TERMS AND CONDITIONS OF SALE
1. Acceptance. All purchase orders for any materials, products and/or any other item (herein the Goods ) and acceptances of Goods by any customer (herein Buyer ) are EXPRESSLY CONDITIONAL ON THE ASSENT TO THE TERMS AND CONDITIONS PRINTED HEREON, AND NO TERMS ADDITIONAL TO OR DIFFERENT FROM THOSE STATED HEREIN ARE BINDING ON TARPSTOP (HEREIN THE SELLER ) UNLESS AGREED TO IN WRITING BY THE SELLER.
2. Title and Risk of Loss. Title and risk of loss or damage to the Goods shall pass to the Buyer upon tender of delivery F.O.B. Seller’s manufacturing facility unless otherwise agreed upon by the parties, except that a security interest in the Goods shall remain to the Seller until full payment has been made. Buyer agrees upon request to do all things and acts necessary to perfect and maintain said security interest and shall protect the Seller’s interest by adequately insuring the Goods against loss or damage from any cause.
3. Price, Taxes and Interest Charges. Prices quoted are F.O.B., Seller’s facility, and the amount of any local, state or federal taxes on the Goods shall be added to the price and paid by Buyer. Buyer represents that Buyer is solvent and can and will pay for the goods sold to Buyer in accordance with the terms hereof. All shipments shall be subject to the approval of Seller’s credit department. Seller reserves the right before making any delivery to require payment in cash or security for payment and if Buyer fails to comply with such requirement, Seller may terminate any contract with Buyer affected thereby. An interest charge of one and one-half percent (1-3/4%) monthly (21% annual rate) or the maximum allowed by state law, will be paid by Buyer on all past due accounts.
4. Delivery. Any delivery schedules which may be specified for shipment of the Goods are only estimates and the Seller shall not incur any liability, either directly or indirectly, nor shall any order be canceled because or as a result of delays in meeting such dates or schedules. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CLAIMS FOR LABOR OR FOR ANY CONSEQUENTIAL OR ANY OTHER DAMAGES RESULTING FROM FAILURE OR DELAY IN DELIVERY. NO DELIVERY DATES ARE GUARANTEED.
5. Force Majeure. In any event and in addition to all other limitations stated herein, Seller shall not be liable for any act, omission, result or consequence, including but not limited to, any delay in delivery or performance which is (i) due to any act of God, the prior performance of any government order, any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law, local labor shortage, fire, flood, or other casualty, governmental regulation or requirement, shortage or failure of raw material, supply, fuel, power or transportation, break down of equipment, or any cause beyond Seller’s reasonable control whether of similar or dissimilar nature to those above enumerated, or (ii) due to any strike, labor dispute, or difference with workers, regardless of whether or not Seller is capable of settling any such labor problem.
6. Laws, Ordinance and Regulations. Seller shall utilize reasonable efforts to cause the Goods to comply with its interpretation of federal safety regulations and insurance codes of a national scope. However, Seller shall not be responsible for compliance with local interpretations of such federal regulations or insurance codes nor with any local laws, ordinances, codes and/or regulations which may at any time be in effect at any location where the Goods are to be utilized, unless such responsibility shall be expressly assumed by the Seller in writing.
7. Changes in Design. The Seller reserves the right to discontinue the manufacture or sale of any model, style or type of the Goods, or of any parts or accessories thereto, and the right to change or alter the design or composition of the Goods, parts or accessories without notice, and the Seller shall incur no liability thereby nor any obligation to furnish or install any replacement Goods, parts or accessories which were purchased or sold prior to the making of any alterations or changes in design.
8. Off Quality and Goods Made to Buyer s Specifications. Seller makes NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED except as to title, with respect to Goods manufactured, compounded and/or designed to Buyer s own specifications, or if Buyer has requested off-quality Goods the Buyer shall at its own expense defend and save Seller harmless from and against any claim, suit, expense or otherwise which shall be asserted or brought against Seller by reason of its manufacture or sale of such Goods.
9. Warranty. Except as described in clause 8 above, the Seller warrants that the Goods (a) are in accordance with the provisions of any product-specific written warranty published and delivered to Buyer from Seller, or (b) in the absence of a product-specific warranty warrants that the same are in accordance with the Seller s published specifications at the time of order and that it will repair or replace, at Seller s option, such Goods as fail to conform to its published specifications, provided notice of claim under this warranty is given within a period of not less than thirty (30) days following shipment. The Seller shall in no event be responsible for the cost of field labor or charges incurred by Buyer returning any products to the Seller for repair or replacement. No return shall be made without prior written consent of the Seller.
10. Exclusion of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, THERE ARE NO WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, WHICH APPLY TO THE GOODS. NO WARRANTIES OR REPRESENTATIONS AT ANY TIME MADE BY ANY REPRESENTATIVE OF THE SELLER SHALL BE EFFECTIVE TO VARY OR EXPAND THE ABOVE EXPRESS WARRANTY OR ANY OTHER TERMS HEREOF.
11. Technical Advice. Seller shall not be responsible for the result of any technical advice in connection with the design, installation or use of the Goods.
12. Liability Limitation. Seller s liability hereunder shall be limited to the obligation to repair or replace the Goods pursuant to clause 9 above. Seller s total cumulative liability in any way arising from or pertaining to any Goods sold or required to be sold under any contract shall NOT in any case exceed the purchase price paid by the Buyer for such Goods. IN NO EVENT SHALL SELLER, HAVE ANY LIABILITY FOR COMMERCIAL LOSS, CLAIMS FOR LABOR, OR ANY CONSEQUENTIAL DAMAGES OF ANY OTHER TYPE WHETHER BUYER S CLAIM BE BASED IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR OTHERWISE. IT IS EXPRESSLY AGREED THAT BUYER S REMEDIES EXPRESSED IN THIS PARAGRAPH ARE BUYER S EXCLUSIVE REMEDIES.
13. Cancellation or Changes of Order. No order may be withdrawn or cancelled by the Buyer, nor may they be deferred when ready, unless Seller shall first be paid a cancellation or deferral charge of a reasonable amount acceptable to the Seller. In the event, buyer shall request changes in its order after receipt thereof by Seller, Buyer shall be responsible for all charges reasonably assessed by Seller with respect to such changes.
14. Set-Offs. Neither Buyer nor any affiliated company or assignee shall have the right to claim compensation or to setoff against any amounts which become payable to the Seller under any contract or otherwise.
15. No Protection from Claim of Infringement. Seller makes no representation of warranty that the delivery or subsequent use of the Goods shall be free of the claim of any third party by way of infringement.
16. Applicable Law. The terms and conditions applicable to any sale of Goods by the Seller shall be determined and construed in accordance with, and shall be governed by, the laws of the State of Ohio and Buyer and the Seller agree to submit to the jurisdiction of the appropriate state or federal court within Ohio for purpose of resolving any dispute or claim arising in connection with said transaction.