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1. ACCEPTANCE OF PURCHASE: These terms and conditions of sale (“Terms”) govern the sale by BARCHEMY LLC (“Seller”) of the goods (“Products”) to the buyer (“Buyer”) (collectively, “Order”). Buyer shall be deemed to have made an unqualified acceptance of these Terms on the earliest to occur of the following: (a) failure by Buyer to notify Seller in writing (whether by email or letter) of any objection which Buyer may have to any provision of these Terms within 5 calendar days of receipt hereof; (b) Seller’s first delivery of the Products; or (c) any other event constituting acceptance under applicable law. Any acceptance, confirmation, purchase order or the like sent by Buyer with respect to the purchase of Products which states additional or differing terms from this Agreement shall operate as an acceptance of all terms and conditions hereof, and all such additional or differing terms sent by Buyer shall be deemed proposals for material modification hereof, to which notice of objection is hereby given, and they shall not become part of this Agreement unless Seller expressly assents thereto in writing within five (5) days of receipt. Unless otherwise specifically agreed to in writing, all Products are produced and purchased under Seller’s specifications. The Products will only be furnished by Seller pursuant to these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. PRICING/INVOICING: Prices are firm irrespective of changes in market prices or Seller’s list prices. All pricing is ExWorks Seller’s facilities in Donora, PA. If Seller elects to have Buyer arrange for shipping of Products to Seller, freight will be prepaid by Seller and added to the final invoice. Invoices are due net thirty (30), and issued at the time of shipment. All invoices not paid when due will bear interest at the lesser of (i) the maximum interest rate permitted by law, and (ii) 1.5% per month until paid in full. The collection of interest shall be in addition to any remedy available to Seller at law or in equity.
3. WEIGHTS: Buyer shall not be entitled to reject any delivery of Products by reason of it being incorrect in quantity by an amount plus or minus 10% and Seller shall not be liable in any manner for any variance in quantities delivered plus or minus 10% of the ordered Products. Seller shall invoice and Buyer shall pay for all Products delivered. On liquid bulk shipments, Buyer shall make payment based upon shipped weights, not off-loaded weights. Seller stipulates that the invoiced weights of the Products provided for herein shall have been determined by certified scales and presumed accurate. Seller’s count or weight will be final and conclusive for all shipments.
4. DELIVERY: Delivery dates provided in the Order are
estimates only and cannot be guaranteed by Seller. Seller agrees to
deliver Products within a reasonable time as determined by industry
standard. Failure by Seller to meet a quoted or estimated delivery
date will not give Buyer the right to cancel the Order or to hold
Seller responsible for any damages resulting from the inability to
deliver within the stated time. All sales are ExWorks Seller’s
facilities in Donora, PA. Buyer will bear all risk of loss and costs
for delivery of the Products, including shipping and insurance
charges, duties, any changes in duties, taxes and other charges. Any
claims Buyer may have for damages or loss of any Order shall be
made directly to the common carrier. If Seller elects to have Buyer
arrange for shipping of Products to Seller, the shipping carrier will
be chosen at the sole discretion of Seller. Seller will apply carrying
charges including shipping to off-site warehousing and warehousing
costs, to any unshipped balance after completion of the shipment
period set forth in each related Order. Buyer shall pay Seller
warehousing/storage/transit fees for any unshipped Product ten (10)
days after Seller’s requested shipment date set forth in each related
5. LIMITED OTHER WARRANTY; DISCLAIMER OF WARRANTIES: Seller herby disclaims all implied warranties with regard to the Products. Seller specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, that the Products were manufactured in a good and workmanlike manner, or do not infringe on any intellectual property rights of any third parties. Such implied warranties are hereby disclaimed for all purposes. Seller hereby expressly disclaims all representations, covenants, warranties, assurances, guaranties, agreements, and similar promises, whether express, implied, statutory or otherwise (including, without limitation, those arising out of a course of dealing or trade, as to merchantability or as to fitness for a particular purpose) in respect of the Products, the use of the Products, and the efficacy of the Products. Seller does not assume responsibility nor does Seller warrant the performance or accuracy of Buyer’s furnished design, design criteria or specifications for the Products. Seller warrants to Buyer that, at the time of delivery, the Products are merchantable. Buyer must make any claim for breach of warranty in writing within thirty (30) days of the date of delivery and within 10 days after discovery of breach. Buyer’s failure to make such claim within such time frames shall constitute Buyer’s irrevocable acceptance of the Products and Buyer’s acknowledgement that the Products fully comply with this Agreement. Seller shall, at its option, either replace at its expense any Products proven to Seller’s reasonable satisfaction to be in breach of this section or refund to Buyer any of the purchase price received by Seller for such Products. Such warranty shall not apply in cases of damage in transit, negligence, abuse, failure to follow Seller’s instructions, improper storage, accident, misuse, neglect or alteration by any party other than Seller or by physical environment. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO THESE TERMS AND THE PRODUCT SHALL BE LIMITED AND SHALL IN NO EVENT EXCEED THE PURCHASE PRICE RECEIVED BY SELLER FOR THE PRODUCTS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER FOR BREACH OF ANY WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION OF SALE, OR FOR LIABILITY ON THE BASIS OF NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER SHALL HAVE BEEN ADVISED IN ADVANCE OF THE LIKELIHOOD THEREOF.
6. FORCE MAJEURE: Neither party shall be in default hereunder by reason of any failure or delay in the performance of any obligation under this Agreement where such failure or delay arises out of any cause beyond the reasonable control and without the fault or negligence of such party. Such causes shall include, without limitation, pandemic, storms, floods, other acts of nature, fires, explosions, riots, war or civil disturbance, strikes or other labor unrest, embargoes and other governmental actions or regulations that would prohibit a party from ordering or furnishing Products or performing any other aspects of the obligations hereunder. This section shall not apply to Buyer’s payment obligations hereunder.
7. TERMINATION: If Buyer fails to take delivery of the entire quantity ordered, Buyer shall compensate Seller for all costs and damages resulting therefrom, including (without limitation) lost profits, allocable overhead, commodity market losses and all other incidental and consequential damages.
8. PRODUCT RETURNS: Buyer may not return Products except upon terms accepted in writing by Seller.
9. INTERNATIONAL SALES: For international sales, the U.N. Convention on Contracts for the International Sale of Goods shall not apply, and Buyer agrees to comply with all applicable export laws.
10. MISCELLANEOUS: No change, modification or amendment of this Agreement shall be binding upon the parties unless the same shall be in writing and signed by or on behalf of both of the parties hereto. No waiver of or failure or omission to enforce any term or provision of this Agreement or any right or claim arising hereunder shall be deemed to be a waiver of any other term or provision hereof or any other right or claim arising before, concurrently with or after any such wavier, failure or omission or any event giving rise to any right or claim so waived or unenforced. Neither party shall assign this Agreement without the prior written consent of the other party, which consent may be withheld for any reason or no reason. This Agreement shall bind and inure to the benefit of Seller and Buyer and their respective successors and assigns. The laws of the State of Pennsylvania, including the Uniform Commercial Code as adopted therein (without regard to Conflict of Laws Principles), shall govern the rights and obligations of the parties hereunder. Any cause of action, claim, suit or demand by either party shall be brought in a state or federal court situated in the State of Pennsylvania. Both parties irrevocably admit themselves to and consent to the jurisdiction and venue of said court, and specifically waive the doctrine of forum non conveniens. This Agreement constitutes the final written expression of the terms between the parties and is a complete and exclusive statement of those terms.
11.GRANT OF SECURITY INTEREST. As collateral security for the prompt, complete, and timely satisfaction of all present and future indebtedness, liabilities, duties, and obligations of Buyer to Seller evidenced by or arising under this Agreement, and including, without limitation, all principal and interest payable under the Note (as such term is defined herein or in the Credit Application), any Order or any subsequent agreement and all attorneys’ fees, costs and expenses incurred by Buyer in the collection or enforcement of the same (collectively, the “Obligations”), Buyer hereby pledges, assigns and grants to Seller a continuing purchase money security interest and lien in all of the Buyer’s right, title and interest in and to any of Seller’s Products sold to Buyer at any time, including the proceeds of any disposition thereof, and all products and accounts receivable related thereto described on any Order now or in the future issued to Buyer or any subsequent agreement (the “Collateral”). As applicable, the terms of this Agreement with respect to Buyer’s granting of a continuing purchase money security interest in the Collateral to Seller shall be deemed to be a purchase money security agreement under applicable provisions of the Uniform Commercial Code, with Buyer as the debtor and Seller as the secured party. Buyer specifically authorizes Seller to execute and file financing statements describing the Collateral to perfect the purchase money security interest created hereunder with the Secretary of State of Buyer’s state of incorporation. At Seller’s option, all amounts owing to Seller under any Order or any subsequent agreement shall be evidenced by a promissory note in form and substance satisfactory to Seller, upon which Seller shall have the right to schedule any additional amounts owing under any Order now or in the future issued to Buyer (the “Note”).
12.INDEMNIFICATION. To the fullest extent permitted by law, Buyer agrees to indemnify, save harmless and defend Seller and its affiliated companies, their directors, officers, employees, agents and assigns (“Indemnitees”) from and against any loss, liabilities, costs, expenses, suits, actions, claims and all other obligations and proceedings, including without limitation all judgments rendered against, and all fines and penalties imposed upon Indemnitees, and all attorney’s fees and any other cost of litigation (“Liabilities”) arising out of warranty claims, product recall claims, product liability claims, injuries to persons, including death, or damage to property caused by Buyer, its employees, agents, subcontractors, or in any way attributable to the performance of Buyer or the use of the Products, including without limitation, breach of contract, breach of warranty or product liability.
13.CHANGES TO ORDER: Seller may, in its sole and exclusive discretion, change this Order in any respect at any time by written notice to Buyer. If any such change affects cost or timing, Seller may, at its discretion, equitably adjust the price or time for performance where the Seller’s direct costs are materially affected by such changes. Buyer may request a change to this Order by written notice to Seller; such requested change may be accepted or rejected by Seller in its sole and exclusive discretion. Seller may be required to equitably adjust the price or time for performance when the Seller’s direct costs are materially affected by such requested change. All adjustments, if any are made or granted, must be in writing and signed by a duly authorized representative of Buyer and Seller.
14. CANCELLATION OF ORDER: In the event that Buyer notifies Seller of its intention to cancel any Order after work commences, Buyer shall be responsible for the entire Order price. Seller shall be entitled to recover its entire profit on all anticipated Products sold pursuant to the Order, raw materials costs and its actual costs for Products manufactured and/or delivered.
ACCEPTANCE OF THE ORDER IS SUBJECT TO THESE TERMS AND CONDITIONS OF SALE.
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