GENERAL TERMS & CONDITIONS OF SALE
Acceptance of your order is expressly conditioned upon acceptance by you as the Buyer of the terms and conditions stated below. BPI PURESEAL and its affiliates (hereinafter "Seller") shall not be bound by any Buyer's terms and conditions of sale which attempt to impose any conditions at variance with Seller's terms and conditions of sale which are included herein or are stated on Seller's technical data sheets, catalogs, invoices, and packages. Seller's failure to object to provisions contained in Buyer's forms shall not be deemed a waiver of the provisions of the Seller's terms and conditions, which shall constitute the entire contract between the parties, SELLER RESERVES THE RIGHT TO ACCEPT ALL OR PART OF ANY ORDER.
l. PRICE. Seller reserves the right to change its price schedule at any time without notice. In the event of an increase in price applicable to existing orders placed by the Buyer at the time of an increase, if applicable, the Buyer may cancel such orders at any time within ten (10) days after notice of such increase. The amount of the present or future sales, revenue, excise, or other taxes applicable to the goods shall be added to the purchase price and shall be paid by the Buyer, or in lieu thereof, the Buyer shall provide Seller with a tax exemption certificate or other proof of tax exemption acceptable to the tax authorities in the relevant jurisdiction.
2. DELIVERY AND RISK OF LOSS. In the absence of prior special arrangement confirmed in writing and agreed to by Seller and Buyer, goods are sold and shipped according to the shipping terms on the face of the Seller's order acknowledgement. Title and Risk of Loss shall pass to Buyer when the Products are placed in the hands of the carrier at Seller's facility.
3. PAYMENT TERMS. Buyer agrees to make payment in accordance with terms stated on the face of the older. If Buyer defaults, is insolvent, or if, in the reasonable good faith option of Seller, Buyer's credit is impaired, Seller shall have the right to demand payment in full for any goods (l) delivered or (2) in transit, or (3) ordered but not yet shipped or manufactured, before proceeding with shipment or manufacture of goods, as applicable, Until and unless payment in full is made as demanded, Seller may, in addition to any other remedies, withhold shipments in whole or in part and recall goods in transit. Invoices not paid within the period of time allowed by the stated terms will be assessed a finance charge of 1 1/2% per month (18% per year) on the unpaid balance or the maximum allowable rate permitted by law. Buyer shall be assessed a $25.00 service charge for any returned payments from Buyer’s financial institution.
4. DELAYS. Seller shall not be held responsible for delay in deliveries hereunder if caused by fires, floods, strikes, labor disputes, accidents, acts of war, priorities required or requested by any governmental authority, transportation delays, restrictions imposed by Federal or State law or regulations, Seller's inability to secure raw materials or other causes beyond and Seller's control.
5. WARRANTIES AND DISCLAIMERS. Seller warrants its products described on the face of the order to be free from defects in materials and workmanship at the time of delivery. The foregoing is personal to Buyer and is nontransferable. Seller's liability and Buyer's remedy for breach of this limited warranty are limited, at Seller's option, to replacement of defective goods at the F.O.B. point or repayment of purchase price. Replacement of defective goods or repayment of purchase price will be made only upon Seller' receipt of Buyer's written notice that the goods are defective, and upon Seller's inspection of the goods and verification of the defective goods. Buyer must return or destroy the defective goods at Seller's discretion. If Seller elects to have the defective goods returned, Seller will arrange for and bear cost of shipping. Claims under this warranty must be made within 30 days of the delivery. SELLER MAKES NO WARRANTY EXPRESSED OR IMPLIED INCLUDING THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE, OTHER THAN AS EXPRESSLY SET FORTH ABOVE. SELLER SHALL NOT BE LIABLE POR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR GOODWILL, FOR ANY BREACH OF WARRANTY OR FOR ANY MATTER ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT OR RELATED PURCHASE ORDER, OR FROM SELLER'S OWN NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER'S TOTAL AGGREGATE LIABILITY HEREUNDER EXCEED COSTS ACTUALLY PAID BY BUYER TO SELLER UNDER THIS AGREEMENT OR RELATED PURCHASE ORDER. NO REPRESENTATIVE OF SELLER HAS AUTHORITY TO MAKE ANY REPRESENTATIONS OR PROMISES EXCEPT AS STATED HEREIN. Some states limit or do not allow the exclusion of consequential damages, therefore the above exclusion may not apply to Buyer. This disclaimer and release shall apply even if the express warranty set forth above fails of its essential purpose.
6. CANCELLATION. Except as provided in paragraph 1, an order placed by Buyer and accepted by Seller shall not be canceled by Buyer without Seller's written consent. Any cancellation shall be upon terms that will provide recovery to Seller for any costs incurred relating to the canceled order.
7. INSPECTION - NON-CONFORMING GOODS. Buyer shall have the right to inspect the goods upon delivery. Within three (3) days after delivery, Buyer must give notice to Seller of any claim with respect to the condition of the goods, or non- conformance of this Agreement, specifying the basis of the claim in written detail by fax or recognized overnight delivery service such as FedEx. Seller may, at its option, inspect the goods to confirm that the goods are non-conforming. Failure of Buyer to comply with these conditions within the time set forth herein shall constitute irrevocable acceptance of the goods by Buyer. In the event the goods are non-conforming, Buyer's sole remedy and Seller's sole obligation shall be at Seller's option to either replace the non-conforming goods at Seller's expense, or credit Buyer the amount of the Purchase Price For such non-conforming goods. Return shipping expense under these circumstances shall be the sole responsibility of Seller.
8. RETURNED GOODS. Except as provided in Paragraph 5, or Paragraph 7 regarding non-conforming goods, Buyer may not return any goods to Seller without first obtaining Seller's prior written consent, which consent may be withheld for any reason or no reason. No returns will be allowed for any goods that (1) are not at the time of return then being manufactured by Seller, or (2) were sold to Buyer more than 90 days following the request to return the products. Returned goods will be accepted for credit against future orders only. No cash returns will be provided. Goods accepted for credit shall be subject to a minimum service charge of 25% of the original purchase price. All transportation charges and risks of loss shall be borne by the Buyer. Goods custom manufactured for Buyer's specifications shall not be accepted for credit under any circumstances. Returns authorized by Seller that are not completed and returned by Buyer within 45 days of the date of issuance of the authorization will be deemed null and void. Seller's consent to return goods does not release Buyer from its obligation to timely pay any outstanding amounts relating to the returned goods, nor does Buyer have a right to set-off against any other outstanding amounts.
9. GENERAL. The failure on Seller's part to insist upon a strict performance of any of the terms and conditions herein shall not be deemed to be a waiver of such terms or conditions or of any rights or remedies which Seller may have in demanding strict performance of all the terms and conditions herein contained. Remedies herein reserved to Seller shall be cumulative and additional to any other or further remedies provided by law. The taking of any action by Seller shall not be deemed to be an election of that action to the exclusion of others. The captions are inserted only as a matter of convenience and are for reference and in no way define the scope of this Agreement nor the intent of any provision thereof.
10. INDEMNIFICATION. Buyer hereby agrees to indemnity, defend and hold harmless Seller and its officers, directors, employees, agents and contractors (collectively, "Indemnified Parties") from and against any and all third-party claims, demands, losses, liabilities, damages, suits, actions, attorneys' fees and costs (collectively, "Claims") that any of the Indemnified Parties incur or suffer arising out of or otherwise relating to (a) the use of the goods purchased under this agreement or related purchase order, or any portion thereof, whether caused in whole or in part by the negligence of Seller; (b) any personal injury or property damage caused directly or indirectly by Buyer, including but not limited to, its use or misuse of the goods purchased under this agreement or related purchase order, or any portion thereof; or (c) any use of the goods, in whole or in part, in violation of any federal, state, country, local or municipal law rule regulation ordinance or similar edict. The above General Terms and Conditions of Sale, together with Buyer' S duly accepted order, constitutes the entire agreement between the parties hereto and may not be changed or modified except in writing signed by the parties to be charged. This agreement shall be governed by the laws of the State of Oklahoma without reference to its conflicts of law provisions or statutes. Venue for any dispute arising out of or relating to this agreement shall lie exclusively in the state and federal courts of Oklahoma located within Tulsa County, Oklahoma and each of Buyer and Seller hereby submit to the exclusive jurisdiction of those courts and waive and agree not to raise any claim of Forum Non Conveniens. By signing the Certification and Acknowledgement, the Buyer hereby acknowledges receipt and agreement to these terms and conditions, which shall, until further notice. apply to all contracts to the sale of goods entered into with Seller.
REQUIRED CERTIFICATION AND ACKNOWLEDGMENT
The foregoing printed and written information has been carefully read by the undersigned and is to my knowledge, complete, accurate, and truthful. It discloses toyou and/or authorizes you to investigate the true state of (our/my) financial condition on the date indicated. (We/I) make the foregoing application intending that Seller should rely upon it for the purpose of our obtaining goods from Seller on credit. (We/I) further agree to provide updated information to Seller from time to time as Seller may request. All purchases will be pursuant to Seller's General Terms and Conditions of Sales (described above and incorporated or in effect at the time of purchase In addition, should (We/I) default in payment for goods sold and delivered, then (We/I) agree to pay interest at the maximum allowable rate from the date of default. if said default is referred to an attorney for collection, (We/I) shall pay, in addition to the amount remaining to be paid together with interest as stated above, such collection fees. This agreement shall be construed under the laws of the State of Oklahoma. Further, this certifies and acknowledges that (We/I) are applying for credit with Seller, and (We/I) authorize the above listed parties in the Business and Credit Information section and Business Trade References to release information, and (our/my) credit history, to Seller for use in evaluation of (our/my) credit request.
The terms, conditions, and covenants contained in this Agreement shall be deemed continuing in nature so long as Buyer and Seller continue to do business together. It shall not be necessary to execute a new Agreement each time a new Purchase Order is placed by Buyer with Seller for the purchase of Products. The effective date of this Agreement shall be the earlier of (i) the execution of this Agreement by all parties; or (ii) Buyer taking delivery of product from Seller. Buyer agrees that by placing a Purchase Order with Seller and taking delivery of Products to be irrevocably bound by the terms and conditions of this Agreement, whether or not Buyer signs this Agreement. This Agreement shall remain in effect and govern the relationship of the parties (i) so long as Buyer continues to purchase Seller's products; or (ii) until all obligations of the parties hereunder have been satisfied in full, particularly until all amounts due and owing Seller have been paid in full, whichever is the latter to occur.
