EXALOY LLC STANDARD TERMS & CONDITIONS
1. Each of Buyer’s and Exaloy LLC’s (“Seller”) agreement to enter into a contractual arrangement related to the sale of goods by Seller to Buyer is expressly conditioned upon and subject to the parties assent and agreement to the terms and conditions set forth herein. Except as expressly provided for in a writing executed by an officer of Buyer and Seller, which writing expressly references this Paragraph 1 and its requirements for altering these Terms and Conditions, the only terms and conditions applicable to the agreement (this “Agreement”) for the sale and purchase of goods by and between Buyer and Seller shall be (1) those set forth in these Terms and Conditions, and (2) such specific references solely as to the types of goods and the quantities of goods to be purchased, as well as the desired and accepted dates and locations for delivery and the terms of payment (which shall not be inconsistent or conflict with those set forth in Paragraph 6) as are set forth in any purchase orders, acknowledgments, acceptances and other documents agreed to in writing by Buyer and Seller (each a “Supplemental Instrument”). Notwithstanding any term, condition or statement in any Supplemental Instrument to the contrary, each of Buyer and Seller expressly reject, and shall not be bound by or subject to, any terms or conditions contained in any Supplemental Instrument that modify, supplement, add to or are inconsistent with these terms and conditions, other than as described in the preceding sentence. All references to any contract or agreement between Buyer and Seller as to the sale and purchase of any goods are a references solely to the terms and conditions set forth herein and the specific types of goods, quantities of goods, delivery dates and locations set forth in any applicable Supplemental Instrument. Those portions, if any, of any Supplemental Instrument, if any, that attempt to modify, supplement, add to or are inconsistent with the terms hereof, shall not constitute counter-offers to these Terms and Conditions, but instead shall be regarded as material alterations of this Agreement and are expressly rejected by both Buyer and Seller. In no event shall Buyer or Seller be deemed to have in any way changed, enlarged or modified their liabilities under these Terms and Conditions, other than in a writing executed by an officer of Buyer and Seller, which writing expressly references this Paragraph 1 and its requirements for altering these Terms and Conditions.
2. Buyer shall notify Seller in writing of any alleged defects in the material, latent or otherwise, within seven (7) days after Buyer learns of the alleged defects, but in no event later than thirty (30) days after Buyer receives the product. Failure to give such notice, or the altering or changing of the form of the products, or combining with other materials or products or use in any manner inconsistent with the products intended use, shall constitute a waiver of all claims for defects. Buyer shall afford Seller the opportunity to inspect any product in Buyer’s possession claimed by Buyer to be defective. Buyer shall not return any product unless authorized in writing by the Seller.
3. Seller’s liability (and Buyer’s sole and exclusive remedy) with respect to any defective product shall be limited to the replacement of that portion of product or a credit to Buyer in the amount of the invoice for such product, as Seller may elect. Seller’s analysis of quality shall govern except in the case of proved error.
4. Seller shall not be liable for failure to deliver or for delays in delivery, as to all or any part of any order due to acts of God, fire, flood, accident, war (declared or undeclared), terrorism, civil disorder, labor difficulties, strikes, shortages of materials, delays or defaults of suppliers or carriers, embargo, actions of governmental authorities or any other cause beyond Seller’s control, irrespective of whether such cause was foreseeable or unforeseeable. In such event, Seller may allocate its available supply of product in an equitable manner and may terminate this transaction without liability as to any unallocated portion of the order.
5. Seller’s products are warranted for a period of six (6) months from the date of shipment to be free of defects in material or workmanship. Seller, during the warranty period, will repair or replace any products determined by the Seller to be defective. SELLER SHALL NOT BE REQUIRED TO, AND SHALL NOT, WARRANT, REPAIR OR REPLACE ANY PRODUCT THAT HAS BEEN SUBJECTED TO DAMAGE, MISUSE, ACCIDENT, EXPOSURE TO THE ELEMENTS, CHEMICALS OR OTHERWISE USED IN A PURPOSE OR MANNER OTHER THAN ITS INTENDED USE. SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILTY, FITNESS FOR ANY PURPOSE OR USE, OR ALLEGEDLY ARISING FROM ANY USAGE OF ANY TRADE OR FROM ANY COURSE OF DEALING, OR OTHERWISE, WHETHER ORAL OR WRITTEN, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THE INVOICE AND ANY SALES CONTRACT, WHERE APPLICABLE. BUYER’S FAILURE TO USE AND OPERATE THE GOODS IN A MANNER CONSISTENT WITH ALL PRODUCT INSTRUCTIONS AND RECOMMENDATIONS ALSO SHALL VOID ANY AND ALL WARRANTIES PROVIDED BY SELLER.
6. Any action by the Buyer for claimed breach by Seller must be commenced within six (6) months after the cause of action has accrued. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSSES OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, LOSS OR DAMAGE TO VEHICLE OR CARGO, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL. BUYER ASSUMES ALL RISKS AND LIABILITY FROM THE HANDLING AND USE OF THE MATERIALS AND SHALL BE SOLELY RESPONSIBLE FOR TESTING AND DETERMINING SUITABILITY OF USE IN A PARTICULAR APPLICATION.
7. Seller may furnish technical advice without charge, at its sole discretion, and Seller assumes no obligation or liability for any advice given or the results obtained therefrom. Buyer (and its customers) shall use its own independent skill and expertise in the evaluation and use of such advice and accepts such advice at its sole risk.
8. Title and risk of loss or damage to product hereunder shall pass to Buyer upon shipment of goods, F.O.B. Seller’s shipping facility.
9. Shipping dates are approximate and conditional upon availability of product. Seller does not guaranty delivery on a specific date and time. All sums shall be considered due and payable within terms as invoiced, are payable in legal US tender unless otherwise indicated, and made payable to the order of Seller at the designated address. If Buyer is in any respect in default of any provisions of this contract, Seller may elect to defer further deliveries until the breach is cured, or terminate the contract without prejudice as to any other remedy available to Seller. If, in Seller’s sole discretion, the financial responsibility of Buyer becomes unsatisfactory, Seller may demand advance cash payment and may withhold shipments until receipt. Buyer agrees to indemnify Seller for all costs, including collection and attorney’s fees, associated with the enforcement of this sales contract. Interest on unpaid balances shall accrue at the lesser of 1.5% per month or the highest rate permitted by law.
10. PRICING: Contact customer service for current price sheet. All invoice amounts are payable in US Dollars, plus applicable sales, use and excise taxes. A $3.00 per box charge also will aply to non-standard quantity purchases. Refer to the price sheet for standard pack quantities. All price quotes are deemed expired after 30 days. Contact customer service for special product needs.
11. FREIGHT POLICY: Freight Prepaid on orders of $1,000.00 or greater, shipped to one location. You must note on shipping documents any shortage of product. Seller is not liable for damage or loss of product after it has left Seller’s facilities. Buyer is responsible for filing claims against the carrier for loss or damage. Seller will make a reasonable attempt to assist Buyer in obtaining from the carrier an adjustment for any loss or damage, provided Buyer has filed a claim promptly with the carrier. Claims for shortages in shipment must be made within 10 days or receipt of goods.
12. TERMS: Company or Bank Check Net 30 days after credit approval. Credit Card Payments can be made by contacting customer service. A 3% convenience fee will be applied to any amount processed with a credit card.
13. Prices and terms of payments are subject to change without notice and as to any shipment will be those in effect on date of shipment. If, before shipment, Seller’s costs have been increased directly or indirectly by reason of any domestic or foreign law, governmental decree, order or regulation, including, without limitation, the imposition of any new or additional taxes, surcharge or duty, the revaluation or devaluation of currency, or import restrictions, Seller may, at its option, terminate the transaction or, to the extent lawful, increase the selling price by the amount of such increased costs. If Buyer (i) files a petition in bankruptcy; (ii) has a petition in bankruptcy filed against it, which petition is not dismissed within sixty (60) days of the date of filing thereof; (iii) seeks, obtains or has a receiver, trustee, custodian or other third party appointed to manage, control or supervise Buyer, its properties, assets or any material portion thereof; (iv) seeks relief or remedy under any federal or state law related directly or indirectly to bankruptcy, receivership, reorganization or insolvency or the protection of the rights of debtors generally; (v) is insolvent; or (vi) becomes unable to pay any material obligations (including, without limitation, any amounts due to Seller) in the ordinary course of Seller’s business, then Seller shall have the right to terminate immediately any and all contracts and agreements (including, without limitation, any open purchase orders, and unfulfilled sales contracts) by and between Buyer and Seller.
14. The goods sold hereunder may be or become hazardous, whether singly or in combination with other goods or products. Buyer acknowledges that it is familiar with, and will take all steps necessary to familiarize, inform and warn its employees, agents, customers, and contractors who may handle or come into contact with the goods of all the hazards pertaining to, and proper procedures for safe use of, the goods and of the containers or equipment in which the goods may be handled, shipped, or stored. Buyer also undertakes to label as appropriate any materials which it makes or resells that includes the goods sold hereunder. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY OR EXPENSE (INCLUDING LEGAL FEES) INCLUDING, BUT NOT LIMITED TO, INJURY OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM BUYER’S FAILURE TO SO FAMILIARIZE, INFORM, AND WARN. THESE UNDERTAKINGS APPLY IN FULL MEASURE WHETHER SELLER IS ALLEGED OR FOUND TO BE CONCURRENTLY, PARTIALLY OR JOINTLY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE IMPOSED ON SELLER.
15. Seller’s waiver of any breach or failure to enforce any of the terms and conditions hereunder shall not be deemed to be a continuing waiver of any subsequent or continuing breach or a continuing waiver of the enforcement of such terms and conditions or of any other terms and conditions and such waiver shall not in any way effect, limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Seller’s rights to enforce and compel strict compliance with every term and condition hereof.
16. The terms of this Agreement may not be modified or terminated other than as herein provided, nor any of its provisions waived, except by a writing signed by the party to be charged, may not be assigned by Buyer, and shall be governed by and construed in accordance with the laws of the State of Ohio, the state of Seller’s formation, without giving effect to choice of law principles.