The entity identified as the seller of goods (“Goods”) on the document to which these Terms and Conditions of Sale (“Terms”) are attached or in which they are referenced or incorporated is referred to herein as “Seller” and the person or entity purchasing Goods is referred to herein as “Buyer”. These Terms are applicable to all offers, acceptances, acknowledgments, confirmations, sales and deliveries of Goods by Seller and will form an integral part of the contract for the purchase and sale of the Goods between Seller and Buyer (this “Contract”). IF THESE TERMS OR THE DOCUMENT TO WHICH THESE TERMS ARE ATTACHED OR IN WHICH THEY ARE REFERENCED OR INCORPORATED STATE ANY TERMS OR CONDITIONS THAT ARE ADDITIONAL TO OR DIFFERENT FROM THOSE STATED IN BUYER’S ORDER OR OTHER PURCHASING DOCUMENT, SELLER’S ACCEPTANCE OF BUYER’S ORDER IS CONDITIONAL ON BUYER’S ASSENT TO SUCH ADDITIONAL AND/OR DIFFERENT TERMS AND CONDITIONS. BUYER’S ACCEPTANCE OF THE GOODS WILL MANIFEST BUYER’S ASSENT TO THESE TERMS WITHOUT ADDITION OR VARIATION. IF THE DOCUMENT THAT CONTAINS, REFERENCES OR INCORPORATES THESE TERMS IS DEEMED AN OFFER BY SELLER, ACCEPTANCE BY BUYER IS LIMITED TO THE TERMS AND CONDITIONS CONTAINED IN SELLER’S OFFER, INCLUDING THESE TERMS. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN BUYER’S ORDER OR OTHER PURCHASING DOCUMENTS ARE HEREBY OBJECTED TO BY SELLER.
Unless specifically stated otherwise in this Contract, prices are exclusive of any tax, duty or other governmental charge imposed or assessed on or in connection with the sale, delivery, import, use or consumption of Goods, and if any such tax, duty or charge is paid by or assessed against Seller or is required by law to be collected by Seller from Buyer (other than taxes based on Seller's net income or profit), Seller may add the same to the price of the Goods or invoice Buyer separately therefor.
Unless stated otherwise in this Contract, payment for Goods is due 30 days from the date of Seller's invoice in the currency specified by Seller in its invoice or otherwise. If Buyer fails to make any payment when due, Seller will have the right either to terminate this Contract or to suspend further performance under this and/or other contracts with Buyer, which other contracts Seller and Buyer hereby amend accordingly. If any amount owed to Seller is not paid when due, it will bear interest from the due date until paid at rate of 1.5% per month or the maximum rate permitted by law, whichever is lower. Buyer will be liable for all expenses, including attorneys’ fees, incurred by Seller to collect past-due amounts. Should Buyer's financial condition become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for Goods previously delivered and to be delivered in the future. If such cash payment or security is not provided, Seller may discontinue deliveries. Buyer hereby grants Seller a security interest in all Goods delivered to Buyer, which security interest will continue until such Goods are fully paid for in cash and Buyer, upon Seller's demand, will execute and deliver to Seller such instruments as Seller requests to protect and perfect such security interest.
Shipment or delivery dates quoted, acknowledged or agreed by Seller are approximate and not guaranteed and will be maintained as far as circumstances reasonably permit, but Seller will have no liability for delay in delivery. Seller reserves the right to deliver in installments and Buyer will pay for each such installment as invoiced. Delay in delivery of any installment will not relieve Buyer of its obligation to accept remaining deliveries. Seller will not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions and other required information. If the shipment of the Goods is postponed or delayed by Buyer for any reason, Buyer will reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Unless otherwise stated in this Contract, the Goods will be delivered EXW Seller’s dock (as defined by the ICC’s latest edition of Incoterms). Risk of loss and legal title to the Goods will transfer to Buyer upon delivery.
Except as provided in the last sentence of this Section, Seller warrants to Buyer (and to no others) only that, at delivery: (1) Seller will have good title to the Goods, free and clear of all liens; and (2) for Seller-Branded Goods (as defined below) , (a) such Goods will conform to the specifications attached to or referenced in this Contract, or if none are attached, to Seller’s standard specifications and will be free from defects in materials and workmanship, and (b) any brands, logos or trademarks of Seller that appear on such Goods or their packaging do not infringe the intellectual property rights of a third party. If Buyer notifies Seller in writing of a breach of this warranty within 12 months after delivery, then Seller will, at its option and expense, either (i) replace the non-conforming Seller-Branded Goods with conforming Seller-Branded Goods or (ii) issue Buyer a refund or credit in the amount of the original price of the non-conforming Seller-Branded Goods. Buyer’s failure to so notify Seller of its warranty claim within this period will constitute a waiver of such claim regardless of whether the facts giving rise to such claim were discovered or were discoverable during that period. Except for the warranty of title above, Third Party Goods (as defined below) will carry only the warranties offered by the manufacturer (if any), which Seller will pass on to Buyer. “Seller-Branded Goods” are Goods that carry, or are sold by Seller under, Seller’s own brand. “Third Party Goods” are all Goods other than Seller-Branded Goods. Notwithstanding the foregoing, if Seller originally purchased Seller-Branded Goods from Buyer and is selling them back to Buyer, such Goods will not carry the warranty in part 2(a) of the first sentence of this Section and Seller will not have any liability in respect of the design or manufacture of such Goods.
THE EXPRESS WARRANTIES STATED IN SECTION 4 CONSTITUTE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE GOODS AND ARE GIVEN IN LIEU OF, AND SELLER HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND FITNESS FOR PARTICULAR PURPOSE, REGARDLESS OF WHETHER THE PURPOSE OR USE HAS BEEN DISCLOSED BY BUYER TO SELLER OR WHETHER THE GOODS HAVE BEEN SPECIFICALLY SELE CTED, DESIGNED OR MANUFACTURED BY SELLER FOR BUYER’S PURPOSE OR USE. THE REMEDIES STATED IN SECTION 4 ARE BUYER’S EXCLUSIVE REMEDIES FOR A BREACH OF SELLER’S WARRANTIES IN SECTION 4. NOTWITHSTANDING ANY PROVISION IN THIS CONTRACT TO THE CONTRARY, IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), (A) WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR (B) WILL SELLER’S LIABILITY IN RESPECT OF A CLAIM OR CAUSE OF ACTION EXCEED THE PRICE OF THE SPECIFIC ITEMS OR UNITS OF GOODS GIVING RISE TO THAT CLAIM OR CAUSE OF ACTION. The damages described in clause (A) include, but are not limited to, loss of anticipated profits, business interruption, loss of revenue, loss of use, loss of data, loss of or damage to equipment or other goods, cost of capital, damage to goodwill or reputation, and damages paid or payable by Buyer to third parties. Seller will not be liable for, and Buyer assumes all liability for and will indemnify and hold harmless Seller and is affiliates from and against, any claims, injuries, damage or losses arising out of the handling, transportation, possession, storage, processing, further manufacture, packaging, labeling, resale, use or disposal of the Goods, or of materials or substances into which the Goods have been converted, after delivery of the Goods to Buyer, except to the extent resulting from Seller’s breach of these Term, negligence or willful misconduct. This indemnity covers claims by Buyer’s employees and independent contractors even if Buyer’s liability to such persons is otherwise limited by workers’ compensation or similar laws or by contract. Buyer waives all immunity that may be afforded to it under such laws and/or contracts to the extent of claims, injuries, damage or losses covered by the foregoing indemnity. Buyer bears sole responsibility to determine whether the Goods are suitable for Buyer’s intended purpose or use. If Seller or any of its affiliates furnishes technical or other advice to Buyer or any of its affiliates with respect to processing, further manufacturing, handling, storage, transportation, disposal or use of the Goods, neither Seller nor its affiliates will be liable for, and Buyer and its affiliates assumes all risk of, such advice and the results thereof.
Notwithstanding any provision in this Contract to the contrary, Seller will not be liable for any delay in performance or non-performance if performance is prevented, hindered or made commercially impracticable, directly or indirectly, by: flood, fire, explosion, weather, natural disaster or Act of God; act or omission or Buyer, its affiliates or their independent contractors; riot, civil commotion, sabotage, war or act of terrorism; epidemic or pandemic; compliance with law or government request or requirement; plant or equipment malfunction or shutdown in anticipation of malfunction; unavailability of adequate Goods, raw materials, fuel, power, utilities, containers or transportation from usual sources on usual terms of supply; failure or delays of suppliers, carriers or independent contractors; strike, lock-out or other labor trouble; or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller. In the event of any of the foregoing, Seller may, upon written notice to Buyer, delay, suspend or cancel deliveries and other performance hereunder without liability, but the balance of this Contract will otherwise be unaffected. Further, if Seller determines that its ability to supply the total demand (from all sources, not just Buyer) for the Goods, or to obtain raw materials used directly or indirectly in the manufacture of the Goods, is prevented, hindered or made commercially impracticable, Seller may allocate its available supply of Goods or raw materials (without obligation to acquire other supplies of any such Goods or raw materials) among itself, its affiliates and its non-affiliate customers, including regular customers not then under contract, on such basis as Seller determines, in good faith, to be fair and reasonable without any liability for any delay in performance or non-performance that may result therefrom.
Buyer will not use, transfer, resell, import or export the Goods in violation of applicable import and export control laws, regulations, orders and requirements.
No affiliate of Seller will have any liability for any breach of this Contract by, or any other acts or omissions of, Seller, and Buyer waives all claims it has or may have against such affiliates. As used in these Terms, “affiliate” means, with respect to a legal entity, any person or entity that controls, is controlled by or is under common control with such legal entity; and for this purpose “control” (when used alone or in the phrases “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting stock (or similar voting security or equity interest of an entity that does not have stock), by contract or otherwise.
This Contract constitutes the complete and exclusive statement of the terms and conditions of the parties’ agreement with respect to the subject matter hereof, and supersedes all previous communications and agreements, verbal or written, between the parties with respect to such subject matter. This Contract may not be amended or supplemented orally, by usage of trade or by course of performance or dealing, but only by and pursuant to a writing, signed by authorized representatives of both parties, that specifically refers to, and clearly states that it is amending or supplementing (or uses words of similar meaning), this Contract. No modification or additional terms or conditions will be applicable to this Contract by reason of Seller's receipt, acknowledgement, confirmation or acceptance of Buyer's purchase orders, shipping instructions or other documentation containing terms or conditions additional to or at variance with those set forth herein. Neither party will be deemed to have waived or released any condition, right or remedy stated in or arising out of this Contract, including by course of dealing or performance, except to the extent such waiver or release is expressly stated in a writing signed by an authorized representative of such party. Buyer will not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller, and any purported assignment or delegation without the prior written consent of Seller will be void. If any provision of this Contract is declared invalid or unenforceable in any jurisdiction, the remainder of this Contract will remain in full force and effect. Any remedies available to Seller stated in this Contract are not exclusive and will be in addition to every other remedy available under this Contract, at law or in equity. This Contract will be governed by and interpreted in accordance with laws of the State of Tennessee, U.S.A. without regard to or application of conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply. All suits, actions and proceedings to enforce this Contract, or to declare the parties’ rights or obligations hereunder, must be brought exclusively in the State or Federal courts sitting in or serving Shelby County, Tennessee, U.S.A., and Buyer consents and submits to the exclusive jurisdiction of such courts. No action, regardless of form, arising out of any transactions relating to this Contract may be brought by either party more than 2 years after the cause of action has accrued. The headings of the sections of these Terms are inserted for convenience only and will be disregarded in the interpretation of this Contract. English is the language of this Contract. Any translation of this Contract into a different language is solely for the convenience of the parties and is neither intended to have legal effect nor to alter or supplement in any way the terms and conditions of the English version of this Contract.
Rev. Sept 2023
