TERMS OF SALE
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THIS INVOICE. SELLER MAKES NO WARRANTIES AS TO MERCHANTABILITY OR AS TO THE FITNESS OF THE PRODUCT FOR ANY PARTICULAR PURPOSE OR AS TO FREEDOM FROM PATENT INFRINGEMENT.
Seller shall not be liable for any incidental damages or consequential damages arising directly or indirectly from use or storage of the product. Seller’s liability is limited to replacement of any defective product since seller has no control over the end use of this product.
The buyer must perform any relevant tests in order to determine the suitability of the product for the intended purpose or application since final determination of the fitness and merchantability of the product for any purpose or application is the responsibility of the buyer.
All claims made by the buyer shall be deemed waived unless made in writing to the seller within thirty (30) days of buyer learning of any alleged defect or within thirty (30) days of buyer obtaining sufficient information to reasonably determine that a defect exists.Terms
In the event of any litigation involving the product in any manner of any claim by the buyer, buyer agrees that the law of the State of Georgia applies and that any complaint against the seller shall be filed in the Superior Court of Whitfield County, Georgia, or in the United States District Court for the Northern District of Georgia.
Buyer shall indemnify and hold seller harmless from any liability for costs or damages awarded against seller for infringement of any United States patent claim covering materials manufactured to designs or specifications of the buyer, or for any liability, costs or damages involved in the use or handling of this product for any environmental or medical claims or assessments. If the buyer does not accept the product on all the terms set forth under these terms of sale, buyer should immediately return the product to the seller at the seller’s expense.
PURCHASE ORDER ADDITIONAL TERMS AND CONDITIONS
1. GOVERNING TERMS AND CONDITIONS: The seller of materials, goods, merchandise and/or services as indicated on the purchase order (or any agreement to which these terms are referenced) is referred to herein as ‘Seller”, and the person or company purchasing materials, goods or merchandise is referred to herein as ‘Buyer’. These Additional Terms and Conditions shall govern and are hereby incorporated into any sale of goods and/or services by Seller to Buyer. Any terms in Seller’s Order acknowledgment, sales literature, quotations, invoice, or any other documents which are in conflict with or in addition to these terms hereof are hereby deemed to be material alterations to the terms of the Order and, except to the extent they are (in Buyer’s opinion) more favorable to the Buyer than the terms stated on the Order, notice is hereby given to Seller that any such terms are rejected. In the event there is a specific contract in place between Buyer and Seller at the time of the Order that pertains to the materials, goods, merchandise and/or services described in the Order, then the terms and conditions contained in such contract shall control and shall supersede any conflicting terms or conditions contained in these Additional Terms and Conditions.
2. PURCHASE PRICE: The price set forth on the face of the Order shall in no event be increased without Buyer‘s express consent, either initial oral consent subsequently confirmed in writing or prior written consent, given by a duly authorized agent of Buyer. If the price of the Order is incorrect, Seller must immediately notify Buyer before processing the Order. Seller may notify Buyer in writing or orally of the incorrect price, but if said notice is oral, Seller shall confirm this price correction in writing within the same business day. If Seller processes any part of the Order or delivers any of the goods and/or services hereunder, Seller warrants that the prices for the articles sold and/or services provided to Buyer under the Order are not less favorable than those currently extended to any other customer for the same or like articles and/or services in equal or smaller quantities. In the event Seller reduces its prices for such article and/or service during the term of the Order, Seller agrees to reduce the prices hereof correspondingly.
3. PACKING: All goods ordered hereunder shall be suitably packed and marked so as to comply with the shipping instructions found on the face of the Order. Unless otherwise set forth on the face of the Order, Buyer shall not be charged for packing, boxing, marking, cartage or storage. Buyer’s records will be accepted as final and conclusive with respect to all shipments which are not accompanied by invoices or shipping documents indicating quantities shipped. Shipments must be made in the quantities specified on the face of the Order and any overshipments may be rejected by Buyer in its sole discretion.
4. BUYER’S INSPECTION—DEFECTIVE GOODS: Buyer shall inspect the goods and/or evaluate the services in a reasonable and timely fashion for quality, quantity and otherwise. Buyer’s dealing with the goods in this respect shall not be deemed an acceptance of the goods and/or services which would, in any manner, limit or modify any rights of Buyer hereunder. Buyer shall have the right to reject any or all of said goods or services which are in Buyer’s judgment defective or non—conforming. In the event of Buyer’s rejection of any goods and/or services purchased hereunder, Buyer will, within a reasonable time, notify Seller in writing as to the goods and/or services rejected and will request instructions from Seller with respect to the disposition of such rejected goods. Pending receipt of Seller’s instructions, Buyer shall hold any rejected goods at Seller’s risk and expense. In addition to Buyer’s other rights, Buyer may charge the Seller all expenses of unpacking, examining, repacking and reshipping of such rejected goods. In the event Buyer receives goods whose defects or non-conformity is not apparent on examination, Buyer reserves the right to require their replacement (or full refund), as well as payment of any damages resulting from such defects or non—conformities. If Seller fails, within a reasonable time, to furnish Buyer with instructions as to the disposition of such rejected goods, Buyer may return the rejected goods to Seller at Seller’s expense. Any complaint, claim, notice of any defect or notice of breach, whether with respect to quality, quantity, or any other defect or breach, shall be considered to be timely if it is made by Buyer within thirty (30) days after Buyer discovers or learns of the existence thereof.
5. EQUAL EMPLOYMENT OPPORTUNITY: Seller is on notice that Buyer may utilize the goods specified in the Order in the manufacture of products destined for sale to the United States Government. Seller is therefore deemed to have assumed the obligation of compliance with Executive Orders 11141, 11246, as amended, 11375 and all of the provisions of Titles VI and VII of the Civil Rights Act of 1964, as amended, Sec. 402 of the Vietnam Era Veterans Readjustment Act of 1974, as amended, Sec. 503 of the Rehabilitation Act of 1973, as amended, and the Age Discrimination in Employment Act of 1967 and all the rules and regulations promulgated under said Executive Orders and Acts. Sec. 61—2S0.5(a) and Public Law 95-507 contain required clauses relative to equal employment opportunity and are incorporated herein by specific reference at 41 CPR 60—1.4(a, d), 60—4.3, 60—250.5(a) and 60 741.5 (a) Further, Executive Order 13495 contains required contract clause relative to ‘Non displacement of Qualified Workers” and has been incorporated herein by specific reference. Executive Order 13496 contains required contract clause regarding notice of employee rights under the Federal labor laws including the National Labor Act and has been incorporated herein by specific reference.
6. DELIVERIES: All deliveries shall be F.O.B. Buyer’s loading dock for the following locations and time of delivery:
Plant Address & Receiving Hours (Monday – Friday)
Advanced Color Technologies, LLC
1727 Kimberly Park Drive
Dalton, Ga 30720
8:00 AM – 3:30 PM
Perpetual Machine Company
1810 Lessco Drive
Dalton, Ga. 30720
7:00 AM – 5:00 PM
TR Polymers Group (ThermoTex Group, Latex Group, Polyurethane Group)
1300 Tiarco Drive
Dalton, GA 30721
8:00 AM – 1:00 PM
Textile Rubber and Chemical Co., Inc. – Charlotte Division
2321 N. Davidson St.
Charlotte, NC 28205
6:00 AM – 12:00 Noon
Textile Rubber & Chemical Company
Coatings & Adhesives Division
63 Water Street
Fall River, MA 02721
8:00 AM – 3:30 PM
Tiarco Chemical Company
1350 Tiarco Drive
Dalton, GA 30721
8 AM – 11:30 AM
315 Echelon Rd
Greenville SC 29605
8:00 AM – 2:00 PM
63 Water Street
Fall River, MA 02722
8:00 AM – 2:00 PM
The terms of delivery are of the essence of the Order. Acceptance by Buyer of a late delivery of either the whole or part of the goods and/or services under the Order shall not constitute a waiver of Buyer’s claim for any damages resulting from the late delivery. Moreover, in the event (i) that any of the goods and/or services delivered hereunder do not comply with the Order or (ii) of non-delivery or delivery on a date unreasonably later than the date specified herein or (iii) of any other breach by Seller, Buyer may, in addition to any other rights and remedies available to Buyer, (A) rescind the Order in whole or in part, (B) refuse to accept delivery of all or any part of the goods and/or services ordered hereunder and/or (C) return all or any part of the goods ordered hereunder. If due to delivery delays, Buyer finds it necessary to call upon Seller for premium transportation the responsibility for the price differential between the specified transportation and the premium transportation shall be paid by Seller. Goods which are delivered in advance of schedule are delivered at the risk of Seller and may, at Buyer’s option, be returned at Seller’s expense for proper delivery and/or have payment therefore withheld by Buyer until the date that the goods are actually scheduled for delivery.
7. SELLER’S WARRANTIES: Seller hereby represents, warrants and guarantees as follows: (a) That the material and/or services will conform to the specifications, drawings, samples or other description specified by Buyer or, if none are so specified, to Seller’s standard specifications and representations for such material or prevailing standards for professional provision of such services, and materials supplied or used will be new, will be free from defects in material and workmanship, will be free of all liens and encumbrances, and will conform to any affirmation on its container or label; (b) That Seller has good marketable title to the material and that the transfer hereof is rightful; (c) That said goods are of merchantable quality, free from any and all latent or patent defects; (d) That the goods are fit for their particular purpose if Seller knows or should know the purpose for which Buyer intends to use them; (e) That Seller will indemnify, defend and hold harmless Buyer, its directors, officers, employees and agents from any loss, claim, damage, fire, spill, release, liability, fine, penalty or expense of any sort whatsoever, including but not limited to counsel fees, resulting from Seller’s failure to furnish material or perform services that conform with any warranty or other obligation herein; and (f) The goods ordered hereunder and the production and sale thereof do not, and will not, infringe any patent right, trade name, trademark, copyright, patent, design, right of privacy, or any other right arising out of or relating to the goods. Goods not in accordance herewith may be returned to Seller with charges for transportation both ways paid by Seller, and Buyer shall have the option of returning such goods to Seller within a reasonable time within thirty (30) days after delivery for credit or replacement at the price charged. The foregoing shall not limit any other rights which Buyer may have by reason of any breach of warranty. Seller may not negate, exclude, limit or modify any warranty otherwise available to Buyer under this paragraph.
8. SELLER‘S BREACH: If Seller breaches this contract or any portion thereof, or if Seller has manifested an intention not to perform in accordance with the provisions hereof, Buyer may, by written notice, terminate the contract without further liability to Seller. This right is in addition to any remedy provided elsewhere herein. In such case, Seller shall remain liable to Buyer for damages sustained by Buyer including, but not limited to, any difference between the contract price of the goods and/or services hereunder and the price paid by Buyer to replace them. Each of the rights and remedies reserved Buyer in the Order shall be cumulative and additional to any other or further remedies provided in law or equity.
9. SELLER’S INDEMNIFICATION: Seller hereby agrees to indemnify, defend and hold Buyer, its directors, officers, employees, agents, guests and visitors harmless from any and all loss, costs, damage, personal injury (including death at any time resulting therefrom), claims or liability arising directly or indirectly on account of the Order, of performance or the breach thereof, or arising out if, or resulting in any way from any defect or non-conformity in the goods or services purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors.
10. WORK ON BUYER‘S PREMISES: If the accomplishment of the Order requires delivery, or performance of services or labor in the plants or on the premises of Buyer, Seller agrees that the following conditions shall apply unless the work is to be performed pursuant to attached General Conditions, in which event the General Conditions shall govern the work to be performed on the Buyer’s premises: (a) Seller will comply with all of Buyer’s rules and regulations. (b) Seller will carry and furnish Buyer with proof of coverage of the following insurance against all claims arising out of the performance on Buyer’s premises of the work covered by the Order: (1) Workers’ Compensation and Employer‘s Liability Insurance on all employees – statutory limits. (2) COMPREHENSIVE GENERAL LIABILITY: (Including Completed Operations and Contractual Liability Insurance) $1,000,000 Combined Single Limit. (3) AUTO LIABILITY: (Owned, Non—owned & Hired) $1,000,000 Combined Single Limit. (4) PROFESSIONAL LIABILITY: (if consulting and/or other professional services are being provided) $1,000,000 Combined Single Limit (c) Proof of coverage as required herein shall consist of a certificate or certificates of insurance issued by Seller’s insurance carrier, or carriers, setting forth the amounts of the coverage, policy numbers, and expiration dates, and providing for thirty (30) days’ prior written notice to Buyer before such insurance may be cancelled. (d) Seller at all times will indemnify, release, protect, defend and hold Buyer, its directors, officers, employees, agents, guests and visitors, harmless from and against any and all loss, liability, expense, claims or demands arising from personal injury (including death at any time arising there from), or property damage to any person (including Seller and Buyer), occurring as a direct or under result of, or in any manner connected with, the performance of work upon Buyer‘s premises under the Order unless such personal injury (including death at any time arising therefrom) or property damage shall be caused solely by the negligence of Buyer, Buyer’s employees, or employees of any of Buyer‘s subcontractors hereunder, and Seller shall at its expense defend any and all actions based thereon and shall pay all charges of attorneys and all costs and other expenses arising therefrom.
11. ENTIRE AGREEMENT: Except when expressly incorporated into or issued to carry out a written contract between the parties (in which case the terms of the written contract shall govern any conflict between terms), the terms and conditions set forth in the Order constitute the entire agreement between the parties regarding the subject matter hereof, and no oral conversations or ancillary documents become a part of said agreement.
12. GOVERNING LAW AND VENUE: Any controversy arising out of or relating to the Order, including any modification or amendment thereof, shall, shall be governed and interpreted under the laws of the State of Georgia without reference to its laws concerning conflicts of law. In the event of any dispute arising under this Agreement, Buyer and Seller agree that the Superior Court of Whitfield County, Georgia shall have sole and exclusive jurisdiction over them in such dispute. Buyer and Seller hereby submit to the jurisdiction of such courts and do hereby waive any and all objections they may have to such jurisdiction and venue.
13. SUCCESSORS AND ASSIGNS: All of seller’s representatives, warranties, guarantees and covenants shall be binding upon the successors and assigns of Seller and shall inure the benefit of Buyer, its successors, assigns and customers and to the benefit of the users of Buyer’s product.
14. SURVIVAL OF REPRESENTATIONS: All representations, warranties and guarantees of Seller hereunder shall survive the delivery of the goods or services to Buyer and the payment of the purchase price thereof by Buyer.
15. CAPTIONS: The captions in the Order are for convenience only and shall not limit or otherwise affect any of the terms or conditions of the Order.
16. WAIVER: Any waiver by Buyer of any default or other breach of the Order shall not constitute a waiver of any subsequent default or other breach.
17. NOTICES: All notices required to be given under this contract may be given either orally, or by mail to the respective parties at the addresses shown on the face of the Order. In the event oral notice is given, the party to whom notice is given may request that it be provided written confirmation of said oral notice. In this event, the party giving said notice shall comply with said request and promptly deliver said written notice.
18. LIMITATION OF BUYER’S LIABILITY, STATUTE OF LIMITATIONS: In no event shall Buyer be liable to Seller for anticipated profits or for special, indirect, incidental or consequential damages arising out of, connected with, or resulting from this agreement. Buyer’s liability for any claim of any kind for any loss or damage arising out of, connected with, or resulting from this agreement, or from the performance or breach thereof, shall in no case exceed the price applicable to the goods or services or unit thereof which gives rise to said claim. Buyer shall not be liable for penalties of any description. Any action resulting from any breach on the part of the Buyer as to the goods or services delivered and/or due hereunder must be commenced within one (1) year after the cause of action has accrued.
19. INGREDIENTS: Seller will promptly furnish Buyer, upon Buyer’s written request, a complete list specifying all ingredients in the composition of the goods and the amounts and percentages thereof. Thereafter, Seller will promptly advise Buyer in writing of all proposed changes in such.