Terms & Conditions of Sale
1. Delivery terms are as stated on the face of this document. All prices, including delivery terms, are subject to change, without notice, to prices and delivery terms in effect at the time of shipment.
2. Seller shall not be liable for damages including but not limited to damages based on cover or consequential damages or loss of profits or damages based upon loss of the product), for any failure to or delay in delivery due to acts of God, floods, tornadoes, hurricanes, earthquakes or other weather conditions, accidents (whether or not caused or contributed to by Seller's negligence), strikes or other labor disputes (whether against Seller, its suppliers or carriers, and whether or not due to the fault of Seller), delay of carriers, shortages of materials, fuel or energy, breakdown of Seller's equipment, orders, requirements or requests of any government, government agency, or any officer or official thereof, or any similar causes, whether or not beyond Seller's control. In the event that there is a delay in delivery due to such cause or causes, Seller shall have the option to cancel without any liability to Buyer or to make delivery within a reasonable time after the termination of the cause or causes of the delay.
3. This Acknowledgement is expressly made conditional on Buyer's assent to all terms and conditions contained herein, including those which are different from or in addition to any terms and conditions contained in any form heretofore or hereafter, supplied by Buyer or Seller, and Buyer's acceptance of the products shall be conclusive evidence of such assent. Seller hereby gives notice that it objects to any terms or conditions contained in any form or document heretofore or hereafter supplied by Buyer to Seller which are in addition to or different from the terms and conditions herein contained.
4. The terms and conditions of this Acknowledgement shall constitute the sole and exclusive agreement between Buyer and the Seller, and the same may not be altered, amended, modified or rescinded except by a writing signed by the Buyer and Seller.
5. Shipping date is Seller's best estimate, and will not operate to bind Seller to ship or make deliveries on the dates stated herein.
6. Seller, subject to the conditions set forth herein, warrants that the material referenced herein will be free from defects in material and in workmanship related thereto. This warranty does not apply to materials which have been or are exposed to smoke, fire, radiation, salt spray, organic solvents, concentrated detergents, wetting agents, harmful fumes or foreign substances in the atmosphere or to materials damaged by malicious mischief, vandalism, improper handling or improper installation. Subject to the foregoing, if any failure to conform to this warranty be found within thirty (30) days (in the case of any non-conformity discoverable through reasonable inspection) or within two (2) years (in the case of defects not discoverable through reasonable inspection) from date of receipt of the material by Buyer and Seller is given immediate written notice thereof. Seller, upon being satisfied of the existence of such non-conformity, will correct the same by replacement of the defective material or making suitable repairs, all costs and charges, including the cost of labor, to remove and replace defective material, to be borne by Buyer. If Seller is unable to correct such non-conformity by replacement of the material whether due to the nature of such non-conformity or the use made by Buyer of the material, it will return to Buyer the purchase price, or where appropriate, the unit price for such number or quantity of the material as shall have such non-conformity which Seller is unable to correct, upon Seller's receipt of the non-conforming material F.O.B. its plant: provided, however, no material shall be returned to Seller without its express written consent, and provided further that such receipt of any non-conforming material will not be required where it is no longer possible for Buyer to return the same to Seller. The foregoing is Seller's sole warranty with respect to the product. Alucobond® material carries a standard material defect warranty of five (5) years. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Buyer's exclusive remedy against Seller shall be as set forth in the preceding paragraph. In no event shall Seller be liable to Buyer, either directly or by way of contribution or indemnity, for direct, special, incidental, tort or consequential damages, or any other damages or any kind whatsoever, such as, but not limited to, property damage, loss of profit, damages based on loss of use of the product, or damages for cover, regardless whether the claim for any such damages be based on breach of warranty, express or implied, breach of contract, tort, or otherwise.
8. Buyer shall indemnify and hold Seller harmless from and against any and all claims, causes of action, judgments and expenses incurred in connection therewith, including reasonable attorney's fees, made upon or brought against Seller by any person whomsoever , which are in any way related to or connected with the product described herein or the manufacture or use of the same, and without limiting the generality of the foregoing, such claims for personal injury, death, property damage, loss of profit, damages based upon loss of use of any product, plant or equipment, patent, trademark or trade name infringement, whether or not such claims are based in whole or in part upon Seller's breach of any warranty, express or implied, negligence, or other tort, or otherwise breach of contract.
9. Seller reserves, the right to change the payment terms set forth herein, if, in its sole opinion, the financial condition of the Buyer warrants such change, in such case, in addition to any other remedies provided by law. Seller may require cash payments or security satisfactory to it before delivery. Failure to pay invoices when due shall operate to make all subsequent invoices immediately due and payable. The receipt by Seller of part payment of the full amount then due and payable (whether under the original terms of payment or terms of payment changed by Seller as provided herein) shall not be a waiver of any of Seller's rights set forth herein or provided by law. Past due invoices will be subject to a service charge at the higher of either the prime rate of interest plus three percent (3%) or twelve percent (12%) per annum.
10. Any equipment, including jigs, dies, tools, printing plates, cylinders, etc., which Seller constructs or acquires solely for use in the production of the product described herein shall be and remain Seller's property. Seller shall at all times have the right to the sole and exclusive possession and control of the same. Any charges made by Seller for any such equipment shall not confer on Buyer any right of any kind with respect to such equipment, except the right to have Seller use the equipment exclusively, for the manufacture of the products described herein, for Buyer. In the event, and for whatever reason, Seller has not used the equipment in the manufacture of the product described herein for Buyer for a period of one year, Seller shall have the right to make such disposition or use (including use of equipment to manufacture products for customers other than Buyer) of the equipment as it, in its sole and exclusive judgment, considers to be appropriate.
11. When returnable non-standard packaging is required in connection with shipment of the products, Seller shall charge Buyer an appropriate deposit, which shall be paid net cash, 30 days, without discount. If the same are returned to point of origin, and in the sole opinion of Seller are in good condition, reasonable wear and tear expected, within a period of twelve (12) months from date of shipment of the product, Seller will give to Buyer a credit equal to the amount of such deposit. Such credit, however, is subject to a deduction charge for repairs, if in Seller's opinion repairs are necessary.
12. In addition to the price specified herein, the amount of any present or future tax applicable to the sale, manufacture, delivery, use and or other handling of the product shall be paid by the Buyer.
13. No waiver by Seller of any breach of any previous hereof shall constitute a waiver of any other breach of such provision.
14. This contract is not subject to cancellation unless cancellation is accepted in writing by Seller, and Buyer pays all cancellation charges. Cancellation charges shall include cost of material on hand purchased by Seller for the product described herein, and labor costs for work in progress, plus overhead and reasonable profit. Upon payment of such cancellation charges, all such raw materials and work in progress shall become the property of Buyer, and on Buyer's request shall be delivered to it F.O.B. Seller's plant.
15. These additional terms and conditions apply to export shipments only:
(1) Current export regulations for the U.S. Government Department of Bureau of Foreign Commerce, Washington, D.C. may require that an export license be obtained to export material of the type offered herein. It is necessary that any such license, if required.
(2) Buyer shall supply import license, if required.
(3) The Seller reserves all rights to any drawback of U.S. customs duties if obtainable.
(4) All payments are to be made in U.S. dollars against funds in the United States.
(5) Any claim or controversy arising out of or related to this contract, the breach thereof, or the product described on the face hereof shall be settled by arbitration, to be held and conducted in St. Louis, Missouri in accordance with the rules of the American Arbitration Association.
(6) Notwithstanding warranties stated above, inspection by Buyer and final acceptance to be at Seller's mill prior to shipment and after shipment, and whether or not Buyer has so inspected the product. Seller shall have no liability or responsibility to Buyer for damages of any kind whatsoever caused by any defect or condition which such inspection should have revealed.
(7) The right is reserved to place in the storage for Buyer's accountancy material not shipped promptly.
16. Buyer and Seller agree to submit any dispute, claim or controversy between them arising out of or under this contract to final and binding arbitration under Missouri law, in an arbitration conducted in accordance with the rules of the American Arbitration Association in a hearing convened for such purpose in St. Louis, Missouri. Within thirty (30) days of the filing of a Notice to Arbitrate, Buyer and Seller shall each appoint a qualified arbitrator to hear and decide the claim or controversy and these two arbitrators shall, within twenty (20) days of the appointment or the last so appointed, appoint a third qualified arbitrator to be Chairman of the panel. Should the parties, within the time limits given, be unable or unwilling to appoint their respective arbitrators, or should the two arbitrators chosen by the parties be unable or unwilling to appoint a third arbitrator to be Chairman of the panel, then the American Arbitration Association shall appoint a panel of three arbitrators to hear and decide the claim or controversy at issue. Judgment in an award rendered in Arbitration hereunder may be entered in a jurisdiction, or application maybe made to any court of record for confirmation of such award or a judicial acceptance of such award and for an order of enforcement or other legal remedy, as the case may be. Consent is hereby given by the parties to the jurisdiction of any such court regarding any matter arising out of such arbitration or the enforcement of any such award. All costs of the prevailing party to any arbitration hereunder are to be reimbursed by the other.
17. In compliance with the Foreign Corrupt Practices Act (FCPA), no company officer, employee or agent has authority to offer, promise, make or facilitate the making of payments to a foreign official to induce that official to affect any government act or decision in a manner that will assist the Company or any of its affiliates, subsidiaries or divisions to obtain or retain business or any advantage. Furthermore, every officer, employee and agent is obligated by company policy and federal law to keep books, records, and accounts that accurately and fairly reflect all transactions and disposition of Company assets.