1. Purchase Orders: The buyer agrees that the terms and conditions set forth herein shall be applicable to all quotations and purchase orders covering the sale of Seller’s products and services shall supersede all printed terms and conditions set forth in Purchase Orders used by the Buyer. Seller shall not be deemed to have waived these terms and conditions of sale if it fails to object to terms and conditions appearing in Buyer’s purchase order, and Buyer’s acceptance of products or services called for in said orders shall constitute the Buyer’s acceptance of these terms and conditions of sale. Orders given to or accepted by salesmen or agents are subject to approval and acceptance at the office of the company.
2. Prices: (a) All prices are subject to change without notice. (b) In addition to the stipulated purchase price of the goods, any and all taxes (not including any income or excess profits taxes) that may be imposed by any taxing authority, arising from the sale, delivery, or use of the goods and for which the Seller may be held responsible for collection or payment either on its own behalf of the Buyer, shall be paid by the Buyer to Seller upon Seller’s demand.
3. Payment: Unless otherwise provided, payment for goods purchased and delivered under this contract shall be made in U.S. dollars at the prices stipulated within 30 days after invoice date (NET 30 DAYS). Buyer shall not delay payment for goods pending inspection under paragraph 4 below.
4. Inspection: If upon receipt and inspection of goods by Buyer at destination, such goods shall appear not to be in conformance with the contract, the Buyer shall, within 10 days after the receipt thereof, notify the Seller of such condition and afford Seller a reasonable opportunity to inspect the goods and make any appropriate adjustment or replacement. The remedies afforded Buyer under paragraph 7 hereof entitled “Warranty” shall be exclusive for defective goods discovered upon inspection.
5. Delivery, Title and Risk of Loss: All shipments shall be shipped F.O.B. United Structural Products’ plant. Title to and the risk of loss of or damage to all products sold hereunder shall remain with the Seller until, and shall pass to the Buyer upon delivery of the goods to the carrier for transportation to the Buyer. On prepaid shipments, Seller reserves the right to determine the routing and method of shipment. If a more expensive method is requested, it will be at the Buyer’s expense.
6. Packaging: The goods to be delivered hereunder shall be packed in accordance with sound commercial practice for domestic shipment. Unless otherwise provided, export or other special packaging will be at additional charge to the Buyer.
7. Warranty: (a) Seller warrants to Buyer that at the time of delivery the goods will be free from defects in material and workmanship, and will conform to the specifications as stipulated in this contract. However, should any goods under normal use prove to be defective due to faults in material or workmanship within one (1) year from the date of shipment, such defective goods, upon due notice to Seller given within the one (1) year period, will be replaced, or at seller’s own option repaired, and replaced to Buyer F.O.B. destination. (b) Seller also warrants to Buyer that it will convey good title to the goods sold hereunder. Seller’s liability and Buyer’s remedy under this warranty is limited to the removal of any title defect or, at Seller’s election, the replacement of the goods which are defective in title. (c) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF (i) ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE: AND (ii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN CONTRACT OR TORT, WHETHER OR NOT ARISING FROM SELLER’S NEGLIGENCE. THE REMEDIES OF THE BUYER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES, INCLUDING WITHOUT LIMITATION, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
NO AGREEMENT VARYING OR EXTENDING THE FOREGOING WARRANTIES, REMEDIES OR THIS LIMITATION WILL BE BINDING UPON THE SELLER UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF THE SELLER.
8. Return of Goods Policy: Cable trays systems and their components are made to order and therefore are not returnable. Only specific items deemed returnable will be considered for return on a case by case basis. In these instances, the request for authorization must be made within 90 days of the original shipment made by United Structural Products. Returns will not be accepted without prior written authorization.
Returns are limited to 5% of the total dollar value of the order. A restocking charge of 35% of the invoiced price will be charged on all returns. The buyer will prepay all freight for returns. The material when received back must be in resalable condition or the cost of any reconditioning required to return the goods to a resalable condition will be borne by the buyer.
9. Buyer’s Financial Status: If before completion of performance of this contract by Seller, the Buyer becomes bankrupt, insolvent, or makes an assignment for the benefit of creditors, the Seller may at its option terminate this contract by giving to the Buyer a written notice of termination and Seller shall thereupon be relieved of any further obligation to Buyer. In addition to payment for goods delivered, Buyer shall reimburse Seller for its termination costs and a reasonable allowance for profit for the work terminated.
10. Excusable Delays: Buyer acknowledges that the goods called for hereunder are to be manufactured by or for Seller to fulfill this order and that the delivery dates are based on the assumption that there will be no delay due to causes beyond the reasonable control of Seller. Seller shall not be charged with any liability for the delay or non-delivery when due to delays of suppliers, acts of God or the public enemy, compliance in good faith with any application foreign or domestic governmental regulation or order whether or not it proves to be invalid, fires, riots, labor disputes, unusually severe weather or any other cause beyond the reasonable control of Seller. To the extent that such causes actually retard deliveries on the part of the Seller, the time for the performance shall be extended for as many days beyond the date thereof as is required to obtain removal of such causes. This provision shall not, however, relieve Seller from using its best efforts to avoid or remove such causes and continue performance with reasonable dispatch whenever such causes are removed.
11. Limitation on Liability: The price allocable in this contract to any product or service alleged to be the cause of any loss or damage to the Buyer shall be ceiling limit on Seller’s liability, whether founded in contract or tort (including negligence), arising out of, or resulting from (i) this contract or the performance of breach thereof, (ii) the design manufacture, delivery, sale, repair, replacement, or (iii) the use of any such product or the furnishing of any such service. In no event shall Seller have any liability for any incidental or consequential damages.
12. Patent Indemnity: Seller shall conduct at its own expense the entire defense of any claim, suit or action alleging that, without further combination, the use or resale by Buyer or any subsequent purchaser or user of the goods delivered hereunder directly infringes any United States patent, but only on the conditions that (a) Seller received prompt written notice of such claim, suit or action and full opportunity and authority to assume the sole defense thereof, including settlement and appeals, and all information available to Buyer and defended for such defense, (b) said goods are made according to a specification or design furnished by Seller, or if a process patent is involved, the process performed by the Goods is recommended in writing by the Seller, and (c) the claim, suit or action is brought against Buyer or one expressly indemnified by Buyer. Provided all the forgoing conditions have been met, Seller shall, at its own expense, either settle said claim, suit or action or shall pay all damages excluding consequential damages, and costs awarded by the court therein and, if the use or resale of such Goods is finally enjoined, Seller shall, at the Seller’s option, (i) procure for defendant the right to use or resell the Goods, (ii) replace them with equivalent non-infringing Goods, (iii) modify them so they become noninfringing but equivalent, or (iv) remove them and refund the purchase price (less a reasonable allowance for use, damage and obsolescence). If a claim, suit or action is based on a design or specification furnished by
Buyer on the performance of a process not recommended in writing by Seller, or on the use or sale of the Goods delivered hereunder in combination with other Goods not delivered to Buyer by Seller, Buyer shall indemnify and save Seller harmless therefrom.
13. Assignment: This contract shall not be assigned in whole or part by either party without prior written consent of the other party, except that Seller may assign its rights, liabilities and obligations arising out of this contract to one or more of its subsidiaries without prior consent.
14. Compliance with Fair Labor Standards Act: Seller hereby certifies that goods sold hereunder which are produced or manufactured in the United States are produced in compliance with the Fair Labor Standards Act of 1983, as amended. All requirements as to the certificate contemplated in the October 26, 1949 amendment shall be considered as satisfied by this certification.
15. Applicable Laws: This contract shall be interpreted in accordance with and governed by the laws of the state of Georgia.
16. Waiver: Waiver by either party of a breach of any of he terms and conditions of this contract shall not constitute a waiver of any other breach of the same or any other term.
17. Entire Contract: The contract to which these terms and conditions are attached constitute the entire agreement between the parties and no modification of this contract shall be binding unless in writing by both parties hereto.