|
1
<br />i
<br />1
<br />1
<br />Il
<br />f
<br />0 0 1 Item #50 thru #83
<br />A% A
<br />AMERON STANDARD TERMS AND CONDITIONS OF SALE
<br />INTERNATIONAL
<br />1. THIS OFFER AND ITS ACCEPTANCE: "Seller" is that entity identified in the
<br />quotation, invoice, or other document originated by the Seller of the goods (or products)
<br />and services referred to herein. This document is Seller's offer to Buyer. Buyer's
<br />acceptance is expressly limited to the terms and conditions of this offer and Seller
<br />hereby objects to and rejects any additional or different terms or conditions in Buyer's
<br />acceptance, Buyers purchase order, or other documentation purporting to order the
<br />same or equivalent goods contained in this document. Buyer accepts this offer as
<br />made and all its provisions by transmitting in oral or written form a Buyer purchase
<br />order number, an authorization to proceed, or other request; by issuing any document
<br />which orders the same or equivalent goods referred to herein; by accepting or making
<br />any payment for any goods or services fumished hereunder; or by any Buyer conduct
<br />recognizing the existence of a contract between Buyer and Seller for the goods and
<br />services referred to herein. Any additional or different terms or attempt by Buyer to
<br />vary in any degree any of the terms herein shall be deemed material, but shall not
<br />operate as a rejection of this offer unless they contain variances in the terms of the
<br />description, quantity, price, or delivery schedule of the goods offered herein which are
<br />unacceptable to Seller. No modification of this offer and the contract resulting
<br />(including any additional or different terms or conditions in the Buyer's acceptance)
<br />shall be binding on Seller unless Seller expressly agrees in writing to change this offer.
<br />2. PRICE: The price for each item covered by this contract shall be the price shown
<br />for such items on the face hereof. Prices do not include any Federal, State or Local
<br />taxes, duties, or fees which may be imposed upon the sale, use, transfer, importation,
<br />or transportation of materials or services and all such costs shall be paid by Buyer.
<br />3. LIMITED WARRANTY: Seller warrants the goods delivered hereunder to be free
<br />from defects in material and workmanship for a period of one (1) year from the date of
<br />Seller's shipment. Seller's sole obligation and Buyer's exclusive remedy for defects in
<br />the goods shall be limited, at Seller's option, to either repair or replacement of goods
<br />determined to be defective. Repair or replacement of defective goods shall be FOB
<br />Seller's factory. Any claim by Buyer must be made by Buyer to Seller in writing within
<br />five (5) days of the discovery of the claimed defect but in no event after the expiration
<br />of one (1) year from the date of Seller's shipment, whichever is less. Buyer's failure to
<br />so notify Seller of such defects within the above time periods shall bar Buyer from any
<br />remedy under this Warranty, or for any recovery of damages or losses due to defects in
<br />the products. If any of the goods delivered hereunder have or have components with a
<br />shelf life less than one (1) year, then the warranty period stated herein shall not exceed
<br />the shelf life for such goods.
<br />THIS WARRANTY IS THE SOLE WARRANTY COVERING THE PRODUCTS AND
<br />SELLER MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS,
<br />IMPLIED OR STATUTORY, AND ALL IMPLIED WARRANTIES OF
<br />MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY
<br />DISCLAIMED BY SELLER AND EXCLUDED FROM THIS WARRANTY. IN NO
<br />EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL, COMPENSATORY,
<br />PUNITIVE OR INCIDENTAL DAMAGES, NOR FOR DOWNTIME, REMOVAL, OR
<br />REINSTALLATION COSTS HOWSOEVER ARISING FROM SELLER'S
<br />PERFORMANCE OF THIS CONTRACT OR THE PERFORMANCE OF THE GOODS.
<br />This warranty shall not apply to goods or products which have been repaired or altered
<br />by other than authorized representatives of Seller or to damage or defects caused by
<br />accident, vandalism, Acts of God, erosion, normal wear and tear, improper selection by
<br />Buyer or others, and other causes beyond Sellers control. This warranty shall not
<br />apply to the misapplication, improper installation, or misuse of the goods caused by
<br />variations in environment, the inappropriate extrapolation of data provided, the failure of
<br />Buyer or others to adhere to pertinent specifications or industry practices, or otherwise.
<br />4. ACCEPTANCE: Rejection of the goods supplied under this contract for defects
<br />or defective delivery shall occur within a reasonable time after their delivery or tender at
<br />the delivery point, but in any event no later than five (5) days thereafter. If the goods
<br />are not accepted or rejected by Buyer or Buyer's agent in writing to Seller within said
<br />five (5) day period, they shall be deemed accepted by Buyer. In the event of Buyer's
<br />rightful rejection of the goods, Seller's liability shall be limited to replacing the rejected
<br />goods within a reasonable time, or to allow credit to the extent of the invoice value of
<br />the goods, at Seller's option. Seller shall not be liable for any loss, damage, or
<br />expense of any kind, arising from delays due to transportation, installation, Buyer's
<br />rejection of goods, or any other cause whatsoever.
<br />5. LIMITATION OF SELLER'S LIABILITY: Seller's liability on any claim of any
<br />kind, including claims based upon Seller's negligence, breach of contract, or strict
<br />liability in tort, for any loss or damage arising out of, connected with, or resulting from
<br />the use of the products furnished hereunder or Seller's performance of this contract,
<br />shall in no case exceed the purchase price allocable to the goods or part thereof which
<br />give rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL,
<br />INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWSOEVER ARISING OUT OF
<br />SELLER'S PERFORMANCE OF THIS CONTRACT AND NOTWITHSTANDING
<br />WHETHER SELLER MAY HAVE BEEN ADVISED OR IS ADVISED OF THE
<br />POSSIBILITY OF SPECIAL (OR LIQUIDATED) DAMAGES.
<br />6. PAYMENT: Seller's invoices for goods delivered are net and due and payable in
<br />full thirty (30) days from date of shipment. Buyer shall pay interest on past due
<br />accounts at the maximum rate allowed by law. Seller reserves a security interest in the
<br />goods pursuant to the Uniform Commercial Code and in all proceeds thereof until
<br />payment in full of the purchase price. Buyer shall execute and deliver to Seller such
<br />UCC financing statements and other documents as may be requested by Seller for the
<br />purpose of perfecting Sellers security interest in the products and proceeds. In no
<br />event shall Buyer make any setoff or reduction to amounts owed by Buyer to Seller by
<br />reason of any Buyer claim or demand against Seller, whether alleged by Buyer to arise
<br />under this contract, in tort, or otherwise. Any such setoffs or deductions by Buyer shall
<br />constitute a material breach of this contract.
<br />7. BUYER'S DEFAULT: If Buyer fails to make any payment to Seller when du
<br />if Buyer's financial responsibility becomes impaired or unsatisfactory in Seller's sc
<br />judgment, or if Buyer commits a material breach of this contract, or inhibits
<br />frustrates Sellers performance of this Contract by any act or failure to act, Sell
<br />may, without breach of contract and without prior notice or demand, suspend
<br />cancel further performance or deliveries due hereunder. Buyer shall be liable
<br />Seller for any losses or damages of Seller arising from such Buyer defaults ai
<br />failures, as well as any resulting delays to Seller's performance. Seller may, at
<br />sole option and in its discretion, resume performance of this contract upon Buye
<br />removal of any inhibiting cause, and upon Buyer's providing sufficient assurance
<br />security for its performance as Seller in its sole judgment may determine to I
<br />required.
<br />8. WAIVER: The failure of Seller in any one or more instances to enforce one
<br />more of the terms or conditions of this contract, to exercise any right or privilel
<br />hereunder, or the waiver by Seller of any breach of this contract, shall riot I
<br />construed as thereafter waiving any terms, conditions, rights or privileges of tt
<br />contract, and the same shall continue and remain in force and effect as if no su
<br />failure to enforce had occurred.
<br />9. FORCE MAJEURE: Seller shall not be liable for non-performance or delay
<br />performance resulting from any governmental law or regulation, now or hereafter
<br />effect, or for delays caused by Sellers suppliers, or caused by Acts of God, fii
<br />flood, wind, sabotage, strikes or other labor troubles, accidents, necessary repairs
<br />machinery, adverse weather conditions, or any cause beyond Seller's reasonat
<br />control. In the event of any of the foregoing, Seller shall have the right to alloce
<br />and reschedule production and delivery of products to Buyer as Seller, in its sc
<br />discretion, shall deem fair and practical, without liability to Seller.
<br />10. DELIVERY: Sales and delivery of the goods provided hereunder are F(
<br />point of manufacture unless Seller's offer or quote specifically states otherwise. Ti
<br />and risk of loss shall pass to Buyer upon delivery to the carrier at the FOB point
<br />upon arrival of the carrier at the destination or job site boundary, if the FOB point
<br />destination or job site, respectively. If the FOB point is at the job site, unloading
<br />Buyer's responsibility.
<br />11. DELAY, TERMINATION, OR CANCELLATION BY BUYER: Seller
<br />entitled to recover all costs, expenses, and damages suffered as a result o
<br />cancellation, or termination of this contract, or Buyers delay of Seller's perf
<br />under this contract.
<br />12. PATENTS: To the extent the items covered by this Sales Order are
<br />manufactured pursuant to designs provided by Buyer, Buyer shall indemnify and save harmless Seller, its agents and subcontractors, from any expense, cost,
<br />loss
<br />damage or liability for infringement of any patents with respect to such items and
<br />their process of manufacture and Buyer agrees at its own expense to defend or
<br />assist, at Seller's option, in the defense of any action in which such infringement is
<br />alleged with respect to the manufacture, sale or use of such items delivered
<br />hereunder.
<br />13. ASSISTANCE BY SELLER: No recommendation or statement made or
<br />assistance given by Seller, its representatives, or agents, in connection with the
<br />installation, application, storage, transportation, or use of the goods or products
<br />furnished hereunder shall constitute a waiver by Seller of any of the provisions
<br />herein, or enlarge Seller's liability, as herein defined, or be deemed to provide an)
<br />warranty in excess of those Seller warranties set forth hereinabove.
<br />14. ATTORNEY FEES AND EXPENSES: If Seller is required to file suit or take
<br />other legal action to enforce any of its rights hereunder, including without limitation,
<br />proceedings to collect amounts due Seller hereunder, Buyer shall pay the
<br />reasonable attorney fees and expenses incurred by Seller.
<br />15. SALES: All sales are final. Any return of goods shall be subject to the prior
<br />written approval of Seller.
<br />16. SPECIFICATIONS, APPLICATION, AND USE OF PRODUCTS: Products
<br />furnished hereunder are sold pursuant to Sellers specifications and are subject tc
<br />standard manufacturing variations. Seller may change specifications at any time
<br />without incurring liability for products previously or subsequently sold. Buyer shal
<br />be responsible for the performance of goods or products produced to Buyer's
<br />specifications. Buyer shall be responsible for determining the appropriate use of
<br />application of Seller's products for Buyer's requirements, notwithstanding Buyer's
<br />solicitation of, or Seller's providing advice or recommendations to Buyer. Buyer
<br />waives any claim against Seller, and Seller's agents or employees, arising out of
<br />Buyer's selection, application or use of the products fumished hereunder. Buyer
<br />shall indemnify and defend Seller from any claim or suit for personal injury (including
<br />death), property damage, or other liability arising out of the improper selection
<br />improper application, or any misuse of Seller's products or failure to follow Seller's
<br />application, installation, or safety instructions, or proper industry standards.
<br />17. INTERPRETATION: The laws of the State of Seller's location, as set forth it
<br />Seller's address on the masthead or quotation, shall govern the interpretation and
<br />enforcement of this contract, excluding only the law of conflicts. If security interest
<br />filings are made by Seller, pursuant to the Payment paragraph hereof, the Uniform
<br />Commercial Code as enacted in the State wherein the filings are made shall govem
<br />that security interest and those filings.
<br />18. FINAL AGREEMENT: There are no understandings or agreements betweer
<br />Buyer and Seller relating to this contract which are not fully expressed herein, anc
<br />no change shall be made to this contract unless it is made in writing and signed b)
<br />duly authorized officers of Seller and Buyer. No part of Buyer's contract(s) witr
<br />Buyer's customer is included in this contract except as may be specifically and
<br />expressly incorporated in Seller's written quotation to Buyer. Buyer may not assigr
<br />or otherwise delegate Buyer's obligations under this offer and any resulting contrac,
<br />without Seller's express written consent.
<br />
|