaded into bulk trucks or other conveyances at Seller’s shipping point, unless otherwise specified by Seller. A surcharge may be imposed by Seller to each shipment to reflect increases in transportation costs.
Weights
Seller’s or carrier’s weights (or Seller’s measurements in case of Products sold by volume) taken at shipping points, as stated in the invoice, will control unless proved to be in error. Claims for shortages or overages of 1% of the gross weight of shipments will not be allowed.
Railcar Detention
Upon the constructive placement of a railcar at the terminal or customer location, Buyer may hold cars for a period ranging from 30 to 60 days depending on the specific policy of the Producer. If the railcar remains unemptied and unreleased to the delivering carrier beyond this specified period that the Producer or railroad allows, then Seller will invoice and pass on all these demurrage charges to the Buyer. These charges passed onto the Buyer will be the equivalent amount of demurrage fees incurred by the Seller from the Producer (please note that each Producer maintains its own unique policy). Demurrage fees will be charged each month until the railcar is successfully released to the delivering carrier.
Remedies
Buyer shall inspect all material immediately upon delivery and shall notify Seller in writing of any alleged defects in the material, latent or otherwise, within seven (7) days after Buyer learns of the alleged defects, but in no event later than thirty (30) days after Buyer receives the material. Failure to give such notice, or the grinding, processing or in any other manner altering or changing the form of the materials, shall constitute a waiver of all claims for any defects. Buyer shall submit with its notification a sample of the raw material and finished product claimed to be defective and shall afford Seller the opportunity to inspect any material in Buyer’s possession. Buyer shall not return any material unless authorized in writing by the Seller.
Force Majeure
In case performance of any terms or provisions hereof is delayed or prevented in whole or in part because of or related to compliance with any law, decree, request, or order of any governmental agency or authority, whether local, state, provincial or federal, or because of riots, war, public disturbances, strikes, lockouts, differences with workmen, fires, explosions, storms, floods, acts of God, accidents of navigation, breakdown or failure of transportation, manufacturing, distribution, storage or processing facilities, failure of or interference with the manufacture, receiving, handling, delivery or consumption of the Products covered hereby, inability to obtain raw materials, chemicals, catalysts, fuel, power, labor, containers or transportation facilities, or for any other reason (whether or not of the same class or kind as herein set forth) which is not within the reasonable control of the party whose performance is interfered with and which by the exercise of reasonable diligence said party is unable to prevent (such occurrences referred to herein as “force majeure”), the party so suffering may at its option suspend deliveries or receipts during the period such cause continues, and no liability will attach against either party on account thereof. In the event of a force majeure affecting Buyer, Buyer will apportion its purchases among its suppliers of the type of Products covered hereby, including its own departments and affiliates, on an equitable basis. In the event of a force majeure affecting Seller, Seller may apportion its available supply of such Products among its purchasers including its own departments, divisions and affiliates on any basis Seller reasonably considers equitable without incurring any liability. When the delivery of Products has been prevented or delayed by any of the above causes, the quantity affected will be deducted from the amount required to be supplied hereunder with no obligation to make up that quantity. The provisions of this paragraph will not be available to either party who fails to use reasonable diligence to remedy the situation and remove the cause in an adequate manner and with all reasonable dispatch. The requirement that any force majeure be remedied with all reasonable dispatch will not require the settlement of strikes or labor controversies by acceding to the demands of the opposing party or parties. Notwithstanding the foregoing, Buyer will not be relieved of the obligation to pay for Products, title to which has passed to Buyer.
Liability and Remedy
Provided that the Buyer complies with all of the terms and conditions herein, including section 6 above, Seller’s liability (and Buyer’s sole and exclusive remedy) with respect to any defective material shall be limited to the replacement of that portion of material or a credit to Buyer in the amount of the invoice for such material, as Seller may elect.
Warranties
Seller disclaims all warranties, express or implied of merchantability, fitness for any purpose or use, or allegedly arising from any usage of any trade or from any course of dealing, or otherwise, whether oral or written, which extend beyond the seller’s written specifications applicable to such products as in effect on the date of shipment.
Limitation of Liability
Any action by the Buyer for claimed breach by Seller must be commenced within one (1) year after the cause of action has accrued: in no event shall seller be liable for any special, indirect, consequential, or incidental or punitive damages, losses, or expenses of any kind of buyer or of any of buyer’s customers, including, without limitation, production costs, claimed loss of anticipated profits, injury to credit, reputation or good will. Buyer assumes all risks and liability from the handling and use of the materials and shall be solely responsible for testing and determining suitability of use in a particular application.
Taxes
If, before shipment, Seller’s costs for the material have been increased directly or indirectly by reason of any domestic or foreign law, governmental decree, order of regulation, including, without limitation, the imposition of any new or additional taxes, surcharge or duty, the revaluation or devaluation of currency, or import restrictions. Seller may, at is option, terminate the transaction or, to the extent lawful, increase the selling price by the amount of such increased costs. Any tariff, tax, duty, or other governmental charge upon the sale and or shipment of the goods herein specified now or hereafter imposed by federal, state, provincial or local authorities which Seller may be required to pay will be paid by Buyer to Seller in addition to the purchase price. If Buyer wishes the sale to be tax exempt, Buyer will provide Seller with exemption certificates in a form acceptable to the appropriate taxing authority.
Orders and Acceptance
All further orders from Buyer are subject to signed acceptance by Seller on its current Sales Contract form. In the absence of such signed acceptance, orders shall be deemed accepted and shipments made in accordance with the Terms and Conditions hereof, notwithstanding any purchase order from Buyer containing any inconsistent, supplemental, additional, or different terms.
Indemnification
The goods sold hereunder may be or become hazardous, whether singly or in combination with other goods or products. Buyer acknowledges that it is familiar with, and will take all steps necessary to familiarize, inform and warn its employees, agents, customers, and contractors who may handle or come into contact with the goods of all the hazards pertaining to, and proper procedures for safe use of, the goods and of the containers or equipment in which the goods may be handled, shipped, or stored. Buyer also undertakes to label as appropriate any materials which it makes or resells that includes the goods said hereunder. buyer will indemnify, defend, and hold seller harmless from and against any claim, liability, or expense (including legal fees) including, but not limited to injury or death arising directly or indirectly from buyer’s failure to so familiarize, inform and warn. These undertakings apply in full measure whether seller is alleged or found to be concurrently, partially or jointly negligent or at fault or liability without fault is sought to be imposed on seller.
Waiver
Seller’s waiver of any breach or failure to enforce any of the Terms and Conditions herein or the contract of sale shall not be deemed to be a continuing waiver of any subsequent or continuing breach or a continuing waiver of the enforcement of such Terms and Conditions or of any other terms and conditions and such waiver shall not in any way effect, limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise. Seller’s rights to enforce and compel strict compliance with every term and condition hereof. Buyer agrees to indemnify Seller for all costs, including attorney’s fees, associated with the enforcement of these Terms and Conditions and of the contract for sale of any goods sold hereunder.
Choice of Law
This invoice may not be modified or terminated other than as herein provided, nor any of its provisions waived, except by a writing signed by the party to be charged, may not be assigned by Buyer, and shall be governed by and construed in accordance with the laws of the State of Indiana without giving effect to its choice of law principles.
Technical Advice
Any technical advice furnished, or recommendation made by the Seller or its agents concerning any use or applications of any goods furnished hereunder is made in good faith and is believed to be reliable. Seller makes no warranty, expressed or implied, as to the completeness or accuracy of such statements.
Inconsistent Terms
These Terms and Conditions shall govern over any conflicting terms on any Purchase Order.
Credit Memos
Credit memos expire one year of issue date (invoice date) on credit memo.