Terms of Service
TERMS OF SERVICE
Except as may be otherwise specifically agreed between Seller and Buyer, in writing, (a) Seller may at any time revise any price or other provision herein without notice and such revision shall prevail on and after the date of shipment regardless of when the related order was received; (b) if Seller desires to revise any price specified herein but is restricted in so doing by any law, governmental order or regulation, or if any price specified herein is revised by reason of any law, governmental order or regulations, Seller shall have the right to cancel the undelivered portion of the material to which such revised price relates without notice.
Buyer shall pay Seller the amount of all taxes, excises or other charges; if any, which Seller may be required to pay any government (federal, state or local) relating to the manufacture, sale or transportation of any material sold by Seller to Buyer.
Unless otherwise provided for herein Seller shall not be required to deliver in any one month more than the pro rata amount of any minimum obligation. Any portion of any maximum monthly quantity which Buyer fails to take in any one month may, at Seller's option, be canceled, or be added to subsequent deliveries.
Returnable containers, loaned by Seller to Buyer, shall remain the property of Seller and shall be returned to Seller in good condition, f.o.b. Seller's shipping point, unless otherwise specified, within ninety (90) days after the date of shipment. When a deposit for returnable containers is billed on the invoice, Buyer shall pay such deposit when the invoice for the material is paid, and Seller shall refund the deposit upon receipt of the containers in good condition within n ninety (90) days after the date of receipt.
Delivery of material by Seller to a common carrier shall constitute delivery to Buyer and all risk of loss or damage in transit shall be borne by Buyer. Where freight is paid by Buyer and the freight rate depends upon value, Buyer should instruct Seller in advance of shipment as to the value to be specified. In the absence of instruction by Buyer, Seller will include in the released valuation clause on the bill of lading no statement regarding the declared value.
In the event that shipments are either prepaid or prepaid and added on to the invoice or f.o.b. destination, it is understood that the Buyer must protect the Seller's interest in making a proper notice to the delivering carrier if there is damage that is either evident at the time of delivery or within the prescribed statute of limitations contained in the carrier's tariff when concealed damage is involved.
Seller reserves the right to terminate upon Buyer's default in making any payments herein provided or to suspend further shipments until the Buyer has remedied the default. Seller may not make deliveries except for cash in advance whenever Seller for any reason shall have doubts as to Buyer's responsibility and shall so advise Buyer.
Seller will give consideration to settlement of Buyer's claims, but in no event shall Seller be liable on any claim unless notice of the claim is received by Seller within the following time limitations; thirty (30) days after delivery for shortages in weight or count; and on all other claims, thirty (30) days after use-or resale, or six (6) months after delivery, whichever is earlier. Buyer shall have no right to reject nonconforming goods or to rescind, but buyers's exclusive remedy shall be a claim for monetary adjustment, or at Seller's option, shipment of conforming goods and return of disputed goods to Seller. Buyer shall afford Seller prompt and reasonable opportunity to inspect all material as to which any claim is made. If Seller and Buyer are unable to reach settlement of any claim relating to material covered hereby, Buyer must institute legal action against the Seller within one (I) year after such claim arises and thereafter all such claims shall be barred not withstanding any statutory period of Limitation to the contrary.
Seller warrants that the material sold hereunder will be produced in compliance with the Fair-Labor Standards Act of 1938, as amended. Seller warrants title to the material sold hereunder and that the material sold will pass without objection in the trade under the agreement description and will be fit for the ordinary purposes for which such material is used. All warranties other than the warranty provided in this paragraph, whether express or implied or arising by operation of law, course of dealing, usage of trade or otherwise are excluded. THERE ARE NO-IMPLIED WARRANTIES DF MERCHANT ABILITY OR FITNESS OF PURPOSE. Subject to the provisions of the paragraph entitled "Claims; Procedures" and to the further provision of this paragraph, Seller's liability on any claim, including but not limited to claims for breach of contract, breach-of warranty, negligence or for any other tort shall not exceed the purchase price of that portion of the material in respect of which such claim is made. In no event shall Seller be liable for any consequential or incidental damages, caused in whole or in part by any breach, delay, failure or non-performance of Seller. Buyer assumes all risk of loss and liability from use or resale of any material delivered hereunder,
Neither Seller nor Buyer shall be liable for damages for any delay or failure in performance resulting from any cause, except financial, beyond its reasonable control, irrespective of the nature thereof. Such cause shall include, without limitation--;acts of God, fires, explosions, floods, wars, sabotage, riots, accidents, breakdown of machinery or equipment, plant shutdown, strikes, labor disputes or shortages, government action (including but not limited to priorities, requisitions, allocations, and price adjustment restrictions) and inability to obtain material, equipment, or transportation. Upon the occurrence of any such contingency and at the option of either party the total quantities-to be delivered hereunder may be reduced by the amounts so affected. In the event of any such contingency, Seller may allocate its available supply among its customers and itself in such manner and make delivery at such times as it may determine.
Seller may invoice Buyer and recover for each shipment made as a separate transaction, without regard to any other shipment. Any delivery not in dispute shall be paid for regardless of dispute as to other delivered or undelivered material and as to such disputed delivery, Buyer waives the right to assert offsets, defenses or counter claims.
Any check or remittance received from or for the account of the Buyer may be accepted and applied by or for the account of Seller against any indebtedness owing by Buyer without prejudice to or the discharge of any remaining indebtedness, regardless of any condition proviso, statement; legend or notation appearing on, referring to or accompanying such check or remittance.
The written terms and conditions set forth herein-supersede all prior written or oral understandings, constitute the entire agreement, and may not be changed, modified, or waived except as mutually agreed upon in writing specifically referring to this document. No modification shall be effected by the acknowledgment or acceptance of any purchase order or other document contain-ing other or different terms or conditions.
Seller's weights shall govern except in case of proved error. Waiver by Buyer and Seller of a breach of any term or condition shall not be construed as a waiver of that or any other-term or condition.
The Seller's rights and remedies shall be-governed by Article 2 under-the Pennsylvania Uniform Commercial Code and under any other applicable law, as the same may from time to time be in effect in addition to those rights herein provided.