TERMS AND CONDITIONS OF SALE
1. WEIGHTS MEASUREMENT OF SHIPMENTS: Seller’s weight shall govern unless established to be inaccurate. The Buyer shall promptly unload each truck, bulk truck, or a rail carload of the product upon its delivery of the product at the Buyer’s use facility.
2. TERMS OF PAYMENT: Net cash due within thirty (30) days from date of shipment. All amounts payable hereunder shall be paid in lawful money of the U.S. and cash or negotiable paper collectible at its face value at Seller’s location to which payment is to be made as directed in Seller’s Invoice. Interest is charged on past due accounts at 1.5% per month or such other maximum rate allowed by law.
3. INCREASED OR NEW TAXES: Any tax or governmental charge or increase in same hereafter becoming effective which increases the cost to Seller of producing, selling or delivering the product or of procuring materials used therein, or any-tax now in effect or increase in same payable by the Seller because of the sale of the product, such as, but not limited to, Sales Tax, Use Tax, Retailer’s Occupational Tax, Gross Receipts Tax, may, at Seller’s option, be added to the price herein specified. Nothing herein shall be construed to permit Seller to affect an increase in the price herein specified by reason of the imposition or increase in any corporate net income tax by any federal, state, or local taxing entity, or authority.
4. WARRANTIES; LIMITATION: Seller expressly warrants that the product sold will be of the quality described on the face hereof (if any) and will meet Seller’s standard specifications or the specifications, if any, and attached hereto. Unless otherwise agreed in writing, Seller makes no further warranty of any kind express or implied relating to the product, whether used alone or in combination with other substances; and Seller specifically excludes any implied warranty of fitness for a particular purpose and any implied warranty of merchantability. The Buyer assumes all risk and liability resulting from the use of the products delivered as part of this sale, whether used singularly or in combination with other products.
5. TITLE AND RISK OF LOSS: Title and risk of loss in all products sold hereunder shall pass to the Buyer upon shipment from Seller’s facility. Seller warrants that it will convey good title and deliver the product to the Buyer free from all lawful security interests, liens, or encumbrances whatsoever.
6. FORCE MAJEURE: In the event of war; insurrection; riot; fire; flood or other unusual weather conditions; explosion; act of God; peril of the sea; strike, lockout or other industrial disturbance; sabotage; accident; embargo; breakage of machinery or apparatus; injunction; act of governmental authority; compliance with government order or national defense requirements; inability to obtain fuel, power, raw materials, labor, containers or transportation facilities; or any other circumstances beyond reasonable control of the parties, which interferes with the production, shipment or consumption of product covered by this Invoice or with the supply of any raw material used in connection therewith, the affected party may upon reasonable and prompt notice during which such conditions prevail, terminate or modify this Invoice in such manner as is commercially reasonable.
7. GOVERNMENT LAW AND REGULATIONS: Seller’s and the Buyer’s obligations hereunder shall be subject to all applicable governmental laws, rules, regulations, executive orders, priorities, ordinances and restrictions now or hereafter in force, including, but not limited to, (a) the Fair Labor Standards Act of 1938, as amended; (b) Title VII of the Civil Rights Act of 1964, as amended; (c) The Age Discrimination in Employment Action of 1967; and (d.) the rules, regulations and executive orders pertaining thereto. This agreement shall be governed by and construed in accordance within the State of Ohio. Any lawsuit brought by the Buyer arising out of any sale covered by this Invoice shall be brought in a court of competent jurisdiction within the State of Ohio. A court of competent jurisdiction within the State of Ohio means a court where the venue for the lawsuit is proper. The Buyer agrees to submit itself to the jurisdiction of said courts in the event Seller brings a lawsuit arising out of any sale covered by this Invoice.
8. LIMITATION OF LIABILITY AND INDEMNITY: Notice of rejection of nonconforming product must be given to the Seller by the Buyer in writing within seven (7) days after receipt of the product and all defects ascertainable at the time of giving of said notice shall be stated with particularity or be deemed waived. Buyer’s failure to give notice of any claim within said seven (7) days shall constitute an unqualified acceptance of the product and a waiver by the Buyer of all claims with respect thereto. All rejected product shall be held for inspection. Demurrage shall be for the Buyer’s account if the product does conform. If the product does not conform, it shall be held by the Buyer (for no longer than 30 days, pending instructions for disposal from Seller (at Seller’s expense). In the event of nonconformity of the product, the Buyer’s exclusive remedy shall be a rejection of the product and, at Seller’s election (a) credit for the purchase price, including any transportation charges paid by the Buyer or (b) Seller’s replacement of the product.
No action of the Buyer arising out of this Invoice shall be commenced later than one year after the cause of action has accrued. No consequential or incidental damages shall be allowed either in the event of nonconformity or non-delivery of the product. Seller shall not be liable for, and the Buyer assumes responsibility for all personal injury and property damage resulting from the handling, possession, resale, or use of the product by the Buyer in the Buyer’s manufacturing processes, whether used alone or in combination with other substances.
Seller may recover for each shipment hereunder and a set as a separate transaction, without reference to any other shipment. Should the Buyer be in default with respect to any of the terms or conditions under this Invoice or any other Contract with Seller, Seller may, at its option and without prejudice to any other legal or equitable remedy, either terminate this sale or suspend any further deliveries hereunder until correction of the default.
Either party’s waiver of any breach, or failure to observe or enforce any of the terms and conditions of this Invoice, at any time, shall not in any way affect, limit, or waive either party’s rights thereafter to enforce and compel strict compliance with every term and condition hereof upon subsequent written notice to the other party.
9. LABELING AND HANDLING: Seller shall properly package and label the product pursuant to the Hazardous Materials transportation regulations and OSHA Hazard Communication Standard, and the Buyer shall promptly and carefully inspect the product on the receipt.
The Buyer will maintain appropriate safe handling and use procedures for the product and will apprise its employees and customers of the hazards, proper use and handling requirements of the product, and shall comply with the OSHA Hazard Communication Standard, as amended.
10. ENTIRE AGREEMENT: This document, along with any documents referenced herein attached to this Invoice, contain all the terms and conditions with respect to this sale. The terms and conditions supersede any of the previous dates and any oral agreements entered into between the Buyer and Seller. Any modification of this agreement shall be in writing and signed by both parties. Any modifications not in writing and signed by both parties shall not be binding on either party. No modification of the terms and conditions of this sale shall be affected by the acknowledgment or acceptance of the purchase order from stipulating different conditions. Unless the Buyer shall notifies Seller in writing to the contrary as soon as possible after receipt of this Invoice by the Buyer, the Buyer’s acceptance of or payment for the product covered by this agreement shall be equal to the Buyer’s verbal or written agreement to the terms and conditions of this Invoice.