Terms and Conditions
TERMS & CONDITIONS OF SALE
These terms and conditions of sale (“Terms and Conditions”) apply to all sales of Products (as defined below) to you, the buyer (“Buyer”), by Alsey Refractories Company (“Seller”),
unless superseded by the terms of a separate subsequent written agreement between Buyer and Seller. Buyer and Seller may individually be referred to as a “Party” or collectively
as the “Parties.”
SCOPE AND APPLICABILITY
1. All products, materials, supplies, or other goods (“Products”) sold by Seller to
Buyer shall be made in accordance with these Terms and Conditions. These
Terms and Conditions (a) constitute an offer by Seller to Buyer to sell the Products
for the price (as defined below) and pursuant to the terms set forth herein and (b)
are not an acceptance of the terms and conditions of any offer of Buyer.
Acceptance of this offer is expressly conditioned upon and limited to the provisions
of these Terms and Conditions. Acceptance of this offer shall be deemed to have
occurred on the earlier of (A) the mailing or delivery of Seller’s order
acknowledgement to Buyer, (B) the commencement of the production or
manufacturing of all or any portion of the Products, (C) or the shipment of all or
any portion of the Products to Buyer. In the event of any additional, different, or
conflicting provision contained in any document of Buyer relating to the Products,
including, but not limited to, any purchase order of Buyer, the Buyer expressly
agrees that (i) these Terms and Conditions shall apply and (ii) the Buyer’s
additional, different, and/or conflicting provisions shall not become part of these
Terms and Conditions or Seller’s offer to sell the Products to Buyer.
2. No modification or additional or conflicting terms will become applicable to these
Terms and Conditions by Seller’s receipt, acknowledgement, or acceptance of
purchase orders, shipping instruction forms, service instruction forms, or other
documentation. Any such modifications or additional terms are specifically
objected to, rejected, and deemed a material alteration hereof. Seller hereby
objects to and rejects the provisions of any Buyer’s purchase order, confirmation,
or terms and conditions that are inconsistent with, conflict with, or are a
modification of or are in addition to the provisions of these Terms and Conditions.
3. Seller reserves the right, at its sole discretion, to change, modify, add or remove
portions of these Terms and Conditions, at any time by providing written notice to
Buyer.
4. No conditions, usage of trade, course of dealing or performance, understanding
or agreement purporting to modify, vary, explain, or supplement these Terms and
Conditions shall be binding upon Seller unless hereafter made or confirmed in
writing and signed by Seller.
5. The Parties hereby agree that any prior agreements with respect to the Products,
whether written or oral, are superseded by these Terms and Conditions.
PRICE
6. The purchase price (“Price”) for the Products shall be the total, gross amount
that is set forth on Seller’s sales invoice (“Invoice”).
7. Prices do not include any applicable taxes, freight, or insurance costs, unless
specifically provided for in a quote by Seller.
8. Buyer is solely responsible for the costs of taxes, freight, insurance, or other
ancillary expenses with respect to the Products even where such costs are pre-
paid by Seller.
9. Prices are final and no further discounts apply.
10. All price quotes from Seller to Buyer will be in writing and valid for a period of
thirty (30) days from the date of such quote.
TERMS OF PAYMENT
11. Unless otherwise agreed upon in writing by the Parties, payment terms are net
thirty (30) days from the date of Seller’s Invoice.
12. All payments shall be made in United States currency.
13. Unless otherwise agreed upon in writing by the Parties, all payments shall be
made without setoffs or deductions.
14. Seller is not obligated to begin performance on any purchase order for Products
until Seller has received a signed order acknowledgment from Buyer.
15. If Buyer fails to pay any amount due for Products in a timely manner, Seller may,
without waiving any other legal remedies available to Seller, terminate the
corresponding order, suspend further performance of any obligation thereunder,
or both.
16. Buyer hereby grants Seller a purchase money security interest in all Products as
security for prompt and full payment of the Price, which security interest shall
continue until all such Products are fully paid for.
17. Buyer, upon Seller’s demand, shall execute and deliver to Seller such
instruments as Seller requests to protect and perfect such security interest.
18. Buyer acknowledges that all sales shall be subject to approval of Seller’s credit
department. If, in the sole discretion of Seller, the financial responsibility of the
Buyer should become impaired, Seller reserves the right to defer shipments or
deliveries subject to these Terms and Conditions.
ACKNOWLEDGEMENT OF ORDERS
19. Seller may reject any purchase order, for any reason, at Seller’s sole discretion.
20. All orders are subject to and shall be effective only upon written order
acknowledgement by an authorized representative of Seller.
21. Seller will acknowledge an order only after it receives complete and final
information covering price, plans, specifications, delivery requirements and any
information necessary to fill the order. It is Buyer’s responsibility to supply all
such information.
22. Nothing contained herein shall create any contractual obligation of Seller towards
the Buyer’s end customer any user of the Products, or any other thirdparty.
BUYER’S OBLIGATIONS
23. Buyer must promptly inspect the Products upon delivery.
24. If Buyer does not accept delivery of Products, then Seller, at its sole discretion,
may charge up to a thirty percent (30%) restocking fee for stock sales. However,
for non-stock and/or custom sales, if Buyer does not accept delivery of Products,
then Seller, at its sole discretion, may charge up to a one hundred percent (100%)
restocking fee.
25. Buyer assumes all risk and liability for the results obtained by the use of the
Products in the manufacturing processes of Buyer or in combination with other
substances.
26. Any resale, commingling, alteration, or incorporation of the Products by Buyer
shall be deemed acceptance of the Products as of the delivery date.
SHIPMENT AND DELIVERY
27. Except in the case of drop shipments, all shipments of Products are FOB Alsey’s
manufacturing plant in Alsey, Illinois. Title and risk of loss to the Products will pass
to Buyer at the shipping point, which is Alsey’s manufacturing plant in Alsey,
Illinois. Buyer is responsible for all shipping costs associated with transporting the
Products from Alsey’s manufacturing plant in Alsey, Illinois.
28. A shipment of Products that is delayed for any reason to accommodate the Buyer
will be subject to additional charges for warehousing and other incidental
expenses created by the delay. Such charges and expenses shall be borne by
Buyer. Unless other arrangements have been made prior to the 30 day cutoff
period, orders not shipped within 30 days of the buyer’s requested ship date or
the seller’s ready date (whichever is the later) will be invoiced.
29. Information and schedules related to the delivery of Products are approximate and
not guaranteed. Delay by Buyer in supplying specifications or other information
necessary to fill an order shall extend delivery schedules for a reasonable time.
Seller is not liable for any penalties or damages, liquidated or otherwise, for
shipments that are delayed.
INDEMNIFICATION
30. Buyer shall indemnify, defend, and hold harmless Seller, Seller’s subcontractors,
and their respective directors, officers, agents, representatives, or employees,
for, from, and against any damages, claims, costs, expenses (including
attorneys’ fees), losses, or liabilities of any nature whatsoever, whether involving
injury or damage to person or property, and any and all suits, causes of action,
and proceedings related thereto arising or allegedly arising out of, based upon,
attributable to, in connection with, or otherwise directly or indirectly related to the
Products sold hereunder or from the use thereof.
LIMITED WARRANTY
31. The Products are provided on an “As-is” basis. Seller extends no warranties,
either express or implied, concerning the Products, including, but not limited to,
any implied warranties of merchantability, non-infringement, adaptability, or
fitness for any particular purpose. In no event shall Seller be liable to Buyer, any
user of the Products, or any third party for loss of profits, loss of business,
indirect, incidental, consequential, special, punitive, or other damages whatsoever
arising from the use or performance of the Products, or from the non-
delivery, delayed delivery, damage to the Products, or otherwise. In no event will
Seller’s liability exceed the actual price paid by Buyer for the Products. Buyer
expressly assumes all responsibility for determining the fitness of such Products
for Buyer’s intended use. Any technical information, product literature, Seller
technical assistance or other information is given to and accepted by Buyer at its
own risk and is not a warranty by Seller to Buyer.
32. Buyer shall not make, give, or extend any other warranties with respect to the
Products or the use of the Products, except as authorized in writing by Seller,
and shall hold Seller harmless against all damages, costs, and expenses
(including attorneys’ fees) related to claims based upon an unauthorized
warranty given by Buyer.
Page 1 of 2
Revised: 20200313
LIMITATION OF LIABILITY
33. Under no circumstances shall Seller be liable for any: (A) special, indirect,
incidental, exemplary, punitive, or consequential damages of any kind (including,
without limitation, the loss of profits or damages resulting from business
interruptions or loss of use) or (B) damages which in the aggregate exceed the
purchase price paid for the Products giving rise to the claim.
EXCLUSIVE REMEDIES
34. The sole and exclusive remedies of the Buyer, any user of the Products, or any
third party are, at Seller’s option and depending on the circumstances, as follows:
(1) the replacement of the Products or (2) credit in an amount no greater than the
amount paid by Buyer for the Products. The limitations of this Section apply
regardless of whether an underlying claim is for breach of contract, breach of
warranty, infringement, negligence, strict liability, any other tort, or any other
cause of action.
35. No cause of action of Buyer, any user of the Products, or any third party
concerning, relating to, or arising from the Products may be commenced later
than one year after the cause of action has accrued.
INTELLECTUAL PROPERTY OF SELLER
36. All trade names, trademarks, logos, patents, designs, drawings, copyrights,
engineering, patents, trade secrets, photographs, samples, literature, and any
other legally protectable intellectual property of any kind with respect to the
Products (“Intellectual Property”) shall at all times remain the property of Seller.
Except for the materials supplied by Seller that accompany the Products, Buyer
shall not use any Intellectual Property of Seller at any time in any manner without
the express written permission and approval of Seller. Further, Buyer shall not
use any Intellectual Property of Seller at any time in any manner that may be
detrimental to Seller’s reputation or other interests. Buyer may not obtain any
intellectual property rights with respect to any Intellectual Property of Seller in
any country, territory, or region.
FORCE MAJEURE
37. Seller shall not be liable for any losses, damages, or delays caused by any
event, condition, or circumstance beyond its ability to control, including without
limitation, changes in government regulations, acts of God, Buyer’s acts or
omissions, fires, strikes, boycotts, floods, epidemics, quarantines, wars,
insurrections, riots, terrorism, inclement weather, acts of civil or military
authorities, transportation embargoes, shortages, wrecks, labor shortages,
delays by Seller’s suppliers, or other similar circumstances. If a Party becomes
aware of any such event, condition, or circumstance, then such Party will
promptly advise the other Party and both Parties will cooperate to ameliorate the
event, condition, or circumstance as quickly as possible. If, due to such an
event, condition, or circumstance, Seller is unable to supply the total demands for
the Products, Seller may allocate its available supply among customers as it may
determine or cancel orders without liability for any part thereof not shipped to the
Buyer. Any such reduction in by allocation in quantity deliverable hereunder shall
not be greater than the percentage reduction to other customers taken in the
aggregate. In no case shall Seller be responsible for any liability, loss in
deliveries, or damage after delivery of the Products to the shipping point as
defined above in these Terms and Conditions.
CLAIMS FOR MISSING OR NON-CONFORMING PRODUCTS
38. Claims for missing or nonconforming Products must be made in writing and
received by Seller within thirty (30) days of Buyer’s receipt of any shipmentof
Products. Buyer’s receipt of any Products delivered in accordance with these
Terms and Conditions shall be and represent an unqualified acceptance of, and
a waiver by Buyer of any claims with respect to, such Products, if Buyer does not
give such notice of any claim within the above-proscribed period.
CANCELLATIONS
39. Upon the commencement of the production or manufacturing of all or any portion
of the Products, no cancellations by Buyer will be allowed unless Seller, in its
sole discretion, determines otherwise. For stock sales, Seller, at its sole
discretion, may charge up to a thirty percent (30%) of the Price for such
cancellations. For non-stock and/or custom sales, if Buyer cancels the sale, then
Seller, at its sole discretion, may charge up to one hundred percent (100%) of the
Price.
RETURNS
40. Seller will not accept Products for return or credit unless previously agreed to in
writing by Seller and Buyer receives a Returned Goods Authorization form issued
by a duly authorized representative of Seller. The Buyer retains the risk of loss
and shall reimburse Seller for any costs it incurs in connection with the shipment
and return of the Products, including, but not limited to, a restocking fee of up to a
thirty percent (30%) for stock sales. A one hundred percent (100%) restocking fee
shall apply for non-stock and/or custom sales.
ALLOWABLE OVERAGES
41. BRICK. Seller reserves the right to ship and invoice additional quantities as
allowable overages in the following percentages: 1-250 pieces, 10%; 251-1000
pieces, 8%; 1001-5000 pieces, 5% and over 5000 pieces, 2%.
42. MONOLITHICS. Seller reserves the right to ship and invoice additional
quantities as allowable overages in the following percentages: 1-750 pounds,
100%; 751-10,000 pounds, 10% and over 10,000 pounds, 5%.
INTEREST AND ATTORNEYS’ FEES
43. Interest at the maximum legal rate or eighteen percent (18%) per annum,
whichever is lower, shall be charged to Buyer on any overdue accounts and such
amounts will be charged from the date the account becomes overdue.
44. If Seller retains the services of counsel in connection with enforcing Buyer’s
obligations hereunder, all costs of collection (including reasonable attorneys’
fees) incurred by Seller shall be paid by Buyer to Seller, whether incurred in or
out of court, on appeal, in arbitration, in bankruptcy court, or in any insolvency
proceedings.
ERRORS
45. Seller’s stenographic, clerical, or other errors are subject to correction by Seller.
PENALTY CLAUSES
46. Seller assumes no liability from penalty or liquidated damage clauses of any kind,
written or implied, unless specifically approved in writing by a duly authorized
representative of Seller.
ASSIGNMENT
47. Buyer shall not assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of Seller, and any such
assignment without consent shall be void.
RELATIONSHIP BETWEEN THE PARTIES
48. These Terms and Conditions do not make either Party the employee, agent, or
legal representative of the other for any purpose whatsoever. Neither Party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other Party.
In fulfilling its obligations pursuant to this Agreement, each Party shall be acting
as an independent contractor.
49. Under no circumstances shall Seller, its subcontractors, or any of their respective
employees or agents be deemed for any purpose to be an agent, servant,
employee, or representative of them Buyer’s end customers.
SEVERABILITY
50. If any provision of these Terms and Conditions is deemed invalid, illegal, or
unenforceable in any respect, the remaining provisions of these Terms and
Conditions shall remain fully valid and enforceable.
WAIVER
51. Except as otherwise set forth herein, no failure to exercise any right of either
Party hereunder shall constitute a waiver of said right, nor shall any waiver of any
right hereunder constitute a waiver of any other right, nor shall any waiver
constitute a continuing waiver.
52. No waiver by either Party with respect to any breach or default or of any right or
remedy, and no course of dealing, shall be deemed to constitute a waiver of any
other breach or default or of any other right or remedy, unless such waiver is in
writing and signed by the Party to be bound.
GOVERNING LAW AND VENUE
53. These Terms and Conditions shall be deemed accepted in the State of Missouri,
USA and the rights and obligations of the Parties hereunder shall be construed,
interpreted, and enforced in accordance with the laws of the State of Missouri,
without regard to its conflict of laws principles. In the event of any dispute or
controversy arising under these Terms and Conditions or the transactions
contemplated herein, the Parties mutually consent to the jurisdiction of the U.S.
District Court for the Eastern District of the State of Missouri and agree that any
and all process directed to either of them in any such litigation or controversy
may be served by registered, certified mail, return receipt requested, outside
Missouri with the same force and effect as if service had been made in Missouri.
These terms and conditions of sale (“Terms and Conditions”) apply to all sales of Products (as defined below) to you, the buyer (“Buyer”), by Alsey Refractories Company (“Seller”),
unless superseded by the terms of a separate subsequent written agreement between Buyer and Seller. Buyer and Seller may individually be referred to as a “Party” or collectively
as the “Parties.”
SCOPE AND APPLICABILITY
1. All products, materials, supplies, or other goods (“Products”) sold by Seller to
Buyer shall be made in accordance with these Terms and Conditions. These
Terms and Conditions (a) constitute an offer by Seller to Buyer to sell the Products
for the price (as defined below) and pursuant to the terms set forth herein and (b)
are not an acceptance of the terms and conditions of any offer of Buyer.
Acceptance of this offer is expressly conditioned upon and limited to the provisions
of these Terms and Conditions. Acceptance of this offer shall be deemed to have
occurred on the earlier of (A) the mailing or delivery of Seller’s order
acknowledgement to Buyer, (B) the commencement of the production or
manufacturing of all or any portion of the Products, (C) or the shipment of all or
any portion of the Products to Buyer. In the event of any additional, different, or
conflicting provision contained in any document of Buyer relating to the Products,
including, but not limited to, any purchase order of Buyer, the Buyer expressly
agrees that (i) these Terms and Conditions shall apply and (ii) the Buyer’s
additional, different, and/or conflicting provisions shall not become part of these
Terms and Conditions or Seller’s offer to sell the Products to Buyer.
2. No modification or additional or conflicting terms will become applicable to these
Terms and Conditions by Seller’s receipt, acknowledgement, or acceptance of
purchase orders, shipping instruction forms, service instruction forms, or other
documentation. Any such modifications or additional terms are specifically
objected to, rejected, and deemed a material alteration hereof. Seller hereby
objects to and rejects the provisions of any Buyer’s purchase order, confirmation,
or terms and conditions that are inconsistent with, conflict with, or are a
modification of or are in addition to the provisions of these Terms and Conditions.
3. Seller reserves the right, at its sole discretion, to change, modify, add or remove
portions of these Terms and Conditions, at any time by providing written notice to
Buyer.
4. No conditions, usage of trade, course of dealing or performance, understanding
or agreement purporting to modify, vary, explain, or supplement these Terms and
Conditions shall be binding upon Seller unless hereafter made or confirmed in
writing and signed by Seller.
5. The Parties hereby agree that any prior agreements with respect to the Products,
whether written or oral, are superseded by these Terms and Conditions.
PRICE
6. The purchase price (“Price”) for the Products shall be the total, gross amount
that is set forth on Seller’s sales invoice (“Invoice”).
7. Prices do not include any applicable taxes, freight, or insurance costs, unless
specifically provided for in a quote by Seller.
8. Buyer is solely responsible for the costs of taxes, freight, insurance, or other
ancillary expenses with respect to the Products even where such costs are pre-
paid by Seller.
9. Prices are final and no further discounts apply.
10. All price quotes from Seller to Buyer will be in writing and valid for a period of
thirty (30) days from the date of such quote.
TERMS OF PAYMENT
11. Unless otherwise agreed upon in writing by the Parties, payment terms are net
thirty (30) days from the date of Seller’s Invoice.
12. All payments shall be made in United States currency.
13. Unless otherwise agreed upon in writing by the Parties, all payments shall be
made without setoffs or deductions.
14. Seller is not obligated to begin performance on any purchase order for Products
until Seller has received a signed order acknowledgment from Buyer.
15. If Buyer fails to pay any amount due for Products in a timely manner, Seller may,
without waiving any other legal remedies available to Seller, terminate the
corresponding order, suspend further performance of any obligation thereunder,
or both.
16. Buyer hereby grants Seller a purchase money security interest in all Products as
security for prompt and full payment of the Price, which security interest shall
continue until all such Products are fully paid for.
17. Buyer, upon Seller’s demand, shall execute and deliver to Seller such
instruments as Seller requests to protect and perfect such security interest.
18. Buyer acknowledges that all sales shall be subject to approval of Seller’s credit
department. If, in the sole discretion of Seller, the financial responsibility of the
Buyer should become impaired, Seller reserves the right to defer shipments or
deliveries subject to these Terms and Conditions.
ACKNOWLEDGEMENT OF ORDERS
19. Seller may reject any purchase order, for any reason, at Seller’s sole discretion.
20. All orders are subject to and shall be effective only upon written order
acknowledgement by an authorized representative of Seller.
21. Seller will acknowledge an order only after it receives complete and final
information covering price, plans, specifications, delivery requirements and any
information necessary to fill the order. It is Buyer’s responsibility to supply all
such information.
22. Nothing contained herein shall create any contractual obligation of Seller towards
the Buyer’s end customer any user of the Products, or any other thirdparty.
BUYER’S OBLIGATIONS
23. Buyer must promptly inspect the Products upon delivery.
24. If Buyer does not accept delivery of Products, then Seller, at its sole discretion,
may charge up to a thirty percent (30%) restocking fee for stock sales. However,
for non-stock and/or custom sales, if Buyer does not accept delivery of Products,
then Seller, at its sole discretion, may charge up to a one hundred percent (100%)
restocking fee.
25. Buyer assumes all risk and liability for the results obtained by the use of the
Products in the manufacturing processes of Buyer or in combination with other
substances.
26. Any resale, commingling, alteration, or incorporation of the Products by Buyer
shall be deemed acceptance of the Products as of the delivery date.
SHIPMENT AND DELIVERY
27. Except in the case of drop shipments, all shipments of Products are FOB Alsey’s
manufacturing plant in Alsey, Illinois. Title and risk of loss to the Products will pass
to Buyer at the shipping point, which is Alsey’s manufacturing plant in Alsey,
Illinois. Buyer is responsible for all shipping costs associated with transporting the
Products from Alsey’s manufacturing plant in Alsey, Illinois.
28. A shipment of Products that is delayed for any reason to accommodate the Buyer
will be subject to additional charges for warehousing and other incidental
expenses created by the delay. Such charges and expenses shall be borne by
Buyer. Unless other arrangements have been made prior to the 30 day cutoff
period, orders not shipped within 30 days of the buyer’s requested ship date or
the seller’s ready date (whichever is the later) will be invoiced.
29. Information and schedules related to the delivery of Products are approximate and
not guaranteed. Delay by Buyer in supplying specifications or other information
necessary to fill an order shall extend delivery schedules for a reasonable time.
Seller is not liable for any penalties or damages, liquidated or otherwise, for
shipments that are delayed.
INDEMNIFICATION
30. Buyer shall indemnify, defend, and hold harmless Seller, Seller’s subcontractors,
and their respective directors, officers, agents, representatives, or employees,
for, from, and against any damages, claims, costs, expenses (including
attorneys’ fees), losses, or liabilities of any nature whatsoever, whether involving
injury or damage to person or property, and any and all suits, causes of action,
and proceedings related thereto arising or allegedly arising out of, based upon,
attributable to, in connection with, or otherwise directly or indirectly related to the
Products sold hereunder or from the use thereof.
LIMITED WARRANTY
31. The Products are provided on an “As-is” basis. Seller extends no warranties,
either express or implied, concerning the Products, including, but not limited to,
any implied warranties of merchantability, non-infringement, adaptability, or
fitness for any particular purpose. In no event shall Seller be liable to Buyer, any
user of the Products, or any third party for loss of profits, loss of business,
indirect, incidental, consequential, special, punitive, or other damages whatsoever
arising from the use or performance of the Products, or from the non-
delivery, delayed delivery, damage to the Products, or otherwise. In no event will
Seller’s liability exceed the actual price paid by Buyer for the Products. Buyer
expressly assumes all responsibility for determining the fitness of such Products
for Buyer’s intended use. Any technical information, product literature, Seller
technical assistance or other information is given to and accepted by Buyer at its
own risk and is not a warranty by Seller to Buyer.
32. Buyer shall not make, give, or extend any other warranties with respect to the
Products or the use of the Products, except as authorized in writing by Seller,
and shall hold Seller harmless against all damages, costs, and expenses
(including attorneys’ fees) related to claims based upon an unauthorized
warranty given by Buyer.
Page 1 of 2
Revised: 20200313
LIMITATION OF LIABILITY
33. Under no circumstances shall Seller be liable for any: (A) special, indirect,
incidental, exemplary, punitive, or consequential damages of any kind (including,
without limitation, the loss of profits or damages resulting from business
interruptions or loss of use) or (B) damages which in the aggregate exceed the
purchase price paid for the Products giving rise to the claim.
EXCLUSIVE REMEDIES
34. The sole and exclusive remedies of the Buyer, any user of the Products, or any
third party are, at Seller’s option and depending on the circumstances, as follows:
(1) the replacement of the Products or (2) credit in an amount no greater than the
amount paid by Buyer for the Products. The limitations of this Section apply
regardless of whether an underlying claim is for breach of contract, breach of
warranty, infringement, negligence, strict liability, any other tort, or any other
cause of action.
35. No cause of action of Buyer, any user of the Products, or any third party
concerning, relating to, or arising from the Products may be commenced later
than one year after the cause of action has accrued.
INTELLECTUAL PROPERTY OF SELLER
36. All trade names, trademarks, logos, patents, designs, drawings, copyrights,
engineering, patents, trade secrets, photographs, samples, literature, and any
other legally protectable intellectual property of any kind with respect to the
Products (“Intellectual Property”) shall at all times remain the property of Seller.
Except for the materials supplied by Seller that accompany the Products, Buyer
shall not use any Intellectual Property of Seller at any time in any manner without
the express written permission and approval of Seller. Further, Buyer shall not
use any Intellectual Property of Seller at any time in any manner that may be
detrimental to Seller’s reputation or other interests. Buyer may not obtain any
intellectual property rights with respect to any Intellectual Property of Seller in
any country, territory, or region.
FORCE MAJEURE
37. Seller shall not be liable for any losses, damages, or delays caused by any
event, condition, or circumstance beyond its ability to control, including without
limitation, changes in government regulations, acts of God, Buyer’s acts or
omissions, fires, strikes, boycotts, floods, epidemics, quarantines, wars,
insurrections, riots, terrorism, inclement weather, acts of civil or military
authorities, transportation embargoes, shortages, wrecks, labor shortages,
delays by Seller’s suppliers, or other similar circumstances. If a Party becomes
aware of any such event, condition, or circumstance, then such Party will
promptly advise the other Party and both Parties will cooperate to ameliorate the
event, condition, or circumstance as quickly as possible. If, due to such an
event, condition, or circumstance, Seller is unable to supply the total demands for
the Products, Seller may allocate its available supply among customers as it may
determine or cancel orders without liability for any part thereof not shipped to the
Buyer. Any such reduction in by allocation in quantity deliverable hereunder shall
not be greater than the percentage reduction to other customers taken in the
aggregate. In no case shall Seller be responsible for any liability, loss in
deliveries, or damage after delivery of the Products to the shipping point as
defined above in these Terms and Conditions.
CLAIMS FOR MISSING OR NON-CONFORMING PRODUCTS
38. Claims for missing or nonconforming Products must be made in writing and
received by Seller within thirty (30) days of Buyer’s receipt of any shipmentof
Products. Buyer’s receipt of any Products delivered in accordance with these
Terms and Conditions shall be and represent an unqualified acceptance of, and
a waiver by Buyer of any claims with respect to, such Products, if Buyer does not
give such notice of any claim within the above-proscribed period.
CANCELLATIONS
39. Upon the commencement of the production or manufacturing of all or any portion
of the Products, no cancellations by Buyer will be allowed unless Seller, in its
sole discretion, determines otherwise. For stock sales, Seller, at its sole
discretion, may charge up to a thirty percent (30%) of the Price for such
cancellations. For non-stock and/or custom sales, if Buyer cancels the sale, then
Seller, at its sole discretion, may charge up to one hundred percent (100%) of the
Price.
RETURNS
40. Seller will not accept Products for return or credit unless previously agreed to in
writing by Seller and Buyer receives a Returned Goods Authorization form issued
by a duly authorized representative of Seller. The Buyer retains the risk of loss
and shall reimburse Seller for any costs it incurs in connection with the shipment
and return of the Products, including, but not limited to, a restocking fee of up to a
thirty percent (30%) for stock sales. A one hundred percent (100%) restocking fee
shall apply for non-stock and/or custom sales.
ALLOWABLE OVERAGES
41. BRICK. Seller reserves the right to ship and invoice additional quantities as
allowable overages in the following percentages: 1-250 pieces, 10%; 251-1000
pieces, 8%; 1001-5000 pieces, 5% and over 5000 pieces, 2%.
42. MONOLITHICS. Seller reserves the right to ship and invoice additional
quantities as allowable overages in the following percentages: 1-750 pounds,
100%; 751-10,000 pounds, 10% and over 10,000 pounds, 5%.
INTEREST AND ATTORNEYS’ FEES
43. Interest at the maximum legal rate or eighteen percent (18%) per annum,
whichever is lower, shall be charged to Buyer on any overdue accounts and such
amounts will be charged from the date the account becomes overdue.
44. If Seller retains the services of counsel in connection with enforcing Buyer’s
obligations hereunder, all costs of collection (including reasonable attorneys’
fees) incurred by Seller shall be paid by Buyer to Seller, whether incurred in or
out of court, on appeal, in arbitration, in bankruptcy court, or in any insolvency
proceedings.
ERRORS
45. Seller’s stenographic, clerical, or other errors are subject to correction by Seller.
PENALTY CLAUSES
46. Seller assumes no liability from penalty or liquidated damage clauses of any kind,
written or implied, unless specifically approved in writing by a duly authorized
representative of Seller.
ASSIGNMENT
47. Buyer shall not assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of Seller, and any such
assignment without consent shall be void.
RELATIONSHIP BETWEEN THE PARTIES
48. These Terms and Conditions do not make either Party the employee, agent, or
legal representative of the other for any purpose whatsoever. Neither Party is
granted any right or authority to assume or to create any obligation or
responsibility, express or implied, on behalf of or in the name of the other Party.
In fulfilling its obligations pursuant to this Agreement, each Party shall be acting
as an independent contractor.
49. Under no circumstances shall Seller, its subcontractors, or any of their respective
employees or agents be deemed for any purpose to be an agent, servant,
employee, or representative of them Buyer’s end customers.
SEVERABILITY
50. If any provision of these Terms and Conditions is deemed invalid, illegal, or
unenforceable in any respect, the remaining provisions of these Terms and
Conditions shall remain fully valid and enforceable.
WAIVER
51. Except as otherwise set forth herein, no failure to exercise any right of either
Party hereunder shall constitute a waiver of said right, nor shall any waiver of any
right hereunder constitute a waiver of any other right, nor shall any waiver
constitute a continuing waiver.
52. No waiver by either Party with respect to any breach or default or of any right or
remedy, and no course of dealing, shall be deemed to constitute a waiver of any
other breach or default or of any other right or remedy, unless such waiver is in
writing and signed by the Party to be bound.
GOVERNING LAW AND VENUE
53. These Terms and Conditions shall be deemed accepted in the State of Missouri,
USA and the rights and obligations of the Parties hereunder shall be construed,
interpreted, and enforced in accordance with the laws of the State of Missouri,
without regard to its conflict of laws principles. In the event of any dispute or
controversy arising under these Terms and Conditions or the transactions
contemplated herein, the Parties mutually consent to the jurisdiction of the U.S.
District Court for the Eastern District of the State of Missouri and agree that any
and all process directed to either of them in any such litigation or controversy
may be served by registered, certified mail, return receipt requested, outside
Missouri with the same force and effect as if service had been made in Missouri.