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Terms
&
Conditions
of
Sale
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1.
WARRANTIES. H.W.
SANDS CORP. (hereafter
referred to as SANDS) warrants
that any product sold is
of the quality set forth
in SANDS' published specifications,
if any, or as may be otherwise
expressly stated in any
negotiated contract, and
(b) the title conveyed
is good and the product
is free from any lawful
security interest, lien
or encumbrance. SANDS MAKES
NO FURTHER REPRESENTATION
OR WARANTIES, EXPRESS OR
IMPLIED, OF MERCHANTABILITY
OR OTHERWISE. Purchaser
assumes all risk of patent
infringement by reason
of any use Purchaser makes
of the product in combination
with any other material
or in the operation of
any process.
2. QUANTITY.
(1) If the product is subject
to a negotiated contract,
and the contract does not
specify quantity, Purchaser
shall give SANDS thirty
(30) days notice of the
quantity to be shipped
each contract month. The
quantity shipped in any
contract month may be limited
by SANDS to either (a)
the monthly quantity as
specified in the contract
or if no monthly quantity
is specified, the pro-rata
portion of the maximum
quantity so specified,
or (b) the average of the
monthly quantities purchased
by Purchaser for the preceding
two contract months. SANDS
shall not be obligated
to deliver in any subsequent
month any quantity not
shipped as a result of
any such limitation. (2)
If the product is not subject
to a negotiated contract,
the quantity shall be the
lesser of the quantity
available at the time of
shipment or as is stated
on the Purchaser's order
at the time of shipment,
3. PRICE AND TERMS.
If the product is not subject
to a negotiated contract,
the price and/or terms
of sale are those in effect
at the time of acceptance
of said order.
4. DELIVERY TERMS.
The terms FOB, FAS, GIF,
CF or such similar terms
are, except as may be agreed
to in any negotiated contract,
only terms that express
delivery terms and payment
terms and are not an agreement
as to passage of title.
5. CREDIT.
SANDS may recover
for each shipment made
as a separate transaction,
without reference to any
other shipment. If Purchaser
fails to pay any invoice,
whether in accordance with
the terms of any applicable
contract or after a single
transaction, SANDS may,
at its option, defer further
shipments until payment
has been made (in which
event SANDS may elect to
extend such contract period
for a time equal to that
for which shipments were
so deferred), or, in addition
to any other legal remedy,
SANDS may decline further
performance of such contract.
If at any time, in the
sole judgment of SANDS,
the financial responsibility
of Purchaser is impaired,
SANDS may change the terms
of payment, require payment
as a condition of shipment,
and take any other steps
it believes are necessary
to protect its interests
in the transaction.
6. TRANSPORTATION.
SANDS may,
at its option, deliver
from points other than
that specified in any contract
or sales agreement (hut
shall not be obligated
to do so) provided that
such delivery shall be
at the contract price.
Where the contract or sales
price provides for absorption
by SANDS of freight charges,
wholly or in part, SANDS
shall have the right to
select the route, mode
and carrier. If Purchaser
requires a route, mode
or carrier other than that
selected by SANDS, any
extra cost incurred shall
be paid by Purchaser. If
freight or other transportation
costs are increased, whether
by Purchaser's requirement
of route, mode or carrier,
or by any other decision,
action or inaction of Purchaser,
SANDS may add any increase
to the contract price.
All sales are based on
and are subject to all
present and future tariff,
import and export duties,
border taxes and similar
imports, surcharges and
taxes which shall be solely
at the cost and risk of
Purchaser. If any such
rates or changes are included
in the unit price (whether
shown as a separate charge
or not) and should be increased
pending delivery, Purchaser
shall pay such increased
rates or charges in addition
to the unit price.
7.
TITLE. If the
product is subject to a
negotiated contract, and
the contract does not specify
the passage of title and
risk of loss, or in the
absence of a negotiated
contract, title to and
risk of loss on all products
sold shall pass to Purchaser
at SANDS' point of shipment
whether or not SANDS pays
all or any part of the
freight, and notwithstanding
any designation of FOB
or any other delivery term
elsewhere in any invoice
or document evidencing
the sale.
8. FORCE MAJEURE.
a) Neither party shall
be liable for its failure
to perform if due to any
contingency beyond the
reasonable control of the
party affected, including
but not limited to acts
of God, war, fire, bad
weather, flood, accident,
labor trouble or shortage,
civil disturbance, plant
shutdown, equipment failure,
issues involving national
security, or voluntary
or involuntary compliance
with any applicable governmental
act, regulation or order.
SANDS shall not be liable
for its failure to perform
if such failure is due
to any shortage or inability
to obtain (on terms deemed
economically practicable
by SANDS) any raw material
(including energy), equipment
or transportation. Any
quantities not delivered
or accepted because of
any such contingency shall
be eliminated from any
contract or sales agreement.
SANDS shall not be obligated
to deliver the product
from other than the production
or shipping points designated
and there shall be no obligation
to rebuild or repair any
damage or destruction to
such production or shipping
points in order to fulfill
the contract or sales agreement.
During any period when
SANDS is unable to supply
the contract quantity of
the product, whether caused
by the circumstances above
or otherwise, SANDS may
allocate any available
product among its customers,
including its own subsidiaries,
divisions and departments,
on such basis as SANDS
deems fair and reasonable.
9) GOVERNMENTAL
REGULATION. Should
SANDS elect to discontinue,
curtail or limit the production
or sale of the product
in consequence of the application
of any governmental act,
regulation or order (including
but not limited to those
relating to national security,
environment, ecology, energy,
occupational safety and
health, toxic substances,
product safety, packaging,
sale, use or application,
consumer protection or
transportation), compliance
with which will, in the
sole judgment of SANDS,
render the production,
marketing or transportation
of the product economically,
technically or commercially
infeasible, SANDS may terminate
the contract or sales agreement
upon written notice to
Purchaser.
10) CLAIMS.
The weights, tares and
tests fixed by SANDS' invoice
shall govern unless proved
to be incorrect. Claims
relating to quantity, quality,
weight, condition and loss
of or damage to any of
the product sold hereunder
shall be waived by Purchaser
unless made within fifteen
(15) days after receipt
of product by Purchaser.
11. LIMITATION
OF LIABILITY.
Purchaser's exclusive remedy
and SANDS’
exclusive liability under
a contract or sales agreement
(including negligence)
shall be for, at SANDS'
option, either replacement
of nonconforming goods
at the FOB point stated
in this contract or damages
which shall in no event
exceed so much of the purchase
price as is applicable
to that portion of the
particular shipment with
respect to which damages
are claimed. In no event
shall SANDS be liable to
Purchaser for any incidental
or consequential damages
arising in connection with
the contract or sales agreement
or the product sold. Purchaser
assumes all risks and liability,
and SANDS assumes no liability,
with respect to unloading
and discharge of the product
(including failure of discharge
or unloading implements
or materials used by Purchaser,
whether or not supplied
by SANDS), storage, handling,
sale and use of the product
(including its use alone
or in combination with
other substances or in
operation of any process),
and the compliance or non-compliance
with all federal, state
and local laws and regulations
applicable to the product,
12. NON-WAIVER.
SANDS' or Purchaser's waiver
of any breach or failure
to enforce any of the terms
or conditions of a contract
or sales agreement at any
time shall not in any way
affect, limit or waive
such party's right thereafter
to enforce strict compliance
with every term and condition
of a contract or sales
agreement..
13. APPLICABLE
LAW. All contracts
and sales agreements shall
be governed by and construed
in accordance with the
laws of the State of Florida
without giving effect to
its conflict of laws provisions.
The parties agree that
venue for any cause of
action brought by either
shall be in Palm Beach
County, Florida
14. CAPTIONS.
The titles contained in
these Terms and Conditions
are for reference purposes
only and shall not affect
in any way the meaning
or interpretation of this
document.
15. SEVERABILITY.
If any provision
of this document shall
be prohibited or invalid,
that provision shall be
ineffective to the extent
of such prohibition or
invalidity without invalidating
the remainder of that provision
and the remaining provisions
of the contract.
16. AMENDMENT.
In the absence of a negotiated
contract, or if same is
silent, these Terms and
Conditions are intended
as the final expression
of the parties' agreement
and are the complete and
exclusive statement of
the terms thereof. No statements
or instructions, oral or
written, except as part
of a negotiated contract,
shall vary or modify these
written terms; and neither
party shall claim any amendment,
modification or release
from any provision hereof
by reason of (a) a course
of action or mutual agreement
unless such agreement is
in writing signed by the
other party and specifically
stating it is an amendment
to this contract, (b) course
of performance or (c) usage
of trade. No modification
or addition to any contract
or sales agreement shall
be effected except by the
prior written acknowledgement
and acceptance by SANDS
of any purchase order,
acknowledgement, release
or other forms submitted
by Purchaser containing
other or different terms
or conditions.
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Copyright H.W. Sands Corp. 2007 |
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