1) When in Seller’s (Acme-Hardesty Co.) sole judgment there is aperiod of short supply of the products specified in this Agreement (the “Products”), Seller may allocate its available supply among its customers upon such basis as it deems fair and equitable with no liability on its part for failure to deliver the quantity of Products herein specified.
2) Prices are those in effect at the time of shipment.
3) Unless otherwise specified in writing, all amounts due hereunder shall be paid in full, without set-off or discount, 10 days from the date of shipment. Seller retains a security interest in all Products (including proceeds thereof) sold under this Agreement until the full purchase price is paid. On request, Customer agrees to execute and deliver to Seller any and all documents or finance statements which Seller reasonably requests to perfect or protect its security interest in the Products or proceeds. Customer shall pay interest at the rate of 1.5% per month (not to exceed the maximum legal rate) on all amounts not paid in full when due.
4) If Customer fails to make any payments when due or if Seller become dissatisfied with Customer’s financial status or responsibility for any reason, Seller may decline to make deliveries hereunder except upon receipt of satisfactory security or may make delivery only upon a “Cash on Delivery” basis.
5) Seller warrants that at the time of shipment all Products will conform to the specifications, if any, expressly provided herein. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Customer assumes all responsibility for and agrees to indemnifyand hold harmless Seller from all loss, liability, cost and expense (including attorney’s fees), including damage to and loss of property and injury to or death of persons, arising out of the handling, storage or use of the Products by Customer, its employees, agents, contractors and customers. Seller does not guarantee that the Products or their use shall be free from patent infringements.
6) Seller shall not be liable for any failure to perform this Agreement if such failure is due to circumstances beyond its reasonable control, including but not be limited to acts of God, fire, flood, war, terrorism, governmental action, accident, manufacturing disruption, transportation or equipment disruption, labor trouble and Seller’s inability to obtain material equipment or transportation.
7) Customer shall promptly reimburse Seller for all taxes, duties, excises or other charges which Seller shall be required to pay to upon the sale, use, production, or transportation of Products. In addition to price specified herein, further charges may include, but are not limited to, fuel surcharge, demurrage, detention, product heels, heel disposal, container deposits, pallet cost, special labor fees, and freight.
8) Customer hereby waives and releases all claims against Seller for indirect, consequential, incidental or special damages and agrees that Seller’s sole liability and Customer’s exclusive remedy within respect to any claim (whether in contract, tort, strict liability or otherwise) in respect of Products is limited to replacement or refund of the purchase price of such Products. Failure by Customer to give notice of claim within thirty (30) days from the date of delivery of such Products shall constitute a waiver by the Producer of all claims against Seller with respect of such Products. No Products may be returned to Seller without Seller’s permission. No claim shall be allowable after a Product has been used or processed in any manner.
9) Customer shall not assign any of its rights nor delegate any of its duties under this Agreement without prior written consent of Seller.
10) Products shall be delivered to Customer as provided herein. Customer assumes all risk of loss from the time the Product is loaded onto rail car or truck for shipment to Customer. Customer shall be responsible for payment of all freight and transportation charges from Seller’s point of loading to the delivery address specified herein. Delivery dates are approximate and are predicated on a prompt receipt by Seller of all necessary information and documentation from Customer.
11) Customer understands and acknowledges Seller may (but is under not obligated to) from time to time issue notices from time regarding the safe use of the Products, including appropriate and inappropriate end uses of the Products. Customer agrees to comply with such safety policies and end-user advisories regarding Products. Upon request, Customer agrees to confirm in writing that Customer is complying with Seller’s safety policies and end-use restrictions. In no event shall Seller be responsible for any damage, injury or loss occasioned by Customer’s negligence or misuse of Products.
12) Unless Customer is authorized to distribute Products pursuant to a written agreement with Seller, it is agreed and understood that the Product is being purchased by Customer for its internal use only. Without express written authorization from Seller, Customer shall not repackage, resell or distribute Products to third parties.
13) These terms and conditions constitute the entire agreement between the parties regarding the sale and purchase of Products. This Agreement shall not be modified or amended except by a written instrument signed by both Seller and Customer. The terms and conditions of this Agreement will not be modified, amended or superseded by Customer’s acceptance or acknowledgement of purchase order forms containing provisions differing from those of this Agreement.
14) Seller assumes no obligation or liability for any technical or safety advice given by Seller regarding the handling and use of the Products or the results obtained therefrom. All such advice given and accepted at Customer’s risk.
15) This Agreement shall be governed, interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania. In the event of any claim under this Agreement, the prevailing party shall be entitled to recover all costs incurred by it, including reasonable attorneys’ fees.