General Terms and Conditions of Sale
Prices for the materials sold under this Agreement shall be Seller's prices in effect on the date of shipment, unless otherwise agreed in writing. Buyer shall also pay any applicable taxes. If payments are not made in accordance with Seller’s credit and payment terms and conditions, or if Seller has reason to believe that Buyer's financial condition or ability to perform its obligations under this Agreement is unsatisfactory, Seller may require cash in advance or other payment terms, suspend shipments, or cancel this Agreement. All approved credit sales require completion of Seller’s Credit Application and are subject to Seller’s standard terms and conditions for credit.
2. Limited Warranty
Seller warrants that the materials will meet its written specifications for the type of cement supplied under this Agreement. Seller also warrants that it has good title to the materials. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
3. Inspection; Limitation of Liability; Buyer's Remedy
Buyer must promptly inspect the materials upon their delivery and must notify Seller in writing of any claims within 45 days of their date of delivery. Seller's maximum liability and Buyer's sole remedy in the event of delivery of materials that fail to comply with the terms of this Agreement, or for any other breach by Seller under this Agreement, is a refund of the purchase price or, at Buyer's option and subject to availability, supply of replacement materials with freight charges to be borne by Seller. No materials shall be returned without prior authorization of Seller. In no event shall either Seller or Buyer be liable for any incidental, consequential, exemplary or punitive damages, regardless of whether caused by such party's negligence.
4. Technical Information; Hazards and Precautionary Procedures
Any technical information or assistance Seller or its affiliates provides is given and accepted at Buyer's risk and is not a warranty or a specification. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the materials and will manage the materials accordingly. Buyer will provide or make available any product safety information provided by Seller or its affiliates to Buyer's employees, to all others who handle the material, and to its customers. Buyer agrees to indemnify Seller for any claims made against Seller or its affiliates, and for associated damages and expenses (including reasonable attorneys' fees and expenses), to the extent caused by Buyer's failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly, or to provide such information as set forth above.
On bulk shipments, claims may not be made for shortages of less than 0.5% of the net weight. Delivery of within 5% of the quantity requested, as weighed on Seller’s certified scales, shall be accepted by Buyer as complying with the order, although Buyer must pay for only the quantity actually delivered.
6. Force Majeure; Governmental Actions
Neither Buyer nor Seller shall be liable for failure of such party to perform under this Agreement where such failure is caused by war, fire, accident, strike, labor trouble or shortages, equipment breakdown, governmental laws, regulations, orders or decrees (including those relating to environmental matters), unavailability of raw materials or transportation, or acts of God or other causes beyond such party's reasonable control, and upon the occurrence of any such event, Seller may allocate any available material among its customers and affiliates without such allocation constituting a default hereunder. If a governmental action substantially affects Seller's right to set prices or transportation terms or conduct its business, Seller may terminate this Agreement on 30 days notice.
7. Title and Risk of Loss
Unless provided otherwise on the face of this Agreement, title and risk of loss to the material shall pass to Buyer at the time the materials are loaded into the means of transportation being utilized for the shipment.
Seller reserves the right to discontinue deliveries of any material the manufacture, sale or use of which, in its opinion, would violate any applicable legal requirement. Seller reserves the right to discontinue the production and sale of any material subject only to fulfilling existing contracts.
All written orders are subject to written acceptance by Seller. The contract between Buyer and Seller consists only of the terms and conditions in this document and any attachments hereto, and, if a credit sale, Seller’s Credit Application form and Seller’s terms and conditions for credit. Any modifications must be in writing and signed by both parties. A waiver by Seller with respect to any breach by Buyer shall not constitute a waiver of any other breach. No oral understanding, representation or warranty shall be of any effect. The terms and conditions of this Agreement shall supersede the terms and conditions of any form or document used by Buyer in the event of contradiction or inconsistency with this Agreement.
This Agreement shall be binding upon and insure to the benefit of the parties, their successors and assigns; provided, however, that neither party shall assign this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld.
Buyer shall be liable for all demurrage charges incurred after Seller places the materials in the hands of the carrier.
Seller’s weights on its certified scales, at the time of shipment, shall govern as the weights of all materials supplied under this Agreement.